Review of the Aboriginal Heritage Act 2006

In 2007, the Aboriginal Heritage Act came into being, enshrining Council and its responsibilities to register Aboriginal parties to manage both Country and Cultural Heritage. Also in 2007, the United Nations General Assembly adopted the significant Declaration on the Rights of Indigenous Peoples.

Supporting the survival, dignity and wellbeing of Our People, the Declaration is the foundation of Council's work.

The Aboriginal Heritage Act and Declaration, together, provide some of the greatest protections for Traditional Owners in the country. However, there is still much to be done in realising a fundamentally self-determined and tangible ownership of our Culture, Heritage, History and Country.

The time has come for Traditional Owners to do more than play a part, they must realise their rights to control their Cultural Heritage through the law that governs the protection and management of that Cultural Heritage.

On 22 June 2020, Council published Taking Control of Our Heritage, a Discussion Paper on legislative reform of the Aboriginal Heritage Act 2006.

The review is undertaken pursuant to its responsibilities under Sections 132(2)(cg) and 132(3) of the Act and the objective was to have a genuine conversation with Traditional Owners, land managers, the broader community and the government on the operation of the Act.

In April this year, Council expects to release proposals for changes to the Act, to better protect Aboriginal Cultural Heritage and allow Traditional Owners to manage their own Cultural Heritage.

Changing the definition of Significant Ground Disturbance (SGD)

“All disturbance is significant, and all the earth holds significance - the top that feeds the grasses, the deep earth that feeds the roots of the trees and the underground that feeds our underground waterways. Our Old People have left themselves and their places and stories across all this Country.”

Victorian Traditional Owner, Melbourne

Under the Act, it is only sometimes that a plan for protection of Aboriginal Cultural Heritage is necessary. The Aboriginal Heritage Regulations 2007 (Regulations) state that Cultural Heritage Management Plans (CHMPs) are only required for development if it is on an area of Cultural Heritage sensitivity and if it is a ‘high impact activity’.

Additionally, they say that the development is not in an area of Cultural Heritage sensitivity if it has been subject to SGD. The definition of SGD, therefore, has significant implications for when CHMPs are and are not required for an activity.

Aboriginal Cultural Heritage is being damaged or destroyed through an inappropriate classification of places as having no Cultural Heritage sensitivity. Council is exploring means to ensure that planning for the management of known Aboriginal Cultural Heritage on Country is required.

It is considering a revised definition of SGD to ensure that places are only classified as not being areas of Cultural Heritage sensitivity when it is appropriate.

This will ensure the protection of Aboriginal Cultural Heritage in areas that have been subject to minimal, superficial disturbance of the topsoil and align with the fact that objects and places do not necessarily lose Cultural Heritage significance once they have been disturbed.

Additionally, it is considering an addition to the definition of the new term, in relation to waterways, to ensure any Cultural Heritage present in the stratigraphy of the floodplain of a watercourse is adequately protected.

Concerns around Authorised Officers (AOs) and Aboriginal Heritage Officers (AHOs) being allowed entry without the consent of the occupier

“If someone has our Old People in the shed and they know they’re not supposed to, of course they’re not going to let someone in to check the shed if that person can take them away. The thing that keeps me awake at night is that they can just say ‘no, you can’t come in here’ and our Old People can just stay there, on a concrete shed floor under a blanket forever. And there’s nothing we can do about it.”

Victorian Traditional Owner, Western Victoria

Council is considering whether the Act should be amended to allow AOs and AHOs to enter land or premises, where they believe that Aboriginal Cultural Heritage is about to be damaged, without the consent of the occupier.

This would be in accordance with similar provisions for Authorised Officers under 55 of the Victorian Environment Protection Act (1970) and part 7.4 of the NSW Protection of the Environment Operations Act (1997).

The current legislation restricts AO and AHOs' powers to the point where they are inhibited from carrying out their functions. In the likely event that an individual who is suspected of an offense against the Act does not give an Officer consent to enter their premises, the Officer is stopped from carrying out their duty to protect Aboriginal Cultural Heritage.

Although this amendment may seem like a curtailment of the occupier’s rights, it is necessary for striking the balance between those rights and the rights of Traditional Owners under the Act. Namely, the rights to the protection and management of their own Cultural Heritage.

Submissions to the Discussion Paper

Consultation on the Discussion Paper was broad, and Council is pleased with the breadth and depth of submissions it received. Above all else, the informed and impassioned responses showed that Aboriginal Culture, whether it is your cultural heritage or not, is slowly being appreciated for its value to all Victorians.

Significantly, however, the responses also revealed the inherent racism that exists in some sectors and the fear of change that this in turn engenders. It is not a surprise that, as a society, we still have a long way to go to achieve reconciliation.

What is surprising, is the perception within government and powerful industry bodies that Aboriginal People are unable to manage their own affairs and are unqualified to speak with authority on their own Cultural Heritage.

Whilst Aboriginal People understand to the core of their being what loss of Country means, to many non-Aboriginal people, the threat of any interference with their inappropriate management of Country is met with hostility and ever-present racial slurs.