The Integrated Development Assessments (IDA) process has been established to link the approvals required under three key pieces of legislation relating to the protection of Aboriginal heritage in the development consent process.
The National Parks and Wildlife Act 1974
The National Parks and Wildlife Act 1974 (NPW Act) is the primary legislation for the protection of some aspects of Aboriginal cultural heritage in NSW. Part 6 provides specific protection for Aboriginal objects and declared Aboriginal places by establishing offences of harm, which includes destroying, defacing or damaging an Aboriginal object or place, or moving an Aboriginal object from the land. There are a number of defences and exemptions to the offence of harming an Aboriginal object or place.
The NSW Department of Planning and Environment has published a Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW to assist individuals and organisations to exercise due diligence when contemplating activities which could harm Aboriginal objects or places. Anyone who uses due diligence to determine that their actions will not harm Aboriginal objects or places has a defence against prosecution for the strict liability offence if they later harm and object or place.
The Code also provides a process to determine whether the activity requires an application for an Aboriginal Heritage Impact Permit (AHIP). An AHIP – which must be supported by an Aboriginal Cultural Heritage Assessment Report, including evidence of consultation with Aboriginal people – can be issued by the OEH Chief Executive when harm to an Aboriginal object or place cannot be avoided. Further information on applying for an AHIP can be found here.
The Heritage Act 1977
Items of Aboriginal cultural heritage value, including Post Contact sites, can also be protected by inclusion in the State Heritage Register under the Heritage Act 1977 (NSW).
The State Heritage Register is a listing of items (places, buildings, works, relics, moveable objects, precincts or land) of state heritage value. The Register was established to protect those items listed by requiring approval to carry out works on those items, and makes it illegal to:
- demolish a building or work
- “damage or despoil” a place, precinct or land, or any part thereof
- move, damage or destroy a relic or moveable object
- excavate any land for the purpose of exposing or moving a relic
- carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct
- alter a building, work, relic or moveable object
- display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct
- damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.
The Heritage Council is the approval body for heritage items listed on the State Heritage Register or subject to an interim heritage order made by that body. Minor works to State Heritage Register items may be exempt from the need for approval under standard exemptions published in the Gazette, and available here.
The Environmental Planning and Assessment Act 1979
The Environmental Planning and Assessment Act 1979 requires that land use planning and development approval bodies such as local councils consider any environmental impacts, including potential Aboriginal heritage, economic and social impacts, before granting a approval so it is important that careful consideration be given to each of these areas.