Recommendation Four

“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

We strongly support the consideration of veto powers in relation to CHMPs, recognising that the current threshold under Section 61 of the Act, which requires CHMPs to consider “whether the activity will be conducted in a way that minimises harm to Aboriginal Cultural Heritage”, can facilitate approvals resulting in the destruction of Cultural Heritage, with Registered Aboriginal Parties powerless to prevent it. We note that providing veto powers would more closely align with the purpose of the Act to “empower Traditional Owners as protectors of their Cultural Heritage”, as well as Article 31 of the Declaration.

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