Division 2Division 2 Aboriginal heritage impact permits
90 Aboriginal heritage impact permits
(1) The Director-General may issue an Aboriginal heritage impact permit.(2) An Aboriginal heritage impact permit may be issued subject to conditions or unconditionally. However, a condition cannot be imposed on a permit if compliance with the condition would result in a breach of a requirement made by or under this Act.(3) An Aboriginal heritage impact permit may be issued in relation to a specified Aboriginal object, Aboriginal place, land, activity or person or specified types or classes of Aboriginal objects, Aboriginal places, land, activities or persons.
90A Application for issue of permit
(1) An application may be made to the Director-General for the issue of an Aboriginal heritage impact permit.(2) An application must:(a) be made in or to the effect of a form approved by the Director-General, and(b) contain or be accompanied by such documents and information as is required by regulations or by the Director-General (as indicated in the form or in material accompanying the form).
90B Application for transfer of permit
(1) An application may be made to the Director-General for the transfer of an Aboriginal heritage impact permit to another person.Note. Section 90E requires the application to be made only with the consent in writing of the holder of the permit.(2) An application for the transfer of a permit must:(a) be made in or to the effect of a form approved by the Director-General, and(b) contain or be accompanied by such documents and information as is required by the Director-General (as indicated in the form or in material accompanying the form).
90C Grant or refusal of application
(1) The Director-General may grant or refuse an application for the issue or transfer of an Aboriginal heritage impact permit.(2) An application is granted by the issue or transfer of the permit concerned.(3) If the Director-General proposes to refuse such an application, the Director-General must before doing so:(a) give notice to the applicant that the Director-General intends to do so, and(b) specify in that notice the reasons for the Director-General’s intention to do so, and(c) give the applicant a reasonable opportunity to make submissions in relation to the matter, and(d) take into consideration any such submissions by the applicant.(4) A permit is issued or transferred by notice in writing given to the applicant.Note. Section 90L enables appeals to be made in connection with permit applications within a specified period after the person is given notice of the decision concerned.
(1) The Director-General may vary an Aboriginal heritage impact permit (including the conditions of such a permit).(2) A variation includes the imposing of a condition on a permit (whether or not any conditions have already been imposed), the substitution of a condition, the omission of a condition or the amendment of a condition.(3) A permit may be varied only on the application of the holder of the permit. However, the Director-General may vary a permit:(a) to correct a typographical error, or(b) to resolve an inconsistency between conditions to which the permit is subject.(4) A permit may be varied at any time during its currency, including (subject to section 90R) on its being transferred to another person.(5) A permit is varied by notice in writing given to the holder of the permit.
90E Restrictions on making applications to transfer permits
An application for the transfer of an Aboriginal heritage impact permit may be made only with the consent in writing of the holder of the permit.
90F Requirement for further information
(1) If an application has been made under this Division, the Director-General may, by notice in writing given to the applicant, require the applicant to supply to the Director-General such further information as the Director-General considers necessary and relevant to the application and specifies in the notice.(2) In this section:information includes plans and specifications.
90G Suspension or revocation of permit
(1) The Director-General may suspend or revoke an Aboriginal heritage impact permit.(2) A suspension or revocation of a permit is effected by notice in writing given to the holder of the permit.(3) A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Director-General.(4) Without limiting subsection (1), a permit may be revoked while it is suspended.(5) The Director-General must not suspend or revoke a permit unless before doing so the Director-General has:(a) given notice to the holder of the permit that it intends to do so, and(b) specified in that notice the reasons for its intention to do so, and(c) given the holder of the permit a reasonable opportunity to make submissions in relation to the proposed revocation or suspension, and(d) taken into consideration any such submissions by the holder of the permit.(6) The reasons for suspending or revoking a permit may include (but are not limited to) the following:(a) the holder of the permit has obtained the permit improperly,(b) a condition of the permit has been contravened,(c) the activities covered by the permit are completed or no longer being carried on.(7) No fees are refundable on the suspension or revocation of a permit.
An Aboriginal heritage impact permit may, on the written application of the holder of the permit, be surrendered with the written approval of the Director-General.
90I Conditions of suspension, revocation or surrender
(1) The Director-General may, by notice in writing, impose conditions on the suspension or revocation of, or the approval of the surrender of, an Aboriginal heritage impact permit.(2) Those conditions may include (but are not limited to) any conditions to which the permit was subject immediately before it was suspended, revoked or surrendered.(3) The Director-General may, by notice in writing, impose new conditions on, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the permit.Note. Section 90J makes it an offence to breach conditions under this section.
90J Failure to comply with conditions
(1) Offences
If any condition of an Aboriginal heritage impact permit is contravened by any person, the holder of the permit (or, if more than one person holds the permit, each holder of the permit) is guilty of an offence.(2) If any condition to which a suspension or revocation of, or the approval of the surrender of, an Aboriginal heritage impact permit is subject is contravened by any person, the holder of the permit or former permit (or, if more than one person holds or held the permit or former permit, each holder of the permit or former permit) is guilty of an offence.Maximum penalty (subsections (1) and (2)):
(a) in the case of an individual—1,000 penalty units or imprisonment for 6 months, or both and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues, or(b) in the case of a corporation—2,000 penalty units and, in the case of a continuing offence, a further penalty of 200 penalty units for each day the offence continues.(3) Defence
The holder of an Aboriginal heritage impact permit or former Aboriginal heritage impact permit is not guilty of an offence against this section if the holder establishes that:(a) the contravention of the condition was caused by another person, and(b) that other person was not associated with the holder at the time the condition was contravened, and(c) the holder took all reasonable steps to prevent the contravention of the condition.A person is associated with the holder for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.
Note. An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
90K Factors to be considered in making determinations regarding permits
(1) In making a decision in relation to an Aboriginal heritage impact permit, the Director-General must consider the following matters:(a) the objects of this Act,(b) actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,(c) practical measures that may be taken to protect and conserve the Aboriginal objects or Aboriginal place that are the subject of the permit,(d) practical measures that may be taken to avoid or mitigate any actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,(e) the significance of the Aboriginal objects or Aboriginal place that are the subject of the permit,(f) the results of any consultation by the applicant with Aboriginal people regarding the Aboriginal objects or Aboriginal place that are the subject of the permit (including any submissions made by Aboriginal people as part of a consultation required by the regulations),(g) whether any such consultation substantially complied with any requirements for consultation set out in the regulations,(h) the social and economic consequences of making the decision,(i) in connection with a permit application:(i) any documents accompanying the application, and(ii) any public submission that has been made under the Environmental Planning and Assessment Act 1979 in connection with the activity to which the permit application relates and that has been received by the Director-General,(j) any other matter prescribed by the regulations.(2) The Director-General, in making a decision in relation to an Aboriginal heritage impact permit, must not consider any matter other than the matters referred to in subsection (1).
(1) An applicant for, or holder or former holder of, an Aboriginal heritage impact permit may appeal to the Land and Environment Court against any of the following decisions of the Director-General:(a) a decision to refuse any application in relation to an Aboriginal heritage impact permit or former permit,(b) a decision in relation to any condition to which a permit or former permit (or a surrender of a permit) is subject,(c) a decision to suspend or revoke a permit.(2) The Land and Environment Court:(a) may refuse to grant the appeal, or(b) may grant the appeal wholly or in part, and may give such directions in the matter as the Land and Environment Court thinks appropriate.(3) The decision of the Land and Environment Court on the appeal is final and is binding on the Director-General and the appellant, and is to be carried into effect accordingly.(4) The regulations may (but need not) prescribe the manner in which an appeal is to be made under this section.(5) An appeal under this section must be made within 21 days after the day the person was given notice of the decision being appealed.(6) For the purposes of this section, an application is taken to be refused (unless it is earlier granted or refused), and notice of that refusal is taken to have been given to the applicant, on the expiration of the period of 60 days after the date on which the application was received by the Director-General.(7) For the purposes of subsection (6), any period under section 90F during which an applicant is required to supply to the Director-General such further information is to be disregarded in determining whether the 60 day period referred to in that subsection has expired.
90M Date from which decision operates
A decision of the Director-General in relation to an Aboriginal heritage impact permit operates from:(a) the date of the decision, or(b) if another later date is specified by the Director-General in the decision—that other date.
90N Regulations relating to consultation
The regulations may make provision for or with respect to the following:(a) consultation that must be undertaken in relation to an application or proposed application that relates to an Aboriginal heritage impact permit (including the nature, extent and timing of the consultation),(b) the persons, or classes of persons, who must be so consulted (including but not limited to Aboriginal people with a cultural association with the object or land concerned),(c) the opportunity of persons, or classes of persons, so consulted to make submissions as part of the consultation.
90O Interaction between permits and stop work and interim protection orders
For the avoidance of doubt, the existence of an Aboriginal heritage impact permit does not prevent the making of an order under Division 1 of Part 6A or an interim protection order under Division 2 of Part 6A.
The validity of the Aboriginal heritage impact permit cannot be questioned in any legal proceedings except in proceedings commenced in the Land and Environment Court before the expiration of 3 months from the date on which the issue of the permit was published on the public register.
90Q Aboriginal Heritage Information Management System
(1) The Director-General is to establish and keep a database to be known as the Aboriginal Heritage Information Management System (the AHIMS).(2) The AHIMS is to contain:(a) information and records regarding Aboriginal objects whose existence and location have been reported to the Director-General, and(b) copies of any reports that have been provided to the Director-General regarding Aboriginal objects and other objects, places and features of significance to Aboriginal people, and(c) any other information required by the regulations.(3) The purposes of the AHIMS are:(a) to maintain a record of Aboriginal objects whose existence and location have been reported to the Director-General, and(b) to maintain a copy of any report that has been provided to the Director-General relating to the assessment of objects, places and features that are or are likely to be of significance to Aboriginal people, and(c) to maintain a record of the details of any other report (of which the Director-General is aware) relating to the assessment of objects, places and features that are or are likely to be of significance to Aboriginal people, and(d) to allow access to the AHIMS:but the AHIMS is not intended to be conclusive about whether any information or records contained within it is up-to-date, comprehensive or otherwise accurate.(i) by Aboriginal people and organisations and by academic researchers, and(ii) by or on behalf of persons exercising due diligence to determine whether an act or omission would harm an Aboriginal object for the purposes of section 87 (2), and(iii) by public and local authorities in the exercise of their land management, planning and other similar functions,(4) The AHIMS is to be kept and maintained in such form as the Director-General thinks fit. Different parts of the AHIMS may be kept in different forms.(5) The regulations may prescribe any or all of the following:(a) the persons and classes of persons who may be granted access to information and records contained in the AHIMS,(b) the method of accessing the AHIMS,(c) the form in which access to the AHIMS is to be given (for example, whether by access to full records or summaries or through supplied maps or other forms of information),(d) the type of information or records that are available to be accessed from the AHIMS and any conditions or restrictions on the access to, and use of, that information or those records,(e) fees for access to the AHIMS and for copies or extracts of information and records kept on the AHIMS.
90R Certain Aboriginal heritage impact permit conditions to run with the land
If an Aboriginal heritage impact permit relates to a specified parcel of land and an application is made under section 90B to transfer the permit to another person, the Director-General:(a) must not refuse the application, and(b) in granting the application, must not vary any of the conditions of the permit.