Applying Due Diligence- Aboriginal Objects Assessment

SOP Number: 036

Applying Due Diligence- Aboriginal Objects Assessment

For Field Officers

Prepared by Leanna Moerkerken.Created 14/07/2011, Updated 04/09/2012.

1. The Need For Due Diligence

In the past, if a person harmed an Aboriginal object unknowingly they did not commit an offence. However the National Parks and Wildlife Act 1974 (NPW Act) has recently been amended such that Section 86 makes it an offence to harm Aboriginal objects or Aboriginal places in NSW even if the offender did not know it was an Aboriginal object or place. This means that ignorance is no longer a defence and appropriate precautionary steps need to be taken to protect Aboriginal objects and declared Aboriginal places.

Without exemptions or defences such as the exercise of due diligence, penalties now applyif you:

knowingly harm or desecrate an Aboriginal objector Aboriginal place (the ‘knowing’ offence)
unknowingly harm or desecrate an Aboriginal object or Aboriginal place (the ‘strict liability’ offence)

For example, if a Murrumbidgee CMA employeeauthorisesripping for revegetation without following the due diligenceprocess described in the Due Diligence Code and an Aboriginal object is harmed, the Murrumbidgee CMA may be prosecuted for the offence of harming an Aboriginal object on the basis that the employee authorised for the ripping to be carried out.

If anemployee follows the Due Diligence Code and acts in good faith when authorising the activity, they cannot be found personally liable for any consequences of that activity.

The Murrumbidgee CMA has a ‘strict liability’defence to a prosecution of harming an Aboriginal object if it can demonstrate that the employeeexercised duediligence and reasonably determined that the authorisation of the activity wouldnot harm an Aboriginal object.

If ripping proceeds and anAboriginal object is unearthed or found despite exercising due diligence, works must stop. The Murrumbidgee CMA must apply for an Aboriginal Heritage Impact Permit (AHIP)if workscannot avoid harming the object or place. By receiving an AHIP, the Murrumbidgee CMA can provide a defence against the ‘knowing’ offence.

The NPW Actprovides a number of exemptions and defences to offences and also excludes certain acts and omissions from the definition of harm. For more information about the regulation of Aboriginal cultural heritage, go to the Office of Environment and Heritage (OEH) website:

2. Exceptions To Due Diligence Requirements

OEH’s Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW lists the following activities involving ‘trivial or negligible’ harm that would not give rise to an offence under the NPW Act:

Picking up and replacing a small stone artefact.
Breaking a small Aboriginal object below the surface when you are gardening.
Crushing a small Aboriginal object when you walk on a track.
Picnicking, camping or other similar recreational activities.

The NPW Regulation removes the need to follow a due diligence process for ‘low impact activities’, except where a known Aboriginal object or site will be impacted on or the object to be impacted on is a culturally modified tree or scar tree. Low impact activities on land that has been disturbed* by previous activity include:

Maintenance of existing roads, fire trails, other trails, tracks and utilities.
Farming and land management work, such as cropping, grazing, and leaving paddocks fallow.
Construction of new fences or the maintenance or replacement of existing fences.
Water storage works, such as construction and maintenance of irrigation infrastructure, farm dams, bores, water storages or water tanks and flood mitigation.
Construction and maintenance of erosion control works, such as contour banks.
Geochemical surveys, seismic surveys, costeaning bulk sampling and drilling.

Low impact activities on land not previously disturbed*include:

The removal of isolated, dead or dying vegetation with minimal ground surface disturbance.
Environmental rehabilitation works such as weed removal or bush regeneration, but notincludingerosion control works, contour banks or ripping and mounding activities for tree establishment.
Geological mapping, geophysical (but not seismic) surveys, downhole logging, sampling and coring using handheld equipment.

* Refer to Section 6 Definitions

Disturbance to the soil surface that can result from Murrumbidgee CMA onground worksmeans that we may not meet the criteria for ‘trivial or negligible harm’ or ‘low impact activities’ as provided in the NPW Act 1974.As a result, the assessment process listed in Section 4 is to be applied to all Murrumbidgee CMA works.

3. Aboriginal Objects In The Landscape

In the NPW Act:

Aboriginal object means any deposit, object or material evidence (not being ahandicraft made for sale) relating to the Aboriginal habitation of the area thatcomprises New South Wales, being habitation before or concurrent with (or both)the occupation of that area by persons of non-Aboriginal extraction, and includesAboriginal remains.

Aboriginal people have lived in Australia for at least 50,000 years and evidence of their presence is found throughout the landscape (DECCW, 2010). The types of Aboriginal objects that may be present include:

Human skeletal remains

Raised earth rings

Carved or scarred trees

Hearths

Middens

Grinding grooves

Rock art (paintings & engravings)

Stone arrangements

Stone artefacts

Rock Shelters

Earth mounds

4. Where Objects Are Found

The following landscape features are more likely to contain evidence of Aboriginaloccupation:

Floodplains and water bodies such as creeks and wetlands are a focus of human activity
Caves and rock overhangs were often used as shelters
Rock outcrops especially on plains country could serve as lookouts or quarries
Sandhill’sand sandy riverbanks could be used as burial sites
Small hills or other elevated country on floodplains are likely camp sites
The junction of rivers was sometimes used for campsites or ceremonial grounds
Some mountain tops with long sight lines were used as lookouts and campsites
Ridgelines were often used as walking tracks
Unusual or striking landscape features are likely to be included in dreamtime stories

Because Murrumbidgee CMA activities occur across a variety of landscapes within the catchment, they may involve at least one or more of the above landscape features.

The Due Diligence Process Chart in Appendix A and theAboriginal Cultural Heritage Field Assessment Form in Appendix B will serve as a checklist to help carry out and assist in the documentation of the due diligence process.

4. TheAssessment Process

For allMurrumbidgee CMA onground activities, the following 3 steps must be completed by case officers to demonstrate that they have exercised duediligence.Refer to Appendix A as an overview to these steps.

Step 1: AHIMS Search

Undertake a basic search of the Aboriginal Heritage Information System (AHIMS) database and retain a copy of the cover letter. The AHIMSlogin page is located at:

Step 2: Field Inspection

Carry out a cultural heritage inspection as part of the PVPsite assessment process and usethe checklist in Appendix B to record and document observations.

If there are AHIMS-listed objects or any other known objects within theproposed area, those sites must be located and validatedby the field officer during the inspection(s). Where necessary, expert assistance from the Murrumbidgee CMA Aboriginal CommunitiesCatchment Officer and/or OEH may be required to ensure that the whole site is protected.
If no additional Aboriginal objects are found during the inspection, note this on thechecklist to provide evidence that the process has been followed and proceed to Step 3.
Any Aboriginal objects found during the inspection must be recorded on the AHIMS Aboriginal Site Recording Form (Appendix C) and submitted to the Murrumbidgee CMA Aboriginal CommunitiesCatchment Officer.Works must stop and a determination must be made on if anAboriginal Heritage Impact Permit (AHIP) is required.
If an object that may be Aboriginal is found, the precautionary principle should beapplied, i.e.complete Appendix C and notify the Murrumbidgee CMA Aboriginal Communities Catchment Officer and/or OEH Aboriginal heritage staff.
If the landholder challenges this approach, they should be advised that they canengage with OEH, the Local Aboriginal Lands Council (LALC) and/or an archaeologist to confirm otherwise.

Step 3: Record Keeping

To prove that the due diligence process has been followed, written records must be kept.
The simplest way to do this is to complete Step 1 and file the completed Appendix Bchecklist. This should be done even if no Aboriginal objects are found.
Photographic records should also be retained on file.
If an Aboriginal object is found, the form in Appendix Cmust be completed and used to notify the Murrumbidgee CMA Aboriginal Communities Catchment Officer who will collate, send to the AHIMS Registrar and lodge for recording in the AHIMS database.
Refer to Appendix Dfor an overview for the filing process.

5. Summary

It is important for Case Officers to complete the Aboriginal cultural heritage assessment form (Appendix B) in accordance with the due diligence process (Appendix A) for assessing potential harm to Aboriginal objects because it:

provides certainty to land managers and developers about appropriate measures they can take.
encourages a precautionary approach.
provides more effective conservation of Aboriginal cultural heritage.
provides a defence against prosecution for ‘knowing’ and/or ‘strict liability’ offences.

NOTE FOR ALL PROJECTS:

If any Aboriginal cultural heritage objects are found on a site then work must stop.

The landholder and / or contractors must immediately inform the Case Officer in the event that work has stopped due to any Aboriginal cultural heritage objects being found on the site. The Case Officer must immediately contact the Murrumbidgee CMA Aboriginal Communities Catchment Officer and OEH for further advice.

6. Definitions

Aboriginal Place (as defined in the NPW Act) / A place declared under s.84 of the NPW Act that, in the opinion of the Minister, is or was of special significance to Aboriginal culture.
Information about the location of Aboriginal Places in NSW can be found on the OEH website at:
Aboriginal culturally modified tree (as defined in the NPW Regulation) / A tree that, before or concurrent with (or both) the occupation of the area in which the tree is located by persons of non-Aboriginal extraction, has been scarred, carved or modified by an Aboriginal person by:

the deliberate removal, by traditional methods, of bark or wood from the tree, or
the deliberate modification, by traditional methods, of the wood of the tree.

Activity / A project, development, activity or work (this term is used in its ordinary meaning, and does not just refer to an activity as defined by Part 5 EP&A Act).
Disturbed land or land already disturbed by previous activity / Land is disturbed if it has been the subject of a human activity that has changed the land’s surface, being changes that remain clear and observable.
Examples include ploughing, construction of rural infrastructure (such as dams and fences), construction of roads, trails and tracks (including fire trails and tracks and walking tracks), clearing vegetation, construction of buildings and the erection of other structures, construction or installation of utilities and other similar services (such as above or below ground electrical infrastructure, water or sewerage pipelines, stormwater drainage and other similar infrastructure) and construction of earthworks.
Due diligence / Taking reasonable and practical steps to determine whether a person’s actions will harm an Aboriginal object and, if so, what measures can be taken to avoid that harm.
Sand Dune System / Sand ridges and sand hills formed by the wind, usually found in desert regions, near a lake. In areas of western NSW, windblown dunes can occur along the eastern edges of ephemeral lakes (called lunettes dunes). They can also occur along the banks of rivers.
Waters / The whole or any part of any river, stream, creek, lake, lagoon, swamp, wetland, natural watercourse, tidal waters.

7. References

Department of Environment, Climate Change and Water, NSW (13 September 2010). Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW.

Online at:

Department of Industry and Investment, NSW (13 September 2010). Aboriginal Objects Due Diligence Code: For Plantation Officers Administering the Plantations & Reafforestation (Code) Regulation 2001.

Online at:

Appendix A

Appendix B

ABORIGINAL CULTURAL HERITAGE – Field Assessment Form

Are there any? / Yes/No / If Yes… / Comments
‘Aboriginal Places’ (as defined by the Minister administering the National Parks and Wildlife Act) / Aboriginal places must be totally protected
Registered sites within the application area or nearby (check AHIMS) / Contact Murrumbidgee CMA Aboriginal CommunitiesCatchment Officer if within application area
Old growth areas and areas of native vegetation that have undergone little disturbance / Check for signs of use*
Large / mature trees that may have potential to be scar trees / Check for scars
Areas adjoining wetlands, natural springs, floodplains, watercourses e.g. rivers and creeks particularly at the junction of two or more watercourses / Potential high usage areas, camp site, ceremonial site, middens, look for signs of use*
Caves, rock shelters or rock overhangs / Potential shelters, art sites, check for signs of use*
Sandhill’sand sandy riverbanks / Potential burial sites, check for scarred trees, carved trees, rock cairns
Large rock outcrops, hill, mountain top or elevated site with long sight lines overlooking flat plains country or floodplain / Potential lookouts, camp sites or ceremonial site, quarries, art sites, check for signs of use*
Exposed rock near wetlands, natural springs, floodplains, watercourses e.g. rivers and creeks / Look for grinding grooves
Ridgelines / Potential walking tracks – may find stone artefacts
Evidence of Aboriginal signs of use* / Complete Appendix B – Aboriginal Site Recording Form

* signs of use may include stone artefact scatters, scarred trees, rock arrangements, ovens or hearths etc.

Decision:……………………………………………………………………………………………………….…………………………

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Name: ______Signature ______Date: ______

Appendix C

Appendix D

uncontrolled when printed

2.1_Aboriginal_Cultural_Herritage_Due_Diligence_SOP_04.09.2012, Objective ID A580525 Page 1 of 10