The Aboriginal Heritage Regulations 2018 (the Regulations) require CHMPs to include contingency plans for the discovery of Aboriginal cultural heritage during works. Contingency plans should balance the need to adequately manage and avoid harm to Aboriginal cultural heritage unearthed during the activity with minimising unnecessary costs and delays to the Sponsor.
Contingency plans should be consistent with DPC’s example contingencies published on the FPSR website.
Background
What are contingency plans?
Contingency plans are developed to deal with disputes, delays and other obstacles that may affect the conduct of the activity. Schedule 2, item 13 of the Regulations requires CHMPs to include contingency plans addressing the matters outlined in Section 61 of the Act. This includes contingencies for the discovery of Aboriginal cultural heritage during works.
Why is Aboriginal cultural heritage sometimes unearthed during development?
A low density of stone artefacts covers Victoria, including below the current surface. Even when the best expertise is employed to predict and investigate areas where Aboriginal cultural heritage is most likely to occur, it cannot be 100 percent correct every time. Complex assessment methods ordinarily consist of a sampling strategy based on predictive modelling, where parts of the activity area likely to include Aboriginal cultural heritage are investigated through sub-surface excavation. Accordingly, Aboriginal cultural heritage will occasionally be unearthed during the activity following CHMP approval.
Contingencies for both expected and unexpected Aboriginal cultural heritage
There will be circumstances where it is expected that unrecorded Aboriginal cultural heritage of low relative significance will be present in the activity area and impacted by the activity. For example, the CHMP assessment may determine a low density of stone artefacts is likely to exist across an activity area, but additional subsurface work is not needed to better inform the understanding of the nature or significance of that heritage, and an informed CHMP decision can be made without this work. Given the assessment is unlikely to have recorded every stone artefact in the activity area, it is expected this type of Aboriginal cultural heritage will be uncovered by the activity.
Conversely, there may be occasions where Aboriginal cultural heritage is unexpectedly unearthed during the activity. Using the example described above, uncovering a shell midden or stratified stone artefact scatter would not be expected, given the results of the assessment.
Accordingly, CHMP contingencies should account for both scenarios, with different approaches for expected and unexpected discoveries. In circumstances where the discoveries are expected and are consistent with the nature, extent and significance of Aboriginal cultural heritage in the activity area, contingencies should be simple and efficient, focusing on recording the objects and allowing the activity to proceed. Contingencies for unexpected discoveries will need to be more general however still clear enough to provide for specific actions.
For example, a CHMP is conducted and approved which does not identify any scarred trees within a lightly wooded activity area for which a 55 hectare pine plantation is proposed. An agreed contingency is that if a suspected scarred tree is discovered during works, works will cease and the area will be taped off until the tree can be inspected by the HA with one RAP representative with relevant expertise and knowledge. This is an example of an unexpected contingency given the activity area was surveyed for scarred trees and none were located.
Contingency plans should ensure Aboriginal cultural heritage is properly managed without unreasonably delaying the activity
The CHMP process requires that the Aboriginal cultural heritage of an activity area and the proposed impacts are understood before any planning approvals are issued. This supports good heritage outcomes while also minimising delays, which become costly once the activity has already commenced. Accordingly, contingency plans should balance the need to adequately manage Aboriginal cultural heritage unearthed during the activity and avoid harm with minimising costs and delays to the Sponsor.
Accordingly, the guidelines for extent determination during the CHMP assessment are also relevant here. That is, pursuing a complete record of every artefact present on a project basis is usually impractical and does not add to our knowledge or appreciation of Aboriginal use of the landscape.
When should archaeological salvage be included in a contingency plan?
Archaeological salvage is irreversibly destructive, time consuming, expensive and often not fit for purpose. It should not be considered routine and should only be acceptable in limited circumstances. Archaeological salvage would generally only be appropriate where unexpected Aboriginal cultural heritage of high relative significance is uncovered.
Guidance
What should be included in contingency plans for the discovery of Aboriginal cultural heritage during the activity?
DPC has published advice for the preparing enforceable contingency plans(opens in a new window). This advice recommends contingency plans are prepared using the ‘SMART’ principle:
- Specific
- Measurable
- Achievable, agreed upon, and attainable
- Reasonable and relevant; and
- Time-bound.
The published advice also includes example contingency plans for the discovery of ancestral remains and secret or sacred objects, as well as expected and unexpected discoveries of Aboriginal cultural heritage. Contingency plans for the management of Aboriginal cultural heritage found during an activity should be consistent with these example contingencies.
Updated