Unearthing Indigenous Heritage in New South Wales

UNEARTHING ABORIGINAL HERITAGE

Aboriginal Affairs Contents

Unearthing Indigenous heritage in New South Wales Omesh Jethwani, Government Projects & Programs Manager, discovers the process o unearthing Indigenous Heritage on construction sites with Scott Franks, CEO o Tocomwall, Australia’s frst Indigenous archaeology frm.

Please share with our readers the details o your ancestral amily background?

I am a Wonnarua person rom the Hunter Valley NSW. Our land covers the area within the Hunter River Catchment. My people are rom the Hills and plains o the Hunter Valley Area.

The story has been told or generations and passed down to our people o how our creator Biami stepped down rom the sky onto Big Yango in the Hunter Valley.

Be ore time was created, Biami our creator stood on Big Yango and looked onto Little Yango and across the empty lands. He called upon Puliyapang (whirly Wind) and directed him to move across the lands. As Puliyapang spun across the li eless land, he pulled in all the resources needed by Biami to build mountains and to shape the lands.

As Biami created the hills and the valleys, he spoke to Puliypang and guided him to make channels or all the gullies and creeks.

Puliyapang spun and twisted, he spread the valleys and pushed back the earth to make mountain ranges, continuing to shape the land.

As Puliyapang started to slowdown and fnish his work Biami took Puliyapang and told him, “You will walk the lands orever and keep the breeze moving through the lands or the people I will place here, the Wonnarua.” Once our lands were created by Biami. He returned to the heavens but be ore he le t, he trans ormed his son Kawale into the Wedge tailed eagle.

Can you please explain why you started Tocomwall and what services does it provide?

The establishment o Tocomwall in 2011 was to consolidate corporate governance and enable the business to diversi y its scope in relation to Aboriginal heritage management and protection.

Tocomwall is a specialist Aboriginal cultural heritage consultancy frm that provides archaeological, ecological and cultural heritage services across Australia.

Today, Tocomwall operates nationally and is committed to providing sustainable solutions which integrate archaeology, landscape science and Aboriginal cultural knowledge.

Tocomwall, which boast a work orce with 70% Indigenous representation, is a registered Supply Nation Supplier.

What are some o the most recent archaeological fndings on construction worksites which Tocomwall has discovered and provided cultural heritage advice on?

Tocomwall is involved in a project in the Hunter Valley or a mining company. This project is to develop a new open cut mining operation that will have a direct impact on a large area o land.

Tocomwall’s research and assessment o that area identifed and confrmed that the location or the proposed mining operations would impact on a massacre site o native prisoners by the armers and Newcastle garrison back in October 1826.

Investigation o Aboriginal Objects in New South Wales (the Code) was implemented by the Department o Environment, Climate Change and Water (DECCW now known as O fce o Environment and Heritage) rom 1 October 2010.

The code was developed to support the process o investigating and assessing Aboriginal cultural heritage. It specifes the minimum standards or archaeological investigation undertaken in NSW under the National Parks and Wildli e Act 1972 (NPW Act).

An Aboriginal cultural heritage assessment that requires an archaeological investigation to be undertaken must be done in accordance with the requirements o this code.

The code establishes the requirements:

This in ormation was always re erred to by the local Aboriginal community, but proper archival research was never really carried out.

Tocomwall considered the local in ormation and then started searching state and ederal archives that resulted in the location o diaries and crown dispatches with hand-drawn maps by a garrison captain who was sending letters to the Governor o the time, in orming him o the massacre and requesting an investigation.

This in ormation has been used to understand better what took place back in 1826 but may result in protecting that location.

Is there a Code o Practice or Archaeological investigation o Aboriginal Objects in NSW? The Code o Practice or Archaeological

• For undertaking test excavation as a part o archaeological investigation without an Aboriginal Heritage Impact Permit (AHIP).

I you comply with these requirements and you harm an Aboriginal object when undertaking test excavations, your actions will be excluded rom the defnition o harm and as such you will not be committing an o ence o harm to an Aboriginal object.

• When carrying out archaeological investigation in NSW where an application or an AHIP is likely to be made.

Under the NPW Act, the Director General can require that certain in ormation accompanies an application or an Aboriginal Heritage Impact Permit (AHIP). This code explains Issue Two | June-July 2019 | MBA NSW

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UNEARTHING ABORIGINAL HERITAGE

what that in ormation is in relation to archaeological investigations.

In addition, DECCW recommends that the requirements o this code also be ollowed where a proponent may be uncertain about whether or not their proposed activity may have the potential to harm Aboriginal objects or declared Aboriginal places and the proponent is required to: • undertake urther investigation to understand and establish the potential harm their proposal may have on Aboriginal cultural heritage, and • the urther investigation involves archaeological assessment.

What is an Aboriginal Heritage Impact Permit (AHIP) and when it is required?

An AHIP is the statutory instrument that O fce o Environment and Heritage issues under section 90 o the NPW Act to manage harm or potential harm to Aboriginal objects or declared Aboriginal places.

An AHIP is required when a proposed activity is likely to directly or indirectly harm an Aboriginal object or place. This includes such things as: • movement o certain Aboriginal objects; • community collection o Aboriginal objects; • archaeological test excavations; • archaeological salvage excavations; • harm to Aboriginal objects or places through proposed works or any other action.

In ormation about the permits and how to apply or them can be obtained through the O fce o Environment and Heritage website www. environment.nsw.gov.au/licences/index.htm.

Can you please explain how the Due Diligence Code o Practice or the Protection o Aboriginal Objects apply in NSW? The Due Diligence Code o Practice or the Protection o Aboriginal Objects in NSW sets out a process or individuals and organisations to ollow to determine whether an Aboriginal object will be harmed by an activity, whether urther investigation is needed, and whether the application to harm requires an AHIP. A key step in the due diligence process is to check or Aboriginal sites on the Aboriginal Heritage In ormation Management System (AHIMS).

The NPW Act provides that a person who exercises due diligence in determining that their actions will not harm Aboriginal objects has a de ence against prosecution i they later unknowingly harm an object without an AHIP. The NPW Act allows or a generic code o practice to explain what due diligence means.

Care ully ollowing this code o practice, which is adopted by the National Parks and Wildli e Regulation 2009 (NPW Regulation) made under the NPW Act, would be regarded as ‘due

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diligence’. This code o practice can be used or all activities across all environments.

This code sets out the reasonable and practicable steps which individuals and organisations need to take in order to: a. identi y whether or not Aboriginal objects are, or are likely to be, present in an area; b. determine whether or not their activities are likely to harm Aboriginal objects (i present); and c. determine whether an AHIP application is required.

I Aboriginal objects are present or likely to be present and an activity will harm those objects, then an AHIP application will be required When is it not necessary to ollow the Due Diligence Process?

There is no straight answer to this.

The Due Diligence Code o Practice or the Protection o Aboriginal Objects in New South Wales, Section 7, lists a series o questions that should be used as a guide as to whether the due diligence code o practice applies.

The NPW regulation removes the need to ollow the due diligence process i you are carrying out a specifcally defned low impact activity.

As a result, you are not required to ollow this code or any other due diligence process i your activity has been listed in the guide. Proceed with caution, and i Aboriginal objects are later ound when you are carrying out your activity, you must stop work, noti y the O fce o Environment and apply or an AHIP i you intend to harm those known objects.

The NPW Act also provides that due diligence may be exercised by complying with a code o practice which is adopted under the NPW Regulation. These codes provide due diligence guidance tailored or specifc types o activities or industries.

I your activity is subject to an industry specifc code that has been adopted by the NPW Regulation, you can ollow that code instead o the requirements o this generic code.

A copy o the Due Diligence Code o Practice or the Protection o Aboriginal Objects in New South Wales, Section 7 can be obtained rom https://www.environment.nsw.gov.au/-/media/ OEH/Corporate-Site/Documents/Aboriginalcultural-heritage/due-diligence-code-o practice-aboriginal-objects-protection-100798. pd Which relevant legislation or regulation applies to the management o unexpected heritage fnds?

The NPW Act administered by O fce o Environment, is the primary legislation or the protection o those aspects o Aboriginal cultural heritage in NSW defned under the Act. Various state and ederal assessment

UNEARTHING ABORIGINAL HERITAGE

Aboriginal Affairs Contents

and planning processes are also relevant to Aboriginal cultural heritage. O fce o Environment has specifc roles and obligations under the Environmental Planning and Assessment Act 1979 (EP&A Act). Heritage matters are also addressed in the Heritage Act 1977 and ederal legislation.

What are the standard management procedures to implement on a construction worksite i you discover an ‘unexpected heritage fnd?’

In the case o an unexpected fnd, any work that may impact the object should be ceased and a heritage consultant/archaeologist engaged to provide advice.

Depending upon the nature o the site, erect barriers to protect the site.The proponent should be able to demonstrate that they have taken all necessary steps to prevent damage occurring to the object.

What are the o ences and penalties or breaches the NSW Environmental Protection and Heritage Legislation?

Do these o ences and penalties also apply to the harming or desecration o Aboriginal objects and declared Aboriginal places?

An example o a penalty includes, but is not limited to the ollowing: – Harming or desecrating Aboriginal objects and Aboriginal places (1) A person must not harm or desecrate an object that the person knows is an Aboriginal object.

Maximum penalty: (a) in the case o an individual — 2,500 penalty units ($275,000) or imprisonment or 1 year or both; OR

Why is it essential or principal contractors, builders and subcontractors to understand about Aboriginal heritage, objects and places?

Principal contractors, builders and subcontractors are liable or the damage or inter ere once with Aboriginal heritage, objects and places.

Court cases are also damaging to the reputation o any organisation.

Any opportunity to orm a working partnership with the Aboriginal community or approaching the Elders to include in the consultation process would be near impossible.

Who is responsible or carrying out the investigation, assessment and reporting on Aboriginal Cultural Heritage?

When undertaking archaeological investigations in NSW in compliance with this code, proponents must use the services o people who are skilled and experienced in archaeology and, in particular, the archaeology o Aboriginal people. These skills and experience may be available in-house or sourced rom specialist service providers.

custodianship and ensure Aboriginal people have the authority to make decisions about their cultural heritage while providing clear and consistent processes or economic and social development in New South Wales.

This article is not a substitute or the re erred Acts and Regulations. The interview has been designed to increase awareness o the presence o these various Acts and Regulations and how they may apply.

Master Builders NSW members are encouraged to contact the O fce o Environment & Heritage to obtain updates on the new Aboriginal Cultural Heritage legal ramework.

In addition, Master Builders Insurance Services can be contacted to discuss insurance coverage in case o delayed construction projects due to the discovery o Indigenous fndings or Tocomwall or Aboriginal Cultural Heritage Consultancy.

I a person carries out an archaeological investigation and they do not ollow the requirements o the code, and they harm an Aboriginal object, they would be committing an o ence.

Editorial Note (b) (in circumstances o aggravation) — 5,000 penalty units ($550,000) or imprisonment or 2 years or both; OR (c) in the case o a Corporation – 10,000 penalty units ($1,100,000).

(2) A person must not harm or desecrate an Aboriginal object.

Maximum penalty: (a) in the case o an individual — 500 penalty units ($55,000); OR (b) (in circumstances o aggravation) — 1,000 penalty units ($110,000); OR (c) in the case o a Corporation — 2,000 penalty units ($220,000).

The NSW State Government is re orming the way Aboriginal Cultural Heritage is conserved and managed in New South Wales. The proposed new legal ramework aims to ulfl the government’s commitment to deliver standalone legislation that respects and conserves Aboriginal Cultural Heritage or current and uture generations. It also aims to recognise Aboriginal Issue Two | June-July 2019 | MBA NSW

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