Explanatory Statement
Issued by authority of the Minister for the Environment
Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) preserves and protects significant traditional areas, objects and remains, that are of particular significance to Aboriginal and Torres Strait Islanders, from injury or desecration. This includes an area of land in Australia or beneath Australian waters, an area of water in Australia or an area of Australian waters.
The Act recognises the body of traditions, observances, customs and beliefs of Aboriginal and Torres Strait Islanders generally or of a particular community or group therein, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
The Declaration
Part II of the Act (Part II) provides for the protection of significant Aboriginal areas and objects. Under section 9 of the Act, the Minister may, by legislative instrument, make a declaration to preserve and protect a significant Aboriginal area that is under serious and immediate threat of injury or desecration.
The Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018 (the Declaration) is an emergency declaration made under section 9 of the Act to preserve or protect Bellwood Sacred Site (the specified area).
On 16 December 2016, the former Minister for the Environment, the Hon Josh Frydenberg MP, received an application from the Nambucca Heads Local Aboriginal Land Council (the applicant) seeking the preservation or protection of the specified area from injury or desecration.
In making the Declaration, the Minister considered the application and was satisfied that the specified area is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration from a proposed subdivision and residential development by
Waifap Pty Ltd.
Broad consultation was not undertaken as the Declaration was required to be urgently made. This Declaration is intended to be an interim measure and is only in place for 30 days while further assessment is undertaken. If appropriate, further consultation will occur as related applications are duly processed.
The Declaration is a legislative instrument for the purposes of the Legislation Act 2003.
The Declaration commences 19 November 2018.
Description of provisions
Part 1—Preliminary matters
Part 1 sets out the preliminary matters of the Declaration.
Section 1 provides the name of the Declaration.
Section 2 provides the commencement information for the Declaration.
Section 3 provides the authority under which this Declaration is made.
Section 4 provides the definitions used in this Declaration.
Part 2—Declaration
Part 2 of the Declaration provides for those matters required to be covered under sections 9 and 11 of the Act.
Section 5 provides the specified area to which the Declaration applies.
Section 6 is a provision for the purpose of paragraph 11(b) of the Act and provides for and in relation to the protection and preservation of the area from injury or desecration.
- Subsection (1) provides that the specified area is to be preserved and protected from injury or desecration under section 9 of the Act.
- Subsections (2) provides that a person must not carry out any works, which will or are likely to cause injury or desecration to the Area. The provision also sets out a number of specified works which must not be carried out by a person:
- undertake any action that will, or is likely to, adversely affect the use or significance of the specified area in accordance with Aboriginal tradition.
- conduct any clearing activities, preliminary activities associated with clearing, or any other act that will, or is likely to, injure or desecrate the specified area.
- The note clarifies that it is an offence under the Act if a person engages in conduct that contravenes a provision of a declaration made under Part II of the Act in relation to a significant Aboriginal area.
Section 7 provides the period for which this Declaration is in force. This Declaration is self-repealing and ceases to be in force the day after the period of effect ends.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018
This Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Declaration
Section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 allows the Australian Government Minister for the Environment to make emergency declarations in relations to areas where the Minister receives a valid application, and is satisfied that the area is a significant Aboriginal area, and that it is under serious and immediate threat of injury or desecration, he or she may, by legislative instrument, make a declaration in relation to an area.
This Declaration preserves and protects the significant traditional area of Bellwood Sacred Site from injury or desecration attributed to a proposed subdivision and residential development by Waifap Pty Ltd.
Human rights implications
This Declaration does not engage any of the applicable rights or freedoms.
Conclusion
This Declaration is compatible with human rights as it does not raise any human rights issues.