Recommendation Two: Enabling Council to approve RAP applications with conditions

“It’s difficult to suddenly having legal responsibilities under the Act. RAPs are small businesses and from the day of registration, you must have an office, staff, finance and HR capacity and corporate governance structures, just to be able to fulfil this requirement. When that day also marks the start of any financial support, there’s hitting the ground the running and then there’s not even being able to see the ground.”

Issue

The legislated and operational responsibilities of a RAP start at the date of registration, not allowing for sufficient development or capacity building within the organisation.

Background

Council has the power to impose conditions on the registration of any RAP. However, this provision is only in regard to existing RAPs. The current legislative framework does not allow newly appointed RAPs to have conditions set on their registration immediately upon appointment.

Recommendation

This recommendation is for an amendment to allow Council to approve RAP applications subject to conditions. This would allow groups that are potentially unable to carry out their functions as a RAP, at the time of application, to still have their registration as a RAP approved. Additionally, it would stagger the commencement dates of the new RAPs’ obligations so that they would not immediately be flooded with all RAP responsibilities upon registration.

For example, if a RAP was appointed over a small area that had a disproportionately high number of activities requiring Cultural Heritage Management Plans (CHMPs), its appointment could be subject to the condition that for the first six months following the appointment, it does not have the power to approve CHMPs over a certain zone of its registration area. This would enable the RAP to spend that period establishing itself and obtaining the funding and resources to be able to properly approve CHMPs over the entirety of its registration area.

This amendment would provide great assistance to new RAPs in their early stages of development. It would also make it more efficient for Traditional Owner groups to apply for and obtain RAP status. In turn, this would encourage inclusivity of more groups and would increase the rate at which Victoria achieves full RAP coverage.

Consideration

Purpose and necessity

This recommendation is aimed at bringing flexibility to the RAP approval process, as many Traditional Owner groups lack the resources and organisational capacity that are necessary to achieve and sustain RAP status.

It also recognises that although some Traditional Owner groups may not be capable of performing all RAP functions at the time of application, they are often able to develop that complete capacity in the period following registration. Enabling Council to approve RAP applications subject to conditions would allow such groups to achieve RAP status. This would empower more groups to obtain RAP status and enable Victoria to achieve full RAP coverage.

Funding and resourcing

Council recognises that some RAPs may need increased funding and resourcing to carry out their legislative functions. This recommendation does not aim to take the place of other forms of RAP assistance. Rather, it should be viewed as an additional mechanism of support for new RAPs.

Submission response to the recommendation

First Nations has worked with Traditional Owner corporations in the early stages of their RAP appointment and has found that they struggle to fulfil their functions through lack of training, resources and support. RAPs are often faced with an influx of work when they are initially established but lack the funding, skills and resources to adequately perform their role.

First Nations Legal & Research Services (FNLRS) facilitates sustainable native title and land justice outcomes. In the wake of the 2002 High Court decision in Yorta Yorta v Victoria there was a common view that native title as a doctrine would have little application in Southern Australia. Since its creation in 2003, FNLRS (previously Native Title Services Victoria) has proved this view wrong. Victoria now has four successful determinations of native title covering much of the crown land of the State and a settlement under the Traditional Owner Settlement Act 2010 (Vic).

Community support for the recommendation

This recommendation received wide support with most submissions acknowledging that the relevant amendments would provide much needed support for new RAPs. A Traditional Owner sector organisation stated that:

“RAPs need sufficient resources to run the additional activities and responsibilities. Financial and staffing resources are fundamental to the process.”

Notably, one Traditional Owner organisation submission identified that allowing Council to approve RAP applications subject to conditions is an ineffective way to assist RAPs who lack resources, highlighting the fundamental issue of finnancial support for RAPs.

“Imposing conditions on RAP approval does not address the underlying issue and is not supported...RAPs require greater base level funding to ensure that they can operate a basic office and employ suff icient staff to fulfill their legislative requirements.”

Building and Development sector organisations criticised the proposal on the grounds that its purpose lacks clarity and that the proposed changes are unnecessary.

UNDRIP and Best Practice Standards