After a recent review of the processes involving existing RAPs, Council has received advice and concluded that once an Aboriginal Corporation (registered under the ) has obtained RAP status, any subsequent boundary variation will be considered under the provisions of section 155 of the (Act).
Section 155 of the Act
Section 155 of the Act, Variation of Registration, is as follows:
- The Council may vary the registration of a registered Aboriginal party with the consent of that party and, if there are other registered Aboriginal parties for that area, with the consent of each of those parties.
- A variation under this section may include a variation to the boundaries of the area for which the registered Aboriginal party is registered.
Consideration of Boundary Variation
In considering a variation to the registration area of an existing RAP, under section 155, Council will consider five main matters.
The overall scheme and purposes of the Act
The fundamental purpose of the Act is to ensure that as far as possible Traditional Owners exercise control over the protection and management of their Aboriginal Cultural Heritage. Relevantly, the scheme of the Act is built upon this purpose. As such the first matter to be considered by Council is whether the proposed alteration of a RAP registration area will enhance the ability of the relevant Traditional Owners in their ability to protect and manage their Aboriginal Cultural Heritage. Regard to the matters contained in s 150 (2) – (3) may assist in Council satisfying itself with regard to this issue. Similarly, evidence of negotiations and any subsequent agreements with other relevant Traditional Owner Groups, including adjacent RAPs may be relevant to consideration of this matter.
The workability of the Act
The Council has an obligation to ensure that its decisions enhance the workability of the Act. In this respect Council will consider whether a RAP demonstrates that it is organisationally capable of discharging the functions of a RAP in regard to the proposed enhanced area. In this regard in exercising power under s 155 to vary the registration of a RAP Council may be of the view that the variation of the boundary of the registration area is appropriate only if accompanied by a further variation in the registration of a RAP in a manner to ensure that the RAP has the capacity to discharge its statutory functions.
The technical requirements of the Act
Section 155 requires a RAP to consent to any variation of its registration boundaries, and if any, the consent of an existing RAP to the determination area. Council would require evidence that the relevant consent has been realised by all relevant parties in the appropriate form.
The procedural fairness requirements of the common law
Council is under an obligation to ensure that any party whose legitimate interests may be adversely affected by a possible decision of Council to vary the area of registration of an existing RAP have a reasonable opportunity to communicate their objections to Council and to have Council consider those objections prior to reaching its decision. This matter requires Council to give public notice, particularly to any potentially interested Traditional Owner groups, of its consideration of the alteration of the boundaries of a RAP registration area and to seek and consider submissions in relation to that matter.
Human rights implications of decision-making
Prior to making a decision, Council will give careful consideration to the Charter of Human Rights and Responsibilities Act 2006 (Charter), by taking into account the distinct cultural rights of Aboriginal persons recognised in s 19(2)(d) of the Charter. Council acknowledge that Aboriginal persons hold distinct cultural rights and must not be denied the right to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.
Current Applications Before Council
The materials contained in a submitted RAP application although prepared in the context of a section 150 application, do, in fact, go directly to the matters identified above. As such, Council will consider any application lodged as a request to vary the boundary of your registration area pursuant to section 155 without any further action needed to be taken by the applicant.
In due course, a new Form will be published on Council’s website “Form: Request Variation to Registered Aboriginal Party Status pursuant to section 155 of the Aboriginal Heritage Act 2006 (Vic) ”.
Council’s usual procedure when receiving a RAP application under section 150 is to notify the public generally and relevant parties, including Traditional Owner groups that neighbour the area being claimed, and provide them with the opportunity to comment on the application. In this instance, when section 155 of the Act is applied as a variation of registration, Council will continue its usual procedures of seeking public comment.
Reviewed 08 November 2019