A recent decision of the Victorian Civil and Administrative Tribunal has highlighted the risk of relying on online mapping tools to assess whether a site is within an area of ‘cultural heritage sensitivity’ within the meaning of the Aboriginal Heritage Act 2006 and regulations.

The regime established by the Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2007 requires that a cultural heritage management plan (CHMP) is prepared where a use or development is a ‘high impact activity’ and where that activity is to occur in an ‘area of cultural heritage sensitivity’.  No statutory authorisation, including the grant of a planning permit, may be given until a CHMP is obtained where one is required.  To assist parties, Aboriginal Affairs Victoria (AAV) has created online self-assessment tools and, relevantly, online mapping to identify areas of cultural heritage sensitivity.  However, the online plans have no statutory weight and in practice, the inclusion or exclusion of a site must be determined in accordance with the regulations.

The recent decision of Morgan v Mildura City Council [2014] VCAT 1503 highlights the risks where parties form a position based on the online mapping.   In Morgan, objectors sought to argue that the site was within an area of cultural heritage sensitivity in reliance upon the online mapping.  The Tribunal heard and accepted evidence that notwithstanding the mapping suggested the land was included in an area of cultural heritage sensitivity, the land did not meet the statutory tests under the regulations.

The Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2007 play an important role in the assessment and preservation of Aboriginal heritage but also represent a significant development cost.  It is therefore important that the question of whether a CHMP is required is accurately determined. 

The AAV mapping system should not form the basis of decision making as to whether a site is within an area of cultural heritage sensitivity.  At its highest, the mapping system should be used only as a first sweep tool.  As the disclaimer associated with the mapping states: ‘Any critical decision about the likely cultural heritage sensitivity of an area should not rely solely on the mapped information, but should be made following reference to the Aboriginal Heritage Regulations 2007’.

Despite this warning many permit applications continue to be filed based on assessments using only the online tools. 

For more information please contact:

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au

John Hannagan
Senior Associate
Harwood Andrews
T: 03 5225 5202
E: jhannagan@harwoodandrews.com.au