58Defence of low impact acts or omissions to the offence of harming Aboriginal objects

#### 58 Defence of low impact acts or omissions to the offence of harming Aboriginal objects 58 Defence of low impact acts or omissions to the offence of harming Aboriginal objects > > (1) It is a defence to a prosecution for an offence under section 86(2) of the Act, if the defendant establishes that the act or omission concerned— > > > > > (a) was maintenance work of the following kind on land that has been disturbed— > > > > > > > (i) maintenance of existing roads, fire and other trails and tracks, > > > > > > > (ii) maintenance of existing utilities and other similar services (such as above or below ground electrical infrastructure, water or sewerage pipelines), or > > > > > (b) was farming and land management work of the following kind on land that has been disturbed— > > > > > > > (i) cropping and leaving paddocks fallow, > > > > > > > (ii) the construction of water storage works (such as farm dams or water tanks), > > > > > > > (iii) the construction of fences, > > > > > > > (iv) the construction of irrigation infrastructure, ground water bores or flood mitigation works, > > > > > > > (v) the construction of erosion control or soil conservation works (such as contour banks), or > > > > > (c) was farming and land management work that involved the maintenance of the following existing infrastructure— > > > > > > > (i) grain, fibre or fertiliser storage areas, > > > > > > > (ii) water storage works (such as farm dams or water tanks), > > > > > > > (iii) irrigation infrastructure, ground water bores or flood mitigation works, > > > > > > > (iv) fences, > > > > > > > (v) erosion control or soil conservation works (such as contour banks), or > > > > > (d) was the grazing of animals, or > > > > > (e) was an activity on land that has been disturbed that comprises exempt development or was the subject of a complying development certificate issued under the [Environmental Planning and Assessment Act 1979](/view/html/inforce/current/act-1979-203), or > > > > > (f) was mining exploration work of the following kind on land that has been disturbed— > > > > > > > (i) costeaning, > > > > > > > (ii) bulk sampling, > > > > > > > (iii) drilling, or > > > > > (g) was work of the following kind— > > > > > > > (i) geological mapping, > > > > > > > (ii) surface geophysical surveys (including gravity surveys, radiometric surveys, magnetic surveys and electrical surveys), but not including seismic surveys, > > > > > > > (iii) sub-surface geophysical surveys that involve downhole logging, > > > > > > > (iv) sampling and coring using hand-held equipment, except where carried out as part of an archaeological investigation, or > > > > > > Note. > > > > > > Clause 5 of this Regulation provides that an act carried out in accordance with the Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales is excluded from the meaning of harm an object or place in the Act. > > > > > (h) was the removal of isolated, dead or dying vegetation, but only if there is minimal disturbance to the surrounding ground surface, or > > > > > (i) was work of the following kind on land that has been disturbed— > > > > > > > (i) seismic surveying, > > > > > > > (ii) the construction and maintenance of groundwater monitoring bores, or > > > > > (j) was environmental rehabilitation work, including temporary silt fencing, tree planting, bush regeneration and weed removal, but not including erosion control or soil conservation works (such as contour banks). > > > (2) Subclause (1) does not apply in relation to harm to an Aboriginal culturally modified tree. > > > (3) In this clause, Aboriginal culturally modified tree means a tree that, before or concurrent with (or both) the occupation of the area in which the tree is located by a person who is not an Aboriginal person, has been scarred, carved or modified by an Aboriginal person by— > > > > > (a) the deliberate removal, by traditional methods, of bark or wood from the tree, or > > > > > (b) the deliberate modification, by traditional methods, of the wood of the tree. > > > (4) For the purposes of this clause, land is disturbed if it has been the subject of a human activity that has changed the land’s surface, being changes that remain clear and observable. > > > > Note. > > > > Examples of activities that may have disturbed land include the following— > > > > > (a) soil ploughing, > > > > > (b) construction of rural infrastructure (such as dams and fences), > > > > > (c) construction of roads, trails and tracks (including fire trails and tracks and walking tracks), > > > > > (d) clearing of vegetation, > > > > > (e) construction of buildings and the erection of other structures, > > > > > (f) construction or installation of utilities and other similar services (such as above or below ground electrical infrastructure, water or sewerage pipelines, stormwater drainage and other similar infrastructure), > > > > > (g) substantial grazing involving the construction of rural infrastructure, > > > > > (h) construction of earthworks associated with any thing referred to in paragraphs (a)–(g).