25/05/2004 - 22:00

Acting on heritage concerns

25/05/2004 - 22:00

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DEVELOPERS have been advised to engage in negotiations over Aboriginal heritage issues at an early stage in the development process to avoid the possibility of construction delays or prosecution.

Acting on heritage concerns

DEVELOPERS have been advised to engage in negotiations over Aboriginal heritage issues at an early stage in the development process to avoid the possibility of construction delays or prosecution.

The WA Aboriginal Heritage Act is increasingly the legal avenue of choice for Indigenous groups looking to protect their interests in Western Australia after several recent cases limited the options available under Native Title.

The Yorta Yorta case on the New South Wales/Victoria border is one case demonstrating the difficulties faced by Native Title claimants.

In Western Australia, Department of Indigenous Affairs director Richard Curry said between 60 and 70 applications were made each year to work on or near Aboriginal sites. A total of 238 such applications had been made by mining, development and associated industries during the term of the Gallop Government

Minter Ellison senior associate Mark Gregory said Aboriginal heritage was becoming increasingly prominent in the metropolitan area, meaning developers needed to be aware of how to minimise possible prosecution and lengthy delays on building sites while injunction proceedings take place.

It is an offence under the Aboriginal Heritage Act to “excavate, destroy or damage” an Aboriginal site, and this year the penalties for doing so will increase to $20,000 for individuals and $50,000 for corporate bodies.

An Aboriginal site under the act is any place of importance where Aboriginal persons have left any object used for any purpose connected with traditional cultural life, or any sacred, ceremonial or ritual site which is of special significance to people of Aboriginal descent.

There is a register of heritage sites held by the Department of Indigenous Affairs, but this register is not comprehensive and does not give the exact location of a heritage site.

This creates several problems for developers. In order to avoid prosecution, Section 18 of the act allows developers to work on or near an Aboriginal site without committing an offence.

Mr Gregory said that, in order to avoid an offence and be granted s18 consent, developers needed to undergo a thorough heritage survey of an anthropological and archeological nature. 

“The first step is to check the register, then to conduct a survey, and then apply for s18 ministerial approval,” he said.

“Approval will not be given without a heritage survey, and speculative approvals will not be granted either, so the purpose for which consent is sought must be fully and accurately described.

“Further, s18 approval is a personal right, not a property right, so it does not transfer with land. Therefore, if the land concerned is subject to sale, the purchaser needs to be a named applicant.”

There is also Federal Aboriginal heritage legislation, which allows for an emergency or general application for declaration to be made to the Federal Minister for Indigenous Affairs.

Minter Ellison partner Graham Castledine said the most recent and prominent example of the use of this power was in relation to the old Swan Brewery site, which resulted in lengthy delays and litigation.

“When the Federal legislation is called upon, it is very controversial and usually has political overtones,” he said.

In order to avoid these circumstances, Mr Castledine said developers should consult broadly at the earliest opportunity.

“Developers are better off spending money up front and consulting all groups which have an interest; this demonstrates goodwill, and if s18 conditions are imposed and complied with, this will limit Federal intervention,” he said.

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