Recommendation Eight

"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

"As a Council of Traditional Owners, we feel it is our responsibility to ensure that our People manage our Cultural Heritage. Whether the responsibilities are held by RAPs or Council, it is essential that statutory responsibilities reflect the principles of self-determination, respecting and supporting Traditional Owner rights and responsibilities."

Victorian Aboriginal Heritage Council

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