Recommendation Nine: Amending the procedures for dispute resolution under the Act

"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

Alternative dispute resolution is a valuable tool in any statutory environment. From our experience, mediation and similar options work well when undertaken by parties independent of the process.

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