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Understanding the ‘Stanley’ Red Dot Decision

On 27 January 2015 VCAT flagged a Red Dot decision (the Stanley Decision) relating to the requirements for a Cultural Heritage Management Plan (CHMP) and proving Significant Ground Disturbance (SGD) under the Aboriginal Heritage Act 2006.

The Stanley Decision noted deficiencies in a preliminary (or due diligence) assessment that concluded a CHMP was not required due to SGD. The assessment of SGD was based on bore samples, aerial photographs and anecdotal information but did not provide sufficient information to support the conclusion that there has been SGD across the whole area of Cultural Heritage Sensitivity (CHS) within the relevant activity area.

 

VCAT made the following observations:

  • The area of Cultural Heritage Sensitivity associated with the waterway was not made clear, and the assessment focused on the one hectare works area, rather than the whole area of CHS within the activity area. No investigation of the area of CHS outside the works area was undertaken, therefore there is insufficient evidence to prove SGD over the whole area of CHS.
  • Vegetation clearance and agricultural activities do not in themselves meet the definition of SGD; which must involve machinery or deep ripping to 60cm or more, not conventional ploughing. Anecdotal and historical investigation of agricultural activities did not provide evidence of deep ripping in this case.
  • The use of a single auger probe within the area of CHS, of unclear depth, to provide evidence of deep ripping was considered inconclusive. No evidence is provided about the common depth of topsoil in this land or area. If deep ripping is considered a form of SGD, there must be substantive clarity or evidence about the types of cultivation tools and their cultivation depths.
  • VCAT concluded more forensic investigation was warranted in the anecdotal evidence (critical interrogation of the source material and identification of specific implements) and auger analysis (a soil science approach to interpreting the disturbance).

 

VCAT did not consider there was SGD.  VCAT found a CHMP is required for the proposed activity.

Sally Beaton, Cultural Heritage Advisor auguring
Sally Beaton, Cultural Heritage Advisor augering in a suburban backyard

The Stanley Decision and You

The decision also addressed the current mechanisms for determining whether a CHMP is required during the process of making a permit application.  They noted numerous limitations with Council’s ‘tick-box’ declaration and the self-assessment completed through the Office of Aboriginal Affairs Victoria website.  In particular, self-assessment of SGD should be limited to the most undeniable instances.

In short, if in doubt about whether a CHMP is required, seek professional advice to determine SGD. The Stanley Decision means the threshold to do a CHMP is lower than many previously assumed, as:

  • All of the land within the activity area that is considered to be of cultural heritage sensitivity must be proven to have been subject to SGD.
  • If auger probes are to be used to determine SGD, there must be more than one, and they must be placed to investigate the entire area of CHS, not just the area of proposed works.
  • If auger probes are to be used to determine SGD, there must be a discussion about common soil profile of the area and how the auger results compare.

 

Oona Nicolson, Director/Principal Heritage Advisor notes that:

‘This last point is very important because the ‘topsoil’ in some coastal and sand belt areas in particular is very deep, as such where housing has been constructed without evidence of bulldozing (not merely vegetation clearance), the requirement to complete a CHMP remains as much of these dune systems remain intact.

It is also noted that online mapping tools such as GeoVic and ACHRIS (the Office for Aboriginal Affairs Victoria mapping and site registry) do not always accurately reflect the area of CHS as many Aboriginal places have much greater extents than are shown. Individual Aboriginal places are often shown as a single location with a 50m buffer. The reality may be a 200 metre long Aboriginal place with another 50 metres around the extent of the site.

As a result they may have much larger associated areas of CHS than is mapped. Only by checking each individual site card can this be confirmed accurately. Therefore self-assessment using the online OAAV tool to determine whether a CHMP is required may not be accurate.

‘In short, look for a detailed assessment of the area of CHS within the study area. If there is uncertainty about the likelihood of SGD across all the area of CHS consider a different approach than a due diligence, such as a desktop CHMP that can approach disturbance and archaeological likelihood with more specificity and nuance’.

We are currently advising several clients on how the Stanley 'Red Dot' decision affects their project(s) and for further information please contact one of our experienced archaeologists on 9377 0100 or enquire@ehpartners.com.au

 

Relevant link

Office of Aboriginal Affairs Victoria

 





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