Proposal Four

“This is our Country. Our mob speaks for our Country, that is our inherited responsibility as Traditional Owners. Our Ancestors did not draw a line between responsibilities for Lore and responsibilities for Culture and nor do we. Our Country, our Culture, our Responsibility.”

Issue

Aboriginal Cultural Heritage is insufficiently protected by CHMPs due to the absence of Traditional Owner involvement during the development stage.

Background

Currently, the responsibility of preparing a CHMP lies solely with Heritage Advisors (HAs). This gives HAs control over the preparation of CHMPs. Meanwhile, the role of RAPs in the CHMP process is to consult with the Sponsor of the CHMP (Sponsor) and participate in any required fieldwork, throughout the preparation of the plan. All consultation with the RAP is usually undertaken by the HA on behalf of the Sponsor. At the conclusion of this process, RAPs have the authority to approve or refuse the CHMP.

Proposal

That section 58 be amended to allow a Sponsor to engage RAPs to assist in the preparation of CHMPs that relate to activities within their registration areas, as an alternative to HAs.

This would allow RAPs to act as the primary consultant of the Sponsor throughout the CHMP process and would empower Traditional Owners with the protection and management of their own Cultural Heritage. It would also strengthen the relationship between Traditional Owners and Sponsors by encouraging them to have more direct interaction during the preparation of a CHMP. Furthermore, it would mitigate the increasing pressure on the Heritage Advisor industry by directly transferring workloads from Heritage Advisors to RAPs. In turn, this would enable Heritage Advisors to produce higher quality CHMPs with higher rates of immediate approval from RAPs.

This proposal comes with the inherent issue that there is a potential conflict that arises when RAPs have the dual role of preparing a CHMP and acting as the approval body for that same CHMP. However, provided that a RAP is not both the proponent of a CHMP and the approver of the CHMP, this conflict is potentially illusory.

By comparison, in the Northern Territory the consultation and approval of the CHMP equivalent is done within the one government agency. The Aboriginal Areas Protection Authority (AAPA) is a statutory body mainly composed of Aboriginal custodians of sacred sites that is commissioned by the Northern Territory Aboriginal Sacred Sites Act 1984 (NTASSA). If a person proposes to use or carry out work on land in the vicinity of sacred sites, they are obliged to apply to the AAPA for an “Authority Certificate” under section 19B of NTASSA. The AAPA then must consider a range of relevant issues and must decide whether to issue an Authority Certificate under section 22. Therefore, Traditional Owners are positioned as both the primary consultants and preparers of the Authority Certificate application, and the primary approval body. This is a viable model that could be followed in Victoria.

As long as the Act maintains the two-party relationship between Sponsors as proponents of the CHMP, and RAPs as the preparers and approval bodies of the CHMP, there is no reason to suggest that the role of the third-party Heritage Advisor could not be omitted in certain circumstances.

Consideration

Strategic basis and alignment with the intention of the Act

Self-determination underpins the Act and is clearly identified in its purpose ‘to empower Traditional Owners as protectors of their Cultural Heritage on behalf of Aboriginal People and all other peoples.’

This purpose provides a strategic basis for the introduction of provisions allowing RAPs to participate more fully in Cultural Heritage management processes. This would be enabled through their engagement of HAs to prepare CHMP’s, empowerment to determine who works on their Country and is who entrusted with the recording of their Heritage.

The proposed amendment provides greater opportunity to meet the intended legislative objective and better acknowledges the expertise and skillset existing within the RAPs. As well as providing an economic opportunity for RAPs to leverage that skillset.

Potential conflict of interests

The proposed amendment will maintain the two-party relationship between Sponsors as proponents of the CHMP, and RAPs as the preparers and approval bodies of the CHMP. In this way, potential for confl ict of interest is obsolete. There is no reason to suggest that the role of the third-party HA could not be omitted.

As identified, the Northern Territory provides an existing and viable model that could be followed in Victoria.

Considering this model, the proposed amendment could prescribe relevant considerations and thus provide a transparent and accountable process for decision making.

Whilst concern was raised regarding dispute resolution, in the Victorian context the Victorian Civil and Administrative Tribunal (VCAT) is a well placed to resolve any dispute arising between the approval body and proponents. As such, this concern does not negate the benefits greater RAP participation would have in furthering self-determination and empowerment of Traditional Owners in managing their own Cultural Heritage on Country.

Submission response to the proposal

“RHSV support provision in the Act for an increased involvement of RAPs in preparation of CHMPs in relation to activities within their registration areas, with provision for both independent tribunals and alternative dispute resolution procedures in cases of conflict of interest and interpretation of heritage.”

Formed in 1909, the Royal Historical Society of Victoria is the centre of Victoria’s non-Aboriginal history movement, with nearly 1,000 individuals and 350 local historical societies as members. We are the peak body for those local historical societies and heritage groups.

Community support for the proposal

Most submissions supported this proposal and acknowledged its value in furthering self determination.

A Traditional Owner organisation details that:

“The heritage advisor industry received a combined $42.71 million from CHMP preparation fees in 2010 -2011. Prior to the introduction of the AHA 60 cultural heritage advisors operated in Victoria; as at October 2022, there are over 300 cultural heritage advisors registered with Aboriginal Victoria. Traditional Owners are largely excluded from the economic benefits that this industry stimulates. We support the empowerment and recognition of Traditional Owners as the keepers and knowledge holders of Aboriginal cultural heritage and agree that the AHA be amended to allow for Sponsors to engage RAPs to assist in the preparation of CHMPs that are in relation to activities within their registration areas, as an alternative to heritage advisors.”

However, some industry groups advocated for maintaining the status quo, expressing concern regarding potential conflict of interests and credibility of the Cultural Heritage assessment industry.

A Building and Development Sector origination noted that:

“There should be a separation between the functions of preparing a CHMP and the statutory evaluation of a CHMP. Having one agency to do both potentially exposes the process to risk and potential conflict of interest particularly for the RAP.”