NATIVE TITLE continued from last issue………
In the first of this two part series Peter Bentley of Bentley Consulting discussed the relationship of the Native Title Act to public and private land, time frames for reporting of archaeological finds and the role of archaeologists and the Aboriginal Community in assessing the finds. In this half of the story Mr Bentley discusses further requirements and some of the possible consequences to business activity and the industry.
Aboriginal people play a role in providing Consent to Disturb an archeological site either under the State or Commonwealth legislation whereby the Aboriginal Community may consent with or without conditions to a registered site being disturbed – that is quarried or mined.
In return for grant of a Consent to Disturb Aboriginal people may require the employment of Site Monitors whenever extraction activities are occurring and may request under the terms of the Consent that extraction activities cease when artifacts are encountered until the significance of the artifacts is determined. This may take days or weeks and require the services of an archeologist.
Other conditions of a Consent to Disturb on freehold land may involve a levy per cubic meter of material extracted with some recent figures quoted to the author at $0.50 per cubic meter. Costs for site monitors are $300 – 500 per day dependent on the structure of the Consent to Disturb or ILUA agreement.
Whether artifact finds are significant is dependent on the Aboriginal community involved and will vary from place to place and generation to generation plus the attitude, skill, knowledge and experience of the consulting archeologist involved. AAV may also play a role here, and may insist on further sampling or investigation activities particularly in areas where there are numerous registered archeological sites.
Some Aboriginal communities view all artifact sites as significant and achieving a Consent to Disturb Agreement may involve levies or other payments as per conditions of an Agreement to disturb an archeological site. This may become a Catch 22 situation for the industry over time pushing production costs ever higher.
AAV is a referral authority under Section 55 of the Planning and Environment Act 1987. A municipality (Council) administers the relevant planning scheme. Applications for planning permits must be referred to Referral Authorities – the Council has no choice in the matter.
A Referral Authority may or may not request additional information in the form of a traffic study (Vic Roads) or an archeological investigation as in the case of AAV. If a referral authority is not satisfied with the result of the investigation or additional information it will advise the Council that it objects to the grant of the Planning Permit.
The Council is then legally obliged to refuse the planning permit. The usual appeal processes at VCAT then comes into play with the usual financial costs and timeframes. In some cases mediation is used by VCAT to reduce caseload and hence costs to an appellant and should be explored in all cases where deemed appropriate by the VCAT Registrar.
The industry should note that some people may regard mining and extractive industry as the most destructive type of activity in the landscape and see archeological investigations as a mandatory requirement for gaining planning approvals. This attitude has intensified in the past 5 years and is likely to become government policy in the future if not already so.
This situation ignores the tiny percentage of the landscape affected by mining and extractive industries and may mean that Victoria will suffer both shortages of certain products and increased product cost within the next 2- 5 years particularly in some rural and regional cities
Sterilisation of Resources and Closure of Work Authorities
This will continue until there is a change of legislation and policy at the State Government level. It will only stop when the cost of natural resource products reach untenable levels remembering that up to of 30 per cent of consumables in house construction are extractive industry products and of course much higher in road construction.
Certain sectors of the industry will be affected more than others and initially it seems the sand and concrete products sector will be most affected. There have been a number of casualties and there will be more until government makes the necessary changes to legislation and policy.
The immediate increase in costs will lead to product costs rises, higher approval costs, loss of jobs and resource sterilization. Extractive operations will also be subject to higher levels of scrutiny and are (not will) facing prohibitive cost rises for the small family owned business.
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