Victorian Aboriginal Heritage Council Annual Report on RAPs 2019-2020

Council is composed of eleven Traditional Owners. Each Council member must be an Aboriginal Person who is a Traditional Owner, is resident in Victoria, and has relevant experience or knowledge of Aboriginal Cultural Heritage in Victoria. Council members are appointed by the Minister for Aboriginal Affairs.

If some Council members were appointed by the RAPs themselves, the process would be in keeping with principles of self-determination and would enable Council to be representative of the RAP sector.

The nomination process would be in accordance with a procedure contained in a statutory instrument approved by the Minister. Election would occur via a College of RAPs, and the number of RAP-appointed nominees would be determined by a proportion which accords with RAP coverage of the State. The College would put forward their nominees to the Minister, with the Minister still having the ultimate power to decline an appointment at their discretion. However, the Minister would be unable to appoint a non-RAP elected member in their stead.

This proposal would increase RAP ownership of Cultural Heritage and strengthen the relationship between RAPs and Council. It would allow Council to become an advocate for the sector, beyond a body that just oversees the interests of RAPs. It is emphasised that this proposal is not about representation of specific RAPs, but representation of the RAP sector.

Ministerial appointment of Council members has been an ongoing concern raised by Council, RAPs and the community since implementation of the Act.

This issue should be considered in relation to Article 33:

“Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.”

OF SIGNIFICANT CONCERN

Council should have at least five of its eleven members appointed by the RAPs, rather than having the entire Council appointed by the Minister.

The legislative functions of a RAP mainly relate to the technical aspects of managing Cultural Heritage, such as Cultural Heritage Management Plans (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 the Department of Premier and Cabinet (Secretary)] and 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.”

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) on Cultural Heritage matters relating to both tangible and intangible heritage.

Further, since the establishment of the first RAPs in 2007, their responsibilities and expertise have grown to a point where they are able to act as representatives of the nations 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 authority to government on other Aboriginal affairs in their registration area.

This consideration 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. Additionally, the Minister’s 2018-2020 Statement of Expectations (SoE) asked Aboriginal Victoria to reduce queries to the Victorian Government Contact Centre by 10% regarding Welcomes to Country and Acknowledgement of Traditional Owners. A direct authority for RAPs to speak for other Aboriginal affairs within their registration area would significantly reduce this need for engagement with state government.

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.”

Amber:

OF SIGNIFICANT CONCERN

The current legislative framework needs to be expanded to facilitate increased government engagement and consultation with RAPs on Cultural Heritage matters relating to both tangible and intangible heritage.

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. This issue was raised by Council in their 2018-2019 reporting, by RAPs at their Forum in 2017 and through their 2018 reporting.

Groups that are potentially unable to carry out all their functions as a RAP at the time of application, could still have their registration approved if Council were able to approve subject to conditions. 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.

Such an amendment to the Act 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.

This issue should be considered in relation to Article 34:

“Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The Act should be amended to enable Council to approve RAP applications subject to conditions.

Currently, the responsibility of preparing a CHMP lies solely with Heritage Advisors. Meanwhile, the role of RAPs in the CHMP process is to consult with the Heritage Advisor and the Sponsor of the CHMP (Sponsor) throughout the preparation of the plan. Then, RAPs have the authority to approve or refuse the CHMP.

This issue was raised by RAPs through their 2018 reporting.

Sponsors should be allowed 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. This would allow RAPs to act as the primary consultant of the Sponsor throughout the CHMP process and would empower Traditional Owners with the protection and management of their own Cultural Heritage. It would also strengthen the relationship between Traditional Owners and Sponsors by encouraging them to have more direct interaction during the preparation of a CHMP.

Furthermore, it would mitigate the increasing pressure on the Heritage Advisor industry by directly transferring workloads from Heritage Advisors to RAPs. In turn, this would enable Heritage Advisors to produce higher quality CHMPs with higher rates of immediate approval from RAPs. This proposal comes with the inherent issue that there is a potential conflict that arises when RAPs have the dual role of preparing a CHMP and acting as the approval body for that same CHMP. However, provided that a RAP is not both the proponent of a CHMP and the approver of the CHMP, this conflict is potentially illusory.

This issue should be considered in relation to Article 32:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

Amber:

OF SIGNIFICANT CONCERN

RAPs should be given the opportunity to prepare CHMPs relating to activities within their registration area.

A RAP may only refuse to approve a CHMP on substantive terms if it is not satisfied that the plan adequately addresses the matters set out in s 61 of the Act, including “whether the activity will be conducted in a way that avoids harm to Aboriginal Cultural Heritage; and if it does not appear to be possible to conduct the activity in a way that avoids harm to Aboriginal Cultural Heritage, whether the activity will be conducted in a way that minimises harm to Aboriginal Cultural Heritage.”

This means that Sponsors have the power to argue that an activity must still go ahead despite the threat of harm to Aboriginal Cultural Heritage. This is because the activity is still arguably being conducted in a way that minimises that harm. Thus, the RAP’s position in the approval process is less about protecting Aboriginal Cultural Heritage and becomes something in the way of managing damage to Cultural Heritage. RAPs are often placed in a difficult negotiating position, having to approve CHMPs that still cause harm to Cultural Heritage.

If RAPs were able to stop harm to Aboriginal Cultural Heritage, this would be in accordance with s 1(b) of the Act, which states that a purpose of the legislation is to empower Traditional Owners as protectors of their Cultural Heritage and giving them more control over the management of their Cultural Heritage.

This issue should be considered in relation to Article 31:

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

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

RAPs should hold a veto power over CHMPs that threaten harm to Aboriginal Cultural Heritage.

One of the functions of the Secretary is to establish and maintain the Victorian Aboriginal Heritage Register (Register). This means that powers over the Registration of Aboriginal Heritage lie with public servants within AV, and not with Traditional Owners. Registry staff’s views on what is appropriate for Registration can often conflict with those of both Traditional Owners and Heritage Advisors, meaning that what appears on the Register is not always representative of the views of Traditional Owners.

This issue was raised by Council in their 2018-2019 reporting and has been raised repeatedly with AV by RAPs through their annual reporting, at RAP Connect and RAP Forums.

One of the Act’s purposes is to empower Traditional Owners as protectors of their Cultural Heritage on behalf of Aboriginal People. Transferring the responsibility of maintaining the Register to Council would allow Traditional Owners to oversee the registration of Aboriginal Cultural Heritage, empowering them with the management of their heritage and therefore aligning with the purposes of the Act.

As the main purpose of the Register is for Victorian Traditional Owners to store information about their Cultural Heritage, it follows that Victorian Traditional Owners should be the group that stores the information on the Register. As Council is composed solely of Traditional Owners, it is the most suitable authority to oversee the storing of this information.

Additionally, the SoE seeks a 20% reduction in place registration times and a 10% reduction in resubmissions. Traditional Owner management of the Register would significantly improve the clarity of requirements for registration and management of the process, thereby removing waiting times, confusion and related resubmissions. Also in the SoE, the Minister requires an improvement in land users and developer’s understanding of prescribed areas of Cultural Heritage sensitivity. This would be met through the above revision of requirements and processes.

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.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The responsibility for the Register (including Registration of both tangible and Intangible Heritage) should be transferred to Council.

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. Of three divisions under the procedures, only one provides procedures for alternative dispute resolution (ADR). This outlines exactly which disputes can be subject to ADR under this division –

• a dispute between 2 or more RAPs, or
• between the sponsor of a CHMP and a RAP, 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 are therefore the only type of disputes that are eligible for ADR. The specific process for ADR is through “mediation by a mediator; or another appropriate form of alternative dispute resolution by a suitably qualified person.”

The issue of support for RAPs to uphold their statutory decisions at VCAT was raised by Council in their 2018-2019 reporting and has been raised repeatedly with AV by RAPs through the RAP Working Group, at RAP Connect and RAP Forums.

If ADR was the primary mechanism for the resolution of any dispute arising under the Act, it 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.

Such an amendment to the Act would ensure that there are more formal options and processes that are available to more parties regarding 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.

This issue should be considered in relation to Article 18:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

Amber:

OF SIGNIFICANT CONCERN

ADR should be the primary mechanism for the resolution of any dispute arising under the Act.

The Act states that “proceedings for an offence against this Act may only be taken by the Secretary or a police officer” and that “the Secretary may, in writing, delegate any of his or her powers, functions, or duties under this Act, other than this power of delegation, to a person employed in the Department [of Premier and Cabinet (DPC)].”

Read together, these provisions mean that the power to prosecute a person for an offence against the Act may only be taken by an employee of DPC, as delegated to by the Secretary. As it stands, these rights and responsibilities of prosecution lie with AV. Furthermore, the Director of Public Prosecutions (DPP) has the ultimate power to decide whether an offence warrants a court hearing. One of DPP’s assessments in making this decision is whether prosecution is ‘in the public interest.’ Cases are often not progressed because DPP deems them to not be ‘in the public interest.’

This issue has been raised by RAPs at RAP Connect and RAP Forums.

Offences against the Act result in harm to Aboriginal Cultural Heritage, which is harm against the interests of RAPs and Traditional Owners. To award increased powers to Traditional Owners in the oversight and management of prosecuting and actioning regulatory responses to offences would be in keeping with principles of self-determination, and specifically with the Act’s purpose of empowering Traditional Owners as protectors of their Cultural Heritage.

To this end, it is further proposed that Aboriginal Heritage Officers (AHOs) and Authorised Officers (AOs) should be empowered to issue infringement notices in relation to minor offences. Provision of powers to AHOs and AOs to issue such notices would relieve some of the workload from the State and transferring the powers to Council could also ensure that there is increased action taken against offences. If the powers were moved to Council and increased powers were provided to AOs and AHOs, breaches of the act could be acted upon more often and more thoroughly. In turn, this would have a denunciating and deterrent effect to encourage increased compliance with the Act.

Empowering the Council to prosecute offences could also build stronger relationships between RAPs and Council. The prospect of Council’s full engagement with RAPs throughout the investigation and prosecution procedures would provide for both increased transparency in the process and stronger links between the parties.

This issue should be considered in relation to Article 32:

“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental,economic, social, cultural or spiritual impact.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The rights and responsibilities of prosecution should be moved to the Council; and AHOs and AOs should be empowered to issue infringement notices in relation to minor offences.

Under the Act, the Council Chairperson and Deputy Chairperson, “hold office for one year; and are each eligible for re-election for two further terms of one year.”

The current system of one-year leadership terms is unworkable. A two-year term will allow the Chairperson and Deputy Chairperson to provide stability of leadership, properly develop relationships, and effectively represent the Traditional Owner sector.

Flowing from the above proposal, the Chairperson and Deputy Chairperson should only be eligible for one further term of re-election. This will mean that the total amount of time that a Council member could hold either of these offices is four years.

This issue should be considered in relation to Article 23:

“Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.”

Green:

OF SOME CONCERN

The positions of Council Chairperson and Deputy Chairperson should be two-year terms.

Currently, the Office of the Council is a branch of AV. Therefore, all its staff members are employed through DPC.

Council has raised this issue with AV and the Minister since at least 2017 and have received Ministerial support for autonomy.

Council would be provided greater autonomy as an independent statutory authority, in keeping with the principles of self-determination, if it were able to employ its own staff.

This issue should be considered in relation to Article 32:

“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The Act should be amended to allow Council to employ its own staff.

Significant functions relating to the self-determination of protection and management of Aboriginal Cultural Heritage are undertaken by the Secretary of the Department of Premier and Cabinet. These include functions pertaining to:

• measures practicable for the protection of Aboriginal Cultural Heritage,
• the Victorian Aboriginal Heritage Register,
• CHPs,
• CHMPs,
• material relating to the protection of Aboriginal Cultural Heritage and the administration of the Act,
• standards and guidelines for the payment of fees to RAPS and for the investigation and documentation of Aboriginal Cultural Heritage in Victoria,
• research into Aboriginal Cultural Heritage,
• public awareness and understanding of Aboriginal Cultural, and
• the registration of Aboriginal Intangible Heritage.

These functions are all carried out by AV in the name of the Secretary.

The transfer of some of these functions to Council has already been considered in discussing other issues (such as Issues Six and Eight).

For example, one of Council’s statutory functions is “to manage, oversee and supervise the operations of registered Aboriginal Parties” set out in s 132(2) (ch) of the Act. However, most RAP support functions currently sit with AV, rather than Council. If the Act was amended to encourage more RAP support functions to sit with Council, then the relationship between RAPs and Council would be strengthened. Furthermore, it would allow RAPs more direct support from Traditional Owners.

This issue should be considered in relation to Article 19:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

Some of the Secretary’s responsibilities should be transferred to the Council.

S 58 of the Act gives specific responsibility over the preparation of a CHMP to Heritage Advisors. During the preparation of a CHMP, they are expected to fulfil a range of obligations, including consulting with Traditional Owner Groups and RAPs, conducting Cultural Heritage assessment of an activity area in compliance with the Act, and preparing the final CHMP in accordance with the prescribed conditions. Heritage Advisors therefore have a key role in the protection and management of Aboriginal Cultural Heritage in Victoria.

Sponsors of development activities engage and pay Heritage Advisors to prepare CHMPs. Whilst Sponsors can be hold liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act, there are no consequences for misconduct on the part of the Heritage Advisor. This makes them unaccountable for failure to engage in proper consultation with Traditional Owners, or for drafting poor or incomplete CHMPs. Furthermore, their economic relationship with the Sponsor gives them more incentive to act in the Sponsor’s interests, rather than the interests of Traditional Owners.

Regulation would include a formal registration system, a binding code of conduct, a formal complaints process and the enforcement of sanctions. This would protect Traditional Owners and the public from poor practices. It would also benefit Sponsors and Heritage Advisors as it would provide them with stronger relationships with Traditional Owners and better heritage management outcomes.

Preceding the implementation of the relevant amendments to the Act would be the introduction of non-binding guidelines holding Heritage Advisors to a standard of conduct. These guidelines would be produced by Council under their statutory function to publish policy guidelines consistent with the functions of the Council as per s 132(2) (ck) of the Act. This would assist in establishing a foundation for the introduction of the amendments in 2021.

The onus to produce satisfactory CHMPs that are the result of thorough Cultural Heritage assessments and proper engagement with Traditional Owners needs to be on Heritage Advisors themselves. Implementing a system where Heritage Advisors will be held accountable for their actions will help to create an industry standard that lifts quality of work and builds stronger relationships for all parties involved in the CHMP process.

This issue should be considered in relation to Article 31:

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

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The Act should be amended to create a regulation system for Heritage Advisors.

S 59 of the Act sets out the obligations between a Sponsor and a RAP during the CHMP process:

1. “This section applies if a registered Aboriginal party gives notice under section 55 of its intention to evaluate a CHMP.
2. The sponsor must make reasonable efforts to consult with the registered Aboriginal party before beginning the assessment and during the preparation of the plan.
3. The registered Aboriginal party must use reasonable efforts to co-operate with the sponsor in the preparation of the plan.”

Although Sponsors are obliged to ‘make reasonable efforts to consult’, there is no binding obligation to consult with a RAP during the process. This is problematic. For example, under the current regime, Sponsors often engage Heritage Advisors and begin preliminary discussions regarding a CHMP before a RAP has even been provided with the Sponsor’s Notice of Intention to prepare the plan. This means that preparations of a CHMP begin to occur before a RAP has knowledge of the activity. It encourages the development of a relationship between the Sponsors and Heritage Advisors that omits the interests of Traditional Owners.

If Sponsors were required to consult with RAPs from the outset of the CHMP process, it would ensure that RAPs are informed and have a say in activities regarding the assessment of Aboriginal Cultural Heritage values. If it was stated in the Act that prospective Sponsors had to consult with Traditional Owners before engaging a Heritage Advisor, then both parties would be able to create a stronger relationship throughout the consultation process.

Creating a strategy for greater consultation between all parties would ensure enhanced accountability of Sponsors and Heritage Advisors. Additionally, Sponsors who establish a relationship with the RAP of the area of the area in which they wish to undertake an activity will be able to make an informed decision when engaging a HA.

This issue should be considered in relation to Article 25:

“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

Amber:

OF SIGNIFICANT CONCERN

The Act should be amended to require Sponsors to consult with RAPs from the outset of the CHMP process.

Under the Act, AOs and AHOs are appointed by the Minister to carry out the Act’s enforcement functions. Those functions include monitoring compliance with the Act, investigating suspected offences against the Act, and issuing and delivering stop orders under Part 6 of the Act. Under s 166 of the Act, both AOs and AHOs have a general power to enter land or premises to carry out these functions.

S 166(2) specifically stipulates that “an authorised officer or Aboriginal heritage officer must not enter any land or premises under this section without the consent of the occupier of the land or premises; and unless the occupier is present; or has consented in writing to the authorised officer or Aboriginal heritage officer entering the land or premises without the occupier being present.”

The current legislation restricts AOs’ and AHOs’ powers to the point where they are inhibited from carrying out their functions. In the likely event that an individual who is suspected of an offence against the Act does not give an Officer consent to enter their premises, the Officer is stopped from carrying out their duty to protect Aboriginal Cultural Heritage.

Although this amendment may seem like a curtailment of the occupier’s rights, it is necessary for striking the balance between those rights and the rights of Traditional Owners under the Act. Namely, the rights to the protection and management of their own Cultural Heritage.

This issue should be considered in relation to Article 8:

“Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.”

Amber:

OF SIGNIFICANT CONCERN

The Act should be amended to allow AOs and AHOs to enter land or premises without the consent of the occupier.

S 187 of the Act sets out evidentiary rules which apply for proceedings for offences under the Act. Specifically, that certificates signed by certain parties can act as evidence for the facts stated in that certificate. For example, “a certificate signed by the Chief Executive Officer of the Museums Board to the effect that an object referred to in the certificate is an Aboriginal object is evidence of that fact.”

It is also noted that there is currently no mechanism under the Act to determine whether an Aboriginal Object is Secret (or Sacred).

Council should be able to issue certificates to the effect that an object referred to in the certificate is an Aboriginal Object or Secret (or Sacred) Object to be evidence of that fact.

This would mean that when Secret (or Sacred) Objects, or Aboriginal Objects in general, are necessary as evidence in proceedings for offences against the Act, Council would have the authority to deem the Objects as such.

This issue should be considered in relation to Article 12:

“States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.”

Green:

OF SOME CONCERN

S 187(2) should be amended to include an additional provision that enables certificates signed by the Victorian Aboriginal Heritage Council to the effect that an object referred to in the certificate is an Aboriginal Object or Secret (or Sacred) Object to be evidence of that fact.

Currently, all offences capable of being committed under the Act are criminal offences.

If every offence was ascribed liability for civil damages, there would be greater rates of compliance with the Act for the following key reasons:

1. Introducing civil damages will urge high rates of compliance with the Act amongst Corporations. Most Corporations are often driven by the main intent of maximising profits. Therefore, the possibility of criminal prosecution is less of a threat than that of civil liability and the ensuing damages.
2. The DPP has the ultimate discretion to prosecute criminal offences under the Act. That means that many suspected offences are not prosecuted. For civil offences, this discretion would be diverted away from the DPP. This would potentially result in more offenders being held liable.
3. For civil offences, the relevant threshold for establishing liability is if a party is found to have committed an offence on the ‘balance of probabilities.’ This is lower than the threshold for criminal offences, which dictates that it must be ‘beyond reasonable doubt’ that a party offended. Introducing civil damages provisions would therefore result in a lower standard of proof for parties being held liable for offences against the Act.

This issue should be considered in relation to Article 11:

“States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”

Amber:

OF SIGNIFICANT CONCERN

The Act should be amended to introduce liability for civil damages for every offence.

A waterway or land within 200 metres of a named waterway is an area of Cultural Heritage sensitivity, unless it has been subject to significant ground disturbance. The definition of waterway means that many waterways in Victoria that remain ‘unnamed’ are not defined as areas of Cultural Heritage sensitivity and are therefore not protected under the Act. This has resulted in substantial harm to Aboriginal Cultural Heritage due to activities being permitted in and around unnamed waterways.

This issue was raised by RAPs at their Forum in 2017 and RAP Connect.

If the definition of waterway included all courses of water in Victoria, regardless of whether they are:

• named or unnamed,
• current or prior,
• diverted or original,
• permanent or seasonal,

it would provide proper protection to all areas of Cultural Heritage sensitivity that exist in and around waterways in the State.

There are also many recorded sites that sit outside of areas of Cultural Heritage sensitivity but are near unnamed waterways. Although it cannot be definitively said these sites are where they are because of their proximity to unnamed waterways, it does demonstrate the likelihood for areas Cultural Heritage sensitivity to be beyond 200m of named waterways.

The most practicable avenue for this objective is to extend the sensitivity mapping in ACHRIS to include all waterways that are viewable on the system.

Alternatively, RAPs should be afforded the power of becoming Victorian naming authorities over waterways in their registration area. This would allow RAPs to have control over which waterways fi t within the scope of the Act and can be defined as areas of Cultural Heritage sensitivity. This would also combat an issue that comes with affording all currently unnamed waterways protection under the Act could be problematic, as they cannot always be specifically and consistently identified.

This issue should be considered in relation to Article 13:

“Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The definition of waterway should include all courses of water in Victoria.

CHMPs are required for an activity if all/part of the activity area is an area of Cultural Heritage sensitivity and if it is a high impact activity. Places are considered to not be areas of Cultural Heritage sensitivity if they have been subject to significant ground disturbance (SGD).

SGD is defined in the Act as “disturbance of the topsoil or surface rock layer of the ground” and yet soil bearing artefacts can be at depths far greater than what is recorded as topsoil. That means that those parts of the stratigraphy are not protected by a CHMP.

Another significant issue is that places and objects with Cultural Heritage sensitivity do not lose their significance just because they have been disturbed. This is at odds with SGD impacting the application of a CHMP and means that CHMPs are not mandatory for activities that are often harming Cultural Heritage.

To ensure that places are only classified as not being areas of Cultural Heritage sensitivity when it is appropriate, the use and definition of SGD needs to be reviewed. This will ensure protection of Aboriginal Cultural Heritage and align with the fact that objects and places do not necessarily lose Cultural Heritage significance once they have been disturbed.

This issue should be considered in relation to Article 8:

“Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

The use and definition of SGD in the Act needs to be reviewed.

Due Diligence Assessments are advisory assessments taken by Heritage Advisors that quantify the risk about a defined situation or recognisable hazard in relation to Cultural Heritage. They are not regulated under the Act. Due Diligences are intended to establish a Sponsor’s legislative requirements for a proposed activity, such as whether a CHMP is required for that activity. However, they are usually made without consultation of the relevant RAP. This means that RAPs can often be completely unaware that a Due Diligence has been undertaken for a proposed activity.

Additionally, Heritage Advisors are not required to consult with RAPs in the preparation of a Preliminary Aboriginal Heritage Test (PAHT), which is a formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP.

Currently, if a planning application does not trigger a CHMP, a Local Government Authority may request the Sponsor engage a Heritage Advisor to undertake a Due Diligence assessment or a PAHT, before a planning application is approved. These processes do not require the Heritage Advisor consult with relevant Traditional Owner groups or RAPs.

If a planning application does not trigger a CHMP, then a PAHT must be undertaken. Heritage Advisors should also be required to seek participation and input from RAPs in the preparation of the PAHT. This would not only offer RAPs an opportunity to provide input and guidance as to the whether an activity requires a CHMP but would also offer an opportunity for RAPs to draft conditions for inclusion within the PAHT. These conditions could include provisions for RAPs to undertake compliance inspections they may deem necessary during the proposed activity.

This issue should be considered in relation to Article 32:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

Amber:

OF SIGNIFICANT CONCERN

All building and construction related planning applications should include Traditional Owner consultation.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that there were still several issues relating to the delivery of this recommendation.

Namely, that:

• RAPs report that the existing operation support funding is inadequate to effectively undertake their basic statutory functions.
• The existing model of funding means that RAPs are effectively penalised for generating other income. Resources that any RAP receives, should not negatively affect the resourcing they receive to undertake statutory functions.
• To a large extent the RAP operational funding is drawn from the Fund. The Fund was intended to provide financial resources to undertake a range of activities under the Act and the diversion of most Fund funds to RAP operational support undermines this legislative intent.
• The Fund funds are in large part generated by the fees charged by AV for the assessment of CHMPs on lands not within a RAP area. The allocation of funds to RAPS, that are generated from the lands of Traditional Owners not enjoying RAP status, is unjust, disrespectful and fosters disharmony within the Traditional Owner community.
• The AV Progress Report response to this recommendation obfuscates the fact that the specific activity funding recommended by the Inquiry has not occurred. Providing some level of funding for RAP general operations is not undertaking works to preserve heritage sites that are identified as priority sites by the RAP.

Since this advice on meeting the recommendation was made to the Minister, these issues remain of concern.

This issue should be considered in relation to Article 32:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

Amber:

OF SIGNIFICANT CONCERN

That the ongoing base funding model for RAPs be reviewed and an alternative source of funding be identified.

In Council’s report from the previous reporting cycle (2018-2019), it noted AV’s minor progress in conducting a pilot country mapping project and advised the Minister that Country Mapping should be a resource and opportunity devolved directly to RAPs.

Since this advice on meeting the recommendation was made to the Minister, Council has supported RAPs to participate in an Indigenous Mapping Workshop, part of a global program for First Peoples.

This issue should be considered in relation to Article 31:

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

Amber:

OF SIGNIFICANT CONCERN

That RAPs be resourced to undertake their own Country Mapping.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that RAPs had identified that there was still a need for “policy guidelines to monitor the adherence of sponsors to approved Cultural Heritage Management Plans”.

Since this advice on meeting the recommendation was made to the Minister, Council has commenced preparation of such guidelines (pursuant to s 132((2) (ck)) in consultation with RAPs.

This issue should be considered in relation to 18:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

Amber:

OF SIGNIFICANT CONCERN

That upon completion, AV support guidelines developed by Council and RAPs.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that it had resolved to establish a Legislative Review Advisory Committee that would review the Registered Aboriginal Party Fees and Conduct Guidelines once received from AV.

Since this advice on meeting the recommendation was made to the Minister, Council has formed a Legislative Review and Regulatory Functions Committee who are working on

many projects around Traditional Owner voices in statutory decisions and responsibilities. In the absence of the Committee being provided with AVs Guidelines for consideration,

with RAPs they have developed a Registered Aboriginal Party Code of Conduct.

This issue should be considered in relation to 18:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

That AV provide Council with the Guidelines for review and support the Registered Aboriginal Party Code of Conduct.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that it had developed draft policies in relation to “Complaints Against RAPs” and the “Imposition of Conditions, Suspension and Revocation of Registration of RAPS” and was consulting with RAPs in respect of these draft policies.

Since this advice on meeting the recommendation was made to the Minister, Council has formalised and implemented these policies, significantly expanding its capacity to work with RAPs on governance and variation issues. Additionally, the Committee has developed a Registered Aboriginal Party Code of Conduct.

This issue should be considered in relation to 18:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

Amber:

OF SIGNIFICANT CONCERN

That Council be supported to expand its capacity for undertaking this statutory function given the significant impact of the First Peoples’ Assembly of Victoria and Treaties.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that it is inappropriate to disperse to RAPs money earned from Traditional Owner’s Country that does not have a recognised entity or RAP present.

Since this advice on meeting the recommendation was made to the Minister, these issues remain of concern. Current review of the inappropriate management of the Fund by government should also consider the use of the Fund for RAP base level funding.

This issue should be considered in relation to Article 32:

“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

Amber:

OF SIGNIFICANT CONCERN

That the Fund continues to gather all statutory fees and charges paid to Government for redistribution by Council for projects that protect and celebrate Aboriginal Cultural Heritage in Victoria, whilst RAP base funding be provided by government through alternative means.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that this recommendation primarily should be addressed through the provision of enough operational funding to RAPs. However, Council also believes additional measures are necessary to support newly appointed RAPs through the early years of their RAP operations.

Since this advice on meeting the recommendation was made to the Minister, Council has consulted with existing RAPs and Traditional Owners in areas where there is not yet a RAP and these issues remain of concern.

This issue should be considered in relation to Article 32:

“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

Amber:

OF SIGNIFICANT CONCERN

That Council be supported in consideration of legislative change to enable Council to approve RAP applications subject to conditions. This would allow groups that are potentially unable to carry out all their functions as a RAP at the time of application to still have their registration as 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.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that support for Board and Governance Training (for example through the Certificate IV in Governance) is no longer provided by AV. This represents a significant gap in the necessary support required by RAPs. However, the thrust of this recommendation goes to the “redirection of resources” from Heritage Services to RAPs. While Heritage Services has expanded significantly in recent years Council is not aware of any of Heritage Services resources being redirected to RAPs.

Since this advice on meeting the recommendation was made to the Minister, these issues remain of concern.

This issue should be considered in relation to 18:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance

with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

That the significant project support for Traditional Owner programs within Heritage Services by devolved to Traditional Owners themselves, either through Councils or RAPs.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that, further to the comment in relation to Governance Training above, Council is keen to develop its activities to provide information and support to facilitate the broader economic development activities of RAPs. Council did not then have the resources to undertake this function to any significant degree. It would be desirable if Council was resourced in the future to do so.

Since this advice on meeting the recommendation was made to the Minister, these issues remain of concern.

This issue should be considered in relation to Article 23:

“Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.”

Amber:

OF SIGNIFICANT CONCERN

That Council be resourced to develop its activities to provide information and support to facilitate the broader economic development activities of RAPs.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that, although AV was in the process of developing additional guidelines in respect of the experience requirement for Heritage Advisors pursuant to s189(1)(a), RAPs had long noted concerns regarding the absence of any mechanisms to regulate Heritage Advisors.

Since this advice on meeting the recommendation was made to the Minister, Council has worked with RAPs to develop Heritage Advisor Guidelines and a Registered Aboriginal Party Code of Conduct.

This issue should be considered in relation to 18:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

That Council’s Heritage Advisor Guidelines and Registered Aboriginal Party Code of Conduct be made enforceable and that Country Mapping projects be developed by RAPs and supported by AV independent of this initiative.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that there was still a significant funding shortfall in relation to the management, protection and promotion of Aboriginal Cultural Heritage in this State.

Since this advice on meeting the recommendation was made to the Minister, this issue remains of concern. Council’s Living Heritage Grants Program has opened and provides an avenue for RAPs and the broader community to be supported to undertake heritage protection and celebration activities.

This issue should be considered in relation to Article 31:

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

Amber:

OF SIGNIFICANT CONCERN

That the Fund be controlled by Council and RAPs be supported to operate effectively and sustainably.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that, In the absence of any action in this area by AV, Council has determined to itself proceed with draft guidelines in relation to Heritage Advisors under s 189(1)(b).

Since this advice on meeting the recommendation was made to the Minister, Council has developed these Guidelines with RAPs and will publish them after the reporting period. It is noted that AV has still not consulted on a review of the Minister’s Guidelines for Heritage Advisors. Council’s consideration of the risk to Cultural Heritage posed by a relative lack of regulation of Heritage Advisors is considered in its review of the Aboriginal Heritage Act.

This issue should be considered in relation to Article 32:

“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

That Council’s Guidelines for Heritage Advisors be adopted by the Minister and legislative review of Heritage Advisors be considered.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that despite the absence of activity in this area on the part of AV, several RAPs have independently commenced operations in this regard. Council, to the extent its limited resources allow, seeks to publicise this work and encourage other RAPs to pursue a similar course. It would be desirable if resources were made available to Council to pursue this matter in combination with the activity suggested in response to recommendations 6.8 and 6.9 above.

Since this advice on meeting the recommendation was made to the Minister, there has been little progress by AV in this area however some RAPs have strongly engaged in developing their capacity for this work. Council have considered legislative change that could significantly assist RAPs in this work.

This issue should be considered in relation to Article 23:

“Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.”

Amber:

OF SIGNIFICANT CONCERN

That Council be resourced to work with RAPs on developing this capacity and that recommendations for legislative review of the Aboriginal Heritage Act regarding Heritage Advisors be considered.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that it was actively discharging the functions bestowed through the 2016 amendments to the Act with the development of the policies referred to in recommendation 6.5 above.

Since this advice on meeting the recommendation was made to the Minister, Council is considering a legislative amendment to better manage this recommendation.

This issue should be considered in relation to Article 35:

“Indigenous peoples have the right to determine the responsibilities of individuals to their communities.”

Amber:

OF SIGNIFICANT CONCERN

That Council’s consideration of legislative review regarding RAP appointment with conditions be supported and Council receive the resources necessary to implement policies developed regarding the discharge of its functions to RAPs.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that it had developed draft policies in relation to “Complaints Against RAPs” and the “Imposition of Conditions, Suspension and Revocation of Registration of RAPS” and had commenced framework planning for the State of Victoria’s Aboriginal Cultural Heritage Report 2017-2021 to the Minister.

Since this advice on meeting the recommendation was made to the Minister, Council has continued to work on this recommendation.

This issue should be considered in relation to Article 34:

“Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.”

Amber:

OF SIGNIFICANT CONCERN

That both Council and RAPs be better resourced to undertake their work in a supported, best practice manner. Fundamental to this is that recommended legislative reforms recommended in 2021 by Council and RAPs be supported.

In Council’s report from the previous reporting cycle (2018-2019), it advised the Minister that Council’s lack of financial autonomy continues to obscure the level of funding provided to it. For this, and other reasons, Council has determined to pursue a strategic objective of achieving greater financial and operational autonomy. In part, this underscores the requirement for a reconsideration of the uses to which the Fund is put as discussed in response to recommendation 6.1.

Since this advice on meeting the recommendation was made to the Minister, this remains of concern. Some progress has been made however in discussions with the Department of Treasury of Finance in stabilising their current, inappropriate management of the Fund.

This issue should be considered in relation to Article 8:

“States shall provide effective mechanisms for prevention of, and redress for any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities”.

Red:

MUST BE RESOLVED AS SOON AS POSSIBLE

That Council’s appropriate statutory management of the Fund be ensured.