The PRESIDENT: Pursuant to standing orders the question is: That the motion proceed as business of the House.

Question resolved in the affirmative.

Motion by the Hon. Ian Cohen agreed to:

That the matter proceed forthwith.

The Hon. IAN COHEN [11.22 a.m.]: I move:

That, under section 41 of the Interpretation Act 1987, this House disallows Schedule 1 [4] in relation to clause 80B and clause 80C (9) of the National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Regulation 2010, published on the New South Wales Legislation Website on 24 September 2010 and tabled on 19 October 2010.

In June this year the New South Wales Parliament passed the National Parks and Wildlife Amendment Bill 2010. The bill made significant changes to the protection of Aboriginal heritage. It established a tiered offence approach to the harm and destruction of Aboriginal objects and places, which includes a strict liability offence. With the introduction of a strict liability offence for harm and destruction of Aboriginal objects the Government also sought to establish a range of defences. One could suggest that the expansive palate of defences almost renders the transition to strict liability offences as window-dressing rather than real enhanced protection for Aboriginal heritage.

The National Parks and Wildlife Amendment Bill 2010 deferred the full specification of defences to regulation. The regulations now specify due diligence standards in the form of multiple industry-specific codes and create a concept of "low-impact activity". While the industry-specific due diligence codes leave much to be desired to say the least, particularly the forestry ones, this disallowance motion is focused on the low-impact activity list included in clause 80B of the regulation. Clause 80B of the regulation provides a list of activities that are considered "low impact" for purposes of a defence of the section 86 (2) strict liability offence of harming or desecrating an Aboriginal object or place. This means that an individual could engage in activities identified as low impact without seeking a permit, complying with due diligence conditions or checking the Aboriginal Heritage Information Management System database. These activities are covered by a broad-based exemption from the Aboriginal heritage impact permit process on the basis that these activities occur on "disturbed land" and, as such, any Aboriginal object would have already been damaged or destroyed.

It is important to note that no other jurisdiction in Australia, with the exception of Queensland, adopts a concept of low impact. In the case of Queensland, the Queensland Duty of Care Guidelines do not provide a blanket defence for a list of low-impact activities as the New South Wales regulation does. They require a consideration of whether activities that cause no additional surface disturbance of an area would likely harm Aboriginal cultural heritage or could cause additional harm to Aboriginal cultural heritage to that which has already occurred. They are rightly placed within a framework of due diligence, not an inappropriate list of activities authorising wanton disregard for Aboriginal heritage.

I draw the attention of the House to the submission of the New South Wales Aboriginal Land Council and the Native Title Service Corporation on the regulation because it gives real-life examples of how the activities on the low impact list, if undertaken, would lead to the destruction of identified and registered Aboriginal objects. For example, the public submission highlights a rock engraving on Old Northern Road, at Maroota, that could be destroyed with impunity as a result of a low-impact activity such as road maintenance identified in clause 80B (l) (a). In the Hawkesbury local government area, axe grooves, waterholes and a scarred tree could be destroyed by new and existing housing developments constructing new fences and irrigation infrastructure, which are considered as low-impact activities. There are more examples in the submission that outline how problematic the concept of low impact is.

The Minister should go back to the drawing board and look at implementing a similar approach to that of Queensland, where the issue of disturbance is considered in the due diligence guidelines, not an unworkable and unrealistic low-impact activity list that will see the level of destruction of Aboriginal heritage greatly escalate. In the lower House the Minister for Environment and Climate Change moved an amendment to the bill. Government amendment No. 12 inserted paragraph (g) in new section 90K of the bill. Paragraph (g) requires the director general when making a decision in relation to a permit to consider whether consultation on the permit application with Aboriginal people substantially complied with any requirements for consultation set out in the regulations. Although the amendment could have been expressed in stronger terms to guarantee the rights of heritage owners in a proponent-managed consultation process, I supported the amendment moved by the Minister. The amendment certainly demonstrated that the Minister had listened to feedback from key stakeholders.

In addition to Government amendment No. 12, I am informed the Minister made written representations to the Native Title Service Corporation and the New South Wales Aboriginal Land Council that he would ensure that court appeals would still be available if there was substantial non-compliance with the consultation process. It is important to note that those groups withdrew their opposition to the bill on the basis of this and other representations made by the Minister. It is against this backdrop that the insertion of clause 80C (9) is surprising. Clause 80C of the regulation sets out the consultation process to be followed by an applicant seeking an Aboriginal heritage impact permit. Clause 80C (9) states:

An application for an Aboriginal heritage impact permit is not invalid merely because the applicant for the permit failed to comply with any one or more of the requirements set out in this clause.

In their public submission to Department of Environment, Climate Change and Water on the regulation consultation process, the New South Wales Aboriginal Land Council and the Native Title Service Corporation pointed out that 80C (9) could:

… preclude an Aboriginal person from challenging the permit issued even if an applicant has failed to consult or has blatantly manipulated the consultation process_, for example by holding consultations in locations where only some Aboriginal groups could attend_, or selectively consulting with inappropriate Aboriginal groups who are not knowledge holders for the area.

The Chief Executive Officer of the Native Title Service Corporation, Warren Mundine, in a press release on the regulation states:

Aboriginal People have the cultural responsibility to protect their significant objects and places and the traditional right to speak for those places, but in New South Wales we still do not have the legal right to protect and speak for our own cultural heritage.

Consistent with section 90K (g), it is a matter for the director general to consider whether there has been substantial compliance with the consultation guidelines and regulatory requirements. There may be non-compliance with one of the processes set out in clause 80C that significantly disrupts and compromises the consultation process. In that context, the director general may form the opinion that a permit cannot be provided to an applicant that has not complied with the consultation requirement. However, clause 80C (9) makes it clear that Aboriginal communities cannot challenge the validity in our courts of a permit issued in a situation whereby a proponent has not complied with consultation requirements.

After this House spoke in strong support of constitutional recognition of Aboriginal people in New South Wales, I find it hard to understand how we could support a regulation that attempts to deny Aboriginal people the right to protect their heritage and the right to be adequately consulted on management of their heritage. On the one hand we acknowledge the economic, social, cultural and spiritual connection between our First Nation and their land and heritage, yet on the other hand we are happy for proponent-led consultations to avoid discussions based on meaningful engagement and free and informed consent. For many Aboriginal communities that just reinforces the view that governments are more concerned with the symbolism of reconciliation than with upholding the rights of Aboriginal communities, their culture and their land. I commend the motion to the House.

The Hon. CATHERINE CUSACK [11.29 a.m.]: I lead on behalf of the Liberal and Nationals parties in the debate on the Greens motion for disallowance of the National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Regulation 2010. In relation to clause 80B, the list of low impact activities includes fire hazard reduction, conservation works, farming and mining exploration. These are genuinely low impact activities. Relieving those industries and activities from the burden of strict liability was a precondition for obtaining important stakeholder support for the original bill. Accordingly, the Coalition does not support disallowance of this regulation.

In relation to clause 80C, the process of consulting Aboriginal people can be complex and difficult. Quite rightly, a detailed process to be followed is set out in the legislation and regulation. Because it is so prescriptive, it is in the interests of common sense for the director general to have some flexibility in the application of the regulation. Accordingly, the Coalition opposes the Greens motion to disallow the regulation.

The Hon. TONY CATANZARITI [11.31 a.m.]: I speak against the motion and the request made by the Hon. Ian Cohen that clause 80B and clause 80C (9) of the National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Regulation 2010 be disallowed. The National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Regulation 2010 came into effect on 1 October 2010. It amends the National Parks and Wildlife Regulation 2009 to provide operational detail for recent, new Aboriginal cultural heritage provisions in the National Parks and Wildlife Act 1974.

The new Act provisions that also commenced on 1 October 2010 provide significantly increased protection for Aboriginal objects and Aboriginal places in New South Wales, such as new strict liability offences and increased penalties, and include defences to the new offence provisions and new procedures for Aboriginal heritage impact permits. The motion by the Hon. Ian Cohen seeks to disallow two aspects of the amending regulation, one of which is "Clause 80B, Defence of carrying out certain low impact activities". This clause contains a list of low impact activities that, if undertaken, provide a defence to the new strict liability offence for harm to Aboriginal objects in section 86 (2), which introduced a new strict liability offence of harm to Aboriginal objects. Section 86 (2) was a new provision inserted in the Act.

There was a good deal of consultation about appropriate defences to a strict liability offence. As members would expect there were some areas of contention. Specifically, farm dams and bulk sampling for mining exploration were issues of contention. The list of low impact activities was developed through the interagency group. The low impact activities listed in this clause are those considered to have the least likelihood of harming Aboriginal objects. The activities include certain maintenance work on disturbed land, certain farming and land management work on disturbed land, grazing of animals on any land, exempt and complying development work, certain mining and exploration work on disturbed land, certain work that relates to surveying on any land, and certain environmental rehabilitation work on any land.

The listed activities do not require due diligence procedures. However, if when undertaking a low impact activity Aboriginal objects are found to be harmed, the activity must cease and an Aboriginal heritage impact activity permit must be obtained before the activity can recommence. Removal of the entire list of activities by disallowance of clause 80B will mean that all the listed activities will require due diligence checks, if a person wishes to have a defence to the new strict liability offence. That will place unnecessary procedural requirements on farmers and land managers generally for a range of their activities that have little likelihood of harming Aboriginal objects. The low impact activities currently listed in this clause provide a workable and balanced solution to ensuring that Aboriginal heritage is properly protected, while allowing a range of farming and other land management activities to proceed unhindered by undue process.

The Hon. KAYEE GRIFFIN [11.35 a.m.]: I also speak against the motion and the request made by the Hon. Ian Cohen that clause 80B and 80C (9) of the National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Regulation 2010 be disallowed. The Government believes the regulation is appropriate because it balances the interest of Aboriginal groups and industry and farming. There is a distinction between disturbed land and undisturbed land. Many of the defences in relation to dams and bulk sampling apply only on disturbed land. Disturbed land is defined in a common sense way. The idea is about the likelihood that Aboriginal objects would have been discovered, or already would have been disturbed. Clause 80C lists the consultation process that must be undertaken before applying for an Aboriginal heritage impact permit. A policy document underpins the permit. The salient parts are in the regulation as clause 80C. In relation to the policy document, wide consultation was undertaken with Aboriginal groups, developers, archaeologists, et cetera. In relation to the development of the consultation requirements policy, the Department of Environment, Climate Change and Water [DECCW] developed interim community consultation requirements for applicants to clarify consultation requirements. The interim requirements applied to all applications lodged from 1 January 2005.

The Department of Environment, Climate Change and Water undertook to review the interim requirements and released a discussion paper in December 2007. During March to May 2008, the Department of Environment, Climate Change and Water conducted 20 forums across New South Wales to seek input from interested stakeholders in the redevelopment of the requirements. More than 270 Aboriginal, heritage professional, and other Government stakeholders attended the forums. In addition, the Department of Environment, Climate Change and Water received 33 written submissions. The department heard from participants in the forums that there is a general acceptance about the use of traditional lore and custom as the foundation for new consultation policy.

Based on the feedback received from departmental staff, the Aboriginal community, applicants and proponents, agencies and consultants since 2005, and from statewide forums and written submissions received on the discussion paper, a draft "Aboriginal Cultural Heritage Community Consultation Requirements for Proponents", which otherwise is known as the community consultation requirements, was developed and placed on public exhibition from April to July 2009. Fifty public submissions were received on the draft community consultation requirements. Comments received during the public exhibition period were considered, and later the consultation requirements were finalised and released. The consultation requirements have applied to all Aboriginal heritage impact permit applications lodged from 12 April 2010.

Clause 80C (9) simply provides that a procedural irregularity in the application for an Aboriginal heritage impact permit will not necessarily invalidate the permit. If there is concern that people will put in sloppy applications that do not address relevant matters, the Department of Environment, Climate Change and Water, when it receives the application, will ensure that the appropriate process and steps have been followed. After reviewing the application, the department will require the applicant to remedy any defects in the application or the process.

Clause 80C (9) is also appropriate because section 90K of the Act, the decision as to whether to issue the Aboriginal Heritage Impact Permit, provides that the director general must consider a number of things, including that consultation requirements have been substantially complied with and if not he can refuse the application, notwithstanding clause 80C (9) in the regulation. Section 90K therefore provides a safeguard that the consultation requirements will be met because the director general's decision is subject to judicial review. It is important to stress that clause 80C (9) applies only to applications for permits and not to the issue of the permit itself.

If the clause is disallowed, it will mean that when the Department of Environment, Climate Change and Water receives an incomplete application in this regard it will be required to refuse the application, and the applicant will be required to restart the whole application process anew. This is likely to increase red tape and create procedural uncertainty and complexity for applications where there may have been inadvertent or otherwise defensible omissions by them of some of the required community consultation steps.

The Hon. IAN COHEN [11.40 a.m.], in reply: I thank members who have participated in this debate. I am concerned about matters raised in relation to the issue of disturbed land. In many circumstances there are varying degrees of disturbance which do not necessarily take away from the importance of a site to Aboriginal people. I know of many instances in which, during discussions, there has been a great deal of reticence by Aboriginal people to make public in any way sites that are important to them. So with various developments Aboriginal people keep quiet and heritage relics and sites are lost. I believe clause 80C (9) will increase that reticence and lower the enthusiasm of Aboriginal people to report relics and sites.

This is not a Greens motion as such; the Aboriginal peak organisations, the Native Title Service and the New South Wales Aboriginal Land Council, asked the Greens to move this disallowance motion. I listened to the debate about the overall impact of lowering the bar on this important issue. It is important to recognise that during debates in this House the Government and the Opposition put forward symbolic goodwill gestures in this area but those gestures are tokenistic in many cases. It seems that there is a keenness to support Aboriginal heritage issues as long as it is not overly inconvenient. I commend the motion to the House.

Question—That the motion be agreed to—put.

The House divided.
Question resolved in the negative.

Motion negatived.