nsw archaeological legislation - does it actually exist?
Tessa Corkill
I am involved with several groups who deal with local environmental and heritage issues and I need some urgent information on whether there is any legislation which states that Aboriginal heritage assessments must be carried out prior to certain developments, or that qualified archaeologists must run such surveys?
The 1974 NPWS Act has no reference to this kind of thing apart from it being an offence to disturb or destroy Aboriginal objects without the permission of the Director General.
The reason I ask is that at least one local Shire Council is now (a) not always requiring archaeological assessments or, (b) if an archaeological report is produced, accepting it even if the work was not done by an archaeologist. They say they are complying with regulations and I wonder if there actually is a loophole through which they (and hopeful developers etc) have managed to squeeze.
Thanks in advance
TESSA CORKILL BA(Hons), MPhil.Sydney, AACAI(Affiliate)
Geoarchaeologist, Australian Museum Research Associate
"Archaeics" 72 Cairnes Rd
GLENORIE NSW 2157
Phone: 61-2-9652-1470 Email: 2arch...@gmail.com
Jeannette Hope
Hi Tessa
I am not totally up on the current NSW situation, but my understanding is that the NPW Act 1974 effectively piggybacks on the EPA Act. Given that it’s an offence to disturb etc, Aboriginal objects, then anyone doing an EIA etc must demonstrate that they are not going to do so (or are going to ask for permission to do so ie a s90 consent). The mechanism of how surveys are done, consultation etc. then becomes a matter of DECC policy and procedures. The potential strength of this system is that the policy and procedures can be easily modified, updated or tailored to a particular EIA. This is quite different to the new Victorian Act which spells out all the mechanism (down to the size of the auger!) in the legislation – which means that there is no discretion, and if you find some things don’t work, you need to change the legislation (only two years after the Victorian legislation was enacted, they’ve already had a review and are proposing changes!). The NSW model – having a very general wording in the legislation and updating policy and procedures as other legislation impacts and philosophies change - is more efficient (cuts down on bureaucracy and has a potential faster response time re changes) – as demonstrated by the fact that the NSW Act has rarely been revised, in spite of the major changes in environmental law that have occurred since 1974.
The problem you allude to with local government arises, I think, because for some kinds of development local government can be its own determining authority. I’ve come across this – being asked to give a quote for a survey on a local shire road realignment, then being told that the LGA has ‘determined’ that it doesn’t need to do one! This is not a problem with the NPW Act, but with the EPA system that allows this loophole. However I would have thought that if a LGA does commission an archaeological survey, it should be done according to DECC rules. There are also situations where LGA’s (and other developers?) get a DECC staff member (Aboriginal Heritage Officer) to have a quick look and see if there’s anything in the area (that probably happens more often in the country).
There’s no doubt that the Aboriginal heritage survey requirements are unequally imposed and /or enforced. I’ve done totally unnecessary surveys – where it is demonstrable that there will be nothing there, and have advised the developer to make an appeal to DECC for an exemption – but the survey goes ahead because ‘our lawyers say so’. I’ve also seen areas demolished and leveled without any survey because of the various loopholes.
It would be nice to get an update on the situation from DECC.
Cheers
Jeannette Hope
IainS
each LGA has its own Local Environmental Plan, the two pieces of
legislation run together. The LEP is in fact a statutory regulation
(not legislation in itself) and the model guidelines used to require a
survey or at least a report prior to Council considering a development
application where archaeological relics/objects are likely to occur.
However it is silent on who is competent to make such a report or when
it should be made. A Council who makes a determination of a
development application without considering Aboriginal heritage leave
their decision open to challenge, but who would challenge?? It is a
costly process.
DA consent does not imply approval from DEC who of course make their
own decisions. This is not a unique case as other legislation has also
to be complied with as well.
But really in order to answer your question the specific LEP's need to
be read and considered as there is variation between LGA's.
Yours
Iain Stuart
Kumamoto