Chapter 12

This chapter looks at laws that aim to protect human generated heritage – buildings, artifacts, structures and places of historic and cultural interest, including ancient Aboriginal sites.

Any places or artifacts that have cultural, scientific, aesthetic, architectural, community or historic interest to our community or to future generations. It includes not only buildings and other physical structures, but localities where significant events have occurred. These laws protect not only individual sites, but can include entire areas, such as historic Battery Point and West Point (NW Coast). These laws help to protect the essential integrity of our cities, towns and rural landscapes for the interest and enjoyment of present and future generations.

This can be a delicate area of law because structures and places having cultural interest exist mostly on privately owned land. It is often difficult for governments to curtail private landowners' rights.

It is important to note that Aboriginal Cultural Heritage is a completely separate issue from more recent Historic Cultural Heritage and comes under separate legislation.

People have lived in Tasmania for over 35,000 years, a perspective that should never be lost when evaluating heritage values. For people of Aboriginal descent these values go well beyond saving a few artifacts for historic interest, they have an extremely high significance to their identity and living culture.

At the time of writing, laws to protect Aboriginal Cultural Heritage in Tasmania are badly outdated and ‘Eurocentric’, rather than based on cultural history that is important to the Aboriginal community. Unresolved issues of ‘ownership and control’ have also hampered law reform in this area. However, proposed new Aboriginal heritage laws are currently being developed to provide more appropriate contemporary protection for indigenous cultural heritage.

• Through land ownership - see below

• The Aboriginal Relics Act (presently under review) provides for the management of protected sites and objects, which are proclaimed by order. All Aboriginal relics, whatever the land status, are protected under Section 14 of the Act (click HERE to see) unless a permit from the Minister is issued. Permit applications are made through, and processed by, the Aboriginal Heritage Office. Information on the process is available through this office.
  
  • It is an offence for any person (including government agencies) to damage, destroy, conceal, deface or otherwise interfere with a relic or a protected site. All alleged offences of this nature are investigated and successful prosecutions have occurred.
    
  • If a developer discovers a relic during construction work, all work must stop until the site has been assessed to see what mitigation measures are necessary.

• In State Reserves (declared under the Nature Conservation Act 2002) Aboriginal sites are protected and cultural activities are permitted, including traditional hunting and gathering, provided the activities are not likely to have a detrimental effect on fauna and flora and are consistent with the Act.

• Traditional Aboriginal hunting and gathering is permitted on Aboriginal land under the Aboriginal Lands Act 1995 and under the Living Marine Resources Management Act 1995.

• The Land Use and Planning Approvals Act can also be used to protect Aboriginal Cultural Heritage. For example, Aboriginal heritage issues can be addressed through Planning Schemes provisions which require Environmental Impact Assessments or heritage surveys to be carried out in areas of known or potential significance to indigenous people (☞ Go to Chapter 5).

• The Tasmanian State Coastal Policy (☞ Go to Chapter 7) provides for Aboriginal heritage protection.

In recent times several Crown Land sites have been transferred (i.e. returned) to Aboriginal ownership and control (under Aboriginal Lands Act 1995). These areas are under the control of the Aboriginal Land Council of Tasmania (ALCT), a statutory body.

Mining and exploration are prohibited in these areas without the permission of the Aboriginal Land Council.

Some of these areas are classified as Indigenous Protected Areas (part of the National Reserve System and the international IUCN reserve system). This special land classification allows for protection and maintenance of both natural and cultural resources in tandem, producing social and cultural outcomes from natural resource conservation activities on land and sea. Indigenous Protected Areas in Tasmania include Preminghana, Oyster Cove, Risdon Cove and Badger and Chappell Islands. (☞ For information on reserve classifications see Chapters 7 and 15)

In the absence of more comprehensive laws, the Tasmanian Aboriginal Land and Sea Council (a non-government organisation created by the Aboriginal community) provides an Aboriginal community view on matters affecting Aboriginal heritage.

An important piece of legislation is the Aboriginal and Torres Strait Islander Heritage Protection Act. It aims to protect sites of cultural significance to Aboriginal people themselves and it enables the federal minister, on application to him/her, to make a declaration that a place or object is to be protected from ‘desecration or injury’.

• The role, knowledge and interests of Aboriginal people must be recognised when determining or promoting conservation and ecologically sustainable use of Australian natural systems (section 3).

• The role and interest of Aboriginal people in the conservation of biodiversity must be considered when Plans for Recovery, Threat Abatement and Wildlife Conservation are being drawn up (sections 270, 271(3), 287).

• On Commonwealth Reserves, ceremonial practices, hunting and gathering may continue (section 359A).

• Some highly significant Aboriginal sites in Australia (such as Uluru and Kata Tjuta) are legally protected under the EPBC Act. The protection is only offered to places that are specifically listed under National Heritage, Commonwealth Heritage or World Heritage classifications. ☞ Click HERE to see the list of recognised 'heritage' places.

• Affected Aboriginal communities must also be consulted by the Australian Heritage Council when assessing sites and when making Conservation Agreements.

☞ Go to Chapter 15 for more information on national environmental laws.

• Aboriginal Heritage Office Website
  Department of Environment, Parks, Heritage and the Arts
  G.P.O Box 771, Hobart Tas 7001 ANZ Centre, 22 Elizabeth Street Ph 6216 4471 or 1300 135 513 Fax: (03) 6233 5555
  Email: aboriginal@heritage.tas.gov.au

• Parks and Wildlife Service:
  134 Macquarie Street, Hobart Postal: GPO Box 44A, Hobart 7001
  Ph: 6233 8011 Fax: 6233 3477 Launceston: Ph: 6336 5312
  Email: interps@dpiwe.tas.gov.au

• Aboriginal Land Council of Tasmania
  182 Charles St Launceston Ph 6331 2833

• Tasmanian Aboriginal Land and Sea Council:
  GPO Box 1452 Hobart 7001. Ph: 6231 0288

• Tasmanian Aboriginal Legal Service:
  198 Elizabeth Street, Hobart 7000 Ph: 6234 0740 Fax: 6234 0799
  182 Charles Street Launceston Ph 6332 3823
  53 Alexander Street, Burnie 7320 Ph: 6431 3289 fax: 6431 8363

• Aboriginal Lands Act 1995
• Aboriginal Relics Act 1975

Federal Laws

• Environment Protection and Biodiversity Conservation Act 1999
• Aboriginal and Torres Strait Islander Heritage Protection Act 1984

Tasmanian places that have Historic Cultural Heritage values are protected through two principal mechanisms.

Since 1997, the Historic Cultural Heritage Act 1995 has become the primary vehicle for listing and protecting places that have historic cultural heritage values.

Such places are identified and listed on the Tasmanian Heritage Register, which is administered by the Tasmanian Heritage Council.

These heritage laws and processes are automatically linked to development controls (described in Chapter 5), so when a development application that has heritage implications is received by local council, it is automatically referred to the Heritage Council for deliberation as part of the approval process.

However, some local councils (particularly Hobart and Launceston) also keep comprehensive inventories of heritage buildings and sites within their municipal areas. Planning schemes in these areas often provide extra criteria for developments which may affect these listed heritage places.

Citizens are able to contest breaches of the planning scheme or appeal against decisions to approve development which will have adverse impacts on heritage places. (☞ Go to Chapters 5 & 6)

The Cultural Heritage Act is an integral part of Tasmania's comprehensive planning system (RMPS), which gives owners and other citizens formal rights of appeal when decisions are made. (☞ Go to Chapter 4 to see how the RMPS system works)

This is a statutory resource management and planning body, responsible for administering the Act and maintaining the Tasmanian Heritage Register. Any development on (or which may interfere with) listed heritage places requires the approval of the Heritage Council before works can commence.

You can download a variety of online Application Forms (click HERE) from the Heritage Council's website - including an application to do works, or to nominate a place to be included in the Heritage Register.

So long as a property or site complies with at least one of a number of cultural criteria (set out in the Act), it can be placed on the register. (Aboriginal cultural heritage is exempted and is dealt with via other legislation - see above, this Chapter.)

Any person is able make an application to the Tasmanian Heritage Council to have a place put on the register. “Places” include areas, land, buildings and associated items, and also shipwrecks.

Local councils and other planning authorities have various powers to prevent the demolition or unapproved alteration of places that are listed on the Tasmanian Heritage Register.

The Act defines ‘works’ very broadly to include any action that may change the nature or appearance, change the condition of land or destroy vegetation (unless otherwise in accordance with Forest Practices legislation). Such actions can include the erection of signs and even applying different coloured paint.

It is important to note that state and local government agencies are also subject to these laws when managing resources or undertaking public works.

If you apply to local council for a permit for development on or adjoining any site listed on the register, the application will be referred to, and then assessed by, the Heritage Council. The Heritage Council must make a determination within 42 days (unless the parties have agreed to a longer period).

You will also need to complete a special works application form, available from your local council. The Council will then process the application on your behalf. The application to do work on a heritage place must be advertised and any interested person can make a submission to the local council, in support of or against the application, within 14 days.

Helpful Tip: If your property is listed in the Heritage Register and you intend to take an action that you think could affect heritage values in any way, it can save you a lot of trouble to contact the Heritage Council and discuss your plans. It is sensible to do this before you go to the expense of engaging architects and/or builders and paying for development applications that may be knocked back or not be necessary.

If the Heritage Council decides that your intended action will not impact on the heritage values of your property, it can issue you with an ‘exclusion certificate’. (Note, you will still have to apply to your local council for any normal planning and building permits that may apply to any work or change of use of the premises – as described in Chapter 5.)

The Heritage Council may reject or approve your works application. If the application is approved, it will normally be subject to conditions, restrictions or standards - such as a requirement that the work be undertaken under the supervision of a suitably qualified person.

If you are dissatisfied with the decision, you may appeal against the decision in the Resource Management and Planning Appeal Tribunal (see below).

If you are thinking of buying a property that has or may have heritage values (or be subject to a heritage agreement), then talk to the Heritage Council and local council to see what conditions may apply to that property.

This is especially important if you are thinking about making any alterations subsequent to purchase.

The Heritage Council is able to revoke an approval to do works if it believes that the conditions are not being complied with.

Further, the Act specifies penalties ranging up to $650,000 for individuals who are convicted of undertaking any works without gaining approval, or if a person damages heritage values through their actions.

Any concerned person may make submissions to the Heritage Council about any of the following:

• the registering of a property

• applications to alter a heritage listed property

• a property being removed from the register

• unapproved alterations to a listed property

If you have made a submission to the Heritage Council you may appeal against its decisions. Appeals are made through the Resource Management and Planning Appeal Tribunal.

(☞ Go to Chapters 5, 6 and 14 for information about how to do this. Download application forms HERE.

Appeals to the Tribunal in relation to works approvals need to be made within 14 days of a notice of the decision. Appeals in relation to decisions to list (or de-list) properties must be made within 30 days.

There are several thousand places entered on the Tasmanian Heritage Register. The Register is available for inspection, on CD Rom and/or hard copy, at all local councils. Any person may inspect the Heritage Register during normal business hours.

To purchase a hard copy of information about listed places, complete a Heritage Register Search form available online or at the Tasmanian Heritage Council. A search currently costs $34.00.

Alternatively, click HERE to look up all heritage sites in Australia (on both state and national listings):

Note that section 337 of the Local Government Act requires local councils to provide information about public places on the Heritage Register as part of a request for Planning and Development information. This is provided as a Council Land Information Certificate.

• through Heritage Agreements

• under various Tasmanian enactments

• through federal government laws

The Tasmanian Heritage Act also enables property owners to enter into Heritage Agreements. A Heritage Agreement can impose certain restrictions on how a property may be used or modified and it may provide for assistance and resources to help the owner protect the place.

These agreements are appended to the property title and are binding on the owner and occupier.

The Appeals Tribunal is empowered to force owners or occupiers to comply with Heritage Agreements and any person is able to contest a decision made by the Appeal Tribunal by referring it to the Supreme Court (see Section 54 (1) of the Heritage Act.)

Historic Reserve is a classification under Tasmania’s system of protected reserves (☞ go to Chapter 7 for description of Tasmania’s reserve system) and these are prescribed under the Nature Conservation Act 2000.

The Historic Heritage section of Parks & Wildlife (in DPIW) manages historic reserves and in most cases have management plans drawn up for their management.

Under some Acts, Tasmanian authorities have specific responsibility for protection or conservation of historic cultural heritage. For examples, see:

• Forestry Act 1920 (see sections 8, 10, 15, 17)

• Major Infrastructure Developments Approvals Regulations 2000 (regulation 4)
  – project proponent may be required to address heritage values

• Mining (Strategic Prospectivity Zones) Act 1993 (see section 7)
  - deals with situations where a mining licence is granted on crown land but then a historic or Aboriginal site is discovered

• Private Forests Act 1994 (see section 6)

• Water Management Act 1999 (see sections 155, 162)
  - applications for permits

• Some historic sites including the Theatre Royal and Royal Tasmanian Botanic Gardens
  are also protected under their specific management Acts

The federal government has a receding role in the protection of places in Australia that have heritage values (other than world heritage) - the intent being that state and local government should deal with most heritage issues.

Formerly, many thousands of places evaluated as having national heritage values were listed on the Register of the National Estate and were afforded some direct and indirect protection at a national level. However, this listing is now frozen (places no longer added or removed) and is simply a database. If a site on this list is harmed, or likely to be harmed, there is no longer any immediate trigger for federal laws to intervene.

However, there are two heritage lists that are relevant at a national level.

• This is a limited listing of heritage places that have outstanding national significance.

• In Tasmania there are only nine entries, including Port Arthur, Recherche Bay, the Richmond Bridge and the old Hydro Electric Commission building.

• This is a listing of places that are owned or controlled by the Commonwealth.

• There are 16 Tasmanian entries, mainly historic buildings and lighthouses.

The EPBC also ratifies the World Heritage Convention and obliges the Australian Government to protect any World Heritage sites (☞ Go to Chapter 7), including those that are listed for their cultural heritage significance.

Heritage sites that are included in either of these three lists can be protected under provisions of the national EPBC Act. Their heritage values are a 'matter of national environmental significance' under the Act and developers are therefore required to seek approval under the EPBC Act for any actions that are likely to have a significant impact on these heritage values.

Note: A World Heritage or a National Heritage place may not require approval under the EPBC Act if a bilateral agreement between the Commonwealth and a State enables actions (i.e. developments) to be carried out in accordance with an accredited management plan.

Commonwealth agencies are required to develop and implement management plans for heritage places under their control.

Any person may apply to have a place listed or for an emergency listing.

(☞ Go to Chapter 15 to see how the EPBC Act works.)

Australia is signatory to the UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property and this is imbedded into Australian law via the The Protection of Moveable Cultural Heritage Act 1986. This Act prohibits imports or exports of protected classes of items into and from Australia.

Moveable Cultural Heritage comprises “objects that are of importance to Australia, or to a particular part of Australia, for ethnological, archaeological, historical…..scientific or technological reasons…” . Moveable heritage can take the form of books, artifacts, records and documents.

There are 950 shipwrecks around Tasmania's coastline. Those in Tasmanian waters are protected under the Historic Cultural Heritage Act described above. Shipwrecks and maritime history sites may also be in ‘historic reserves’ under the Nature Conservation Act.

Those in Commonwealth waters are protected by the Commonwealth Historic Shipwrecks Act but administered by the state Department of Environment, Parks, Heritage and the Arts.

• Heritage Tasmania
  103 Macquarie Street, Hobart
  GPO Box 618, Hobart, Tasmania 7001 Ph: 1300 850 332 6233 2037
  Email: enquiries@heritage.tas.gov.au

• Tasmanian Heritage Council: (Website)
  GPO Box 618, Hobart 7001. Ph: 6233 2037 Fax: 6233 3186

• Parks and Wildlife Service:
  134 Macquarie Street, Hobart. GPO Box 1751, Hobart 7001
  Ph: 6233 8011 Fax: 6233 3477.
  

• Department of the Environment and Heritage
  GPO Box 787, Parkes ACT 2600 Ph: 02 6274 1111

• National Trust of Tasmania
  6 Brisbane Street, Hobart 7000 Ph: 6223 5200

• Tasmanian Conservation Trust
  102 Bathurst Street Hobart 7000 Ph: 6234 3552

• Historic Cultural Heritage Act 1995
• Land Use Planning and Approvals Act 1993
• Nature Conservation Act 2002

Federal laws

• Environment Protection and Biodiversity Conservation Act 1999
• Protection of Movable Cultural Heritage Act 1986
• Historic Shipwrecks Act 1976

You can download Tasmanian Acts from this website: www.thelaw.tas.gov.au/

Commonwealth legislation can be obtained from: http://www.austlii.edu.au/