What is the difference between Aboriginal Place, Aboriginal Land Rights and Native Title?

Aboriginal Place (Section 84 of National Parks and Wildlife Act 1974) is NSW legislation designed to recognize and protect cultural heritage by the prevention of harm to Aboriginal objects or places. Land ownership which is either publically or privately held remains with the current owner.

Aboriginal Land Rights Act 1983 is NSW legislation designed to return land in NSW to Aboriginal peoples through a process of lodging claims for certain Crown lands. A successful determination under the Aboriginal Land Rights Act generally delivers freehold title to Local Aboriginal Land Councils.

Native Title Act 1993 is Commonwealth legislation designed to provide recognition of the traditional rights and interest which Aboriginal people have in land and water. A successful determination under the Native Title Act legally recognizes traditional rights and interests of Aboriginal people and provides property rights such as access, fishing and camping but not generally land ownership. 

Why does Council need a Management Plan?

The Birubi Point Management Plan to be developed by Port Stephens Council will be developed in line with the legislative requirements under the Local Government Act 1993 and the NSW National Parks and Wildlife Act 1974.

The management plan will enable the ongoing future use, development and maintenance of the area to be compatible with the cultural significance of the Place.

It will set out what objectives and management actions have the potential to cause harm to the Aboriginal Place, possible mitigation measures and whether application for an Aboriginal Heritage Impact Permit (AHIP) is required.

What is an Aboriginal Heritage Impact Permit (AHIP)?

An Aboriginal Heritage Impact Permit (AHIP) is the legal instrument used to manage harm to Aboriginal objects and to declared Aboriginal Places.

Aboriginal objects are defined under the National Parks and Wildlife Act, and includes things like middens, artefacts and burials, such as those that occur at Birubi Point. Under section 86(4) of the National Parks and Wildlife Act (1974), it is an offence to harm or desecrate a declared Aboriginal Place.

Many thousands of other Aboriginal heritage sites also receive protection under this Act. Harm includes destroying, defacing or damaging an Aboriginal place. If development will take place in the vicinity of an Aboriginal Place, the potential impacts of the development on an Aboriginal Place must be assessed.

Birubi Point Aboriginal Place means that certain future developments would need to obtain an Aboriginal Heritage Impact Permit (AHIP) from OEH as part of the planning processes.

The Management Plan to be developed by Port Stephens Council will incorporate OEH guidelines and provide clear understanding about what actions would need an AHIP and which actions would not.

For example:
  1. Actions, such as general maintenance i.e. mowing, painting etc, that will not harm the values of an Aboriginal Place will not require an AHIP.
  2. Actions, such as installing new fencing that may harm the values of an Aboriginal Place will require an AHIP. Some fencing may be acceptable in certain situations with controls and OEH will generally issue an AHIP.
  3. OEH will generally refuse to issue an AHIP where actions harm the values of the Aboriginal Place. For example building over a burial. In such circumstances alternatives are generally negotiated.