The new Aboriginal Heritage Act 1972 has replaced the repealed Aboriginal Cultural Heritage Act 2021, so too the Regulations of 2022. However, the intent remains the same:
“ Where a landowner determines that there is an Aboriginal site that is likely to be harmed by the intended land use, it is the landowner’s responsibility to obtain consent from the Minister under section 18 of the Act.”
The new instrument itself is concise and relatively unchanged from 1972; what is more informative is the Aboriginal Heritage Guidelines November 2023.
The key consideration of the Guidelines is the harm that may occur to a site of significance under section 17 and 18; it is an offence to do so. The emphasis is to avoid harm and to apply management mechanisms under section 19.
As before it is necessary for a proponent to confirm sites within the realms of the project area by researching the Register and to consult relevant custodians to confirm the same. In this regard, a significant element of urbanplan’s approach is to pursue the process in a consultative manner to achieve management of project activities to avoid harm. This approach was applied at Mariginiup and Huntingdale and other projects in the Northern Territory, for example Papunya and Hermannsburg.
Consequently, in the circumstance of no likely disturbance to a site, early consultation with custodians could avoid the protracted Ministerial process of section 18.