Aboriginal people and the law - Legal Information Access Centre

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66 The Law HandbookHeritage and culturalprotection[2.440] Protection of heritageThe three main NSW laws that addressaspects of Indigenous cultural heritage arethe:• National Parks and Wildlife Act 1974 (NSW)(NPW Act)• Heritage Act 1977 (NSW)• Environmental Planning and Assessment Act1979 (NSW).At the national level, the main laws thataddress aspects of Indigenous cultural heritageare the:• Environment Protection and BiodiversityConservation Act 1999 (Cth)• Aboriginal and Torres Strait Islander HeritageProtection Act 1984 (Cth)• Protection of Movable Cultural Heritage Act1986 (Cth).[2.450] The National Parks andWildlife ActCultural sites and objectsSites of cultural significance to Aboriginalpeople can be protected under the NationalParks and Wildlife Act 1974. These mayinclude:• sacred sites• burial places• rock art• artefacts or relics• occupation sites, including axe-grindinggrooves.Aboriginal areasUnder s 30K of the Act, land can be reservedas an Aboriginal area. The purpose of thesection is:to identify, protect and conserve areas associatedwith a person, event or historical theme,or containing a building, place, object, featureor landscape:(a) of natural or cultural significance to Aboriginalpeople, or(b) of importance in improving public understandingof Aboriginal culture.Aboriginal objects and placesAn Aboriginal object is defined as “anydeposit, object or material evidence” relatingto Aboriginal habitation, including Aboriginalremains (s 5). An Aboriginal place is aplace that has been declared by the governmentto be of special significance to Aboriginalculture (s 84).Role of the Department of the EnvironmentThe Director-General of the Department ofthe Environment has care and control ofAboriginal heritage items and places. TheDirector-General can issue permits unders 90 of the Act that allow someone toexcavate, destroy or otherwise disturb a site,or place, or object. Under s 86, it is anoffence to harm or desecrate an Aboriginalobject or place, unless the Director-Generalhas issued a permit under s 90, or theimpact is a low-impact activity prescribedby regulation, or the defendant has exercisedreasonable due diligence to determinethat no Aboriginal object or place would beharmed by the activity.A register of Aboriginal objects, placesand sites is kept by the Department of theEnvironment and is called the AboriginalHeritage Information Management System.The register can be searched to see ifanything is listed on your land. Applicants
2 Aboriginal people and the law 67for permits to destroy Aboriginal culturalheritage must consult with the Aboriginalcommunity about the cultural significance ofthe sites, objects or places. The views of theAboriginal community may be taken intoaccount by the Director-General when decidingto grant or refuse the permit. A DueDiligence Code of Practice for the Protectionof Aboriginal Objects in NSW has beenpublished to guide interest holders in howto deal with Aboriginal cultural heritageissues. Compliance with the guide enablesthose seeking permits for activities that mayaffect Aboriginal places and objects, to demonstratethat due diligence has been shownwhich would be a defence to a prosecutionfor harm to an object or place. Where anaction is likely to significantly affect anAboriginal object or place, the Director-General:• may make stop work orders• must consult with the person proposingthe detrimental action about modifying it.The Director-General also has the power tomake interim protection orders over land.Destruction of Aboriginal sitesIt is an offence to destroy, deface or damage anAboriginal object or place, ss 86(2), (4), (5) and (8) NPWAct. Amendments in 2010 to the NPW Act removed therequirement that such harm was caused “knowingly”. InHistollo Pty Ltd v Director-General National Parks andWildlife Service (1998) 45 NSWLR 661, the defendant wasable to argue that he did not know he had destroyed aparticular site even though it was a registered site andhe had been told that there were sites on the property.Ownership of Aboriginal objectsCertain Aboriginal objects are declared to be owned bythe NSW government, unless they were privately ownedbefore 1969 or returned to the Aboriginal owner.Agreements with private landownersThe government can also enter into agreements withlandowners to ensure the protection of Aboriginal objectsor places of significance on private land.Sites vested in Aboriginal land councilsOwnership of land can be vested on behalf of theAboriginal owners in an Aboriginal land council on thebasis that it is leased back to the National Parks andWildlife Service. The Act contains a list of such vestedlands.Lease back of Aboriginal sitesThe following lands are vested in a local Aboriginal landcouncil or the NSW Aboriginal Land Council on behalf ofthe traditional owners, and leased to the Minister for theEnvironment and Water Resources:• Biamanga National Park• Coturandee Nature Reserve• Gulaga National Park• Jervis Bay National Park• Mootwingee Historic Site• Mootwingee National Park• Mount Grenfell Historic Site• Mount Yarrowyck Nature Reserve.• Mungo National Park.Hunting and gathering flora and faunaAboriginal people are exempt from theprovisions of the National Parks and WildlifeAct 1974 that prohibit a person from huntingfauna or picking or gathering flora in awildlife district, wildlife refuge, wildlifemanagement area, conservation area, wildernessarea or area subject to a wildernessprotection agreement. The exemptions onlyapply where Aboriginal people are huntingor gathering for domestic ceremonial orcultural purposes and do not apply tothreatened species or populations or threatenedecological communities within themeaning of the Threatened Species ConservationAct 1995 (NSW).[2.460] Other NSW legislationThe Heritage ActAboriginal objects and places may also beprotected under the Heritage Act 1977 (NSW).Items that can be listed on the State HeritageRegister include places, buildings, work,relics (although relics that relate to theAboriginal settlement of an area are excludedfrom this category), moveable objectsor precincts significant to the state. Theminister can also authorise a local council tomake interim heritage orders in relation toitems of local heritage significance (s 25).Once an item is listed on the State HeritageRegister, or there is an interim heritageorder in relation to it, approval is requiredfor demolition, destruction, excavation oralteration that may affect the item (s 57). The
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