The impact of the law on consultation practices and purpose: A case study of Aboriginal cultural heritage consultations in NSW

Consultation research to date has largely concentrated on how consultation practices generally serve only the purpose of procedural compliance. This article identifies and explores the gap in existing research on the impact of law on consultation practices and purposes. To explore current practices and the potential contribution of law to the nature of consultation practices, the article focuses on the NSW duty to consult Aboriginal people before permitting harm to Aboriginal cultural heritage. Conventional regulatory approaches to consultation assume that Aboriginal interests are accommodated by the same consultation strategies applied to other stakeholders in rural law and policy. This article uses an administrative law doctrinal research approach to identify the specific issues and requirements for Aboriginal consultation relating to cultural heritage. Consideration is given to the effectiveness of the case study consultation requirements, the duty design, and the recent Land and Environment Court judgment of Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water. The article argues that statutory consultation requirements and purposes can, and should, be taken more seriously. The law reform discussion highlighted in the paper considers how identified consultation requirements can be incorporated into Australian Cultural Heritage legislation, and the possible impact of such incorporation on the purpose of the consultation. More broadly, the law reform discussion indicates that when consultation requirements are tailored to suit the purpose of the consultation and the consultation parties, the law can play a positive role in consultation, engagement and capacity building.