Environment Law in the Northern Territory

Heritage conservation under the Heritage Act 2011

Introduction

This Fact Sheet is about heritage conservation under the Northern Territory Heritage Act 2011.

This Fact Sheet focuses on the ways the Heritage Act 2011 protects places that have heritage value.  The Heritage Act 2011 also has legal requirements about conservation of heritage objects.

What places are protected?

The Heritage Act 2011 protects places that have been declared as heritage places.

All Aboriginal or Macassan archaeological places have been declared to be heritage places. These are places that relate to the past occupation of the Northern Territory by Aboriginal or Macassan people and which have been modified by the activity of those people.

Other places are protected if the Minister for Lands, Planning and Environment declares them as heritage places.

Place means an area of land.  Place also means the items that are physically or historically linked with the land, if the primary importance of the items is because of their link to the land.

Places that are capable of being declared as heritage places include, for example:

  • A cliff, cutting, spring, reef or other landform
  • A park or garden
  • A plant or animal community
  • Aboriginal sacred sites
  • Fossil beds
  • A building
  • A lighthouse, homestead, railway station, airstrip, site of a shipwreck, cemetery, burial site or grave

A place can be declared as a heritage place if it has heritage significance.   Heritage significance means the place is significant for its historical, scientific, aesthetic or social significance.  There is a list of heritage assessment criteria, which is used by the Heritage Council to decide whether or not a place has heritage significance.

How can people find out what places are protected?

People can find out information about heritage places by searching the online Heritage Register maintained by the Northern Territory Department of Lands, Planning and Environment.  The Register has information about all places that have been nominated for the Heritage Register and those that have been declared as heritage places.

However, the Heritage Register does not include information about Aboriginal and Macassan archaeological places that have automatic protection under the Heritage Act.  This means that to obtain comprehensive information about all heritage places, you need to contact the Department of Lands, Planning and Environment.  The Heritage Branch of the Department of Lands, Planning and Environment maintains a database of all known Aboriginal and Macassan archaeological places in the Northern Territory.

How is heritage protected?

The purpose of the Heritage Act 2011 is to conserve the Northern Territory’s cultural and natural heritage.  It does this by creating:

  • A process for nominating heritage places and for people to make a submission on a heritage place nomination
  • A process for assessing whether or not a place, or a class of places, has heritage significance and declaring heritage places that are to be protected
  • Automatically declaring Aboriginal and Macassan archaeological places as heritage places
  • A Heritage Register that includes details of declared heritage places and classes of heritage places and heritage agreements
  • A requirement for people who want to do works to declared heritage places to obtain a works approval
  • Criminal offences for causing damage to or removal of a heritage place
  • The opportunity for the Minister for Lands, Planning and Environment to enter into heritage agreements with owners of heritage places to conserve, use or manage a heritage places

Who are the decision-makers?

The Heritage Council

The Heritage Council is the body responsible for assessing the heritage significance of places and making recommendations to the Minister for Lands, Planning and Environment about whether or not a place should be declared as a heritage place.  The Heritage Council is also responsible for making decisions about whether or not to approve works to heritage places (other than major works, which must be approved by the Minister for Lands, Planning and Environment).

Minister for Lands, Planning and Environment

The Minister for Lands, Planning and Environment is responsible for making the following decisions:

  • Decisions about whether or not to declare heritage places (on both provisional and permanent bases)
  • Decisions about whether or not to revoke a declaration about a heritage place
  • Decisions about whether or not to approve major works to heritage places.

How are places listed on the Heritage Register?

The process for nominating heritage places, assessing and listing them in the Heritage Register is as follows:

  1. A person (or group) nominates a place to the Heritage Council for it to be assessed by the Heritage Council as a heritage place.   The Heritage Council can also decide, on its own initiative, to assess the heritage significance of a place.
  2. A nomination has to be made using a Nomination Form, which is available to download from the Department of Lands, Planning and Environment website.  It must be sent to the Heritage Council and include enough information to allow an assessment to be made of the heritage values of the place.
  3. As soon as possible after receiving a nomination, the Heritage Council decides to accept or refuse the nomination.  A nomination can only be refused if the place has already been the subject of an assessment in the last 5 years or if it is “frivolous or vexatious”.
  4. The Heritage Council assesses the heritage significance of the place.  The Heritage Council must use the heritage assessment criteria to decide whether or not to declare a place or object as a heritage place or object.

The heritage assessment criteria are:

  1. Whether the place or object is important to the course or pattern of the Northern Territory’s cultural or natural history
  2. Whether the place or object possesses uncommon, rare or endangered aspects of the Northern Territory’s cultural or natural history
  3. Whether the place or object has potential to yield information that will contribute to an understanding of the Territory’s cultural or natural history
  4. Whether the place or object is important in demonstrating the principal characteristics of a class of cultural or natural places or environments
  5. Whether it is important in exhibiting particular aesthetic characteristics
  6. Whether it is important in demonstrating a high degree of creative or technical achievement during a particular period
  7. Whether it has a strong or special association with a particular community or cultural group for social, cultural, or spiritual reasons, including the significance of the place to the Aboriginal people as part of their continuing and developing cultural traditions
  8. Whether it has a special association the life or works of a person or group of persons, of importance to the Northern Territory’s history
  9. The assessment process takes 6 months from the nomination date. This time period can be extended by the Heritage Council.
  10. The Heritage Council makes a decision about whether or not the place has heritage significance.  If it decides that a place has heritage significance, the Heritage Council prepares a statement of heritage values and gives this to the Minister for Lands, Planning and Environment.  If the Heritage Council decides that the place does not have heritage significance, it has to tell the person who made the nomination.  The person who nominated the place has a right to apply to the Lands, Planning and Mining Tribunal for a review of the Heritage Council’s decision. This right of review is explained in more detail below under “Can people appeal the decision not to protect a place?”.
  11. Once the statement of heritage values is prepared, the Heritage Council must conduct a public consultation.  The Heritage Council must:
    1. Publish a notice in a newspaper telling people where they can read the statement of heritage values and telling them that they can make a written submission to the Heritage Council
    2. Give written notice to owners and occupiers of the place and anyone else that the Heritage Council thinks is likely to be directly affected by a declaration that the place is a heritage place.
  12. People must make submissions to the Heritage Council about their views on the heritage place within 28 days of the newspaper notice.
  13. Within 60 days of the end of the public consultation, the Heritage Council must decide whether or not to recommend to the Minister for Lands, Planning and Environment that the site should be declared as a heritage place.  The Heritage Council must consider submissions made in the public consultation.
  14. If the Heritage Council decides to recommend to that the heritage place should be declared, the Heritage Council makes a recommendation to the Minister for Lands, Planning and Environment.  If the Heritage Council decides to not to recommend the heritage place, certain people can appeal the decision to the Lands, Planning and Mining Tribunal.  This right of appeal is explained in more detail below under “Can people appeal the decision not to protect a place?”.
  15. If the place is recommended for declaration, the Minister for Lands, Planning and Environment must decide whether or not to declare the heritage place.  If the Minister is satisfied that the place is of heritage significance and should be conserved, the Minister must permanently declare the place as a heritage place. If the Minister decides not to declare the place, certain people may have the right to apply to the Supreme Court of the Northern Territory to have the decision reviewed. This type of proceeding is called judicial review.  This right of appeal is explained in more detail below under “Can people appeal the decision not to protect a place?”.

Emergency declaration

The Minister also has the power to make a provisional declaration of a heritage place if he is satisfied that a place or object is likely to be of heritage significance and a declaration under this section is necessary to ensure its conservation.  The Minister must then direct the Council to assess the heritage significance of the place or object. The provisional declaration of a place or object to be a heritage place or object has effect until the earlier of the following:

  • the permanent declaration of the place or object to be a heritage place or object
  • the revocation of the provisional declaration.

Can people appeal a decision not to protect a place?

Yes, certain people are given rights to appeal certain decisions.  There are three opportunities to appeal a decision not to protect a place.  These are:

  • If the Heritage Council decides to refuse the nomination of a heritage place, it must inform the person who made the nomination.  The person who nominated the place has a right to apply to the Lands, Planning and Mining Tribunal for an appeal of the Heritage Council’s decision. This type of appeal is called a merits review.  The Lands, Planning and Mining Tribunal can consider all the evidence about a decision and can make a decision to uphold the first decision, make a new decision or set aside the first decision and refer the matter back to the decision-maker with recommendations.
  • If the Heritage Council decides to not to recommend a heritage place for declaration by the Minister for Lands, Planning and Environment, certain people can appeal the decision to the Lands, Planning and Mining Tribunal.  The people who can appeal are:
    • The person who nominated the place
    • Anyone who made a submission in the public consultation
    • The owner or occupier of the place, and any person who holds a resource interest.

Again, this is a type of appeal is called a merits review.  It means that the Lands, Planning and Mining Tribunal can consider all the evidence about a decision and can make a decision to uphold the first decision, make a new decision or set aside the first decision and refer the matter back to the decision-maker with recommendations.

  • If the Minister for Lands, Planning and Environment decides not to declare a heritage place certain people can appeal the Minister’s decision to the Supreme Court of the Northern Territory.   The people who can appeal are:
    • The person who nominated the place
    • Anyone who made a submission in the public consultation
    • The owner or occupier of the place

This type of proceeding is called judicial review.  It is about whether or not the Minister’s decision was legally valid because there was an error of law in the decision-making process.

For more information about merits review and judicial review, read our Fact Sheet on Judicial review and merits review.

What are the time limits for appealing a decision?

If you have the right to appeal a decision to the Lands, Planning and Mining Tribunal and you wish to do so, you must appeal within 28 days of receiving notice of the decision or if you did not receive a notice, within 28 days of becoming aware of the decision.

If you have the right to appeal a decision to the Supreme Court of the Northern Territory, you must do so within 60 days of the decision.

Revocation of heritage places

The Minister for Lands, Planning and Environment also has the power to revoke declarations of heritage places, which would mean that those places would lose their protected status.  However, revocation of declared heritage places can only occur after public consultation.

The Heritage Council has to publish a notice in a newspaper telling people about the proposed revocation and inviting people to make submissions.  Any person can make a submission to the Heritage Council within 28 days.  This means that people can object to the revocation.

The Heritage Council must also notify the owner or occupier of the heritage place and anyone else the Council considers is likely to be directly affected if the declaration for the place or object is revoked.

The Heritage Council has to make a recommendation to the Minister for Lands, Planning and Environment as to whether or not the declaration about a heritage place should be revoked. When making its decision, the Heritage Council:

  • Must have regard to the heritage assessment criteria for the place or object;
  • Must consider the submissions made to it in the public consultation period;
  • May carry out the research and make the inquiries it considers appropriate; and
  • May ask the owner of the place or object to give it information relevant to the assessment.

If the Minister for Lands, Planning and Environment decides to revoke the declaration of a heritage place, a notice of this decision has to be published in a newspaper.  Written notice also has to be given to anyone who made a submission in the public consultation and the owner or occupier of the heritage place.

Protection of heritage places from uses and works

The Heritage Act requires people (or companies) who want to carry out works on a heritage place to obtain a works approval before they can do any works.  A works approval is permission to carry out works at a heritage place.

The person (or company) proposing to carry out works needs to get the consent of the owner of the land on which the heritage place is located before an application for a works approval can be made.

There is no public notification or consultation about applications for works approvals and so there are no rights for third parties to object to the grant of a works approval.

The Heritage Council makes decisions about whether or not to grant works approvals for works that are not major works.

The Minister for Lands, Planning and Environment makes decisions about whether or not to grant works approvals for major works.

When deciding whether or not to grant a works approval, both decision-makers must consider certain matters:

  • The extent to which works would affect the heritage significance of the heritage place
  • The advice of the Aboriginal Areas Protection Authority if the heritage place is, or is in, an Aboriginal sacred site
  • Any other matters relating to the conservation, use and management of the place that the decision-maker thinks is relevant
  • The extent to which the application, if refused, would affect the reasonable or economic use of the place, or cause a person financial hardship

For decisions about major works, the Minister for Lands, Planning and Environment must also take into account the advice of the Heritage Council.

Enforcement

Heritage officers have powers under the Heritage Act 2011 to enforce the law.  A Heritage officer has the power to:

  1. Issue a “stop work” order if he or she thinks that a person:
    • Is carrying out, or is about to carry out works; and
    • The work is a serious or imminent threat to the heritage significance of a heritage place; and
    • It is necessary to order the person to stop work or to prohibit the person from starting work in order to conserve the place
  2. To enter a heritage place and carry out repair works if they have not been done by the owner pursuant to a repair order
  3. To enter a place and seize things connected with an offence

The Minister for Lands, Planning and Environment has the power to issue a repair order, which requires the owner of a heritage place to do works for the conservation of a heritage place.

Criminal offences

Prosecutions for criminal offences under the Heritage Act 2011 can be brought by any person.

There are several criminal offences under the Heritage Act 2011 to punish a failure to comply with the law.

There are criminal offences for:

  • Causing damage to a heritage place and for removal of part of a heritage place without an approval
  • Failing to report the discovery of an Aboriginal or Macassan archaeological place to the Heritage Council if the person knows that it is such a place
  • Do works if a stop works order has been issued

It is a criminal offence to fail to comply with a repair order.

What can people do if they want to protect a place for its natural or cultural values?

If people want to protect a place for its natural or cultural values, they can:

  • Nominate a place to the Heritage Council for protection as a heritage place
  • Make a submission supporting the declaration of a place as a heritage place if there is a public consultation about the heritage values of a proposed heritage place
  • If a person is the registered owner of land on which there is a heritage place, that person can enter into a Heritage Agreement with the Minister for Lands, Planning and Environment.   A Heritage Agreement is an agreement about how a heritage place will be conserved, used and managed and may include:
    • Restrictions on the use of the heritage place
    • Details about what works are allowed to be done at the heritage place
    • Financial, technical or other help for the owner of the place.

Who should people contact if they are concerned about a heritage place?

If people are concerned about the protection of a heritage place, people should report their concerns to the Heritage Council or to the Department of Lands, Planning and Environment.

The Heritage Council address is:

Heritage Council
PO Box 4198
Darwin
NT

The contact details for the Department of Lands, Planning and Environment are:

Department of Lands, Planning and Environment
Heritage Branch
PO Box 1120
Alice Springs 
NT  0871
Telephone: (08) 8951 9247
Email: heritage@nt.gov.au

and

Department of Lands, Planning and Environment
Heritage Branch
GPO Box 2520
Darwin
NT 0801
Telephone: (08) 8999 5039
Email: heritage@nt.gov.au