Aboriginal Cultural Heritage & EPBC

Many construction jobs have to assess and manage Aboriginal and Torres Strait Islander cultural heritage — under state law and, sometimes, the federal EPBC Act. The trigger is usually ground disturbance in a culturally sensitive area, and the consequences of getting it wrong (or ignoring a find) are serious. Here is the due diligence, the per-state framework, and the stop-work protocol.‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍

Cultural heritage protection by state

Protection is primarily state and territory legislation, alongside planning law and occasionally the EPBC Act. The usual trigger is significant ground disturbance in a culturally sensitive area, or where heritage is known or likely:

NSW: the National Parks and Wildlife Act 1974 (protecting Aboriginal objects and declared places) plus a Due Diligence Code. Any surface-disturbing activity may trigger due diligence; if Aboriginal objects are likely to be harmed and it is unavoidable, you need an Aboriginal Heritage Impact Permit (AHIP). High-risk land includes undisturbed ground within 200m of water, dunes, ridgelines, clifftops, caves, or where the AHIMS database records sites.
VIC: the Aboriginal Heritage Act 2006. A Cultural Heritage Management Plan (CHMP) is required where a listed high-impact activity causing significant ground disturbance occurs in an area of cultural heritage sensitivity — with small-scale exemptions (e.g. one or two dwellings on a lot).
QLD: the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander equivalent impose a cultural heritage duty of care on all land users (below).
WA: the Aboriginal Heritage Act 1972 (as amended) — note the short-lived Aboriginal Cultural Heritage Act 2021 commenced in mid-2023 but was repealed and the 1972 Act reinstated in late 2023, with section 18 consent restored. It is an offence to excavate, damage or alter an Aboriginal site without consent. (This area has been in flux — confirm the current WA position.)
SA: the Aboriginal Heritage Act 1988 — any disturbance that may damage sites, objects or remains needs authorisation, and discoveries must be reported to the Minister.
TAS: the Aboriginal Heritage Act 1975; NT: the Heritage Act 2011 plus the Aboriginal Sacred Sites Act 1989 (AAPA authority certificates); ACT: the Heritage Act 2004.

Every jurisdiction expects some due diligence even where no permit is triggered.

QLD's duty of care

QLD has no AHIP — instead a statutory cultural heritage duty of care: anyone carrying out an activity must take all reasonable and practicable measures not to harm Aboriginal cultural heritage. Harming it, or taking or relocating it without authority, is an offence with fines and stop-work orders. You meet the duty with a due-diligence assessment: a desktop review (heritage registers, prior reports, landscape context — watercourses, ridgelines), a site inspection (artefacts, scarred trees, shell middens), risk categorisation, and consultation with the relevant Aboriginal party to avoid or minimise impact. A CHMP is mandatory for certain high-impact activities and where an EIS is required.

The EPBC Act

On top of the state systems, the federal Environment Protection and Biodiversity Conservation Act 1999 protects Matters of National Environmental Significance (MNES) — listed threatened species and ecological communities, migratory species, Ramsar wetlands, World and National Heritage, Commonwealth marine areas, the Great Barrier Reef, plus nuclear and large water-resource actions. If an action is likely to have a significant impact on an MNES, it must be referred to the federal regulator, which decides whether it is a "controlled action" needing assessment. Small domestic jobs on cleared suburban blocks rarely reach the threshold; large subdivisions, civil and greenfield work clearing listed-species habitat do, and an environmental consultant screens for it. (The "Nature Positive" reforms have been proposed but the EPBC Act 1999 remains the current law — confirm the status.) For a subbie under a principal contractor, the EPBC interface sits with the developer, but you must comply with the site environmental plan (clearing limits, no-go zones).

When artefacts or remains are found — stop work

Every jurisdiction requires you to stop and notify:

Stop work immediately within a buffer around the find.
Secure and protect it — fence or flag the area, prevent access, and do not handle objects or remains.
Notify your supervisor and principal contractor, then the relevant heritage or Aboriginal affairs agency as soon as possible — and if remains appear human, contact police (coordinating with the coroner and heritage authorities).
Engage the appropriate Aboriginal party and a qualified archaeologist to assess significance and agree management (leave in situ, salvage under permit, reburial).
Get formal authorisation before resuming where required.

Real cases bear this out — the SA Riverlea development reported a discovery, and authorisation came with conditions including returning remains to Country with a memorial designed with the community. Stopping early is far cheaper than enforcement and reputational damage.

For a tradie or small builder

Before quoting: check whether the site is greenfield or previously disturbed (greenfield warrants more scrutiny), and ask the client for the permits, heritage assessments, CHMPs and environmental plans.
On site: brief the crew on the stop-work and reporting protocol for unexpected finds, and stay within cleared footprints and no-go zones.
Keep the paper trail — due-diligence reports, CHMPs and toolbox records are your due-diligence defence if a regulator asks.

Common mistakes

Digging or clearing greenfield land with no due diligence.
Treating a suspected artefact or bones as nothing until "proven" (treat it as genuine and stop).
Clearing beyond the mapped or approved footprint and damaging listed habitat.
No records to show the duty of care was met.

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