Appendix 2: Cultural Heritage significance

RAPs are meant to consider the cultural heritage significance of Aboriginal cultural heritage when determining if they are satisfied that a CHMP condition is adequate to avoid or minimise harm (this point is evident in the Act and reinforced in Supreme Court finding. This is a key consideration for the RAP when deciding to approve or refuse to approve a CHMP under sections 63(4) and 61 of the Act.

The Act states all Aboriginal heritage must be significant, by definition (see section 4 definition of “Aboriginal object” and section 5 definition of “Aboriginal place”). But the Act does not say all heritage is equally significant. This is what the CHMP process is designed to determine, and differential significance is intended to be reflected in proportionate CHMP conditions. This is consistent with Traditional Owner management and protection practices. Greater restrictions and conditions are placed on Aboriginal ancestral remains locations than they do on isolated artefacts. This indicates differentiating significance is already common practice.

Understandings of differential cultural heritage significance are also accepted in the broader population. This may not seem important, but if the CHMP system is to maintain legitimacy and its social licence more broadly, decisions about CHMP conditions should also be cognisant of general public expectations regarding proportionality. The general public, for example, may not understand if more time and cost is required to protect an isolated artefact than a rock art site, which then will erode confidence in the Act.

The link between significance and CHMP conditions

Some feedback received during consultation on these Guidelines questioned the link between significance and CHMP conditions. This link is supported by The Act and Supreme Court findings.

In determining the fact of an Aboriginal place, the Traditional Owners must ascribe it cultural heritage significance – otherwise it will not meet the definition of Aboriginal place.

Section 61 requires a RAP, when evaluating a CHMP, to consider whether an activity will be conducted in a way that avoids or minimises harm, and specific measures related to these two objectives. Note the Act does not separate the tasks in the CHMP of determining whether a place is an Aboriginal place, and the measures required to manage that place. This means that determining and assessing the significance of an Aboriginal place is intrinsic to considering the conditions which should be adequate to the satisfaction of the RAP for avoiding and minimising harm.

This can also be illustrated by the following negative example: if relative significance was not a consideration when devising CHMP conditions, this would result in significance being dismissed as a factor when determining appropriate CHMP conditions. A RAP could not then refuse to approve a CHMP on the basis that no CHMP conditions would be adequate to its satisfaction to avoid or minimise harm because of the exceptional cultural heritage significance of the Aboriginal place in question.

For example: at present, a CHMP for a mine proposal which would require the destruction of an important cultural landmark such as Wil-im-ee Moor-ring (Mt William Stone Axe Quarry, Lancefield) could be refused on the grounds that no CHMP conditions could be proposed which would be adequate to the satisfaction of a RAP to avoid or minimise harm, given the exceptional cultural heritage significance of this Aboriginal landscape relative to other Aboriginal cultural heritage and the Aboriginal places within it If significance was not a factor in assessing CHMP conditions, this refusal option would not be available to the RAP – contrary to the Act (and the advice detailed in Appendix 6).

This link is best illustrated by a recent Supreme Court case, which is a finding not limited to that particular case, but one referring to CHMPs generally:

A cultural heritage management plan performs two interrelated tasks – identification and protection. The process does not separate the two. The statutory scheme provides for consultation with Traditional Owners in the preparation of any plan and at least at first instance, for the traditional custodians (through the statutory mechanism of RAPs) to evaluate whether the sponsored plan is sufficient to be approved. That approval necessarily considers the adequacy of both tasks – identification and protection – placing primary decision making in the hands of Aboriginal people. Understanding the significance of an Aboriginal place is important in devising its adequate protection. There are inextricable links between the identification of Aboriginal places, the significance that is accorded to them and the adequacy of measures to be adopted to avoid harm.

If an Aboriginal Place is significant for culturally secret or prohibited reasons

An Aboriginal place should have knowable cultural heritage significance for it to be an Aboriginal place as determined by section 5 of the Act.

Because the cultural heritage significance of an Aboriginal place, as determined by relevant Aboriginal people, is fundamental to its legal definition as an Aboriginal place, the fact of its cultural heritage significance is intended by the Act to be knowable to relevant people. Otherwise, there can be no proof of, or ability to objectively establish, the fact that an Aboriginal place exists, and therefore no reason for any CHMP conditions regarding that place.

This is different from the reasons why an Aboriginal place is significant – which may be prohibited knowledge outside certain knowledge holders.

It is sufficient in such cases to at least identify a discrete Aboriginal place as “culturally significant for sensitive reasons” (for example), in order for a CHMP to provide adequate conditions for that place’s management and protection (see discussion in Appendix 1 about Secret and prohibited knowledge). It is not necessary for the CHMP to document why an Aboriginal place is significant if those reasons are secret or prohibited, but it is necessary for the CHMP to document the fact that an Aboriginal place is significant, and to whom.

Significance “thresholding”

The Act, Regulations and Guidelines do not impose defined CHMP conditions for certain Aboriginal places, or places of certain significance levels (thresholding), because there are exceptions which need to be dealt with flexibly. For example, not all low-density artefact distributions (LDADs) are of equal significance, and many indicate other places of much higher significance nearby. Some isolated artefacts, like ground edged axes, are considered more significant than discarded stone flakes which are a byproduct of tool making. These would generally require more stringent CHMP conditions. In the same way, mandatory prescribed thresholds might impose more stringent conditions for low significance places when they are not needed. Prescribed thresholds would not allow enough flexibility and individual cultural heritage discussion in the field and may result in complex and inappropriate conditions.

Despite possibly creating more certainty for developers, imposing statutory significance thresholding might also hinder Traditional Owner rights to determine cultural heritage significance. This is another reason why the Act does not do this.

Significance also changes with the passage of time. For example, once-common Aboriginal places become rare with cumulative development impact, and rarity can add significance. This is another reason why the Act does not impose significance thresholds.

The flexible approach adopted by the Act intends for Sponsors to develop CHMP conditions appropriate to the individual CHMP. These Guidelines retain this approach while providing suggested guardrails to reduce uncertainty.

One issue is that dispersed low density stone material, for example, is far more likely to have a greater impact on proposed development activity – being spread over large areas – than an art site, for example, which is discrete. The Sponsor is then locked into intensive and costly cultural heritage management conditions for a large-scale and often unbounded Aboriginal place, when the conditions for managing that place need not be so intensive when considering the relative cultural heritage significance of both places. The Guidelines acknowledge such distributions are culturally significant while seeking to redirect the priority for practical protection and management towards places of higher relative cultural heritage significance.

This goes to some specific feedback received during consultation on these Guidelines. The Guidelines do not seek to “reinterpret” section 5. LDADs are still Aboriginal places for the purpose of the Act. What the Guidelines seek is for the management of LDADs to be proportional to their cultural heritage significance, and for management conditions to be explicitly justified and documented.

RAPs are ultimately responsible for determining cultural heritage significance. While these Guidelines do not develop thresholds and set CHMP conditions associated with such thresholds, they do provide a suggested approach as a starting point.

Statements of significance, relative significance and cultural landscapes

Emphasising relative significance elevates the need to think about Aboriginal cultural heritage at the landscape scale. SAHAs are of particular relevance here – especially important cultural heritage landscapes and other cultural landscape values documented in the SAHA.

It also requires emphasising in situ conservation strategies over salvaging material. This requires RAPs and HAs to turn their minds to considering whether it is more beneficial to leave cultural features intact and incorporated as features within projects where possible, rather than excavate them – a “conservation first” strategy.

It also requires Sponsors to think about how they can better incorporate Aboriginal heritage into their project designs, rather than treat it as a “problem” that requires collection, removal and disposal.

Focusing on landscapes also necessitates considering the cumulative impact of development at a regional scale and how this should influence individual CHMP conditions as well as considerations of significance.

Guidelines about significance are intended mainly to achieve objectives in sections 3(a), (b) and (g) of the Act. These Guidelines call for early RAP engagement to discuss and develop significance statements not only of the activity area, which incorporates Indigenous knowledge, and important cultural heritage landscapes, but also of individual places. This is designed to have a twofold effect of increasing Traditional Owner input into explicit documenting of significance, and to make the subsequent CHMP process more efficient by identifying early areas within the activity area for focussed work.

The following table presents one example of significance thresholding and likely conditions and outcomes. This is only published for the purpose of enlightening Sponsors and HAs about estimated costs and time of preparing a CHMP and complying with its conditions.

CHMP conditions should be reasonable and practical but also need to be flexible to account for heritage in different environments subject to different proposed development impacts.

If a RAP develops its own broad thresholds, the RAP should make this freely available to any Sponsor and HA engaging in work in their RAP area.