Recommendation Twenty-Four: Prohibition on use of land of up to 10 years

Realising self-determined ownership of our Culture, Heritage, History and Country 2021

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Issue

Stronger disincentives need to be introduced to stop the destruction of Aboriginal Cultural Heritage.

Background

Currently the Act imposes only a monetary penalty on a person who intentionally harms Aboriginal Cultural Heritage. Although a Court can order a perpetrator to pay an amount to repair or restore damage; often damage to Aboriginal Cultural Heritage is simply irreparable and its cost priceless. As experience in non-Aboriginal heritage has shown, monetary penalties and restoration orders often do not provide the necessary financial disincentive to undertake deliberate harm to Cultural Heritage.

Recommendation

That a Court be able to order the prohibition of use or development of land for a period of up to 10 years on a culturally significant site where there has been deliberate or wilfully negligent unlawful destruction – whether in full or in part. This will ensure that the Act continues to:

Protect the Aboriginal Cultural Heritage from harm, or the risk of harm, including prohibiting the carrying out of a specified activity in a speci.ed way (i) immediately and (ii) for a specified period of time.

This would align the Act with the provisions introduced to the Planning and Environment Act 1987 (Vic) (the PE Act) in 2021, that give similar protections for heritage buildings/ non-Aboriginal Heritage. The new PE Act provisions prohibit property development where owners/offenders have been charged with unlawful demolition of a heritage building (whether in part or in full).

This change would significantly strengthen the current enforcement regime and allow for the protection of Aboriginal Cultural Heritage in Victoria through deterrence of deliberate unlawful destruction.

UNDRIP and Best Practice Standards

UNDRIP

This issue should be considered in relation to Article 31:


“Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 5 - Incorporation of principles of self-determination:

“The affected Indigenous Community itself should be the ultimate arbiter of the management of the ICH aspects any proposal that will affect that heritage.”

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