The draft Aboriginal Heritage Regulations 2016 are a positive step forward to the Aboriginal Heritage (Miscellaneous) Amendment Act 2016 coming into operation. However, in our view they do require clarification and amendment in a number of respects.
The State Government has released draft Aboriginal Heritage Regulations and Guidelines for public consultation.
The closing date for submissions on the Regulations and Guidelines is 18 December 2016.
The Regulations and Guidelines are made pursuant to the provisions of the Aboriginal Heritage (Miscellaneous) Amendment Act 2016. The Regulations come into operation when section 9 of that Act comes into operation. Section 9 of that Act inserts a new Part 2A into the Aboriginal Heritage Act 1988 and deals with Heritage Guidelines, Recognised Aboriginal Representative Bodies and agreements afforded statutory recognition under the Aboriginal Heritage Act.
This Alert covers only the Regulations and not the Guidelines.
The main features of the Regulations are:
- they specify the information required to be provided for inclusion in the register of Recognised Aboriginal Representative Bodies to be established and maintained under the Act. In addition to details of the Body and its directors, the register is to include a description of the area, or Aboriginal site, object or remains in respect of which the Recognised Aboriginal Representative Body (RARB) is determined or appointed. The inclusion of information regarding Aboriginal sites, objects and remains is subject to the confidentiality provisions of section 10 of the Act.
The Regulations provide that the register may only be inspected with the consent, and in accordance with any requirements specified by, the Aboriginal Heritage Committee established under the Act. In performing this function the Committee must have regard to, and seek to protect, information that is confidential.
It is not clear why the information in the register, which relates to details of the relevant RARB and its directors, should not be open for inspection. Indeed, an ability to access this information freely is a prerequisite to effective engagement between proponents and RARBs.
In relation to the required description in the register of the area or Aboriginal site, object or remains in respect of which the RARB is appointed or determined, why should the Committee have an overriding discretion to permit inspection of this information? Indeed, what is permitted to be included in the register has already been subject to the confidentiality “filter” of section 10 of the Act.
- the provisions and information required to be included in a local heritage agreement are prescribed by the Regulations. They are:
- the area to which the agreement relates;
- subject to section 10 of the Act, any Aboriginal site, object or remains known to be in that area;
- the proposed activities to which the agreement relates;
- the steps to be taken on discovery of any Aboriginal site, object or remains;
- that questions as to the significance of any Aboriginal site, object or remains are to be decided by the relevant RARB;
- limitation of the costs or charges payable in relation to the agreement. The Act allows for the Regulations to specify the basis upon which cost and charges are to be limited e.g. by reference to a specified amount. It is unfortunate that the State has not applied these provisions in the Regulations, but, rather, left the question of costs and charges open ended;
- the process for resolving disputes; and
- information explaining the process by which the agreement was negotiated (including any consultation undertaken). Presumably this information would be incorporated in the recitals to the agreement;
- section 19I of the Act requires the Minister to have regard to the matters specified in the Regulations in deciding whether or not to approve a local heritage agreement. The Regulations prescribe the following matters
- whether the relevant traditional owners were consulted, and agreed to, the agreement;
- whether any payment that has been, or is to be, made to a RARB, traditional owners or any other person in relation to the agreement is reasonable. It is not clear by what criteria the Minister will make this assessment, particularly given that the State has not prescribed limitations on the amount of costs and charges payable in relation to the agreement (refer paragraph (b)(vi) above). Presumably “reasonable” permits the Minister to consider that payments are either too high or too low;
- the Act specifies that the Minister must establish and maintain a register of local heritage agreements and agreements affecting Aboriginal heritage under other Acts. The Regulations set out the information required to be contained in the register and the basis upon which it may be inspected.
For local heritage agreements the following is required:
- a copy of the relevant section 21 or 23 application;
- details of any variation to the agreement;
- details to identify any report or survey referred to in the agreement or upon which the agreement is wholly or partly based.
For agreements under other Acts – details of the parties, and of any variation, to the agreement.
- a copy of the relevant agreement;
- details of the relevant RARB (we note that, in relation to agreements under other Acts, there may not be a relevant RARB);
- details of each party to the agreement. This requirement duplicates that separately specified in relation to agreements under other Acts.
The regulations provide that the register may only be inspected with the consent of each party to the relevant agreement and in accordance with any requirement specified by the Committee. In our view this is a “heavy handed” approach. Rather the register should be open for inspection subject to any requirements for confidentiality of the parties (who are in the best position to decide which aspects of their agreement they wish to keep confidential and which they are happy to disclose). There is no apparent reason why the Committee should have any role in this regard;
- Schedule 1 to the Regulations sets out fees payable for various matters under the Act:
- fees for approval of agreements are set on a sliding scale by reference to the value of the “project”. There is no definition of project in the Act or Regulations nor any guidance as to how this value is to be determined. Also for some agreements such as minerals exploration agreements, the concept is not necessarily an appropriate one;
- a distinction is made between the fees for authorities under sections 21 and 23 of the Act “where accompanying local heritage agreement” or not. As a local heritage agreement is only able to be negotiated after a section 21 or 23 application is made under the Act, these fee structures appear to be based on misconception of the provisions of the Act.
In summary, the Regulations are a positive step forward to the Aboriginal Heritage (Miscellaneous) Amendment Act 2016 coming into operation. However, in our view they do require clarification and amendment in a number of respects.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.