The process of unearthing Indigenous Heritage on construction sites with Scott Franks, CEO of Tocomwall, Australia’s first Indigenous Archaeology firm

1. ContentsAboriginalAffairs
Omesh Jethwani, Government
Projects & Programs Manager,
discovers the process o unearthing
Indigenous Heritage on construction
sites with Scott Franks, CEO
o Tocomwall, Australia’s frst
Indigenous archaeology frm.
Please share with our readers the details
o your ancestral amily background?
I am a Wonnarua person rom the Hunter Valley
NSW. Our land covers the area within the
Hunter River Catchment. My people are rom
the Hills and plains o the Hunter Valley Area.
The story has been told or generations and
passed down to our people o how our creator
Biami stepped down rom the sky onto Big
Yango in the Hunter Valley.
Be ore time was created, Biami our creator
stood on Big Yango and looked onto Little
Yango and across the empty lands. He called
upon Puliyapang (whirly Wind) and directed
him to move across the lands. As Puliyapang
spun across the li eless land, he pulled in all the
resources needed by Biami to build mountains
and to shape the lands.
As Biami created the hills and the valleys,
he spoke to Puliypang and guided him to
make channels or all the gullies and creeks.
Puliyapang spun and twisted, he spread the
valleys and pushed back the earth to make
mountain ranges, continuing to shape the land.
As Puliyapang started to slowdown and fnish
his work Biami took Puliyapang and told him,
“You will walk the lands orever and keep the
breeze moving through the lands or the people
I will place here, the Wonnarua.” Once our
lands were created by Biami. He returned to
the heavens but be ore he le t, he trans ormed
his son Kawale into the Wedge tailed eagle.
Can you please explain why you started
Tocomwall and what services does it
provide?
The establishment o Tocomwall in 2011 was
to consolidate corporate governance and
enable the business to diversi y its scope in
relation to Aboriginal heritage management and
protection.
Tocomwall is a specialist Aboriginal cultural
heritage consultancy frm that provides
archaeological, ecological and cultural heritage
services across Australia.
Today, Tocomwall operates
nationally and is committed
to providing sustainable
solutions which integrate
archaeology, landscape
science and Aboriginal
cultural knowledge.
Tocomwall, which boast
a work orce with 70%
Indigenous representation,
is a registered Supply Nation
Supplier.
What are some o the most recent
archaeological fndings on construction
worksites which Tocomwall has
discovered and provided cultural
heritage advice on?
Tocomwall is involved in a project in the Hunter
Valley or a mining company. This project is to
develop a new open cut mining operation that
will have a direct impact on a large area o land.
Tocomwall’s research and assessment o that
area identifed and confrmed that the location
or the proposed mining operations would
impact on a massacre site o native prisoners
by the armers and Newcastle garrison back in
October 1826.
This in ormation was always re erred to by the
local Aboriginal community, but proper archival
research was never really carried out.
Tocomwall considered the local in ormation
and then started searching state and ederal
archives that resulted in the location o diaries
and crown dispatches with hand-drawn maps
by a garrison captain who was sending letters
to the Governor o the time, in orming him o
the massacre and requesting an investigation.
This in ormation has been used to understand
better what took place back in 1826 but may
result in protecting that location.
Is there a Code o Practice or
Archaeological investigation o
Aboriginal Objects in NSW?
The Code o Practice or Archaeological
Investigation o Aboriginal Objects in New South
Wales (the Code) was implemented by the
Department o Environment, Climate Change
and Water (DECCW now known as O fce o
Environment and Heritage) rom 1 October
2010.
The code was developed to support the
process o investigating and assessing
Aboriginal cultural heritage. It specifes
the minimum standards or archaeological
investigation undertaken in NSW under the
National Parks and Wildli e Act 1972 (NPW Act).
An Aboriginal cultural heritage assessment that
requires an archaeological investigation to be
undertaken must be done in accordance with
the requirements o this code.
The code establishes the requirements:
• For undertaking test excavation as a part
o archaeological investigation without an
Aboriginal Heritage Impact Permit (AHIP).
I you comply with these requirements
and you harm an Aboriginal object when
undertaking test excavations, your actions
will be excluded rom the defnition o harm
and as such you will not be committing an
o ence o harm to an Aboriginal object.
• When carrying out archaeological
investigation in NSW where an application or
an AHIP is likely to be made.
Under the NPW Act, the Director General can
require that certain in ormation accompanies
an application or an Aboriginal Heritage
Impact Permit (AHIP). This code explains
Unearthing Indigenous
heritage in New South
Wales
UNEARTHING ABORIGINAL HERITAGE
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2. ContentsAboriginal
what that in ormation is in relation to
archaeological investigations.
In addition, DECCW recommends that the
requirements o this code also be ollowed
where a proponent may be uncertain about
whether or not their proposed activity may
have the potential to harm Aboriginal objects or
declared Aboriginal places and the proponent is
required to:
• undertake urther investigation to understand
and establish the potential harm their
proposal may have on Aboriginal cultural
heritage, and
• the urther investigation involves
archaeological assessment.
What is an Aboriginal Heritage Impact
Permit (AHIP) and when it is required?
An AHIP is the statutory instrument that O fce
o Environment and Heritage issues under
section 90 o the NPW Act to manage harm or
potential harm to Aboriginal objects or declared
Aboriginal places.
An AHIP is required when a proposed activity is
likely to directly or indirectly harm an Aboriginal
object or place. This includes such things as:
• movement o certain Aboriginal objects;
• community collection o Aboriginal objects;
• archaeological test excavations;
• archaeological salvage excavations;
• harm to Aboriginal objects or places through
proposed works or any other action.
In ormation about the permits and how to apply
or them can be obtained through the O fce
o Environment and Heritage website www.
environment.nsw.gov.au/licences/index.htm.
Can you please explain how the Due
Diligence Code o Practice or the
Protection o Aboriginal Objects apply in
NSW?
The Due Diligence Code o Practice or the
Protection o Aboriginal Objects in NSW sets
out a process or individuals and organisations
to ollow to determine whether an Aboriginal
object will be harmed by an activity, whether
urther investigation is needed, and whether
the application to harm requires an AHIP. A key
step in the due diligence process is to check
or Aboriginal sites on the Aboriginal Heritage
In ormation Management System (AHIMS).
The NPW Act provides that a person who
exercises due diligence in determining that
their actions will not harm Aboriginal objects
has a de ence against prosecution i they later
unknowingly harm an object without an AHIP.
The NPW Act allows or a generic code o
practice to explain what due diligence means.
Care ully ollowing this code o practice, which
is adopted by the National Parks and Wildli e
Regulation 2009 (NPW Regulation) made under
the NPW Act, would be regarded as ‘due
diligence’. This code o practice can be used or
all activities across all environments.
This code sets out the reasonable and
practicable steps which individuals and
organisations need to take in order to:
a. identi y whether or not Aboriginal objects are,
or are likely to be, present in an area;
b. determine whether or not their activities are
likely to harm Aboriginal objects (i present);
and
c. determine whether an AHIP application is
required.
I Aboriginal objects are present or likely to be
present and an activity will harm those objects,
then an AHIP application will be required
When is it not necessary to ollow the
Due Diligence Process?
There is no straight answer to this.
The Due Diligence Code o Practice or the
Protection o Aboriginal Objects in New South
Wales, Section 7, lists a series o questions that
should be used as a guide as to whether the
due diligence code o practice applies.
The NPW regulation removes the need to ollow
the due diligence process i you are carrying
out a specifcally defned low impact activity.
As a result, you are not required to ollow this
code or any other due diligence process i your
activity has been listed in the guide. Proceed
with caution, and i Aboriginal objects are
later ound when you are carrying out your
activity, you must stop work, noti y the O fce o
Environment and apply or an AHIP i you intend
to harm those known objects.
The NPW Act also provides that due diligence
may be exercised by complying with a code
o practice which is adopted under the NPW
Regulation. These codes provide due diligence
guidance tailored or specifc types o activities
or industries.
I your activity is subject to an industry specifc
code that has been adopted by the NPW
Regulation, you can ollow that code instead o
the requirements o this generic code.
A copy o the Due Diligence Code o Practice
or the Protection o Aboriginal Objects in New
South Wales, Section 7 can be obtained rom
https://www.environment.nsw.gov.au/-/media/
OEH/Corporate-Site/Documents/Aboriginal-
cultural-heritage/due-diligence-code-o -
practice-aboriginal-objects-protection-100798.
pd
Which relevant legislation or regulation
applies to the management o
unexpected heritage fnds?
The NPW Act administered by O fce o
Environment, is the primary legislation or
the protection o those aspects o Aboriginal
cultural heritage in NSW defned under the Act.
Various state and ederal assessment
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3. ContentsAboriginalAffairs
Why is it essential or principal
contractors, builders and subcontractors
to understand about Aboriginal heritage,
objects and places?
Principal contractors, builders and
subcontractors are liable or the damage or
inter ere once with Aboriginal heritage, objects
and places.
Court cases are also damaging to the
reputation o any organisation.
Any opportunity to orm a working partnership
with the Aboriginal community or approaching
the Elders to include in the consultation process
would be near impossible.
Who is responsible or carrying out the
investigation, assessment and reporting
on Aboriginal Cultural Heritage?
When undertaking archaeological investigations
in NSW in compliance with this code,
proponents must use the
services o people who are
skilled and experienced
in archaeology and, in
particular, the archaeology
o Aboriginal people. These
skills and experience may
be available in-house or
sourced rom specialist
service providers.
I a person carries out an
archaeological investigation
and they do not ollow the
requirements o the code,
and they harm an Aboriginal
object, they would be
committing an o ence.
Editorial Note
The NSW State
Government is re orming
the way Aboriginal Cultural
Heritage is conserved and
managed in New South
Wales. The proposed new
legal ramework aims to
ulfl the government’s
commitment to deliver
standalone legislation that
respects and conserves
Aboriginal Cultural Heritage
or current and uture
generations. It also aims
to recognise Aboriginal
and planning processes are also relevant
to Aboriginal cultural heritage. O fce o
Environment has specifc roles and obligations
under the Environmental Planning and
Assessment Act 1979 (EP&A Act). Heritage
matters are also addressed in the Heritage Act
1977 and ederal legislation.
What are the standard management
procedures to implement on a
construction worksite i you discover an
‘unexpected heritage fnd?’
In the case o an unexpected fnd, any work
that may impact the object should be ceased
and a heritage consultant/archaeologist
engaged to provide advice.
Depending upon the nature o the site, erect
barriers to protect the site.The proponent
should be able to demonstrate that they have
taken all necessary steps to prevent damage
occurring to the object.
What are the o ences and penalties
or breaches the NSW Environmental
Protection and Heritage Legislation?
Do these o ences and penalties also
apply to the harming or desecration
o Aboriginal objects and declared
Aboriginal places?
An example o a penalty includes, but is not
limited to the ollowing: –
Harming or desecrating Aboriginal objects and
Aboriginal places
(1) A person must not harm or desecrate an
object that the person knows is an Aboriginal
object.
Maximum penalty:
(a) in the case o an individual — 2,500
penalty units ($275,000) or imprisonment
or 1 year or both; OR
(b) (in circumstances o aggravation) — 5,000
penalty units ($550,000) or imprisonment
or 2 years or both; OR
(c) in the case o a Corporation – 10,000
penalty units ($1,100,000).
(2) A person must not harm or desecrate an
Aboriginal object.
Maximum penalty:
(a) in the case o an individual — 500 penalty
units ($55,000); OR
(b) (in circumstances o aggravation) — 1,000
penalty units ($110,000); OR
(c) in the case o a Corporation — 2,000
penalty units ($220,000).
custodianship and ensure Aboriginal people
have the authority to make decisions about
their cultural heritage while providing clear and
consistent processes or economic and social
development in New South Wales.
This article is not a substitute or the re erred
Acts and Regulations. The interview has
been designed to increase awareness o the
presence o these various Acts and Regulations
and how they may apply.
Master Builders NSW members are encouraged
to contact the O fce o Environment & Heritage
to obtain updates on the new Aboriginal
Cultural Heritage legal ramework.
In addition, Master Builders Insurance Services
can be contacted to discuss insurance
coverage in case o delayed construction
projects due to the discovery o Indigenous
fndings or Tocomwall or Aboriginal Cultural
Heritage Consultancy.
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