During the consultation period for this Bill, EDO NSW has been hearing from and visiting Aboriginal communities and clients in regional NSW, from the Northern Rivers to the Far West, to brief them on the draft and hear their aspirations for cultural heritage protection. Our submission also draws on decades of legal expertise and assistance to Aboriginal people and communities in heritage, planning and environmental law matters.

We strongly support standalone legislation with new Aboriginal institutions and decision-making. In particular we support the broader recognition of Aboriginal cultural heritage, including intangible heritage;  a new information system for mapping, monitoring and reporting; greater Aboriginal responsibility for heritage management and oversight, compliance and enforcement; and associated opportunities for empowerment, capacity-building, employment and self-determination.

However, we make recommendations to address concerns regarding: excessive ministerial powers and open-ended discretions, such as for ‘declaring’ ACH; the lack of any public information or discussion of major resourcing questions, in particular how (and whether) the ACH Authority and Local Panels will be fully resourced to fulfil their functions and invest in Aboriginal capacity-building; limited explanation to communities about how new definitions will be implemented in practice, protections for declared ACH, or the practicalities of registering intangible ACH; the exclusion of major projects from standard assessment pathways and harm offences; the need for clarity around which activities will need to follow the assessment pathway; and the clear imbalance in review and appeal rights that favours developers over Aboriginal people whose heritage is affected, contrary to the aims of the reforms and draft Bill.