Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Declaration 2019

The instrument turns on a small number of interlocking statutory concepts. First, declared area: the instrument identifies the “declared area” as the Bellwood Sacred Site in Nambucca Heads, made up of three parts defined by polygonal coordinate sequences in Schedule 1 and illustrated by the included map (s 5(1)-(3); Schedule 1). The coordinates are specified in MGA Zone 56 and tied to the Geocentric Datum of Australia (GDA94) (s 4; Schedule 1), which fixes the spatial reference system for locating the declared area.

Second, preservation and protection from injury or desecration: under s 6(1) the declared area is, for the purposes of section 10 of the Act, a significant Aboriginal area to be preserved and protected from injury and desecration. The instrument cites the Act’s definition of what constitutes injury or desecration (note to s 6), namely use or treatment inconsistent with Aboriginal tradition, adverse effects on use or significance in accordance with Aboriginal tradition, or entry/passage inconsistent with Aboriginal tradition (note referencing s 3(2) of the Act). That framing is the statutory touchstone for the prohibitions that follow.

Third, the scope of prohibition: s 6(2) establishes a broad proscription against doing any act in, on or near the declared area that will, or is likely to, injure or desecrate it. Section 6(3) supplies specific prohibitions without limiting the general proscription: entry or passage (6(3)(a)); earthmoving or other ground‑disturbing works (6(3)(b)); building or constructing roads, buildings or structures that intrude into the declared area (6(3)(c)); damaging trees (6(3)(d)); and causing any projectile or aerial device to enter the declared area (6(3)(e)). The list is expressed “without limiting” the general rule, so the general test of injury or desecration remains operative beyond the enumerated acts.

Fourth, authorised persons and exceptions: s 6(4) creates carve‑outs to the prohibitions for acts done by an authorised person, with the instrument specifying authorised persons in s 6(5). An authorised person includes elders of the Gumbaynggirr Nation, persons who have received permission from such an elder or the Nambucca Heads Local Aboriginal Land Council, or persons authorised or required by law (s 6(5)(a)-(c)). The specified permissible purposes are limited to cultural practice, education, research, management and similar activities, and acts required or authorised by law (s 6(4)(a)-(c)). Section 6(6) then circumscribes the “authorised or required by law” exception by denying that receiving a development approval or similar consent amounts to being authorised or required by law for the purposes of the exception.

Fifth, temporality: the instrument has a fixed term , 25 years from commencement , and will be automatically repealed after that term (s 7-8). Sixth, enforcement connection: the instrument explicitly references the Act’s offence provision, by way of the instrument’s note that under subsection 22(1) of the Act a person commits an offence if they engage in conduct that contravenes a provision of a declaration made under Part II of the Act in relation to a significant Aboriginal area (note to s 6). The instrument itself does not set penalty amounts or enforcement processes; it invokes the Act’s enforcement framework.

Finally, evidentiary and locational detail: the instrument supplies a detailed schedule of MGA coordinates and an illustrative map; directions in the coordinate tables are described as indicative only (Schedule 1). The instrument also defines key terms (s 4), including that “land includes vegetation” and that “authorised person has the meaning given by subsection 6(5).” Those definitions shape the substantive reach of the prohibitions and exceptions.

The instrument’s prohibitions bind “a person” generally (s 6(2)-(3)). That language is expansive: it captures private individuals, contractors, corporate actors, local government entities and state agencies so far as they may undertake acts in, on or near the declared area. The instrument’s own map and descriptive notes place Parts 1 and 2 within Nambucca State Forest and Part 3 adjacent to a residential area and Marshall Way (s 5(3) note). From those geographic details the instrument will directly affect:

• Land managers of Nambucca State Forest and any state forestry agency responsible for activities in the forested parts identified (s 5(3) note; Schedule 1 identifies Parts 1-3).
• Residents and property owners adjacent to Part 3, and persons accessing nearby public spaces, because the instrument prohibits entering the declared area and passage through or over it (s 6(3)(a); s 6(2) incorporating the Act’s notion of injury or desecration).
• Developers, builders, earthworks contractors and surveyors who might otherwise undertake construction, excavation, clearing or vegetation removal in, on or near the declared area (s 6(3)(b)-(d)).
• Operators of aerial devices or persons who may cause projectiles to enter the declared area, including anyone operating recreational or commercial devices (s 6(3)(e)).
• Researchers, educational institutions, consultants and environmental managers whose work would involve activities in the declared area, because the instrument expressly allows certain activities by authorised persons for education, research, management, monitoring, revegetation, restoration or rehabilitation (s 6(4)(b)).
• The Gumbaynggirr Nation and the Nambucca Heads Local Aboriginal Land Council, whose elders and councils are specified decision‑makers for granting permission to be an authorised person (s 6(5)(a)-(b)). These bodies are therefore central to permitting otherwise prohibited acts.
• Anyone holding development approvals or other statutory approvals relating to land use near or overlapping the declared area, because the instrument states that receiving such approvals does not, by itself, make a person “authorised or required by law” to perform the acts (s 6(6)). This creates continuing obligations for permit holders.

The instrument thus reaches public and private actors whose planned or incidental activities could injure or desecrate the area as defined. The definition of “land includes vegetation” in s 4 expands the class of affected interests to include activities directed at vegetation. The instrument uses broad prohibitory language (“a person must not do any act…”) rather than targeting particular classes of actors, so practical compliance and enforcement will fall on those whose physical operations intersect the declared area, and on the Gumbaynggirr Nation and the Nambucca Heads Local Aboriginal Land Council as gatekeepers for authorised permissions.

Duties

• Do not carry out acts in, on or near the declared area that will, or are likely to, injure or desecrate it. The instrument creates a general duty of non‑interference (s 6(2)). The statutory note clarifies the test for injury or desecration by reference to the Act’s s 3(2) definition: incompatible use or treatment with Aboriginal tradition, adverse effect on traditional use or significance, or entry/passage inconsistent with Aboriginal tradition (note to s 6; note referencing s 3(2) of the Act).

• Do not enter, pass through or otherwise access the declared area. Section 6(3)(a) gives entry and over‑passage as a specific prohibition, without limiting the general duty.

• Do not undertake land‑disturbing works listed in s 6(3)(b): bulldozing, grading, drilling, digging, excavating, cutting, filling, blasting, clearing, demolishing, tunnelling, burning, removing or otherwise damaging the land in the declared area.

• Do not build or construct roads, buildings or structures in, or intruding into, the declared area (s 6(3)(c)).

• Do not kill, cut down, poison, deface, burn, remove or otherwise damage any tree in the declared area (s 6(3)(d)); “land includes vegetation” (s 4) emphasises that vegetation is within the protective scope.

• Do not cause any projectile or aerial device to enter into the declared area (s 6(3)(e)).

Rights and permissions

• Authorised persons may undertake acts otherwise prohibited, but only for limited purposes and subject to the categories in s 6(4). The permitted purposes are: practising or observing Aboriginal traditions, observances, cultural practices, customs or beliefs (s 6(4)(a)); education, research, management, monitoring, revegetation, restoration or rehabilitation (s 6(4)(b)); or where doing the act is authorised or required by law (s 6(4)(c)).

• The instrument specifies who qualifies as an authorised person for these purposes (s 6(5)): an elder of the Gumbaynggirr Nation (s 6(5)(a)); a person who has received permission from an elder of the Gumbaynggirr Nation or from the Nambucca Heads Local Aboriginal Land Council (s 6(5)(b)(i)-(ii)); or a person authorised or required by law (s 6(5)(c)). The instrument thereby places decision‑making authority over access and permitted activities with named Indigenous elders and the local Aboriginal Land Council.

Constraints and clarifications

• The instrument narrows the “authorised or required by law” exception: a person is not authorised or required by law to do an act merely because they have received approval, permission, authority or consent to undertake activities in connection with using or developing land in, on or near the declared area (s 6(6)). That creates a disconnection between ordinary land use approvals and the instrument’s authorisation regime; statutory or planning permits alone will not, by themselves, relieve the duty to comply with the declaration.

• Temporal duty: the duties operate for the instrument’s term of effect (25 years beginning on commencement) (s 7). After the term expires the instrument is repealed the day after the end of the period specified in s 7 (s 8).

• Spatial duty: duties attach to the declared area as defined by the coordinates and map (s 5; Schedule 1) and are to be interpreted in relation to the specified spatial datum (s 4). The instrument states that directions in Schedule 1 are indicative only (Schedule 1), which has implications for boundary interpretation.

Enforcement implication

• The instrument references the Act’s enforcement regime: the instrument’s note observes that under subsection 22(1) of the Act, a person commits an offence if they engage in conduct that contravenes a provision of a declaration made under Part II of the Act in relation to a significant Aboriginal area (note to s 6). The declaration therefore becomes enforceable through the criminal offence architecture in the Act, even though the instrument itself does not specify penalties or the mechanisms for investigation and prosecution.

Overall, the instrument creates duties to refrain from a broad set of actions in a defined place, delegates limited rights to specified Indigenous persons and bodies (and to persons authorised by law), and tightens the relationship between statutory land‑use approvals and heritage protection by expressly stating approvals do not alone constitute authorisation under the instrument.

The instrument itself does not set out penalties or the procedural enforcement mechanisms. It does, however, explicitly link the declaration to the Act’s offence provision by way of a note: under subsection 22(1) of the Act, a person commits an offence if they engage in conduct that contravenes a provision of a declaration made under Part II of the Act in relation to a significant Aboriginal area (note to s 6). That note makes clear the declaration is intended to be enforceable under the criminal framework established by the Act, even though the instrument does not restate penalty levels, enforcement agency powers, or investigative procedures.

Because the instrument invokes the Act, actual enforcement will rely on the Act’s machinery for detecting, investigating and prosecuting alleged contraventions. The instrument contains no textual allocation of enforcement responsibilities to particular agencies, nor does it set out the procedural steps for seeking civil relief, injunctions, administrative reviews, or the mechanisms for consenting to acts under the authorised person carve‑outs. The instrument also does not specify interim or emergency powers (for example, expedited injunctive relief or immediate protection orders) within its text.

Practical enforcement issues arising from the instrument’s content include:

• Identification of contraventions: the prohibitions apply to acts that “will, or are likely to, injure or desecrate” the declared area (s 6(2)). Determining the threshold for “likely” injury or desecration will involve factual and cultural assessment in individual cases, using the Act’s definition of “injury or desecration” cited in the instrument’s note (note to s 6; note referencing s 3(2) of the Act).

• Proof and evidence: the instrument’s spatial definitions (Schedule 1) and datum (GDA94, s 4) help fix the geographic scope, but Schedule 1 notes that directions in the coordinate tables are indicative only, which could give rise to disputes about exact boundaries in enforcement proceedings.

• Operative parties in enforcement: while the instrument identifies the Gumbaynggirr Nation elders and the Nambucca Heads Local Aboriginal Land Council as the decision‑makers for permission, it does not confer policing or prosecutorial powers on those bodies in the instrument text. Enforcement under the Act is likely to be carried out by Commonwealth authorities or state actors as provided by the Act, but the instrument does not specify which enforcement agencies will act.

• Interaction with approvals and licences: s 6(6) denies that receiving an approval, permission, authority or consent to undertake activities in connection with using or developing land in, on or near the declared area amounts to being authorised or required by law for the purposes of the authorised person exception. That reduces the scope for defence based solely on planning approvals; however, the instrument does allow acts where “authorised or required by law” (s 6(4)(c), s 6(5)(c)) , resolving whether a given statutory power qualifies will require analysis against the Act and likely factual evidence of the legal authorisation in question.

• Temporal enforcement horizon: the instrument lasts 25 years (s 7) and is automatically repealed thereafter (s 8). Enforcement exposure applies only during the operative period.

Because the instrument does not itself list penalties or administrative enforcement steps, any compliance and enforcement advice must be framed by reference to the Act’s enforcement provisions (not reproduced in the instrument). The instrument makes the declaration enforceable under the Act (note to s 6), but practitioners must consult the Act itself for detailed penalty scales, prosecutorial discretions and enforcement processes.

The instrument is expressly made under the authority of section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) (s 3). It therefore sits as a statutory declaration operating within the Act’s Part II framework and interacts with other laws in several concrete ways, as reflected in the instrument itself.

Direct link to the Act’s definitions and offence provisions

• The instrument relies on definitions and concepts in the Act. Section 4 of the instrument notes that a number of expressions used in the instrument are defined in the Act, including “Aboriginal”, “area”, and “significant Aboriginal area” (s 4). The instrument imports the Act’s standard for what constitutes injury or desecration by way of the note to s 6, which cites subsection 3(2) of the Act. The instrument also invokes the Act’s criminal exposure, noting that subsection 22(1) of the Act makes it an offence to engage in conduct contravening a declaration (note to s 6). Therefore the instrument’s substantive prohibitions are joined to the Act’s broader statutory architecture.

Relationship with land‑use approvals and statutory permissions

• The instrument creates a specific carve‑out that narrows conflicts with other statutory approvals: s 6(6) states that being in possession of an approval, permission, authority or consent to undertake activities in connection with using or developing land in, on or near the declared area does not, by itself, mean the person is authorised or required by law to do the relevant act for the purposes of s 6(5)(c). This establishes that the existence of planning permits, development approvals or other land‑use consents does not automatically supersede the declaration’s prohibitions. Consequently, the instrument will interact with planning and environmental approvals by imposing an additional constraint on actions in the declared area; entities holding development consents must still account for the declaration.

Spatial and cadastral systems

• The instrument locates the declared area using MGA coordinates and the Geocentric Datum of Australia (GDA94) (s 4; Schedule 1). That choice creates an interface with cadastral, land‑registry and spatial planning systems which generally use defined datums. Practitioners and officials must translate the instrument’s coordinate descriptions into local parcel identifications, survey plans and mapping layers to determine overlap with private titles, easements, roads or management boundaries. The instrument notes that directions in the coordinate tables are indicative only (Schedule 1), indicating some potential for interpretative divergence when overlaying the polygons on cadastral maps.

State and local government responsibilities

• The instrument does not explicitly displace state or local government powers, but it does directly affect activities within the Nambucca State Forest (s 5(3) note). Where state forest management, roadworks or forestry operations would otherwise proceed, those authorities must account for the declaration and cannot rely on state powers alone to justify acts that would injure or desecrate the declared area unless such acts are authorised or required by law, and then only to the extent that the Act’s regime allows (s 6(4)(c); s 6(5)(c); s 6(6) clarifies development approvals are not by themselves sufficient).

Overlap with rights and customary practices

• The instrument expressly balances the broader prohibitions by providing that elders of the Gumbaynggirr Nation and persons with permission from them or the Nambucca Heads Local Aboriginal Land Council may carry out culturally significant acts (s 6(4)(a); s 6(5)(a)-(b)). That creates an intended interaction with Aboriginal customary rights and local Indigenous governance structures.

Limitations in the instrument

• The instrument does not specify compensation, acquisition, or procedural steps to resolve conflicts with other statutory regimes. It does not amend or repeal rights under other laws; instead it imposes a new layer of obligations backed by the Act. For specific conflicts , for example, where a statutory authorisation might be claimed to authorise an act , the instrument’s text narrows the effect of routine development consents (s 6(6)), meaning resolution will require applying the Act and the instrument, and possibly judicial or administrative determination where there is contest about whether another law truly “authorises or requires” a particular act for the purposes of s 6(5)(c).

In short, the instrument functions as a heritage protection overlay that attaches to the declared area, interacts with planning and other statutory approvals by imposing separate prohibitions and limited exceptions, uses recognised spatial datums for integration with mapping systems, and depends on the Act for enforcement and definitive interpretation. Practitioners should therefore read the instrument alongside the Act and relevant state and local statutory regimes to assess conflicts and compliance requirements.

The instrument, as provided, contains no express amendment provisions or recorded amendments within its text. It repeatedly records its own name, commencement rule (commencing the day after registration, s 2), authority under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (s 3), and its operative provisions (s 4-8 and Schedule 1). There is no internal amending schedule and no text indicating prior versions, revocations or modifications. The instrument sets a fixed temporal operation of 25 years from commencement (s 7) and prescribes repeal the day after the end of that period (s 8), so its principal temporal modification mechanism is this fixed expiry rather than amendments.

Because the instrument is made under the Act (s 3), its future amendment or repeal could occur by:

• exercise of powers in the Act permitting variation or revocation of declaratory instruments under Part II of the Act (the instrument itself does not reproduce those Act powers, but it is made under s 10 of the Act, s 3); or

• formal repeal or amendment by later legislative instrument made under the same statutory head of power, or by amendment of the Act that affects the instrument’s operation.

However, the instrument text does not describe any transitional arrangements for acts done prior to commencement, nor does it provide a mechanism for partial amendment of the declared area or for interim review. The only temporal modification explicitly provided is expiry after 25 years.

Practically, users and affected parties should note:

• Commencement timing: the instrument commences the day after registration (s 2). The registration date is therefore the operative start for the 25‑year clock (s 7). Any activity undertaken before registration will not be covered by the instrument; any activity after registration is subject to the instrument.

• Sunset clause effect: the automatic repeal (s 8) makes the declaration a time‑limited protection measure. Stakeholders should track the registration date, as the instrument’s protections and obligations will lapse automatically after 25 years unless a new declaration or legislative change intervenes.

• No in‑instrument amendment procedure: because the instrument does not itself set out procedures for amendment, any change to the declared area, permitted activities, or term would require exercise of the Act’s separate powers or a new instrument.

The instrument’s silence on amendment history means that a definitive record of any subsequent changes will need to be sought from the Commonwealth register of legislative instruments or the administering department, rather than inferred from the instrument itself.

The instrument text contains no references to judicial decisions, prior litigation, or disputes, and does not record any litigation history. It includes notes that reference relevant provisions of the Act , specifically the Act’s definition of injury or desecration (s 3(2) of the Act, cited in the note to s 6) and the Act’s criminal provision prohibiting contravention of a declaration (s 22(1) of the Act, cited in the note to s 6) , but the instrument does not itself cite any cases or past determinations that interpret those provisions as they apply to this declared area.

The absence of litigation references in the instrument means that:

• There is no instrument‑specific precedent recorded within the instrument text. Any legal challenges, judicial interpretations or enforcement actions arising from this declaration would therefore be new matters to be litigated under the Act’s framework, unless they rely on general interpretative material from other declarations under the Act or from the Act itself.

• Determinations about the scope of terms used in the instrument , for example what constitutes “near” the declared area, the precise boundary where Schedule 1 directions are “indicative only”, the threshold for “likely to injure or desecrate”, or the meaning of “authorised or required by law” in s 6(5)(c) , may be matters for future litigation or administrative dispute. The instrument does not supply adjudicative definitions for those contested concepts.

• Enforcement proceedings (criminal or otherwise) under the Act’s s 22(1) , referenced in the instrument’s note to s 6 , would be litigated under the Act in the relevant courts or tribunals. The instrument itself does not indicate which prosecuting authorities will act or whether administrative enforcement mechanisms (for example, injunctions) are intended.

Practitioners advising clients should therefore assume there is no settled litigation history specific to this declaration recorded in the instrument and prepare for potential disputes on boundary interpretation, the application of authorised person exceptions, and the interaction between other statutory approvals and the declaration. To determine whether there is any existing litigation or administrative determinations relating to this declared area, one must search court and tribunal records, the Commonwealth register of legislative instruments for related material, and the administering department’s public files, as the instrument itself contains no litigation record.

The instrument contains several features that can give rise to practical pitfalls and compliance risks. These are factual, interpretative and procedural in nature and arise directly from the instrument’s language.

Boundary and spatial uncertainty

• Schedule 1 provides coordinate sequences in MGA Zone 56 tied to GDA94 (s 4; Schedule 1). However, the schedule states that the directions included in the coordinate tables are “indicative only” (Schedule 1). That language may leave room for differing interpretations when overlaying the declared polygons onto cadastral maps or survey plans. Practitioners should not assume the printed map or the “generally East/West/North” directions are definitive for precise parcel boundary resolution.

• The declared area comprises three separate parts, and the map supplied in s 5(3) is descriptive. The instrument’s map is illustrative but the detailed legal description is the coordinate data. Errors or mismatches between local survey records and the MGA/GDA coordinates could create disputes about whether particular activities cross the declared boundary.

Scope of “in, on or near”

• The prohibitions apply to any act “in, on or near” the declared area (s 6(2)). The instrument does not define “near,” leaving uncertainty for activities that fall just outside the mapped polygons but may nevertheless affect the declared area (for example, activities causing runoff, smoke or noise). Determining whether an act is “near” enough to be captured may require cultural, environmental and legal assessment against the Act’s notion of injury or desecration.

Interaction with statutory approvals

• Section 6(6) expressly says a person is not authorised or required by law to do an act merely because they have received an approval, permission, authority or consent to undertake activities in connection with using or developing land in, on or near the declared area. Practically, this means developers cannot assume that existing planning approvals are a safe harbour from the instrument’s prohibitions. However, the instrument retains an exception for acts authorised or required by law (s 6(4)(c), s 6(5)(c)), so there may be narrow cases where another statutory instrument genuinely authorises an act , but the instrument’s text signals that routine development consents are not enough.

Authorisation evidence and form

• The instrument recognises permission from an elder or the Nambucca Heads Local Aboriginal Land Council as constituting authorisation (s 6(5)(b)(i)-(ii)). The instrument does not specify the required form of that permission (oral, written, recorded), nor does it set out how disputes over permission will be resolved. That creates practical risk: contractors may rely on informal permissions that are later contested, or public authorities may be unsure whether a purported permission suffices. Absent procedural detail, parties should seek written, contemporaneous evidence when permission is granted.

Cultural assessment and the test for injury or desecration

• The instrument imports the Act’s cultural standard for injury or desecration (note to s 6 referencing s 3(2) of the Act). Determining whether an act is inconsistent with Aboriginal tradition or adversely affects the use or significance of the area requires cultural evidence and may be contested. The instrument does not specify who provides cultural assessments or how such evidence is to be weighed.

Vegetation included in “land”

• Section 4 defines “land includes vegetation.” The phrase expands the protective scope to trees and plant communities; s 6(3)(d) specifically prohibits killing, cutting down, poisoning, defacing, burning, removing or otherwise damaging any tree in the declared area. Practitioners must therefore treat vegetation management activities (including weed control, hazard reduction burns, or vegetation clearing) as potentially regulated by the declaration.

Aerial devices and projectiles

• Section 6(3)(e) prohibits causing any projectile or aerial device to enter the declared area. The term “aerial device” is wide and can include modern unmanned aerial vehicles (drones), kites, or other airborne objects. Parties operating aerial devices for surveying, photography or recreation should be cautious and treat such operations as potentially prohibited unless authorised.

Temporal planning and expiration

• The declaration has a fixed 25‑year term (s 7) and will be automatically repealed the day after the period ends (s 8). Parties with long‑term plans should note the temporal nature of protection and factor the expiry into long‑range planning. However, any activities during the effective period remain subject to the prohibitions.

Enforcement uncertainty

• The instrument points to the Act’s offence provision (note to s 6 referencing s 22(1) of the Act) but does not set out enforcement processes, investigatory powers, or penalty levels. That leaves uncertainty about the practical enforcement pathway and consequences in any given case.

Overlap with public land management

• The instrument places constraints on activities in the Nambucca State Forest (s 5(3) note). State forest management and hazard mitigation activities must account for the declaration; however, the instrument does not set out processes for resolving conflicts between state forest management duties and the declaration’s prohibitions, raising practical coordination risks.

In aggregate, these “gotchas” flow directly from the instrument’s textual choices: broad prohibitory language, high‑level exceptions tied to local Indigenous authority and law, spatial identification using MGA/GDA coordinates with “indicative” directions, and silence on enforcement procedures and evidence forms. Parties should therefore do spatial due diligence, secure written authorisations where relevant, and treat development consents as insufficient to satisfy the instrument’s exceptions.

To comply with the instrument’s requirements, affected parties should take concrete, documented steps that reflect the instrument’s spatial specifications, prohibition list, authorised person regime, and temporal scope. The following compliance checklist and practical measures are grounded in the instrument’s text.

1. Establish whether your activity intersects the declared area

• Use the MGA Zone 56 coordinates and the Geocentric Datum of Australia (GDA94) specified in the instrument (s 4; Schedule 1) to map the precise polygons. Do not rely solely on the illustrative map in s 5(3); convert the Schedule 1 coordinates into a GIS layer aligned to GDA94 to determine overlap with your site, easements, parcels or infrastructure.
• Remember that Schedule 1 directions are “indicative only” (Schedule 1). Where precision is required, commission a professional cadastral survey using the specified datum and MGA zone to confirm whether the activity footprint falls “in, on or near” the declared area (s 6(2)).

2. Identify the nature of your proposed act against the prohibited list

• If the activity involves entering, travelling through, earthworks, drilling, excavation, constructing or intruding structures, vegetation removal or damage to trees, or causing projectiles or aerial devices to enter the area, it is specifically covered by s 6(3)(a)-(e). Treat any such activity as presumptively prohibited unless an authorised person exception applies.

3. Determine whether an authorised person exception applies

• The instrument permits acts by an authorised person for specified purposes (s 6(4)). Authorised persons are: elders of the Gumbaynggirr Nation; persons who have received permission from an elder of the Gumbaynggirr Nation or the Nambucca Heads Local Aboriginal Land Council; or persons authorised or required by law (s 6(5)).
• If your activity is cultural practice, education, research, management, monitoring, revegetation, restoration or rehabilitation, engage with the Gumbaynggirr Nation elders or the Nambucca Heads Local Aboriginal Land Council to seek permission in advance (s 6(4)(a)-(b); s 6(5)(a)-(b)).
• Do not assume that statutory development approvals or consents alone authorise the activity for the purposes of s 6(5)(c). Section 6(6) states such approvals are not sufficient by themselves to constitute authorisation or requirement by law.

4. Secure and record permissions properly

• Seek written permissions or clear contemporaneous records from the elder(s) or the Nambucca Heads Local Aboriginal Land Council when relying on s 6(5)(b). The instrument does not prescribe form or process, so robust written documentation will mitigate later disputes about whether permission was granted.
• If asserting a claim that an act is “authorised or required by law” (s 6(5)(c)), obtain formal legal confirmation that a statutory provision actually compels or authorises the specific act, and document the statutory basis. Be aware that ordinary land‑use approvals are not automatically sufficient (s 6(6)).

5. Design works and operations to avoid the declared area

• Where possible, redesign works, access routes, machine movements and storage to remain outside the declared polygons. For activities near the boundary, implement physical controls (fencing, exclusion zones) and operational procedures to prevent inadvertent entry, earthworks, vegetation damage, or drone/aerial incursions into the declared area.

6. Manage contractors and supply chains

• Contract documents should require contractors to comply with the declaration, prohibiting listed activities in the declared area, and requiring prior written authorisation from an elder or the LALC if applicable. Include indemnities and stop‑work obligations on suspected breaches.

7. Treat vegetation protection as a core compliance item

• Because s 4 defines “land includes vegetation” and s 6(3)(d) specifically prohibits damage to trees, conduct arboricultural and ecological surveys to identify trees and vegetation communities potentially impacted, and avoid any operations that would kill, cut down, poison, burn or remove trees without prior authorised permission.

8. Be cautious with aerial operations

• Treat any use of aerial devices or projectiles (s 6(3)(e)) as potentially prohibited when their flight path could cross the declared area. Obtain permission from an elder or the LALC in advance if the operation is necessary for permitted purposes, and consider alternative methods that avoid overflight.

9. Prepare cultural impact and risk assessments

• Where activities could affect the declared area, prepare cultural heritage impact assessments that address the Act’s standard for injury or desecration (note to s 6 referencing the Act’s s 3(2)). Engage Gumbaynggirr elders and the LALC early for input and consent‑seeking processes. Document consultations and decisions.

10. Keep a compliance and monitoring record

• Maintain contemporaneous records of permissions, surveys, GPS tracks, flight logs, contractor certifications, and monitoring reports to demonstrate compliance. These records will be relevant if any enforcement action is taken under the Act (note to s 6 referencing s 22(1) of the Act).

11. Plan for the instrument’s timeframe

• The declaration remains in force for 25 years from commencement (s 7). Track the registration and commencement date (s 2) so you know when the declaration becomes operative and when it will expire (s 8). Do not rely on eventual expiry as a near‑term compliance strategy.

12. Seek legal and cultural advice where uncertain

• Where the scope of “near”, “authorised by law”, or whether a proposed act will “likely injure or desecrate” the area is uncertain, obtain specialised legal advice and consult directly with Gumbaynggirr elders or the Nambucca Heads Local Aboriginal Land Council. The instrument’s text leaves interpretative questions that require legal and cultural expertise to resolve.

13. Coordinate with public authorities

• If the proposed act involves state forest management, road maintenance, hazard reduction burns or similar activities within or adjacent to Nambucca State Forest (s 5(3) note), coordinate with the relevant state agencies and with elders and the LALC to secure permissions and avoid contraventions.

Following these steps aligns operational practice with the instrument’s prohibitions and authorised exceptions as set out in sections 4-8 and Schedule 1. The core compliance principle is to avoid doing any act in, on or near the declared area that will, or is likely to, injure or desecrate it (s 6(2)), and to ensure that any necessary acts are carried out only by authorised persons for authorised purposes with contemporaneous written evidence of authorisation.