Recommendation One: Expansion of the Legislative Functions of a RAP

“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.”