As the Victorian Aboriginal Heritage Council (Council) has progressed broad community consideration of the practical application of the Aboriginal Heritage Act 2006 (the Act), its failures and successes, Council has been forced to reassess the commitment of both the community and the government to self-determination.

This program of rigorous consultation and review has been undertaken through two Papers developed by Council in 2020 and 2021:

• Taking Control of Our Heritage – Discussion Paper on legislative reform of the Aboriginal Heritage Act 2006 (Discussion Paper) released in June 2020; and
• Taking Control of Our Heritage – Aboriginal People caring for Aboriginal Heritage Recommendations for selfdetermined reform of the Aboriginal Heritage Act 2006 (Proposals Paper) released in April 2021

Overall, the responses to both the Discussion Paper and Proposals Paper were considered and appropriate but, across some sectors, the overwhelming considerations were that Aboriginal Peoples cannot responsibly undertake the function of the Aboriginal Heritage Act 2006 (the Act). It is our ancestry, our genetic makeup, our connection to Culture that makes us resilient, informed and consultative Peoples. These are the same things that some consider render us unable to manage the functions of the Act that are often in the hands of bureaucrats, non-Traditional Owners and other entities whose Culture it isn’t.

It is essential that, as a society, we truly understand that Traditional Owners are the only comprehensive knowledge holders of their Cultural Heritage. Once we understand that single, fundamental truth, then the recommendation for Traditional Owners to manage their own Cultural Heritage becomes clear and purposeful. Such understandings are in step with the international benchmark set by the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). Together with the Act, they 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.

Since the Act was assented to in 2006, a seismic change has happened in the way that Traditional Owners’ rights, responsibilities, knowledge and voice is considered and appreciated in the broader community. Government’s own policies of self-determination for Victorian Traditional Owners are reactive of this change but it is time that they are implemented in legislation as, whilst the Act is good, it can be better. 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. It is essential that in recommending change, we also call for Aboriginal legislators to be included in drafting these changes. 

Council’s ambition is that these recommendations will be implemented and Victoria’s Aboriginal Cultural Heritage legislation will set a benchmark at both national and international levels. This can be achieved through incorporating a national set of best Practice Standards and fully realising  the Declaration.Through strong leadership and constructive conversations, we will help others better understand that the positive contributions we put forward are not only just, but are what is needed to ensure the uniqueness of Victoria’s Aboriginal Cultural Heritage is not further eroded.

Our Cultural Heritage is best understood through demonstrating respect for Traditional Owners – our knowledge, our skills, our appreciation of our Heritage. The practicing of our Culture and Traditions makes us stronger and this strength offers us all an opportunity to value, understand and celebrate the unique Cultural Heritage we care for on behalf of all Victorians. We all have a part to play in ensuring our Peoples’ rights to self-determination, our Culture and Country.

We invite you to walk beside us to ensure that the statutory protections our Peoples have for their Culture is commensurate to over 40,000 years of connection to Country.

Mick Harding
Chairperson Victorian Aboriginal Heritage Council

As Victorian Traditional Owners, custodians of the oldest living Culture on earth and an independent statutory authority, Council felt that it was time to for the Act to realise its intention. Whilst strong, the Act fails in key areas to enshrine self-determination adequately or respectfully in its prescription for the management and protection of Aboriginal Cultural Heritage on the lands now known as the state of Victoria.

May 2006

In a landmark piece of legislation, the Council was created through the Aboriginal Heritage Act 2006, as the only statutory authority composed entirely of Victorian Traditional Owners. Then, as now, the significance of Council’s representation is a positive step towards empowerment. The Minister for Aboriginal Affairs in 2006, the Hon. Gavin Jennings, supported the policy shift towards self-determination in that:

“the Council will ensure Aboriginal people throughout Victoria play a central role in protecting and managing their heritage and that this role is widely acknowledged and respected in the broader community”.
 

September 2007

The United Nations General Assembly (Assembly) adopted the significant Declaration on the Rights of Indigenous Peoples. Even then they recognised:

“the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.”

It is with great sadness that, as Traditional Owners, members of the broader Victorian community and as those with responsibilities for Victoria’s Cultural Heritage legislation, we must acknowledge that the Assembly’s call for action has fallen on deaf ears.

March 2016

The Aboriginal Heritage Act 2006 is amended. Council has increased statutory responsibilities, including:

• overseeing Registered Aboriginal Parties’ (RAP) operations
• overseeing and monitoring the system of reporting and returning Ancestral Remains and Secret or Sacred Objects (Sacred Objects) in Victoria
• managing the Victorian Aboriginal Cultural Heritage Fund
• producing a State of Victoria’s Aboriginal Cultural Heritage report every five years.

January 2020

Council’s Legislative Review and Regulatory Functions Committee (LRRFC) initiated a project to review the Act and develop any necessary proposals for legislative reform.

June 2020

Council published Taking Control of Our Heritage, a Discussion Paper on legislative reform of the Aboriginal Heritage Act 2006. The objective of the Discussion Paper was to have a genuine conversation with Traditional Owners, land managers, the broader community and the government on the operation of the Act.

September 2020

The Heritage Chairs of Australia and New Zealand welcomed and supported Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia (Appendix IV). Council’s contribution to the Vision, in the development of the Best Practice Standards in Indigenous Cultural Heritage management and legislation (Appendix IV), meant that Victorian Traditional Owner voices were heard on a national level.

November 2020

The June 2020 release of the Discussion Paper was followed by comprehensive community consultation and rigorous review of submissions received by late November 2020. The LRRFC considered the submissions and developed a revised proposal informed by policy and community perspectives.

April 2021

The revised suite of proposals were again taken to the community for public consultation. Once submissions closed, Council’s LRRFC considered further submissions and developed the current recommendations made in this document.
 

October 2021

Council makes these formal recommendations for reform of the Aboriginal Heritage Act 2006 to the Hon. Gabrielle Williams, Minister for Aboriginal Affairs.

Notes on the Recommendation Format

Each recommendation includes:

• a quote from Traditional Owners provided during the consultation process,
• the problem or issue that is being experienced,
• the proposal for legislative reform that would resolve this issue,
• considerations that should be given in thinking about the recommendation, and
• submissions received through the Discussion Paper process.

To show that each recommendation meets the ambitions set by the United Nations Declaration on the Rights of Indigenous Peoples and the Best Practice Standards in Indigenous Cultural Heritage Management and Legislation, details are tabled at the end of each recommendation.

I. Consultation

Council’s legislative review is pursuant to its responsibilities under Sections 132(2)(cg) and 132(3) of the Act. It has undertaken this reform process to ensure that the voices of Traditional Owners are heard at all levels of government and that their responsibilities to their Cultural Heritage and Ancestors is not only lived, but supported in legislation.

It sought feedback from key rightsholders, including RAPs, organisations representing Traditional Owners/Traditional Owner Corporations, and stakeholders in Victoria’s development and land-use industry, heritage advisors, local government authorities (LGAs), and public land managers.

More than 22 submissions were received in response to the Discussion Paper and an additional 9 submissions were received to the Proposals Paper. Across both consultation processes, the submissions included positive, negative and mixed responses on individual themes and proposals. Overall, responses to the proposals were resoundingly positive.
 

II. Submissions to the Discussion Paper and Proposals Paper

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

Signicantly however, the responses also revealed the inherent racism that exists in some sectors and the fear of change associated with this. It is not a surprise that, as a society, we still have a long way to go to achieve reconciliation. But, 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 what loss of Country means, to many non-Aboriginal people, the threat of any interference with what could be considered as inappropriate management of Country is met with hostility and ever-present racial slurs.

To better understand the perspectives and voices in this recommendations document, the submissions have been grouped into the following representative sectors.

Traditional Owner Organisations

The Traditional Owner Organisation sector is broad in Victoria, comprising a range of  organisations including but not limited to Registered Aboriginal Parties, Aboriginal  Controlled Heath Organisations, the First Peoples’ Assembly of Victoria, Federation of  Victorian Traditional Owner Organisations, Victorian Aboriginal Corporation for Languages, Victorian Aboriginal Education Association Inc. and independent wellbeing and cultural entities. Across these groups, the membership or primary users are Victorian Traditional Owners with connection to Culture, community and Country at the centre of service delivery. As they had been instrumental in working with Council’s LRRFC on development of the Proposals and Discussion Papers, this sector was largely supportive of the proposed reforms.

Heritage – Policy

The Heritage Policy sector encompasses a range of organisations that oversee the broader policy direction of Heritage in Victoria. This includes the Victorian Aboriginal Heritage Council and Heritage Council of Victoria, peak heritage organisations outside of statutory bodies, like the National Trust and Royal Historical Societies of Victoria, university and public  policy individuals and policy divisions within broader organisations. The considered submissions received from this sector had targeted concerns largely relating to the  intersection of legislation with practical implications of change.

Heritage – Business

The Heritage Business sector is the ‘on the ground’ heritage industry of archaeologists,  Heritage Advisors (HAs), researchers, and industry bodies such as the Australian Association of Consulting Archaeologists Inc. and Australian Archaeological Association Inc. The sector is supported by tertiary education departments and associated areas within government. As a sector, submissions largely took an ‘if it isn’t broken, it doesn’t need fixing’ approach. Such an approach fails to consider that Traditional Owners do feel that the system is broken. Hence, it fundamentally lacked constructive critical insight whilst conceptually supporting Traditional Owner responsibilities and rights. Largely, concerns raised were around the practical application of any proposed amendments and regulation of the broader Heritage Business industry.

Building and Development

The Building and Development sector is a significant contributor to the Victorian economy and employs almost 240,000 people. Given the sector’s size and influence, it is important that these submissions be considered. However these submissions revealed the most significant lack of understanding of the principles of self-determination and overt racism of any sector. Whilst there was some consideration made of the need for Traditional Owners to retain a connection to Country, the submissions were clear that it should not come at any cost to the sector’s requirements for access to Country and quick planning and building decision approvals.

Local Government Sector

The Local Government Sector includes Local Government Authorities and those community organisations that exist to support community within geographic specific and community-based areas. Whilst generally submissions from this sector supported the rights of Traditional Owners to participate in management of their Cultural Heritage on Country, there were also significant concerns raised for the practical implications of implementing changed consultation processes within the LGAs themselves. It is appropriate that submissions considered the practical implementation of the proposals but these should not impact on broader legislative considerations of Traditional Owner rights and responsibilities.

III. Considerations

Whilst the primary focus of the review was the Act, it has however brought to the fore issues around the Act’s associated Aboriginal Heritage Regulations 2018 (the Regulations) and the Geographic Place Names Act 1998.

The Act is currently failing to meet its objective that Aboriginal Cultural Heritage be managed by Traditional Owners; protected for their ongoing cultural connection and wellbeing, and enjoyed by all Victorians. The necessarily lengthy consideration involved in legislative reform will further allow an opportunity for the failings of the Act to be exploited. Full realisation of self-determination by Aboriginal Peoples must be made in the Act and this can only be done by adopting the recommendations made here and enshrining them in law. There are also minor regulatory changes that could affect significant change in protecting Aboriginal Cultural Heritage in Victoria. 

Recommendations on amendments to the Regulations will be made by Council later in 2021.
 

Victoria’s RAPs are a fundamental function of the effective management of the Act. They are a primary source of advice and knowledge of Aboriginal places, Cultural Heritage and Objects on Country. The strength of RAPs lies in their representative and inclusive structures for their Peoples, allowing discourse, engagement and intergenerational knowledge sharing within community. In Article 33, the United Nations Declaration on the Rights of Indigenous Peoples details how critical it is that

“Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.”

“This is about sovereignty. They’re a local government Council and we’re a Council of Traditional Owners. We acknowledge their responsibilities, but they don’t acknowledge ours. And it’s not just us, the RAP, they don’t acknowledge Aboriginal People most of the time either.”

Issue

People who are not representative of inclusive and representative Traditional Owner Aboriginal Corporations are speaking for Aboriginal Cultural Heritage.

Background

The legislative functions of a RAP mainly relate to the technical aspects of managing Aboriginal Cultural Heritage, such as CHMPs, Cultural Heritage Permits (CHP) and Cultural Heritage Agreements. The only provisions which refer to a RAP’s more general responsibilities are “to act as the primary source of advice and knowledge for the Minister, Secretary [of DPC] (Secretary) and (Victorian Aboriginal Heritage) Council on matters regarding Aboriginal Places and Objects relating to their registration area; and to provide general advice regarding Aboriginal Cultural Heritage relating to the area for which the party is registered.”

Recommendation

That RAP’s should be the primary source of advice to government on both tangible and intangible Aboriginal Cultural Heritage in their registration area.

The current legislative framework should be expanded to encourage increased government engagement and consultation with RAPs on Cultural Heritage matters, relating to both tangible and intangible Aboriginal Cultural Heritage. In particular, the relationship between RAPs and local governments would benefit from the prescription of the specific obligations that local governments have to their relevant RAP(s).

Further, the Act should reflect the growth of RAPs’ responsibilities and expertise since the establishment of the first RAPs in 2007. They are now able to act as representatives of the Traditional Owners in their registered area in regard to a range of matters beyond the technicalities of Cultural Heritage. The Act should be amended to reflect this and also identify RAPs as the primary source of advice to government on other Aboriginal affairs in their registration area.

This recommendation seeks to reclaim the rights and responsibilities of governance of Aboriginal People and would frame RAPs as the peak advisors on Aboriginal Cultural Heritage and other issues regarding Aboriginal affairs in their registration area. Consideration should be made to:

• RAPs being the primary consultant on all matters relating to Aboriginal Cultural Heritage in the registration area to both the Minister and LGAs.
• Both State and local government being required to consult with RAPs on matters of intangible and tangible Aboriginal Cultural Heritage; and on matters relating to other Aboriginal affairs in their registration area beyond Aboriginal Cultural Heritage.

Consideration

RAP expertise and ability

Key criteria for registration as a RAP include expertise in Cultural Heritage management and organisational sustainability. No RAP application is approved by Council without extensive scrutiny on these matters. Several groups criticised this recommendation on the basis that RAPs do not have the expertise or capability to carry out increased functions. Council believes that this opinion is formulated upon an incorrect understanding of the competency of existing RAPs.

For example, established RAPs employ an extensive staff that may include Heritage Unit Managers, Heritage Advisors, Heritage Bookings Of.cers, Elders, Cultural Heritage Officers, Compliance Officers, anthropologists, research assistants and other employees. Although not all RAPs commence operations with access to a large staff or considerable resources, Council has observed the strong ability of RAPs to grow their organisational capacity in line with industry demands. Council is confident that RAPs will be able to fulfil any new legislative functions that arise as a result of this recommendation..

Furthermore, if recommendation 3 (following) is passed, RAPs may not be obliged to perform every single legislative function from the time of their registration. This will enable RAPs to establish themselves in the industry before taking on certain responsibilities that they may not yet be able to complete.

Responsibilities outside Cultural Heritage

Since the establishment of the first RAPs in 2007, their responsibilities and expertise have grown to a point where many are able to act as representatives of the Traditional Owners in their registered area in regard to a range of matters beyond the technicalities of Cultural Heritage. The Act should be amended to reflect this, and to increase RAPs’ voices as the primary source of advice to government on other Aboriginal affairs in their registration area.

However, Council recognises that legislating for RAPs to assume an advisory position on matters such as health, housing and social services may be outside the objectives of the Act.

Submission response to the recommendation

The Federation is the Victorian state-wide body that convenes and advocates for the rights and interests of Traditional Owners while progressing wider social, economic, environmental and cultural objectives. We support the progress of agreement-making and participation in decision-making to enhance the authority of Traditional Owner Corporations on behalf of their communities.

Community support for the recommendation

Council wishes to note the strong support that this recommendation received in relation to its proposals to legislate for stronger relationships between RAPs and local LGAs. Importantly, RAPs and LGAs made some of the more vocal submissions on this issue. A Traditional Owner organisation stated that it:

“supports the expansion of the legislative framework to encourage greater and more meaningful engagement to occur between RAPs and other stakeholders including but not limited to Local Government”.

Whilst another said that it:

“strongly agrees that RAPs should have primacy regarding matters related to our Cultural Heritage within local government areas”.

A submission from the LGA sector identified that:

“This would benefit local governments by providing specific obligations that local governments have to their relevant RAP(s).”

The above submissions demonstrate that both RAPs and LGAs (urban and rural) have a strong support for increased collaboration. They indicate that this recommendation could have highly desirable outcomes for the parties that it affects most. This type of support exemplifies that communities are welcoming of the stronger relationships that the suite of amendments could introduce.

Whilst most submissions supported this recommendation, some organisations believed that RAPs may not have sufficient capacity to carry out increased legislative functions. It is difficult to appreciate that currently the Act has capacity to support an approach that fundamentally questions the expertise of Traditional Owners in their own Cultural Heritage.

A notable submission from the Building and Development Sector stated that:

“It would be irresponsible and unprecedented to provide such legislative advocacy power to a group where such a group does not have the requisite skill, knowledge or expertise to provide opinions”.

Furthermore, several submissions specifically raised concerns that RAPs may not have the expertise to consult on matters outside the ambit of Aboriginal Cultural Heritage and that to legislate on such an area may be outside the objectives of the Act.

UNDRIP

This issue should be considered in relation to Article 11:

“Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.”

Best practice standards in Indigenous cultural heritage management

This recommendation should be considered in relation to Best Practice Standard 4 – Definitions:

“Definitions should recognise that an essential role of ICH is to recognise and support the living connection between Indigenous Peoples today, our ancestors and our lands.”

“It’s difficult to suddenly having legal responsibilities under the Act. RAPs are small businesses and from the day of registration, you must have an office, staff, finance and HR capacity and corporate governance structures, just to be able to fulfil this requirement. When that day also marks the start of any financial support, there’s hitting the ground the running and then there’s not even being able to see the ground.”
 

Issue

The legislated and operational responsibilities of a RAP start at the date of registration, not allowing for sufficient development or capacity building within the organisation.

Background

Council has the power to impose conditions on the registration of any RAP. However, this provision is only in regard to existing RAPs. The current legislative framework does not allow newly appointed RAPs to have conditions set on their registration immediately upon appointment.

Recommendation

This recommendation is for an amendment to allow Council to approve RAP applications subject to conditions. This would allow groups that are potentially unable to carry out their functions as a RAP, at the time of application, to still have their registration as a RAP approved. Additionally, it would stagger the commencement dates of the new RAPs’ obligations so that they would not immediately be flooded with all RAP responsibilities upon registration.

For example, if a RAP was appointed over a small area that had a disproportionately high number of activities requiring Cultural Heritage Management Plans (CHMPs), its appointment could be subject to the condition that for the first six months following the appointment, it does not have the power to approve CHMPs over a certain zone of its registration area. This would enable the RAP to spend that period establishing itself and obtaining the funding and resources to be able to properly approve CHMPs over the entirety of its registration area.

This amendment would provide great assistance to new RAPs in their early stages of development. It would also make it more efficient for Traditional Owner groups to apply for and obtain RAP status. In turn, this would encourage inclusivity of more groups and would increase the rate at which Victoria achieves full RAP coverage.

Consideration

Purpose and necessity

This recommendation is aimed at bringing flexibility to the RAP approval process, as many Traditional Owner groups lack the resources and organisational capacity that are necessary to achieve and sustain RAP status.

It also recognises that although some Traditional Owner groups may not be capable of performing all RAP functions at the time of application, they are often able to develop that complete capacity in the period following registration. Enabling Council to approve RAP applications subject to conditions would allow such groups to achieve RAP status. This would empower more groups to obtain RAP status and enable Victoria to achieve full RAP coverage.

Funding and resourcing

Council recognises that some RAPs may need increased funding and resourcing to carry out their legislative functions. This recommendation does not aim to take the place of other forms of RAP assistance. Rather, it should be viewed as an additional mechanism of support for new RAPs.

Submission response to the recommendation

First Nations Legal & Research Services (FNLRS) facilitates sustainable native title and land justice outcomes. In the wake of the 2002 High Court decision in Yorta Yorta v Victoria there was a common view that native title as a doctrine would have little application in Southern Australia. Since its creation in 2003, FNLRS (previously Native Title Services Victoria) has proved this view wrong. Victoria now has four successful determinations of native title covering much of the crown land of the State and a settlement under the Traditional Owner Settlement Act 2010 (Vic).
 

Community support for the recommendation

This recommendation received wide support with most submissions acknowledging that the relevant amendments would provide much needed support for new RAPs. A Traditional Owner sector organisation stated that:

“RAPs need sufficient resources to run the additional activities and responsibilities. Financial and staffing resources are fundamental to the process.”

Notably, one Traditional Owner organisation submission identified that allowing Council to approve RAP applications subject to conditions is an ineffective way to assist RAPs who lack resources, highlighting the fundamental issue of finnancial support for RAPs.

“Imposing conditions on RAP approval does not address the underlying issue and is not supported...RAPs require greater base level funding to ensure that they can operate a basic office and employ suff icient staff to fulfill their legislative requirements.”

Building and Development sector organisations criticised the proposal on the grounds that its purpose lacks clarity and that the proposed changes are unnecessary.

UNDRIP and Best Practice Standards

“Ours are collective rights, not individual ones. We must ensure that legislation is consistent and reflects our collective, representative and self-determined structures.”
 

Issue

There is confusion in the Act around the use of terms relating to native title, allowing individuals to apply for registration as an Aboriginal party but only allowing prescribed body corporates (PBC) to be registered.

Background

Currently, the Act defines “native title party for an area” as including a “registered native title claimant” and “registered native title holder”. Whilst both these terms are utilised in the Native Title Act 1993 (Cth.) (NTA), the definition does not refer to the NTA definitions which clarify the use of these terms.

Under the definitions in the NTA, a “registered native title claimant” can only be a natural person or a group of natural people. The definition of “native title holder” is either a PBC or the person or persons who hold the native title.

Also using these terms, subsection 151 of the Act requires Council to register a “registered native title holder” as a RAP and in deciding a RAP application to take into account whether the applicant is a “native title party for the area to which an application relates”.  However, the Act also defines that an applicant for RAP registration must be a body corporate.

Recommendation

That the section 151 of the Act be amended by:

• deleting the reference to “registered native title holder” in subsection (2) and replacing it with the phrase “prescribed body corporate under the Native Title Act 1993 (Cth.)”, and

• changing the reference to “native title party” in subsection (3) to include:
  “Section 151(3)(a).. Council must take the following into account –
  a)  whether in Council’s view the applicant is representative of a native title party for the area to which the application relates;
  c) whether in Council’s view the applicant is a body representing the traditional owners of the area to which the application relates.”

Both of these amendments give effect to the original intent of the legislation, but in a manner that is consistent with the fact that a RAP (or a RAP applicant) is required to be a body corporate.

“Don’t kid yourself. We’re managing destruction, not protecting Heritage, when we approve a CHMP. There has to be a way that we can say: ‘No, this is too important a place to tens of thousands of generations of my Old People, you can’t put a drain there’.”
 

Issue

Traditional Owners must watch the destruction of Cultural Heritage because their capacity to stop harm is so limited.

Background

A RAP may only refuse to approve a CHMP on substantive terms if it is not satisfied that the plan adequately addresses the matters set out in section 61 of the Act, including “whether the activity will be conducted in a way that avoids harm to Aboriginal Cultural Heritage; and if it does not appear to be possible to conduct the activity in a way that avoids harm to Aboriginal Cultural Heritage, whether the activity will be conducted in a way that minimises harm to Aboriginal Cultural Heritage.”

This means that Sponsors have the power to argue that an activity must still go ahead despite the threat of harm to Aboriginal Cultural Heritage. This is because the activity is still arguably being conducted in a way that minimises that harm. Thus, the RAP’s position in the approval process is less about protecting Aboriginal Cultural Heritage and becomes something in the way of managing damage to Cultural Heritage. RAPs are often placed in a difficult negotiating position, having to approve CHMPs that still cause harm to important Cultural Heritage.

Under these current provisions of the Act in Victoria, destruction like that of Juukan Gorge in Western Australia, would be permitted as minimisation of harm could be argued.

Recommendation

That the Act be amended to give RAPs the authority of Cultural Heritage Consent. This would provide a mechanism to both give and withhold consent for harm to Aboriginal Cultural Heritage proposed in CHMPs.

This would be in accordance with section 1(b) of the Act, which states that a purpose of the legislation is to empower Traditional Owners as protectors of their Cultural Heritage. It would also accord with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that Indigenous peoples have the right to maintain, control, protect and develop their Cultural Heritage.

Victoria would not be the first jurisdiction in Australia to introduce a provision of this kind. Section 10(f) of NTASSA gives the AAPA the function to refuse to issue an Authority Certi.cate it believes that there is a threat of harm to sites of Cultural Heritage significance. Developers are then unable to carry out activities without this Authority Certificate. They are also unable to apply again for that same Authority Certificate, except with the permission in writing of the Minister. Allowing RAPs in Victoria this same authority would enable them more control over the management of their Cultural Heritage.
 

Consideration

The authority of Cultural Heritage Consent provides greater protection from harm and greater alignment with the prescribed functions of a RAP

Section 148 of the Act contemplates the functions of a RAP, including “to act as a primary source of advice and knowledge for the Minister, Secretary and Council on matters relating to Aboriginal places located in or Aboriginal objects originating from the area for which the party is registered”. It is therefore notable that RAPs across the State are reporting that, in the course of CHMP approval, the application of section 61(b) means that Sponsors have the power to argue that an activity must still go ahead despite the threat of harm to Aboriginal Cultural Heritage and despite the RAP’s advice to protect and manage their Cultural Heritage differently.

RAPs are finding that the approval process, as it currently stands, is less focused on protecting Aboriginal Cultural Heritage. RAPs are often placed in a difficult position very much at odds with the purpose of the Act and stated function of RAPs, having to approve CHMPs that still cause harm to their Cultural Heritage in a manner that they do not find acceptable. The authority of Cultural Heritage Consent would allow RAPs to withhold consent to a CHMP, effectively providing a veto, where harm to Aboriginal Cultural Heritage is considered too great and in contradiction to the requirement to care for Country.

Furthermore, conferring such an authority is considered an appropriate reflection of the RAP’s function as primary knowledge holder and custodians over the Country to which they are registered and again align the Act better with self-determination principles.

This issue of certainty

The Northern Territory’s regime strikes the balance between providing protection and certainty. This is done by the AAPA offering certainty to developers by providing adequate information about places that do require protection.

Whilst a veto power in the form of an authority may introduce a level of initial uncertainty, it does not outweigh the longstanding benefits of certainty delivered that the project once approved will not cause harm to sites of significance and will not face longstanding challenges and subsequent longstanding uncertainty that the current system creates.

Submission response to the recommendation

Since 1956 the National Trust of Australia (Victoria) has been actively conserving and protecting our heritage for future generations to enjoy. We are an independent non-profit charity organisation and the leading operator of house museums and heritage properties in the state.

As a community-based member organisation, we are not part of government and work with partners to deliver our mission to “inspire the community to appreciate, conserve and celebrate its diverse natural, cultural, social and Indigenous heritage.”
 

Community support for the recommendation

The proposal was in majority supported by submissions from across the community.
A Traditional Owner organisation said that:

“For RAPs to have full functions under the Act they must have powers to veto in matters where highly significant Aboriginal Cultural Heritage is under threat of harm or possibly destroyed.”

Another identified that:

"Veto power would introduce a degree of certainty to the protection of the Aboriginal Cultural Heritage. The amendment would allow Traditional Owners to stop harm on Aboriginal Heritage as opposed to managing destruction after it has taken place."

Whilst a Local Government sector submission stated that:

“The Act should be amended to allow RAPs a veto power over CHMPs that threaten harm to Aboriginal Cultural Heritage. It would make sense to intervene/identify the potential for harm at the preliminary stages of a CHMP preparation process.”

Some Building and Development sector submissions were concerned that an authority for Cultural Heritage Consent would introduce a degree of uncertainty in the assessment process required for investment in infrastructure. Whilst others, expressed the view that such a power of self-determined control over their own Cultural Heritage was inappropriate for RAPs to hold.

A notable submission from this sector articulates a common thread through the sector’s submissions that Traditional Owners are not authorities of their Cultural Heritage and should not be entrusted with management processes and approvals.

"The function of a RAP…is to act as an advisory and evaluation mechanism. It is not appropriate to provide veto powers to such a body. These functions should remain to be determined by appropriately qualified Heritage Advisors."

Whilst another from this sector explains that destruction of Aboriginal Cultural Heritage is just ‘the cost of doing business’.

“The veto option as described in the Discussion Paper focuses upon current approval provisions and these could be amended to meet the requirements of both industry and Aboriginal Peoples. The ubiquitous nature of Heritage and the fact that all Heritage is significant means that it is not possible to undertake development in Australia without the risk of some impact on Cultural Heritage.”

Support was also expressed by Traditional Owner organisations for the authority of Consent to apply in the preparatory stages of the CHMP process to better align the Act with the UNDRIP.

“… veto power should be extended and or included as part of CHMP preparation, so that no harm to Heritage is caused during the preparation of a CHMP.”

UNDRIP and Best Practice Standards

The Victorian Aboriginal Heritage Council is unique in Victoria as a statutory authority with membership of only Victorian Traditional Owners. Members have knowledge and experience of Aboriginal Cultural Heritage and strong governance experience and leadership at a state level. The establishment of Council enables self-determination in its registration of inclusive and representative Traditional Owner Aboriginal Corporations to speak for their Country and Culture on Country. The failure of the Council to realise true autonomy from government, since its creation in 2006, has been a great disappointment in realising the self-determination benchmark set by the Declaration.
 

“Self-determination means Our People making decisions for our mob, our Culture and our Country. We can’t do that if we have no say in who is making those decisions.”
 

Issue

The Ministerial appointment of Council members does not actively support the principles of self-determination.

Background

Council is composed of up to eleven Traditional Owners. Each Council member must be an Aboriginal person who is a Traditional Owner, a resident in Victoria, and has relevant experience or knowledge of Aboriginal Cultural Heritage in Victoria. Council members are appointed by the Minister for Aboriginal Affairs (Minister).

Recommendation

That section 133 of the Act be amended to allow nomination for appointment of Council Members from two existing representative Victorian Traditional Owner institutions - the First Peoples Assembly of Victoria (FPAV) and the RAPs.

The eleven members of Council should be appointed by the Minister from amongst Victorian Traditional Owners nominated by these two institutions. It is proposed that five members of Council be nominated by the FPAV and six nominated by meeting of authorised representatives of the RAPs (a “College” of RAP representatives).

Whilst the Minister would retain the ultimate power to decline an appointment at their discretion, they would be unable to appoint to Council members not nominated by the FPAV or the College of RAPs.

This would be in keeping with principles of self-determination and would enable Council to be representative of the RAP sector, which Council has the function of overseeing, as well as the broader Victorian Traditional Owner community, some of whom may not participate in the RAPs.

Consideration

Transparency Issues

Council understands concerns that this recommendation may result in less transparency within the RAP appointment process, as Council is the body that determines RAP applications under the Act. Furthermore, Council is also the body that manages, oversees and supervises the operations of RAPs.

However, the current proposal is not to guarantee an allocated number of membership positions on the Council to any particular RAP(s). The proposal aims instead to allow a group of RAP representatives to nominate Council and another group to nominate from a broader representation. It is erroneous to presume that a Council member who has been nominated by a group of RAP representatives, rather than the Minister, would be beholden to the interests of a singular RAP or several RAPs and may therefore make decisions in a way that threatens the transparency of the RAP appointment process.

The operation of pre-existing legislative and procedural protections further allays transparency concerns. A precondition for appointment to the Council is to be a Traditional Owner, resident in Victoria, who has extensive knowledge of Aboriginal Cultural Heritage. Naturally, this means that many current and former Council members have held associations with particular RAPs. There are safeguards in place for protecting decision-making processes from bias in these scenarios. For example, section 142 of the Act states that if a Council member has a pecuniary or personal interest in a particular decision, they must declare their interest and take no further part in the making of the decision. The Council’s Procedures Manual further stipulates that upon receipt of a RAP application, the Office of the Council must contact each Council member to identify whether there is any potential bias in relation to the application and prevent such bias accordingly. These types of protections mitigate the need for any concern that members’ decisions may lack transparency.

Individual RAP representation

Council acknowledges that several submissions to its Discussion Papers voiced a desire for each RAP to have a representative member sit on the Council. Council understands the motivation for having direct RAP representation on Council. However, such a form of representation is likely unworkable at present. There are currently eleven RAPs in Victoria and there is only a maximum of eleven available membership places on the Council at any given time. If each individual RAP was given representation, that would leave no positions for any other members, whether those members were to be nominated by the Minister or by the FPAV.

Furthermore, individual RAP representation on the Council would not be in keeping with the underlying spirit of the recommendation, which is aimed at increasing representation of the RAP sector generally. The use of a ‘College of RAPs’ or another similar electoral process would ensure that Council becomes an advocate for the entire RAP sector, rather than any specific RAP. Maintaining some positions that are outside of this process would ensure the capacity for inclusion of voices from regions without formal RAP recognition.

Submission response to the recommendation

The Barengi Gadjin Land Council Aboriginal Corporation represents Traditional Owners from the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples, who were recognised in a 2005 Native Title Consent Determination, the first in south-eastern Australia. It is a federally recognised authority to speak on behalf of the Wotjobaluk peoples, the Prescribed Body Corporate for the Wotjobaluk claim area, as outlined in the Native Title Act, and a Registered Aboriginal Party under the Act.

Community support for the recommendation

Responses to a previous proposal, that was to allow Ministerial and College of RAP appointment of Council members, relate also to this amended recommendation. Largely, the balanced approach of some Council members elected by the College of RAPs, and others in a way that would allow positions for representation from areas without a RAP appointment, was largely supported by the Traditional Owner and Heritage sectors submissions received.

A Traditional Owner Organisation submission stated that it:

“supports the proposal to amend the Act to allow at least five of its eleven members to be appointed by the RAPs themselves.”

Whilst a Heritage – Business sector submission identifed that:

“Aboriginal People and (Traditional Owner) representative bodies, not currently recognised as a RAP or affiliated with a RAP, should continue to have access to representation on the Victorian Aboriginal Heritage Council (VAHC). This appears to be considered and possible with the proposed changes.”

However, one submission from the Building and Development sector criticised the proposal on the grounds that it would not ensure sufficient transparency in the RAP appointment process. Furthermore, several parties criticised the proposed ‘College of RAPs’ electoral body and sought individual RAP representation.

UNDRIP and Best Practice Standards

“It’s only because we’re blackfellas that they don’t call us an Authority. Scared we’ll take the hills hoist out from under’em.”
 

Issue

Council’s identity as a Victorian statutory authority is compromised when neither ‘Victorian’ nor ‘Authority’ are in its name.

Background

Council is established under the Act as a body corporate with a range of statutory functions. Whilst the membership and responsibilities of the Council are Victorian, the omission of ‘Victorian’ from Council’s statutory name creates an issue of establishing identity.

Recommendation

That the Act be amended to redefine Council and the body corporate structure of Council as separate but related functions.

The body corporate should be changed from the ‘Aboriginal Heritage Council’ to the ‘Victorian Aboriginal Heritage Authority’. The existing Council would be renamed as the ‘Victorian Aboriginal Heritage Council’ and become the Authority’s governing body. This amendment better reflects the scope of operational, and not merely advisory, functions of Council and makes clear that not all these functions under the Act are to be undertaken by Council members personally.

Consideration

The insertion of “Victorian” in the title makes clear the Authority’s scope of operations in an area jointly regulated by the Commonwealth and the State. Whilst the use of “Authority” identifies Council’s statutory responsibilities and is consistent with other similar agencies such as the Environment Protection Authority and the Victorian WorkCover Authority.

UNDRIP and Best Practice Standards

"It must be hard for other people to understand the impact of government controlling what we can and can’t say is our own Culture. My mum’s still with us and she grew up classified as ‘not’ an Australian by the government and they’re still classifying us."

Issue　

Significant registration delays have created obstacles for Traditional Owners trying to protect their Cultural Heritage.

Background

One of the functions of the Secretary is to establish and maintain the Victorian Aboriginal Heritage Register (Register). This means that powers over the Registration of Aboriginal Heritage lie with public servants within First Peoples - State Relations (FPSR), and not with Traditional Owners. FPSR staff views on what is appropriate for registration can often conflict with those of both Traditional Owners and HAs, meaning that what appears on the Register is not always representative of the views of Traditional Owners.

Recommendation

That the Act should be amended to transfer responsibility of the Register (including Registration of both tangible and intangible Heritage) to Council.

Section 1(b) states that one of the Act’s purposes is to empower Traditional Owners as protectors of their Cultural Heritage on behalf of Aboriginal People. Transferring the responsibility of maintaining the Register to Council would allow Traditional Owners to oversee the Registration of Aboriginal Cultural Heritage, empowering them with the management of their Heritage and therefore aligning with the purposes of the Act.

Section 144A(a) states that a main purpose of the Register is for Victorian Traditional Owners to store information about their Cultural Heritage. It follows on from this notion that Victorian Traditional Owners should be the group that actually stores the information on the Register. As Council is composed solely of Traditional Owners, they are the most suitable authority to oversee the storing of this information.

In practice, the transfer of responsibility of the Register would result in the current staff who monitor and maintain the Register having their operations transferred to the Office of the Victorian Aboriginal Heritage Council (OVAHC). There, they would report to and be overseen by Council to ensure that Traditional Owners had oversight over the Registration process and the ongoing maintenance of the Register.

Submission response to the recommendation

The Castan Centre is a world-renowned academic centre using its human rights expertise to create a more just world where human rights are respected and protected, allowing people to pursue their lives in freedom and with dignity. The Centre’s innovative approach to public engagement and passion for human rights are redfining how an academic institution can create important and lasting change. Dr O’Bryan is a lecturer in the Faculty of Law and former solicitor in native title, acting for native title claim groups in both Western Australia and Victoria.

Community support for the recommendation　

Most submissions supported transfer of responsibility. It was generally acknowledged that having control over the Register is perceived as fundamental to Aboriginal self-determination and subsequent participation of Traditional Owners in the registration, security and storage of their Cultural knowledge and places.

One Traditional Owner organisation stated that they:

"support the right of Traditional Owners to maintain, control, protect and develop their Aboriginal Cultural Heritage and agree that Traditional Owners should have greater oversight over the Registration process and the ongoing maintenance of the Register."

The only submission opposed to the proposal was raised by the Building and Development sector, who stated preference for responsibility for the Register to remain with FPSR. However, no explanation was proffered. Another from this sector was notably not in opposition of transfer of responsibility to Council but that they did not support ‘any change to the Registry’s main functions which is to act as a repository of information.’

UNDRIP and Best Practice Standards

"To me, self-determination is our mob making decisions for ourselves. Some secretary of a department of whitefellas can’t really understand."

Issue

Important Aboriginal Cultural Heritage statutory functions are not being undertaken by Traditional Owners.

Background

Significant functions relating to the self-determination of protection and management of Aboriginal Cultural Heritage are undertaken by the Secretary. These functions include the following:

1. to take whatever measures are reasonably practicable for the protection of Aboriginal Cultural Heritage;
2. to establish and maintain the Victorian Aboriginal Heritage Register;
3. to grant Cultural Heritage permits;
4. to approve Cultural Heritage Management Plans in the circumstances set out in section 65;
5. to develop, revise and distribute guidelines, forms and other material relating to the protection of Aboriginal Cultural Heritage and the administration of this Act;
6. to publish, on advice from Council, appropriate standards and guidelines for the payment of fees to registered Aboriginal parties for doing anything referred to in section 60;
7. to publish standards for the investigation and documentation of Aboriginal Cultural Heritage in Victoria;
8. to manage the enforcement of this Act;
9. to collect and maintain records relating to the use by Authorised Officers (AOs) of their powers under this Act;
10. to facilitate research into the Aboriginal Cultural Heritage of Victoria;
11. to promote public awareness and understanding of Aboriginal Cultural Heritage in Victoria;
12. to maintain a map of Victoria which shows each area in respect of which an Aboriginal party is registered under Part 10, and to make the map freely available for inspection by the public;
13. to maintain a list of all Aboriginal parties registered under Part 10 that includes contact details for the parties, and to make the list freely available for inspection by the public;
14. to carry out any other function conferred on the Secretary by or under this Act;
15. to consider applications for the registration of Aboriginal intangible Heritage and make determinations regarding sensitive Aboriginal Heritage information.

These functions are all carried out by FPSR in the name of the Secretary.

Recommendation

That some of the above responsibilities, as well as others outlined in other parts of the Act, should be transferred from the Secretary to the Council. The transfer of some of these functions has already been considered in other recommendations in this paper.

For example, one of Council’s statutory functions is "to manage, oversee and supervise the operations of registered Aboriginal Parties" set out in section 132(2)(ch) of the Act. However, the majority of RAP support functions currently sit with FPSR, rather than Council. If the Act was amended to encourage more RAP support functions to sit with Council, then the relationship between RAPs and Council would be strengthened. Furthermore, it would allow RAPs more direct support from Traditional Owners.

Consideration

While there was concern raised in relation to potential conflict of interest around this proposal and abuse of power, Council underscores that it is governed by strong principles of ensuring that there is no conflict of interest or abuse of power in any of its functions.

Pursuant to section 142 of the Act:

1. If a member of the Council has a pecuniary or personal interest in the subject-matter of a decision that is to be made by the Council, the member must—

a) declare his or her interest (including the nature of the interest) to the Council; and

b) take no further part in the making of the decision by the Council.

If a Council member has an interest (personal or pecuniary) in a matter or bias (whether actual or apprehended), they cannot take part in making a decision in relation to that matter. This is to safeguard the validity and legitimacy of Council decisions, ensuring that decisions are made by Council members who are independent from the subject matter of the decision.

The transfer of various other Secretarial functions to the Council aligns with the intended purpose of the Act and principles of self-determination

The various powers that would be transferred under this proposal are in line with the intended purpose of the Act and principles of self-determination. That is, the increase of powers would strengthen the autonomy of the Council to better align with RAPs and empower Traditional Owners to meet their social, cultural and economic needs and aspirations.

With one of Council’s statutory functions being to manage, oversee and supervise the operations of RAPs, it is fitting that the support functions that underpin this be transferred to Council. This would strengthen the relationship between RAPs and Council and, equally, Traditional Owners.

Submission response to the recommendation

The Council was created under the Aboriginal Heritage Act 2006 to ensure the preservation and protection of Victoria’s rich Aboriginal Cultural Heritage. With important decision making responsibilities and all eleven members Victorian Traditional Owners, the Council is the only statutory body of its kind in Victoria.

Community support for the recommendation

Most submissions supported this recommendation. One Traditional Owner organisation sector submission stated that it:

"supports the transfer of functions and say that they must include Registry, Enforcement and Compliance and Registration of Intangible Places."

Whilst another from this sector noted that they are supportive of only the following responsibilities being transferred to the Council. Those to:

1. "facilitate research into the Aboriginal Cultural Heritage of Victoria;
2. promote public awareness and understanding of Aboriginal Cultural Heritage in Victoria;
3. maintain a map of Victoria which shows each area in respect of which an Aboriginal party is registered under Part 10, and to make the map freely available for inspection by the public; and
4. maintain a list of all Aboriginal parties registered under Part 10 that includes contact details for the parties, and to make the list freely available for inspection by the public."

Significant concern was raised however by one submission from the Heritage – Business sector regarding:

"a conflict of interest and consequent potential for abuse of power and ensuring enforcement is independent."

UNDRIP and Best Practice Standards

"We’re placed in a situation where we have to defend our inherited, spiritual understandings of the importance of Culture to mob and Country. We live in the real world and understand that but if we can’t afford to go to VCAT, or find the processes disrespectful, we lose. We should be able to have our say on our Culture."

Issue

RAPs are unable to meet the significant costs of going to court when their considerations on Cultural Heritage are disputed.

Background

Part 8 of the Act outlines the procedures to be followed when disputes arise regarding Aboriginal Cultural Heritage. These procedures mainly involve applying to the Victorian Civil and Administrative Tribunal (VCAT) for review of a decision made by a RAP, the Secretary, the Minister or another approval body. Division 1 deals with disputes regarding CHMPs, Division 2 deals with disputes regarding Cultural Heritage permits, and Division 3 deals with disputes regarding protection declaration decisions.

Division 1 is the only one of these three Divisions to provide procedures for alternative dispute resolution (ADR). Section 111 outlines exactly which disputes can be subject to ADR under Division 1:

"dispute means a dispute between 2 or more registered Aboriginal parties, or between the sponsor of a Cultural Heritage Management Plan and a registered Aboriginal party, arising in relation to the evaluation of a party for which approval is sought under section 62, but does not include a dispute arising in relation to the evaluation of a plan for which approval is sought under section 65 or 66."

The disputes described in section 111 are therefore the only type of disputes that are eligible for ADR. The specific process for ADR under Division 1 is outlined in section 113(2):

"The Chairperson may…arrange for the dispute to be the subject of mediation by a mediator; or another appropriate form of alternative dispute resolution by a suitably qualified person."

Therefore, ADR under Division 1 can only be facilitated through mediation or another form of ADR by this external arrangement.

Recommendation

This would mean that parties have more options for dispute resolution before applying to VCAT or going to court, both of which can be costly, time-consuming and inefficient. It would also be in line with Council’s newly introduced "Complaints Against RAPs" and "Imposition of Conditions" Policies.

These changes can be made in the following three ways:

1. The amendments should expand the types of disputes that are eligible for ADR under the Act beyond the one type that is outlined in section 111. For example, the meaning could be expanded to include disputes regarding Cultural Heritage permits and disputes regarding protection declaration decisions. Ideally, it would include all disputes that arise under the Act.
2. The amendments should expand the parties that are eligible for ADR under the Act beyond RAPs and Sponsors. For example, ADR could be arranged for disputes between RAPs and other non-RAP Traditional Owner groups.
3. The role of Council in the ADR process should be expanded beyond arranging the dispute to be the subject of external ADR. Council should be the initial body that facilitates disputes arising under the Act, as an alternative to external mediators. The facilitation would likely occur through the OVAHC. This proposal would be in line with Council’s statutory function "to manage, oversee and supervise the operations of registered Aboriginal Parties" set out in section 132(2)(ch) of the Act. It would also be in line with the new "Complaints Against RAPs" and "Imposition of Conditions" Policies, which outline a more structured process for the way that Council deals with complaints and disputes relating to RAPs. If the parties did not wish for Council or the OVAHC to facilitate the mediation of their dispute, then they could elect for external mediators to facilitate it.

These amendments would ensure that there are more formal options and processes that are available to more parties in regard to disputes that arise under the Act. It would also give Council more authority in the dispute resolution process, therefore increasing their autonomy and status as the peak body representing Traditional Owners in Victoria.

Consideration

Parties have more options to resolve disputes, alleviating VCAT caseload

VCAT is Australia’s largest and busiest tribunal. As the Act currently stands, it provides no other form of dispute mechanism than to go directly to VCAT which is both costly and time consuming for all involved. These amendments would ensure that there are more formal options and processes that are available to parties in regard to disputes that arise under the Act.

Furthermore, the proposal to expand the use of ADR as the primary mechanism for the resolution of any dispute arising under the Act, would reduce the caseload and be of benefit to parties by reducing costs and increasing efficiency of VCAT processes.

ADR increases engagement with the RAP

The concern that ADR processes would divert Sponsors away from the RAP is alleviated by the process of ADR itself, which relies on the parties coming together to reach an agreement. It would therefore encourage Sponsors to work closely with the RAP at first instance because, if an ADR process is employed, they will still be engaging with the RAP. Through the ADR process though, discussions will be mediated and/or facilitated with a third-party present and an externally imposed structure and timeframes. Although this may be more efficient than VCAT, it will still be less efficient than negotiating with the RAP directly. It is considered that this alone will provide a large enough disincentive for Sponsors to circumnavigate the RAP.

Engaging skilled, trained independent mediators and facilitators through a Traditional Owner led and designed dispute resolution process

The facilitation involved in ADR methods, such as mediation, would likely occur through the OVAHC. They would either train staff as mediators or, alternatively, engage and manage independently facilitated mediation and discussions.

If the parties did not wish for Council or the OVAHC to facilitate the mediation of their dispute, then they could elect for external mediators to facilitate.

The Council as a Traditional Owner led statutory authority, independent of the process, is best placed to conduct and/or facilitate ADR between RAPs and other non-RAP Traditional Owner groups. This would mean dispute resolution processes are designed and managed by Traditional Owners for Traditional Owners and better align Cultural Values.

Increasing Council’s status as the peak body representing Traditional Owners in Victoria

The proposal would provide Council more authority in the dispute resolution process, therefore increasing their autonomy and status as the peak body representing Traditional Owners in Victoria. Where a party is a RAP, the proposal would also be in line with Council’s statutory function "to manage, oversee and supervise the operations of registered Aboriginal Parties" set out in section 132(2)(ch) of the Act.

Submission response to the recommendation

The Strathbogie Shire Council oversees a vibrant and progressive rural municipality located approximately two hours from the Melbourne CBD along the Hume Highway. We have diverse and picturesque communities served by townships such as Euroa, Nagambie, Violet Town, Avenel, Longwood, Ruffy and Strathbogie with a population of approximately 10,000.

Community support for the recommendation

The proposal to introduce greater use of ADR was widely supported. One Traditional Organisation submission noted that:

"RAPs are unlikely to be as well-resourced as proponents to pursue matters through the Court and mechanisms should be enlivened that would mitigate the RAP’s costs and see disputes mediated in a manner that accords more with, and is respectful of, Aboriginal law and custom as opposed to mediation through VCAT, where the RAP is already at a disadvantage due to VCAT ’s limited interaction with Cultural Heritage matters, and Traditional Owners more generally, and extensive experience in dealing with developers."

Notably, one Traditional Owner organisation submission expressed desire for:

“further details around the capacity and expertise of the Council to undertake this role.”

And another from this sector, whilst supportive, raised that:

"The main concern with this proposal is an increase in the reliance on external ADR rather than coming to the table directly with the RAP. If ADR is to be listed as the primary mechanism for dealing with disputes regarding CHMPs there needs to be an appropriate threshold for entry into the program."

A submission from the Heritage – Business sector identified that:

"Enabling the Council or its office to facilitate a dispute resolution option subject to the agreement of both parties appears reasonable and would not negate the options for external mediation or further legal action."

And another from this sector was the only opposing submission expressing the view that it:

"does not believe that Council members should have a role to play in mediating disputes… to ensure fairness for all parties and efficacy in the process, a mediator must be an independent party to the mediation and is engaged to assist the parties."

UNDRIP and Best Practice Standards

"There’s no punishment, no comeuppance for destroying our sacred places. So, if making money’s your only interest, why would you bother to work with us?"

Issue

There is no prosecution and so no disincentive for the destruction of Aboriginal Cultural Heritage.

Background

The Act states that "proceedings for an offence against this Act may only be taken by the Secretary or a police officer" and that "the Secretary may, in writing, delegate any of his or her powers, functions, or duties under this Act, other than this power of delegation, to a person employed in the Department [of Premier and Cabinet]."

Read together, these provisions mean that the power to prosecute a person for an offence against the Act may only be taken by an employee of DPC, as delegated to by the Secretary. As it stands, these rights and responsibilities of prosecution lie with FPSR.

Recommendation

That the rights and responsibilities of prosecution be moved from DPC (as delegated by the Secretary) to the Council so that it can prosecute as a statutory authority on its own behalf. Other statutory authorities, such as the Environment Protection Authority and the Royal Society for the Prevention of Cruelty to Animals, have prosecution powers. Offences against the Act result in harm to Aboriginal Cultural Heritage, which is harm against the interests of RAPs and Traditional Owners. To award increased powers to Traditional Owners in the oversight and management of prosecuting and actioning regulatory responses to offences, would be in keeping with principles of self-determination, and specifically with the Act’s purpose of empowering Traditional Owners as protectors of their Cultural Heritage.

To this end, it is further proposed that Aboriginal Heritage Officers (AHOs) and Authorised Officers (AOs) should be empowered to issue infringement notices in relation to minor offences. Infringement notices enable offences to be handled without a court’s intervention. Provision of powers to AHOs and AOs to issue such notices would relieve some of the workload from the state and transferring the powers to Council could also ensure that there is increased action taken against offences. FPSR has often taken a cautious approach to prosecution. RAPs often expend large amounts of time and resources on gathering evidence for potential offences yet are not closely involved in FPSR’s investigation process. However, if the powers were moved to Council and increased powers were provided to AOs and AHOs, breaches of the Act could be acted upon more often and more thoroughly. In turn, this would have a denunciating and deterrent effect to encourage increased compliance with the Act.

Empowering the Council to prosecute offences could also build stronger relationships between RAPs and Council. The prospect of Council’s full engagement with RAPs throughout the investigation and prosecution procedures would provide for both increased transparency in the process and stronger links between the parties.

Consideration

Shifting responsibility will lead to increased protection for Aboriginal Cultural Heritage

Legislation is only as effective as it is enforceable. Since the introduction of prosecutorial rights and responsibilities in 2016, there has been a negligible number of prosecutions.

As stated by a Traditional Owner organisation:

"Infringement notices should be issued when: Harm to Cultural Heritage has been caused outside what is permissible in an approved CHMP/CHP; the Sponsor has not adhered to a condition or contingency; and a CHMP/CHP has not been prepared when one is required."

In turn, this would have a denunciating and deterrent effect to encourage increased compliance with the Act.

Shifting responsibility from the Secretary to the Council aligns with self-determination and the intended purpose of the Act

To award increased powers to Traditional Owners, in the oversight and management of prosecuting and actioning regulatory responses to offences, would be in keeping with principles of self-determination, and specfically with the Act’s purpose of empowering Traditional Owners as protectors of their Cultural Heritage.

Notably, a Heritage – Policy submission also supported the proposal and proposed further transfer of powers to the Council stating:

"although not one of the proposals in the Discussion Paper, the Victorian Aboriginal Heritage Council should also be given the power to make protection declarations under Part 7 of the Act."

Infringement notices provide sanction for harm to Cultural Heritage without burdening the courts

Offences against the Act result in harm to Aboriginal Cultural Heritage, which is harm against the interests of RAPs and Traditional Owners and the general public.

One Heritage – Business sector submission identified that:

"an infringement notice could be issued where there has been a contravention of the Act that requires a more formal sanction but where the matter may be resolved without legal proceedings."

Notably, this would create required protections swiftly and expediate the level to which offences under the Act are taken seriously as well as alleviating the burden that the current system places on RAPs, the Director of Public Prosecutions (DPP) and the court system.

Submission response to the recommendation

Gunaikurnai Land and Waters Aboriginal Corporation represents Traditional Owners from the Brataualung, Brayakaulung, Brabralung, Krauatungalung and Tatungalung family clans, who were recognised in the Native Title Consent Determination, made under the new Traditional Owner Settlement Act 2010, the first such agreement under that Act. It is the Registered Aboriginal Party for the Gunaikurnai claim area under the Aboriginal Heritage Act, 2006 and has a membership of more than 600 Traditional Owners.

Community support for the recommendation　

Whilst one Building and Development sector submission called for more evidence that existing powers to prosecute were not being used appropriately, the recommendation was widely supported by submissions. Overwhelmingly, Traditional Owner organisations expressed views aligning with this one, that this recommendation:

"Allows the interests of the Traditional Owners to be held higher and specifically than those of potentially politicised industry. Traditional Owners can now enforce or prosecute actions and actively protect Heritage and customs as necessary."

Industry bodies, local government authorities and Traditional Owner organisations supported the recommendation in principle though some submissions also expressed that adequate training and resourcing would be necessary. For example, one Traditional Owner organisation said:

"for this responsibility to be successful, it needs to be properly resourced";

and a LGA sector submission stated that:

"Changing the responsibility of prosecution should only be done with clear parameters and policies around how these powers will be enacted. Due consideration of what sort of enforcement will be undertaken should be made to ensure that the application of any prosecution powers is done in a balanced and consistent manner."

UNDRIP and Best Practice Standards

"When you’re trying to develop relationships and really connect with people, to make a diff erence through education, it’s almost impossible in under a year."

Issue

There are concerns about management of stakeholder relationships and the stability of Council due to the Council Chairperson and Deputy Chairperson one-year terms.

Background

Under section 138 of the Act, the Council’s Chairperson and Deputy Chairperson, "hold office for one year; and are each eligible for re-election for two further terms of one year."

Recommendation

That the Act be amended to extend election terms to two years. The current system of one-year leadership terms is unworkable. Longer terms will allow the Chairperson and Deputy Chairperson to provide stability of leadership, properly develop relationships, effectively represent the Traditional Owner sector, ensure that tacit knowledge is not lost and continue the momentum built over the last term.

Building on the above proposal, the Chairperson and Deputy Chairperson should only be eligible for one term of re-election. This would mean that the total amount of time that a Council member could hold either of these offices would be four years.

Consideration

Four-year term most appropriate

Currently, both the Chairperson and the Deputy Chairperson are only eligible for terms of one year at a time. As outlined by this proposal, and supported by Traditional Owner organisation submissions, short leadership terms can be disruptive.　

While longer terms can enhance confidence, four-year terms (as opposed to six) would enable a good balance between stability of leadership and strengthening of relationships with all of Council’s stakeholders. It would also allow room for for the progression and flow of new ideas, fresh perspectives, diverse opinions and varied skill sets.

Submission response to the recommendation

The AACAI is an organisation for professionals working in all fields of contract and public archaeology. As the professional association for consulting archaeologists in Australia, it develops best practice in this field, promotes training and communication and provides support for its members. The Association liaises with Traditional Owner groups and other stakeholders and influences policy and decision makers to protect and manage cultural and historical heritage in this Country. It is affiliated with the Australian Archaeological Association Inc. and is a Foundation Member of the Council for the Humanities, Arts and Social Sciences.

Community support for the recommendation

Most submissions had no comment on this recommendation or supported it with no further or alternative suggestions. The general view was that the extension of the Chairperson’s term is fitting, and that the overall term for a Chairperson and Deputy Chairperson being restricted to four years is appropriate.

However, the following notable suggestion was received from a Heritage – Policy sector submission:

"Terms of appointment should be extended to 3 years (not 2). This would be in line with the current 3-year term of appointment of Council members generally. Consequently, eligibility for re-election should be limited to once, i.e. the total amount of time a Council member could hold either of those offices would be six (6) years."

UNDRIP and Best Practice Standards

"This isn’t about Culture or Aboriginality, it’s about effective corporate financial management."

Issue

Once Council achieves autonomy from government in management of its staff, structure and budget; the Act as it currently stands will not allow Council to manage those things whilst adhering to the principle of good financial management.

Background

Currently, any money that Council receives must be paid into the Aboriginal Cultural Heritage Fund (the Fund). However, Council’s operating budget is not allocated into the Fund, instead the Fund is used exclusively for the Secretary’s provision of RAP funding and Council’s own grant programs. It could be considered that, whilst finally enabling Council to be the independent authority the Act intended it to be, in not supporting it through allowing clear financial management structures, Council is being set up to fail.

Recommendation

That the Act be amended so that Council can, subject to the requirements of the Financial Management Act, establish other bank accounts for the purposes of its day-to-day operations.

Maintaining separate transactional accounts is standard at this level of organisation and ensures adherence to clear principles of financial management.

Whilst the current statutory definitions appear suffciently broad to include monies received by Council for its operations through government appropriation, it does not provide clarity of detail. The existing arrangement would appear to require use of the Fund for purposes not originally envisaged and does not facilitate financial transparency in the operation of the Fund or Council’s operational activities.

UNDRIP and Best Practice Standards

Issue

The self-determination and autonomy of Council is significantly compromised whilst it is unable to control its own staff and their work.

Background

Currently, the OVAHC is a section of FPSR. Therefore, all its staff members are employed through DPC. It has been a long held perception in the community that Council is a government entity, as Council’s budgeted work is approved by FPSR, it has no control over the Aboriginal Cultural Heritage Fund or the Register, and Council members are appointed by the Minister.

Recommendation

That the Act be amended to allow Council to employ its own staff. This would be in keeping with principles of self-determination and would provide greater autonomy to Council as an independent statutory authority.

Consideration

Strategic justification or operational benefits for this proposal

With the primary purpose of this recommendation being to increase the autonomy of Council, enabling Council to employ its own staff would be an important part of allowing such autonomy. In order to maintain its ability to undertake its functions it is important that Council, as an independent statutory authority, is given powers that allow decisions that impact its operation to be made by it. The strategic justification and operational benefits of this extend to the ongoing process of enabling and furthering principles of self-determination – in line with the Victorian government’s commitment, and the Act’s purpose of empowering Traditional Owners to meet their social, cultural and economic needs.

Employment based on skill and expertise

Council, as an established statutory body responsible for managing and overseeing multiple functions, would have the ability to adopt a recruitment process that is fair and based on appropriate levels of skill and expertise.

Submission response to the recommendation

The City of Melbourne is the capital city of Victoria, and Australia’s second-largest city. The municipality of Melbourne includes metropolitan Melbourne’s innermost suburbs, including the central city. Our municipality is around 37 km² and shares its borders with seven other councils. The municipality of Melbourne is the gateway to Victoria, the seat of the Victorian Government and the headquarters of many local, national and international companies, peak bodies, and government and non-government agencies.

Community support for the recommendation

Most submissions were in support of empowering Council to employ its own staff – with the majority holding the view that this is in line with principles of self-determination.

Criticism of this recommendation mainly came from Building and Development, and Heritage – Business sectors. These submissions reinforced the sector’s underlying reluctance to support the principle of self-determination and questioning of the capacity of Traditional Owners to manage their own Cultural Heritage.

"The current arrangements for employment through the Department of Premier and Cabinet are considered appropriate in the absence of any further strategic justification or operational benefits for this proposal."

"It is to be recalled the Council is a statutory body exercising statutory duties and responsibilities under the Act… It is an imperative decision-makers are employed based on the right skill set leading to robust and considered decision making."

UNDRIP and Best Practice Standards

The Act seeks to keep safe Aboriginal Cultural Heritage for Aboriginal Peoples and all Victorians. Whilst some consideration is made for this custodianship to be held by Traditional Owners, the Act can be strengthened to ensure that Aboriginal Peoples hold the statutory responsibilities to speak for all their Culture on Country. This should be done without the intercedence of non-Traditional Owners in the management of a cultural and spiritual legacy older than the state of Victoria by tens of thousands of years.

"As a RAP, we want the behavioural problems of Heritage Advisors addressed. There are shonky people out there actively facilitating the destruction of Culture through bad business practice, ineptitude and general poor regulation."

Issue

HAs are actively participating in the destruction of Aboriginal Cultural Heritage through inadequate CHMPs and inappropriate work practices.

Background

Section 58 of the Act gives specific responsibility over the preparation of a CHMP to HAs. During the preparation of a CHMP, they are expected to fulfil a range of obligations, including consulting with Traditional Owner Groups and RAPs, conducting Cultural Heritage assessment of an activity area in compliance with the Act, and preparing the final CHMP in accordance with the prescribed standards. HAs therefore have a key role in the protection and management of Aboriginal Cultural Heritage in Victoria.

Sponsors of development activities engage and pay HAs to prepare CHMPs. Whilst Sponsors can be held liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act, there are no consequences for misconduct on the part of the HA. This makes them unaccountable for failure to engage in proper consultation with Traditional Owners, or for drafting poor or incomplete CHMPs. Furthermore, their economic relationship with the Sponsor gives them more incentive to act in the Sponsor’s interests, rather than the interests of Traditional Owners.

Recommendation

That the Act be amended to create a regulation system for HAs. Regulation would include a formal registration system, a binding code of conduct, a formal complaints process and the enforcement of sanctions. This would protect Traditional Owners and the public from poor practices. It would also benefit Sponsors and HAs as it would provide them with stronger relationships with Traditional Owners and better Heritage management outcomes.

Preceding the implementation of the relevant amendments to the Act have been the introduction of non-binding guidelines holding Heritage Advisors to a standard of conduct. These guidelines were produced by Council under their statutory function to publish policy guidelines consistent with the functions of the Council as per section 132(2)(ck) of the Act and published in February 2021. It is hoped that these will assist in establishing a foundation for the introduction of the amendments in 2021.

The onus to produce satisfactory CHMPs that are the result of thorough Cultural Heritage assessments and proper engagement with Traditional Owners needs to be on HAs themselves. Implementing a system where HAs will be held accountable for their actions will help to create an industry standard that lifts quality of work and builds stronger relationships for all parties involved in the CHMP process.

Consideration

Financial cost

Naturally, the need to ensure better regulation and training of HAs will reflect a change in projected spending/expenditure. However, with the key aim of the Act (and this proposal) being to ensure respect for Traditional Owners and protection of Cultural Heritage, the benefits far outweigh the disadvantages. These advantages also extend to protecting the public from poor practices.

Current regulation by industry specific bodies is not adequate

While the suggestion that industry speci.c bodies should be able to undertake the regulation of HAs, there is a need for a better system (including ensuring proper consultation with Traditional Owners) where HAs can be held liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act. Doing this would help to create an industry standard that lifts quality of work and builds stronger relationships for all parties involved in the CHMP process.

Submission response to the recommendation

The APA Group is a leading Australian energy infrastructure business. We’ve been connecting Australian energy since 2000. From small beginnings we’ve become a top 50 ASX-listed company, employing around 1,900 people, and owning and operating the largest interconnected gas transmission network across Australia. We deliver smart, reliable and safe solutions through our deep industry knowledge and interconnected infrastructure.

Community support for the recommendation

Most submissions support the recommendation, with the general position being to support the introduction of non-binding guidelines for the conduct of HAs engaged in the preparation of CHMPs. It was also widely encouraged that HAs should belong to at least one professional association relevant to their field of expertise and be bound by its standards and code of ethics.

However, some submissions expressed concern at an erroneous proposal that HAs, who had an appropriate standard of expertise, training and experience in working with Traditional Owners and Aboriginal Cultural Heritage in a sensitive and respectful way, would be disadvantaged.

UNDRIP and Best Practice Standards

"Co-design is just a new way of saying working together. It’s always been essential in all projects on Country. If we have input at the start, we can identify problems and make genuinely positive contributions to the project. I know the broader Melbourne based mobs have been involved in some great projects that worked for everyone. Saving Culture, saving time and saving money – for everyone."

Issue

Sponsors can start preparing a CHMP before a RAP has knowledge of the activity, excluding co-design of the project and putting at risk Aboriginal Cultural Heritage and Values.

Background

Section 59 of the Act sets out the obligations between a Sponsor and a RAP during the CHMP process:

1. "This section applies if a registered Aboriginal party gives notice under section 55 of its intention to evaluate a CHMP.
2. The Sponsor must make reasonable efforts to consult with the registered Aboriginal party before beginning the assessment and during the preparation of the plan.
3. The registered Aboriginal party must use reasonable efforts to co-operate with the sponsor in the preparation of the plan."

Although Sponsors are obliged to ‘make reasonable efforts to consult’, there is no binding obligation to consult with a RAP during the process. This is problematic. For example, under the current regime, Sponsors often engage HAs and begin preliminary discussions regarding a CHMP before a RAP has even been provided with the Sponsor’s Notice of Intention to prepare the CHMP. This means that preparation of a CHMP begins to occur before a RAP has knowledge of the activity. It encourages the development of a relationship between the Sponsors and HAs that omits the interests of Traditional Owners.

Recommendation　

That the Act be amended to require Sponsors to consult with RAPs from the outset of the CHMP process. This will ensure that RAPs are informed and have a say in activities regarding the assessment of Aboriginal Cultural Heritage values. If it was stated in the Act that prospective Sponsors had to consult with Traditional Owners before engaging a HA, then both parties would be able to create a stronger relationship throughout the consultation process.

Creating a strategy for greater consultation between all parties would ensure enhanced accountability and better governance of Sponsors and HAs. Additionally, Sponsors who establish a relationship with the RAP of the area in which they wish to undertake an activity will be able to make an informed decision when engaging a HA.

Consideration

Minimising harm to Aboriginal Cultural Heritage and ensuring accountability

The argument that this recommendation will increase complexity in the process has been raised. However, this recommendation aims to further minimise harm to Aboriginal Cultural Heritage and ensure accountability – which the current regime does not sufficiently provide for. It will also ensure that stronger relationships are formed between RAPs, HAs and Sponsors. As the aim of the Act is to ensure RAPs are continuously and adequately consulted with, this recommendation would manage enhanced accountability of Sponsors and HAs.

Section 59 of the Act is not sufficient

While section 59 of the Act sets out the obligations between a Sponsor and a RAP during the CHMP process, there is no binding obligation to consult with a RAP during this process. One notable Traditional Owner organisation submission identified that:

"there have been known cases of HAs conducting ‘due diligence’ without the RAP even knowing and, in such circumstances, this allows for HAs to have too much say on Country without the respectful consultation with Traditional Owners."

Submission response to the recommendation

The Bunurong Land Council Aboriginal Corporation represents Bunurong Peoples’ rights and interests and manages the statutory responsibilities of the Corporation. The Corporations aims to preserve and protect the sacred lands and waterways of our Ancestors, their places, traditional cultural practices, and stories. Registered as a Registered Aboriginal Party under the Aboriginal Heritage Act (2006) in 2017, their recent experiences in undertaking that significant statutory responsibility for Country inform their support for this recommendation.

Community support for the recommendation

Most submissions support this recommendation, citing the introduction of stronger relationships and interactions between HAs, RAPs, and Sponsors, as well as sufficient consultation and referral processes.

A Heritage – Business sector submission stated that:

"a compulsory RAP consultation or referral processes for voluntary PAHTs (Preliminary Aboriginal Heritage Test) is supported for works within areas of cultural heritage sensitivity, particularly if the PAHT process includes consultation options that are eff icient and effective for both RAPs and Sponsors."

Some submissions expressed concerns about the potential delays and additional costs this proposal would incur. However, it is important to consider that much time would be saved if RAPs were involved from the outset, not to mention the greater community trust they would build by respectfully consulting with Traditional Owners.

UNDRIP and Best Practice Standards

“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

The current ambiguity around the legislated capacity of RAPs to act as Heritage Advisors has created an environment in which the authority of Traditional Owners is being questioned.
 

Background

In the preparation of a CHMP, the Sponsor is obligated under the Act to engage a Heritage Advisor to assist in the preparation of the plan. Additionally, the Sponsor must make reasonable efforts to consult with the RAP before beginning the assessment and during the preparation of the plan. This consultation is usually undertaken by the Heritage Advisor on behalf of the Sponsor.

The current legislative framework does not specify whether RAPs can or cannot operate as Heritage Advisors in the preparation of a CHMP undertaken within their RAP area. Nor does it provide appropriate recognition of RAP expertise and skill within the field. However it should acknowledge such expertise. The ambiguity provided by the current Act creates an environment in which Traditional Owners and their self-determined representative entities (in this case, RAPs), are able to be circumvented and their authority on Cultural Heritage questioned.
 

Recommendation

That the Act specify that RAPs can operate as Heritage Advisors in the preparation of a CHMP, and to define the obligations of a Sponsor to provide the RAP with the first opportunity to provide Heritage Advisor services.

The proposal works to effectively support principles outlined in the Victorian Social Procurement Framework by ensuring a public entity Sponsor use their buying power to generate social value through Victorian Aboriginal businesses. It recognises the skill and expertise of Traditional Owners to control and manage their own Cultural Heritage on Country and thereby better aligns the Act with its objectives and principles of self-determination.

This recommendation affords a systemic change to facilitate Traditional Owner led Cultural Heritage management, ensuring self-determination is affected and creates a more efficient process for Sponsors.
 

Consideration

Does this raise an issue of conflct of interest?

It does not. As it stands, RAPs are already able to provide services as Heritage Advisors. This can be undertaken either directly or via subsidiary arrangements and, as such, the proposal to give first elective rights to RAPs provides clarity of this option. Significantly, this proposal also affords appropriate respect for Traditional Ownership and Traditional Owners’ responsibility for their Cultural Heritage.

Furthermore, currently a Heritage Advisor engaged and paid by a Sponsor to prepare an approved CHMP can reasonably be seen as acting in the Sponsor’s interests via an economic incentive. The Heritage Advisor has neither an economic nor a legal obligation to act in the interests of Traditional Owners.

There is strong argument that the Traditional Owners, whose Heritage is being assessed by the Heritage Advisor, also hold a legitimate interest that is unprotected by the current professional service arrangement between Sponsors and Heritage Advisors. If amended, Sponsors would engage directly with the RAPs, and from the outset would have a clear understanding of the RAP’s expectations for any given assessment. Within the current system, Sponsors request quotes from Heritage Advisors, and subsequently award a contract, to prepare a CHMP without any prior consultation with the RAP.

If a RAP was to perform the function of the Heritage Advisor, but due to staffing or time constraints could not effectively undertake the work, a RAP could engage the services of a sub-contractor to supervise and conduct the fieldwork and write the CHMP. This practice is not uncommon with many archaeological consultancies.

Under the current provisions, the Sponsor often has little to no oversight of the work undertaken and a limited understanding of the experience of the field staff or knowledge of the Cultural Heritage found. If the RAP was to fulfil the role of the Heritage Advisor, this arrangement could promote a more collaborative approach to managing Cultural Heritage values and facilitate an increased appreciation and respect for these values.  The reporting requirements and archaeological standards that the RAP’s Heritage Advisor would have to meet (i.e. photography, data collection and reporting) would be more than adequate to ensure all work is undertaken to the prescribed standards and legislative requirements and should assuage any concern a Sponsor may have over the legitimacy of the work undertaken.

The argument against this recommendation on the grounds of a perceived or actual conflict of interest has little to no application when considering this option for projects undertaken by public land managers. Public land managers have a responsibility above and beyond that of private entities to uphold, advocate for and facilitate opportunities to exercise the principles of self-determination for Traditional Owners. It would be difficult to justify an argument that denies the fact that Traditional Owners themselves are the people/organisations best placed to design appropriate assessment methodologies, to undertake the assessment itself and to report on the Aboriginal Cultural Heritage values present within a public land tenure.

Does ambiguity undermine respect for Traditional Owners?

The current legislative framework does not specify that RAPs can or cannot operate as Heritage Advisors in the preparation of a CHMP undertaken within their RAP area, nor is it prohibited within administrative or consumer law. If a RAP was seeking to perform such a function, independent legal advice provided to some RAPs has been that they establish a separate unit and undertake this role as an independently governed body, separate from the primary RAP structure. This, although not technically a requirement within law, would serve to establish a separate accountable entity for the prospective Sponsor to engage/liaise with. There are RAPs who have already established such a structure to carry out this work.

The ambiguity of the Act provides an environment in which Traditional Owners and their self-determined representative entities (in this case, RAPs), are able to be circumvented and authority questioned. The provision of legal advice to develop corporate structures to provide assurance that conflicts of interest do not exist contributes to this environment.  Conflicts of interest do not exist, and the Act should be amended to clearly articulate this, thereby also remedying the distrust of the Traditional Owners as Heritage Advisors prevalent in the current operating environment.

Comparison Legislation

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. 

Submission to the response to the recommendation

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 recommendation

Most submissions supported this recommendation 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 [now FPSR]. 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 organisation 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.”
 

UNDRIP and Best Practice Standards

“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 one of our mob in to check the shed. The thing that keeps me awake at night is the vision 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.”

Issue

AOs and AHOs are inhibited from carrying out their functions, to protect Aboriginal Cultural Heritage, as they are unable to enter land or premises without the consent of the occupier.

Background

Under the Act, AOs and AHOs are appointed by the Minister to carry out the Act’s enforcement functions. Those functions include monitoring compliance with the Act, investigating suspected offences against the Act, and issuing and delivering stop orders under Part 6 of the Act. Under section 166 of the Act, both AOs and AHOs have a general power to enter land or premises to carry out these functions.

Section 166(2) stipulates that

“an authorised officer or Aboriginal heritage officer must not enter any land or premises under this section without the consent of the occupier of the land or premises; and unless the occupier is present; or has consented in writing to the authorised officer or Aboriginal Heritage officer entering the land or premises without the occupier being present.”

Recommendation

That the Act be amended to allow AOs and AHOs to enter land or premises without the consent of the occupier.

The current legislation restricts AOs’ and AHOs’ powers to the point where they are prevented from carrying out their functions. In the likely event that an individual who is suspected of an offence against the Act does not give an Officer consent to enter their premises, the Officer is blocked 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 a delicate 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.

Consideration

Currently, AOs and AHOs have powers limited to monitoring compliance with the Act, investigating suspected offences against the Act, and issuing and delivering stop orders - under Part 6 of the Act. These functions cannot be effectively undertaken if the suspected wrongdoer is allowed time to consent and provide access to various places. As such, there are instances that warrant entry to land or premises without the consent of the occupier.

With the primary aim of this recommendation being to ensure the recognition, protection and conservation of Aboriginal Cultural Heritage – amending the power of entry for AOs and AHOs would lead to better compliance with archaeological investigations, subsequent management plans, and many other functions.

Submissions from the Building and Development sector erroneously noted there are limited laws that support entry without authority. However, making these amendments 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 submissions from this sector also considered that there are current laws that support the use of a warrant to access various places, thus invalidating the need to have the authority to enter places without consent. While this argument has merit – giving AOs and AHOs this power would enable them to adequately and efficiently carry out their functions. Council underscores that Traditional Owners have a general tenant to uphold the legislation, not try and overextend their rights.
 

Submission response to the recommendation

The Dja Dja Wurrung Clans Aboriginal Corporation represents the Dja Dja Wurrung Peoples of central Victoria. As our Country’s first people, Dja Dja Wurrung have an established place in society and are empowered to manage our own affairs. Our Recognition and Settlement Agreement (Native Title) is an important milestone for Dja Dja Wurrung people and the Victorian Government now recognises us as the Traditional Owners of this Country and acknowledges the history of dispersement and dispossession that has affected our people. Our Agreement allows for continued recognition, through protocols and acknowledgements and Welcomes to Country, and signage on Dja Dja Wurrung Country.

Community support for the recommendation

This recommendation received some support, with many holding the view that it would bring a necessary balance between occupier’s rights and the rights of Traditional Owners. However, the general view was that powers of entry should be measured, and that consideration could be made to allow for written notice (or reasonable attempt to contact the owners) to be provided prior to entry – which would maintain the occupier’s rights, while still allowing AOs to attend site.

An LGA sector submission noted that:

“the standard of proof in this instance should be beyond reasonable doubt.”

They further noted that:

“…it is far preferable that the Power of Entry be used with occupiers present and with their consent. [We] would therefore support wording that balanced that preference with the need to provide AOs with the practical ability to monitor and enforce compliance with the Act.”

There were a number of negative submissions received around Traditional Owner capacity to undertake this responsibility and appropriate entry to sites with specific OH&S requirements.

There was very strong opposition from one Building and Development sector submission, that noted that they ‘vigorously oppose this legislative change.’ Further (incorrectly) adding:

“There are very few acts or legal instruments allowing Authorised Officers to enter land without consent… it would be a disproportionate abuse of power to almost all conceivable breaches of the Act to allow an AO or AHO to enter land without consent. It would also be a breach of the right to privacy under the Charter.”

UNDRIP and Best Practice Standards

“The Museums still have our Old People and won’t return them. How can they be trusted to know what is Sacred to us? We’re still little typed numbers on a dusty box to them.”
 

Issue

Council is required to make decisions about the Sacred status of an Aboriginal Object but is unable to certify Objects as such.
 

Background

Section 187 of the Act sets out evidentiary rules which apply for proceedings for offences under the Act. Specifically, that certificates signed by certain parties can act as evidence for the facts stated in that certificate. For example, section 187(2)(e) states the following:

“a)  a certificate signed by the Minister to the effect that a person named in the certificate is an authorised officer is evidence of that fact;

b) a certificate signed by the Minister administering the Conservation, Forests and Lands Act 1987 to the effect that land identified in the certificate is Crown land is evidence of that fact;

c) a certificate signed by the Secretary to the effect that a Cultural Heritage permit has not been issued in respect of particular Aboriginal Cultural Heritage is evidence of that fact;

d) a certificate signed by the Secretary to the effect that an entry in respect of particular Aboriginal Cultural Heritage has been made in the Register is evidence of that fact;

e) a certificate signed by the Chief Executive Officer of the Museums Board to the effect that an object referred to in the certificate is an Aboriginal object is evidence of that fact.”

It is also noted that there is currently no mechanism under the Act to determine whether an Aboriginal Object is Sacred.

This would mean that when Secret or Sacred Objects, or Aboriginal Objects in general, are necessary as evidence in proceedings for offences against the Act, Council would have the authority to deem the Objects as such.

Consideration

Provision of certainty regarding Aboriginal Objects and Secret or Sacred Objects

There is currently no mechanism under the Act to determine whether an Aboriginal Object is Secret or Sacred. The proposed amendment allows Council to certify whether an Object is Secret or Sacred and provides greater certainty (for the general public, collectors, museums and Traditional Owners). Such certainty is warranted given the offences outlined in section 33 of the Act.

Drawing on Traditional Owners' expertise to protect Cultural Heritage and provide certainty

The proposal to allow the Council (an expert and Traditional Owner led statutory authority) to certify Aboriginal Objects as such, appropriately recognises that ownership of Aboriginal Cultural Heritage rests with Traditional Owners. It also appropriately utilises the knowledge and expertise of the Council to better achieve the purpose of the Act, as outlined in section 1(b): “ to empower Traditional Owners as protectors of their Cultural Heritage on behalf of Aboriginal People and all other peoples”.

Subcommittee operations ensure transparency and efficiency

The Council, like many bodies, operates expertly and efficiently by use of sub-committees. In this case, the subcommittee tasked with certification of Aboriginal Objects and Sacred or Secret Objects may make recommendations to the Council for decision or would be delegated aspects of Council’s decision making. Furthermore, any decisions made by subcommittees are Council’s responsibility. Council’s subcommittees operate with transparency as documented by clear terms of reference, circulated meeting minutes and with accountability through their reporting procedures to Council.
 

Submission response to the recommendation

The Federation is the Victorian state-wide body that convenes and advocates for the rights and interests of Traditional Owners while progressing wider social, economic, environmental and cultural objectives. We support the progress of agreement-making and participation in decision-making to enhance the authority of Traditional Owner Corporations on behalf of their communities.
 

Community support for the recommendation

This recommendation was widely supported across all sector submissions.

One LGA sector submission stated that it:

“considers the Traditional Owners/Custodians of the lands in which certain Objects originate, to be in the best position to verify whether items are Aboriginal Objects and whether they are Secret or Sacred. (We) support an amendment that enables certificates to be signed by the Victorian Aboriginal Heritage Council to that effect, where that approval process involves relevant Traditional Owners/Custodians. Where there are multiple interests in non-RAP areas (or contested areas), a Sub-Committee should be created that would act as a mechanism to determine specific matters in relation to Secret or Sacred Objects.”

Some concern was raised about how any sub-committee would operate, transparency of decision making and accountability. Additional concerns relating to the need for such certificates at all was raised as there is the existing provision for the Museums Board to do so under the Act.

Given the nature of these responses, there is an underlying community concern at the implementation of self-determination in legislation. This is a clear example of underlying racism, when people are concerned about Aboriginal People making these decisions instead of institutions like Museums.
 

UNDRIP and Best Practice Standards

“It’s pretty clear to us, as Aboriginal People, who the owners are. It should also be pretty clear in the law.”

Issue

Traditional Owners are being denied access to their Cultural Objects and Practices because the Act is convoluted in its identification of ownership of Objects.

Background

Sections 21 and 21A of the Act, detail a convoluted recognition of ownership of Secret or Sacred Objects before and after commencement of the Act. Given the significant cultural distress experienced by Traditional Owners when these Objects are not in their care, and the financial disincentive of loss of ownership for some private collectors of Aboriginal artefacts, it is essential that there is absolute clarity of ownership in the Act.

Recommendation

That the Act is clear that the rightful owner of a Secret or Sacred Object is a Traditional Owner from where the Object is reasonably believed to have originated (also identified as an Aboriginal Person who is the rightful owner of the Object).

For clarity, it should state that no Secret or Sacred Object is able to be owned by anyone other than the Traditional Owners from where the Object is reasonably believed to have originated.

UNDRIP and Best Practice Standards

“If a TO knows that the Object is Sacred, and is an AHO, they should be able to take it on the spot. Not for one moment longer should it be away from the TO’s care and not for one moment at all, should their knowledge about its status be able to be interrogated.”
 

Issue

The limitation of search and seizure powers of Authorised Officers and Aboriginal Heritage Officers is actively enabling the commission, repetition, and continuation of offences regarding Secret or Sacred Objects and Aboriginal Ancestral Remains.
 

Background

Currently, the Act provides very limited powers in relation to the ability of Authorised Officers or Aboriginal Heritage Officers to:

• to enter and search land or premises, and
• seize Secret or Sacred Objects or Aboriginal Ancestral Remains.

Whilst officers are provided a right of entry onto premises open to the public or with the consent of the owner/occupier, it is unlikely that someone in contravention of the Act will consent to the entry of Authorised Officers or Aboriginal Heritage Officers.

Having gained entry, the seizure of Secret or Sacred Objects or Aboriginal Ancestral Remains is only lawful if there is a subsequent positive determination as to the Secret or Sacred status of the Objects or identity of the Aboriginal Ancestral Remains. As the determination can currently only be made by a Court, this places an extraordinary interpretive burden on Authorised Officers or Aboriginal Heritage Officers in undertaking duties in the field. It also increases the likelihood of subsequent litigation to determine the legitimacy of their actions.

Recommendation

The Act should be amended to introduce search and seizure powers when Authorised Officers or Aboriginal Heritage Officers reasonably believe that there is a need for such an action around Secret or Sacred Objects Aboriginal Ancestral Remains. The power would be limited to being for the purposes of preventing the commission, repetition, or continuation of an offence against the Act.

The powers of Authorised Officers under the Fisheries Act 1995 (Vic) provide an example:

“Search, inspect, measure, test, photograph or .lm any part of the place and seize anything that is being used by, or that is in the possession of, a party who has just committed or is reasonably suspected of having committed, or is committing or otherwise appears to be just about to commit, an offence against the Act – pertaining to Secret and Sacred Objects.

This should extend to any case where a person is found behaving or acting in such a manner or under such circumstances that Council believes on reasonable grounds, without having observed the commission of an offence against the Act, that the person found has committed such an offence.”

The above is in line with powers available under the Aboriginal Heritage Acts of other jurisdictions i.e., Aboriginal Cultural Heritage Act 2003 (QLD).

UNDRIP and Best Practice Standards

Background

Cultural Heritage Permits are required to;

• disturb or excavate land for the purpose of uncovering or discovering Aboriginal Cultural Heritage, or
• carry out research on an Aboriginal place or Aboriginal Object, including the removal of an Aboriginal Object from Victoria for the purposes of that research,
• carry out an activity that will, or is likely to, harm Aboriginal Cultural Heritage
• sell an Aboriginal Object,
• remove an Aboriginal Object from Victoria
• rehabilitate land at an Aboriginal place, including land containing burial grounds for Aboriginal Ancestral Remains, or
• inter Aboriginal Ancestral Remains at an Aboriginal place.

The approval body for Cultural Heritage Permits is the RAP or, in areas where there is no RAP, the Secretary. If the applicant is either of these parties, then the approval body is Council. Whilst the Secretary must consult with Council when granting Cultural Heritage Permits that impact Ancestral Remains, the control still lies in the hands of government and not Traditional Owners.

Issue

The Act undermines the principles of self-determination to provide Traditional Owners with the responsibility to make decisions about their Ancestors.
 

Recommendation

That in areas where there is no RAP, Council is the approval body for Cultural Heritage Permits impacting Aboriginal Ancestral Remains.

The Secretary being the approval body for applications for permits to do any activity that relates to the management of Ancestral Remains raises several issues. Firstly, and most most concerning, is that even though the management of the physical Ancestral Remains was transferred to Council in the 2016 amendments to the Act, the granting of permissions, decisions around processes, risk management and outcomes for any such activity is not in the hands of Council and by extension, Traditional Owners themselves. Within the current framework, it is very difficult for Traditional Owners to realise and exercise their rights to self-determination.

The assessment of permit applications and the drafting of permit conditions relating to applications for activities in non-RAP areas, is often undertaken by FPSR regional offices. These offices often have large workloads, particularly as they are also the approval body for CHMPs undertaken in non-RAP areas within their jurisdiction. Due to this, the timeframes around the granting of permits is often in conflict with the urgent needs of stakeholders and of Council’s Ancestral Remains Unit (ARU) when managing Ancestral Remains, particularly when found on private land.

If Council was to be the approval body for all permits relating to the management of Ancestral Remains, this would not only give Traditional Owners control of their Ancestors but would also ensure all aspects of work associated with the management of Ancestral Remains is undertaken by one centralised entity. This arrangement would make the most of the stakeholder engagement already established by the ARU. The new streamlined system would also facilitate quicker response times in actioning Traditional Owner decisions and the needs and interests of external stakeholders.

UNDRIP and Best Practice Standards

“Juukan Gorge is one awful, soul destroying example of destruction. Here, in Victoria, ask any RAP and they’ll give you others that were destroyed on their Country and in the last few years. Something has to change because this system is well and truly broken.”

Issue

The destruction of Aboriginal Cultural Heritage is considered an acceptable risk as there are very few prosecutions.

Background

Currently, all offences capable of being committed under the Act are criminal offences.
 

Recommendation

That civil damages be introduced for offences against the Act. Introducing civil damages provisions will result in greater compliance for the following key reasons:

1. Introducing civil damages will urge higher rates of compliance amongst corporations, for whom the possibility of criminal prosecution may be less of a threat than that of civil liability and the ensuing damages.
2. The DPP has the ultimate discretion to prosecute criminal offences under the Act. The DPP has strict evidentiary requirements for pursuing legal action, meaning that many suspected offences are not prosecuted. In comparison, the decision to prosecute civil offences would not lie with the DPP. This would potentially result in more offenders being held liable.
3. For civil offences, the relevant threshold for establishing liability is if a party is found to have committed an offence on the ‘balance of probabilities.’ This is lower than the threshold for criminal offences, which dictates that it must be ‘beyond reasonable doubt’ that a party offended. Introducing civil damages provisions would therefore result in a lower standard of proof for parties being held liable for offences against the Act.
    

Consideration

Key proposal for ensuring compliance

The criticism that civil damages will not encourage higher rates of compliance is made on an erroneous basis. Currently, very few compliance breaches are prosecuted as the threshold ‘beyond reasonable doubt’ is considered too challenging to prove in relation to many offences that harm Cultural Heritage. The implementation of this recommendation and the subsequent use of the ‘balance of probabilities’ liability threshold would result in increased liability for breaches of the Act. In turn, this would encourage greater compliance amongst all parties.

Council acknowledges that businesses are deterred by both criminal prosecution and civil liability. For the purposes of this recommendation, it is not important to conclude definitively whether criminal or civil liability is a stronger deterrent for corporations who may be liable for harming Cultural Heritage. This recommendation is simply aimed at maximising compliance with the Act by ensuring that there are multiple layers of legal responsibility for certain offences. It does this by ensuring that parties will be held liable for civil damages and may also attract the threat of criminal prosecution for certain breaches of the Act.

Nuanced implementation

Council affirms that it will introduce any civil damages provisions with nuance, taking into account the severity and harm of each offence. Although the introduction of civil damages for every offence in the Act would ensure the highest rates of compliance, such a blanket approach will not necessarily be adopted. Council will consider each individual offence on a case-by-case basis and decide whether civil liability is applicable to that offence.

No change to pre-existing criminal provisions or related procedures

Council confirms that civil damages would co-exist with potential criminal responsibility for certain offences. Council also confirms that the introduction of civil liability for offences against the Act will not preclude the DPP’s discretion to prosecute potential incidences of criminal liability. The decision whether or not to pursue legal action will still ultimately lie with the DPP.
 

Submission response to the recommendation

Helen Kalajdzic is Secretary of the Stanley Park Committee of Management. The land that became Stanley Park was purchased by the community in 1919 and now belongs to the Macedon Ranges Shire Council. The 1983 Ash Wednesday bushfires caused signi. cant damage, leading to massive regrowth of blackberry and broom. Our volunteers meet eight times a year for on-ground works with mainly weed control and revegetation. Additionally, we have a number of partnerships that attend at other times of the year to work on projects. The restoration works have brought back indigenous grasses, shrubs, wildflowers and maidenhair fern. The park forms a wildlife corridor close to the Macedon Regional Park.
 

Community support for the recommendation

This recommendation received widespread support, with several parties noting the importance of ensuring high levels of compliance with the Act. The Traditional Owner organisations sector particularly welcomed the introduction of civil damages provisions as a key priority for reform.

However, one submission from the Traditional Owner organisation sector was critical of the idea that civil damages should be introduced at all whilst some minor concerns relating to the procedural implementation of the amendments were also raised:

“In developing this proposal, it would need to be clarified whether civil damages would co­exist in the system with potential criminal charges (with the option of criminal prosecution in particular instances) or whether it would be a change entirely to civil damages with this the only option.”

UNDRIP and Best Practice Standards

“People are using due diligence to make sure that the Traditional Owners aren’t asked whether that particular part of Country is important. It just sounds dodgy doesn’t it? Why not even ask?”

Issue

As a result of advice given from a due diligence assessment, Aboriginal Cultural Heritage is being harmed through activities undertaken without a CHMP first being conducted.
 

Background

Due diligence assessments are advisory assessments undertaken by HAs. These assessments quantify the risk about a defined situation or recognisable hazard in relation to Cultural Heritage and are not regulated under the Act. Due diligence assessments are intended to establish a Sponsor’s legislative requirements for a proposed activity, such as whether a CHMP is required for that activity. However, they are usually made without consulting the relevant RAP. This means that RAPs can often be completely unaware that an assessment has been undertaken for a proposed activity.

Additionally, HAs are not required to consult with RAPs in the preparation of a PAHT, which is another formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP.
 

Recommendation

That the Act be amended to require that a PAHT be undertaken for all building and construction related planning applications that do not trigger a CHMP. Additionally, the HA would be required to seek participation and input from RAPs in the preparation of a PAHT, as with a CHMP.

This would not only offer RAPs an opportunity to provide input and guidance as to whether an activity requires a CHMP but would also offer an opportunity for RAPs to draft conditions for inclusion within the PAHT. These conditions could include provisions for RAPs to undertake compliance inspections they may deem necessary during the proposed activity.

If a mandatory CHMP is required and a Sponsor is seeking to undertake a due diligence assessment, provisions within the Act should be amended to ensure this due diligence assessment can only be undertaken as a PAHT, and includes RAP/Traditional Owner consultation and/or participation.

Consideration

The current due diligence mechanism accepted by approving bodies disempowers RAPs and Traditional Owners and is insufficient in adequately assessing the potential impact of a proposed activity on Cultural Heritage.

Section 49B of the Act also provides for PAHTs, which are a formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP. Currently, Heritage Advisors are not required to consult with RAPs in the preparation of a PAHT.

The definition of Significant Ground Disturbance (SGD) in the Regulations to the Act also impacts on this recommendation. Some Sponsors have abused the provisions within the Regulations that state an area that has been subject to SGD is not an area of Cultural Heritage sensitivity and therefore not subject to a mandatory CHMP. This has been done through their employment of an HA to undertake a due diligence assessment to define this disturbance, which needs only to demonstrate disturbance to ‘the topsoil or surface rock layer of the ground’ in order to avoid undertaking a mandatory CHMP.

Additionally, these amendments would be extremely effective in mitigating the risk posed by construction activities to highly sensitive Cultural Heritage such as Ancestral Remains and intact Traditional burials. If a proponent was required to undertake a PAHT before a planning permit is granted, measures could be put in place to mitigate this risk to Cultural Heritage.

These amendments would ensure that the Act provides a comprehensive system of Cultural Heritage protection throughout all the stages of any proposed activity.
 

Submission response to the recommendation

Evidence has shown that the current practice of relying on due diligence reports is undermining efforts to protect Aboriginal Cultural Heritage throughout the state. The reliance of Local Government Authorities (LGAs) on the expert testimony of Heritage Advisors, without any evaluation, has resulted in a corrupt system, where some practitioners are supplying due diligence reports that do not correlate with legislative requirements.

Wadawurrung Traditional Owners Aboriginal Corporation

The Wadawurrung Traditional Owners Aboriginal Corporation is the Registered Aboriginal Party for Wadawurrung Country. With the statutory authority for the management of Aboriginal Heritage values and Culture, under the Victorian Aboriginal Heritage Act 2006. Wadawurrung People are determined to see their unique Cultural Heritage protected and respected. Wadawurrung aims to restore Traditional knowledge and authority over the management of Wadawurrung Country for the betterment of those living on, prospering from and/or simply enjoying its land, waterways and coastal areas.
 

Community support for the recommendation

This recommendation received mostly supported or were not concerned with the proposal. However, one submission from the Heritage – Business sector explicitly did not support this amendment:

‘A due diligence tool remains an acceptable management tool for LGAs to make decisions on matters of Cultural Heritage.’

UNDRIP and Best Practice Standards

Issue

Stronger disincentives need to be introduced to stop the destruction of Aboriginal Cultural Heritage.
 

Background

Currently the Act imposes only a monetary penalty on a person who intentionally harms Aboriginal Cultural Heritage. Although a Court can order a perpetrator to pay an amount to repair or restore damage; often damage to Aboriginal Cultural Heritage is simply irreparable and its cost priceless. As experience in non-Aboriginal heritage has shown, monetary penalties and restoration orders often do not provide the necessary financial disincentive to undertake deliberate harm to Cultural Heritage.
 

Recommendation

That a Court be able to order the prohibition of use or development of land for a period of up to 10 years on a culturally significant site where there has been deliberate or wilfully negligent unlawful destruction – whether in full or in part. This will ensure that the Act continues to:

Protect the Aboriginal Cultural Heritage from harm, or the risk of harm, including prohibiting the carrying out of a specified activity in a speci.ed way (i) immediately and (ii) for a specified period of time.

This would align the Act with the provisions introduced to the Planning and Environment Act 1987 (Vic) (the PE Act) in 2021, that give similar protections for heritage buildings/ non-Aboriginal Heritage. The new PE Act provisions prohibit property development where owners/offenders have been charged with unlawful demolition of a heritage building (whether in part or in full).

This change would significantly strengthen the current enforcement regime and allow for the protection of Aboriginal Cultural Heritage in Victoria through deterrence of deliberate unlawful destruction.

UNDRIP and Best Practice Standards

Appendix I - Glossary 

Appendix II - Proposed Suite of Reforms

Appendix III - United Declaration on the Rights of Indigenous Peoples

www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

Appendix IV - Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia

www.environment.gov.au/system/files/resources/8582db94-6daa-4097-b77e-079a797ef67d/files/dhawura-ngilan-vision-atsi-heritage.pdf