Failure to comply with Aboriginal Cultural Heritage laws

Ignorance provides no excuse for failure to comply with Aboriginal Cultural Heritage laws.

Chief Justice Preston of the NSW Land and Environment Court (LEC) recently determined in Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 that Clarence Valley Council (Council) were required to participate in a restorative justice conference with the local Aboriginal community after breaching the National Parks and Wildlife Act 1974 (NSW) (NPW Act).

Decision

The Office of Environment and Heritage (OEH) has recently commenced LEC proceedings after Council harmed an ‘Aboriginal object’ protected under the NPW Act. The offence occurred in May 2016 when Council’s field operations staff lopped a culturally modified ‘scar’ tree located in Grafton, NSW as part of a stump-grinding program. At the time, Council had previously been fined by OEH for removing the crown of the tree in 2013 and were aware that the tree was culturally significant to the local Gumbaynggirr people.

Under the NPW Act, unavoidable removal or harm to an Aboriginal cultural heritage object without an Aboriginal heritage impact permit (AHIP) is an offence. To obtain an AHIP, an Aboriginal community consultation process is required.

During the proceedings, Council pleaded guilty to harming an Aboriginal object in breach of section 86(2) of the NPW Act. Council conceded that the tree removal occurred due to internal procedural failings. In making its decision, the LEC determined that the process of restorative justice was appropriate in the circumstances as it allows the affected Aboriginal community to express its concern about the harm caused by the offence and suggest appropriate remedies. The Council formally apologised to the Aboriginal community and negotiated a ‘fair and feasible’ agreement. During this process, the Council agreed to the following commitments:

• the initiation of a tree restoration project for the scar tree;
• the establishment of Aboriginal heritage consultation processes; and
• the arrangement of cultural awareness education programs for Council staff.

After the restorative justice conference, Chief Justice Preston combined a number of different sanctions to achieve a ‘tailor-made sentence’ that fits the offence. The LEC’s orders included requirements for Council to:

• pay $300,000 to the Grafton Ngerrie Local Aboriginal Land Council to fund research and educational programs on local Aboriginal cultural heritage;
• publish notices of the offence;
• notify each Local Aboriginal Land Council in its local government area and the Clarence Valley Aboriginal Advisory Committee of the offence and its consequences;
• establish and conduct cultural skills development workshops for the Council’s staff; and
• pay the Office of Environment and Heritage’s costs of $48,000.

Key lessons

This enforcement action highlights the growing use of restorative justice principles in sentencing and is an important reminder to local councils of the severity of penalties that a court can impose in respect of a breach of Aboriginal cultural heritage requirements under the NPW Act. To prevent similar offences from occurring, and where local councils anticipate that their works may affect an Aboriginal object or place, council should:

• refer to the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales (Due Diligence Code);
• consult the cultural heritage database and cultural heritage register;
• conduct an Aboriginal cultural heritage assessment of an area where Aboriginal objects are suspected to be present and prepare an Aboriginal cultural heritage assessment report; and
• consult with the NSW Aboriginal Land Council and all relevant Local Aboriginal Land Councils.

Where the Due Diligence Code has been followed, councils will have a defence to a prosecution for harming Aboriginal objects.

What you need to do

Councils should familiarise themselves with the requirements under the new NPW Act in respect of Aboriginal objects and places. Council should ensure they refer to the cultural heritage database and register and consult with their local Aboriginal Land Council’s prior to conducting or approving activities such as tree removal or lopping.

This article does not provide an extensive overview of the NSW Land and Environment Court’s decision. This article is intended for information purposes only and is not to be regarded as legal advice. Should you wish to discuss this enforcement action in further detail or if you have any questions about Council’s obligations in respect to Aboriginal cultural heritage requirements, please do not hesitate to contact the Planning and Environment team at McCullough Robertson.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.