Recommendation Sixteen: Elective power for RAPs to engage as Heritage Advisors in the preparation of CHMPS

“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

RHSV support provision in the Act for an increased involvement of RAPs in preparation of CHMPs in relation to activities within their registration areas, with provision for both independent tribunals and alternative dispute resolution procedures in cases of conflict of interest and interpretation of heritage.

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