“All disturbance is significant, and all the earth holds significance - the top that feeds the grasses, the deep earth that feeds the roots of the trees and the underground that feeds our underground waterways. Our Old People have left themselves and their places and stories across all this Country.”
Issue
Aboriginal Cultural Heritage is being damaged or destroyed through inappropriate classification of places as having no Cultural Heritage sensitivity.
Background
CHMPs are required for an activity if all or part of the activity area is:
- an area of Cultural Heritage sensitivity, and
- if it is a high impact activity
Places are considered to not be areas of Cultural Heritage sensitivity if they have been subject to significant ground disturbance (SGD). SGD is defined in the Regulations as “disturbance of the topsoil or surface rock layer of the ground”.
However, as soil that contains artefacts can be found far deeper than what is recorded as topsoil, those deeper lying artefacts are not protected by a CHMP if the topsoil has been disturbed.
Another significant issue is that places and objects with Cultural Heritage sensitivity do not lose their significance just because they have been disturbed. This is at odds with SGD impacting the application of a CHMP as it means that CHMPs are not mandatory for activities that are often harming Cultural Heritage. For regions where there are large numbers of post-contact items that are of Cultural Heritage significance, this is a particularly pertinent concern.
Proposal
That the Regulations of the Act be amended to replace the use of SGD with a different term in Part 2 Division 2 section 19, Division 3 subsections 25-41 and Division 4 section 44. This new term (and definition) would more adequately defi ne what type of disturbance could render a place devoid of Cultural Heritage.
It is proposed that the term SGD needs to be replaced with ‘subject to complete removal of all culturally relevant stratigraphy’.
The definition of ‘culturally relevant stratigraphy’ should be inserted in section 5 as ‘Topsoil, subsoil and loose, weathered basal rock’.
The current use (and definition) of SGD would remain in Part 2 Division 5 of the Regulations.
An addition to the definition of the new term in relation to waterways should also be inserted to ensure any Cultural Heritage present in the stratigraphy of the floodplain of a watercourse is adequately protected.
In section 26(2) of Division 3 in Part 2, the use of SGD for the purposes of waterways should be replaced with the new term with the additional definition ‘subject to complete removal of culturally relevant stratigraphy and all alluvium and colluvium considered to be younger than 100,000 yrs BP.’
Consideration
The use and definition of SGD needs to be reviewed to ensure that places are only classified as not being areas of Cultural Heritage sensitivity when it is appropriate. This will ensure protection of Aboriginal Cultural Heritage and align with the fact that objects and places do not necessarily lose Cultural Heritage significance once they have been disturbed.
The definition being limited to ‘topsoil’ is inadequate when used to define an area of Cultural Heritage sensitivity. Thousands of test pits have demonstrated that Cultural Heritage can be found within stratigraphy at depths far greater than what is considered topsoil. Consequently, Cultural Heritage located in those deeper parts of the stratigraphy are not sufficiently protected under the Act and Regulations by the current definition of SGD.
Another significant issue with the current framework is that Aboriginal Places and Objects do not lose their significance just because they have been disturbed. The Act is meant to protect all Cultural Heritage from harm, so by excluding areas from assessment that have been superficially disturbed means that often CHMPs are not mandatory for activities that are in fact harming Cultural Heritage. For regions where there are large numbers of postcontact Objects that are of Cultural Heritage significance, this is of particular concern.
However, simply changing the definition of SGD is problematic. This is because the Regulations also employ the current defi nition of SGD to assist in determining whether an activity is ‘high impact’ or not. Part 2 Division 5 subsections 46, 47, 50-56 state that certain activities are high impact if they do result in SGD. A CHMP will only be required for an activity if all or part of that activity is high impact. Any change to the defi nition of SGD needs to take this into account.
Submission to the response to the proposal
“Changing the Definition of Significant Ground Disturbance is a key priority for reform.”
The Wurundjeri Woi-Wurrung Aboriginal Cultural Heritage Aboriginal Corporation is a Registered Aboriginal Part appointed under the Aboriginal Heritage Act 2006 that holds statutory responsibilities for the protection and management of Aboriginal cultural heritage places and objects; other functions of the Corporation include water governance, the provision cross cultural training and events, cultural heritage and land management services.
Community support for the proposal
This proposal was widely supported across the sectors. One submission from the Heritage – Policy sector stated it:
“it is important that the definition of waterway in the regulations encompass all waterways that the relevant Traditional Owners and RAPs are of the view should fit within the definition of an area of cultural heritage sensitivity.”
The concerns raised by the Building and Development sector related to the feasibility of protecting Aboriginal Cultural Heritage and the resultant impacts on development.
“The notion of seeking to preserve all Aboriginal Cultural Heritage (irrespective of the object or place) on land that has been disturbed would have the eff ect of sterilizing large amounts of developable land.”
It should be noted that this proposal seeks to ensure that planning for the management of known Aboriginal Cultural Heritage on Country is required. As with other proposals. the burden of pre-emptive care for Cultural Heritage is one that it much better dealt with by a Sponsor during the planning stage of a project than during on ground works.
| UNDRIP |
This issue should be considered in relation to Article 8: “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” |
| Best practice standards in Indigenous cultural heritage management and legislation |
This recommendation should be considered in relation to Best Practice Standard 4 – Definitions: “Definitions should recognise that an essential role of ICH is to recognise and support the living connection between Indigenous Peoples today, our ancestors and our lands.” |
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