Aboriginal heritage checks for NSW DAs: AHIMS and the due diligence code

Aboriginal objects in NSW are protected under the National Parks and Wildlife Act 1974, and harming one without an Aboriginal Heritage Impact Permit (AHIP) is an offence, including a strict liability offence where you did not know the object was there. The main defence is showing you exercised due diligence, which in practice means following the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales. The code is a five-step test. It starts with whether your works will disturb the ground and a search of the Aboriginal Heritage Information Management System (AHIMS). It then asks whether the site has landscape features, such as land within 200 metres of waters, that make objects likely on undisturbed land. Councils increasingly expect to see that process documented with DAs for subdivisions, townhouses and new houses on larger or less disturbed sites.

Who this is for: developers and builders preparing DAs for subdivisions, townhouses or houses on larger, creek-side or less disturbed sites on the Central Coast, the Hawkesbury, the Hunter, the Illawarra and the Western Sydney growth areas, who need to know what Aboriginal heritage work the council will expect.

Why does Aboriginal heritage come up in a residential DA?

The National Parks and Wildlife Act 1974 protects all Aboriginal objects, whether recorded or not. The Due Diligence Code explains that a person who exercises due diligence in deciding their actions will not harm Aboriginal objects has a defence against prosecution for the strict liability offence if they later unknowingly harm an object without an AHIP. The code is adopted by the National Parks and Wildlife Regulation, and carefully following it is regarded as due diligence.

Councils consider heritage under section 4.15 of the EP&A Act and the heritage conservation clause of their LEP (clause 5.10 in the Standard Instrument LEPs, which covers Aboriginal objects and Aboriginal places of heritage significance). For a small infill duplex on a long-developed suburban lot, the answer is usually short. For a greenfield subdivision near a creek in Box Hill, Riverstone or Leppington, or a block near the water on the Central Coast, the council will want to see the process followed properly.

What are the five steps in the due diligence code?

1. Step 1: Will the activity disturb the ground surface? Or any culturally modified trees. If not, you can proceed without further assessment. Most building work disturbs the ground.
2. Step 2a: Search AHIMS and use other information you already have. Check whether Aboriginal sites have been recorded in the area, and consider any previous studies or reports.
3. Step 2b: Check landscape features. Regardless of the AHIMS result, consider whether objects are likely given the landscape. On land that is not disturbed land, the triggers below send you to step 3.
4. Step 3: Can you avoid harm? If objects are likely, can the works avoid them and the landscape feature? If so, proceed with caution.
5. Step 4: Desktop assessment and visual inspection. If harm cannot be avoided, assess and inspect. If nothing indicates objects, proceed with caution.
6. Step 5: Further investigation and impact assessment. If harm to objects will occur, an AHIP application is required.

The steps are numbered one to five in the code, with step 2 split into 2a and 2b, which is why the list above has six entries.

Which landscape features matter under step 2b?

The code lists landscape features that indicate the likely presence of Aboriginal objects. If your activity is on land that is not disturbed land and is:

then you must go to step 3. The phrase that matters is “not disturbed land”. Land that has been previously disturbed by clearing, building, roads or earthworks is treated differently, so an established suburban lot near a creek is not in the same position as an untouched paddock beside it. The code defines disturbed land, and the definition should be applied honestly: an old house pad is disturbed; a grazing paddock may not be.

How do you search AHIMS, and what does it tell you?

AHIMS is the state database of recorded Aboriginal sites, maintained by the NSW Government. A basic search can be run online after registering, using a lot and deposited plan, coordinates or the map viewer. If the basic search returns recorded sites or declared places, an extensive search can be requested. The code says a search more than 12 months old must be repeated to make sure the information is current.

The limit of AHIMS is simple: it only holds what has been reported. Large parts of Western Sydney and the Central Coast have never been surveyed in detail, so a clear search is a starting point, not a clearance. That is why step 2b exists.

How we build this into a DA

1. At due diligence stage, run the AHIMS basic search and keep the dated results.
2. Assess whether the site is disturbed land, with historical imagery and site photographs.
3. Map the step 2b landscape features against the site: distance to waters, ridges, dunes, cliffs, rock shelters.
4. If the code allows, record the reasons you can proceed with caution and include a short due diligence statement with the DA.
5. If not, engage a heritage consultant for the desktop assessment and inspection, and design to avoid harm where possible.
6. If harm cannot be avoided, allow for Aboriginal community consultation and an AHIP in the program.
7. Include an unexpected finds condition or protocol in the construction management plan, and make sure site crews know it.

The mistakes we see

The first is treating a clear AHIMS search as the whole answer. Councils and Heritage NSW will look for the step 2b analysis. The second is leaving it until an RFI. On a subdivision, the AHIP process involves consultation and takes time; finding that out after lodgement can push a project out by many months. The third is the construction phase. The code is clear that if human remains are found, work must stop, the site must be secured and the NSW Police and the relevant agency notified. Contractors need to know that before the excavator starts.

Definitions

Aboriginal object

Any deposit, object or material evidence relating to Aboriginal habitation of NSW, protected under the National Parks and Wildlife Act 1974.

AHIMS

The Aboriginal Heritage Information Management System, the NSW register of recorded Aboriginal sites and declared Aboriginal places.

AHIP

An Aboriginal Heritage Impact Permit, required before harming an Aboriginal object or Aboriginal place.

Due diligence

Taking reasonable and practicable steps to work out whether an activity will harm Aboriginal objects and to avoid that harm, as set out in the Due Diligence Code of Practice.

Disturbed land

Land that has been changed by previous human activity, such as clearing, construction or earthworks, as defined in the code.

Aboriginal heritage screening is part of our development due diligence reports, and the outcome is written into the Statement of Environmental Effects so the council sees the process at lodgement. For sites on the Central Coast, in the growth areas or anywhere near water, request a fee proposal.