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FACT SHEET
Aboriginal Heritage Protection Bill 2013
The Aboriginal Heritage Protection Bill 2013 is designed to replace the existing legislative
framework for the preservation of Aboriginal relics, the Aboriginal Relics Act 1975, with a fair,
balanced and modern legislative framework for the protection and management of Aboriginal
heritage.
The Bill seeks to provide a central role for the Aboriginal community in protecting and
managing their heritage and aims to ensure greater clarity and certainty for all parties,
including through the timely assessment of development applications.
The Bill focuses on the need for effective integration of Aboriginal heritage protection with
the State's Resource Management and Planning System and creates a regulated
environment for managing Aboriginal heritage. With a range of flexible heritage management
tools, it aims to provide clearer procedures than the current system, and more structured
participation for the Aboriginal community.
Key features of the Bill include:
Aboriginal heritage no longer defined in terms of an arbitrary 1876 cut-off date.
Establishment of a state-wide Aboriginal Heritage Council (AHC), comprising up to
nine Aboriginal people appointed by the Governor on the nomination of the Minister,
on the basis of relevant knowledge, experience or expertise. The Council is to be
broadly representative of the Tasmanian Aboriginal community and Aboriginal
persons generally, and has both decision-making and advisory functions. Its
decision-making responsibilities are in relation to: management plans, if the Council
and proponent reach agreement on specified matters; permits relating to specified
dealings with Aboriginal objects and scientific research; preliminary registration
determinations in relation to the registration of objects and sites as nominated
Aboriginal heritage; and entry into Aboriginal heritage agreements with other parties
for the voluntary protection and management of heritage. It has an advisory role to
the Minister on: the assessment of development activities which go through the
integrated approvals process or require a permit from the Minister; cases requiring
audits; issuance of protection orders and stop orders; criteria for registering
nominated Aboriginal heritage; policy development and public education and
awareness regarding Aboriginal heritage; and management plans, if agreement could
not be reached with the proponent.
Vesting of decision-making powers with the Minister (with broad powers of
delegation) in relation to permits for development activities and the integrated
approval process, as well as management plans in specified circumstances (where
agreement cannot be reached between the proponent and the within the required
statutory timeframe or the AHC elects not to evaluate a plan). The Minister is also
responsible for issuing protection orders and for other compliance tools such as
audits and stop orders.
An integrated approval process for lower-impact and smaller-scale activities that
require a development approval under the Land Use Planning and Approvals Act
1993 or a permit for dam works under the Water Management Act 1999, with any
Aboriginal heritage conditions to be included in the main approval permit.
Mandatory management plans for high-impact and large-scale activities, subject to
prescribed exemptions, with the ability for a proponent to demonstrate that a
management plan is not required in certain circumstances. Provides the ability for
the Minister to "call in" an activity and sets minimum standards for the preparation of
management plans in Regulations. Embeds the consideration of Aboriginal heritage
into the early stages of the planning process, by requiring the approval of
management plans, where mandatory, before other statutory approvals are granted.
A permit system for activities that affect Aboriginal heritage, but that do not require a
management plan or form part of the integrated approval process, as well as for
scientific research and dealings with Aboriginal objects.
Ability for voluntary management plans to be used in the place of permits or the
integrated approval process for smaller-scale activities, where desired, as well as the
ability to use voluntary management plans for multiple small activities, such as
infrastructure maintenance or coastal weed management.
Exemptions for certain activities, unless there is registered Aboriginal heritage
present and the activity will cause additional surface disturbance, or Aboriginal
heritage is found. Exempt land activities include: minor works, alteration and
maintenance works, demolition, one or two dwellings, works ancillary to an existing
building (such as pools, sheds, fences and driveways), certain dam works,
subdivisions of no more than four lots and other minor development that directly
impacts less than 750 square metres. Sites previously subject to `serious ground
disturbance' and unavoidable activities such as emergency works also constitute
exemptions.
Provision for the declaration of exempt areas or areas of high sensitivity by order of
the Governor, subject to approval by both Houses of Parliament, to recognise clear
evidence that in some areas there is little chance of finding undisturbed Aboriginal
heritage, while in others there is little chance of not disturbing Aboriginal heritage.
Provision for Ministerial endorsement, in consultation with the AHC, of codes of
practice, standards, guidelines or other documents on a case-by-case basis where
they deal suitably with Aboriginal heritage issues, including transitional provisions to
recognise any codes, standards, guidelines or documents prescribed in regulations
for a limited period.
Provision for Ministerial guidelines to be issued on a range of matters, including in
relation to the investigation and documentation of Aboriginal heritage and Aboriginal
heritage assessments, subject to mandatory consultation requirements.
Establishes the Resource Management and Planning Appeal Tribunal (RMPAT) as
the primary place for resolving disputes, including in relation to management plans,
permits in regard to development activities, protection orders and stop orders.
Retains existing appeal and dispute resolution mechanisms under RMPAT for the
integrated approvals process, but specifically excludes from the Aboriginal heritage
approval process the processes of public exposure through notification and
representations under section 57 of the Land Use Planning and Approvals Act 1993
where the planning application would not otherwise be discretionary. Allows for
limitations to be placed on public notifications for applications that would normally be
discretionary. Provides additional appeal rights for non-development permits through
the Magistrates Court (Administrative Appeals Division).
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Seeks to promote voluntary Aboriginal Heritage Agreements to support the
development of partnerships in the protection and management of Aboriginal
heritage and to provide access to significant sites with landowner consent.
Creates an Aboriginal Heritage Register to record Aboriginal sites, objects, declared
exempt areas and areas of high sensitivity, management plans, agreements and
other information, with controls on access to ensure landowners, land managers and
developers can practically access relevant information, without compromising the
protection of Aboriginal heritage. Allows for greater levels of access to the Register,
on application to the Secretary and by agreement with the Council, to specified users
for specified purposes.
Makes provision for public access to a web-based synopsis of the Register, to
provide an immediate indication of whether or not there is registered Aboriginal
heritage present at any location.
Establishes a public process, prescribed in Regulations, for registering as "nominated
Aboriginal heritage" objects or sites which may not contain physical evidence of
occupation or use, provided the relevant criteria can be met. The criteria for the
registration of nominated Aboriginal heritage are to be established by the Minister,
following public consultation on draft registration criteria developed by the AHC and a
recommendation from the AHC.
Requires anyone in possession of Aboriginal human remains to hand them to the
Aboriginal organisation approved by the Attorney-General under section 23(1) of the
Coroners Act 1995.
Provides a contemporary framework of offence and penalty provisions, as well as a
range of enforcement tools that are better aligned with other planning legislation in
Tasmania and with Aboriginal heritage legislation in other jurisdictions, to ensure an
effective deterrent against harming Aboriginal heritage.
Repeals the Aboriginal Relics Act 1975 and includes transitional provisions to ensure
that the legislation operates effectively and to allow for permits and other controls
currently in place under the Aboriginal Relics Act to remain in place, for two years
from its repeal.
Requires the legislation to be reviewed within three years of its full commencement,
to ensure the scope of the legislation is adequate and to ensure its efficacy and
efficiency.
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