Firstly, let’s look at the past and see how far we have come...
Prior to the enactment of the AHA in 2006, Victoria had both State and Commonwealth legislation addressing protection of Cultural Heritage.
The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) was the first dedicated Aboriginal Heritage legislation in Victoria and provided protection for physical evidence of Aboriginal occupation before and after European occupation, including sites, scatters, artefacts, carvings, drawings and skeletal remains. The Act administered protection of Aboriginal Cultures as relics of the past. The focus remained largely on physical Cultural Heritage (sites and objects) with archaeologists the principal interest group consulted as opposed to Aboriginal communities, and failed to reflect that heritage is living – a product of the present as well as the past.4
Introduced in 1987, Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), provided wider protection for Aboriginal Cultural Heritage and gave Victorian Aboriginal Peoples a greater role in the protection of their heritage. The Heritage Act 1995 (Vic) established the Victorian Heritage Register for non-Aboriginal places and objects of outstanding significance to the state and the Heritage Inventory which is maintained by Heritage Victoria.
The Aboriginal Heritage Act 2006 (Vic) (AHA) came into effect in 2007 to replace the ‘relics’ model of protection and to align heritage issues more closely with planning and development systems.5 The AHA established the Victorian Aboriginal Heritage Council, being the first Victorian statutory body requiring members to be Traditional Owners, and Registered Aboriginal Parties (RAPs), to empower Traditional Owners to manage Country and Cultural Heritage at a local level. The AHA introduced the Cultural Heritage Management Plans (CHMPs) and Cultural Heritage Permits (CHPs) systems, higher penalties and stop orders, and the Victorian Aboriginal Heritage Register (maintained by Aboriginal Victoria). The Victorian Aboriginal Heritage Register is particularly remarkable as a central repository of Aboriginal Cultural Heritage information. Notably, this is a closed register and, other than the waterways, most information is not publicly accessible.
The 2016 amendments to the AHA brought Victorian laws to the forefront of Cultural Heritage protection in Australia, in particular with the introduction of protection measures for Aboriginal intangible heritage, including registration and the imposition of large penalties for commercial use of registered intangible heritage without permission. In addition, the 2016 amendments saw the responsibility of management, protection and repatriation of Aboriginal Ancestral Remains moved to the Council; expanded definitions and terms closer in line with Aboriginal concepts and understanding of those terms; Aboriginal Heritage Officers empowered to issue stop work orders for 24 hours; clarification as to when CHMPs are required; and the creation of Aboriginal advisory groups where no RAP exists to consult with.
Archaeological and Aboriginal Relics Act 1972 (Vic) and Part IIA Aboriginal and Torres Strait Islander Heritage Protection Act (Cth) – Joint ‘relics’ system for protection of Victorian Aboriginal Heritage in place until 2006.
The Australia ICOMOS (International Council on Monuments and Sites) Guidelines for the Conservation of Places of Cultural Significance was adopted at Burra, South Australia. It is generally referred to as the Burra Charter.
Successful law case initiated by Uncle Jim Berg for repatriation of Ancestral Remains from the Museum of Victoria.
Establishment of the Koorie Heritage Trust.
Native Title Act 1993 (Cth) comes into force - The first native title claim in Victoria was made by the Yorta Yorta People in 1994, but in 1998 the Federal Court determined that native title did not exist over the claim area. It wasn’t until June 2004 that the Yorta Yorta People entered into a Cooperative Management Agreement with the Victorian Government to give effect to their rights to land and water.
Heritage Act 1995 (Vic) – Introduced overarching state legislation for historical sites in Victoria and provided for registration, and subsequent protection and conservation, of places and objects of Cultural Heritage significance. The Heritage Act establishes the Victorian Heritage Council, the Victorian Heritage Register and the Heritage Inventory. All non-Aboriginal archaeological sites in Victoria more than 50 years old are protected under the Act. Archaeological sites such as cemeteries or missions which may have a combination of both historic and Aboriginal heritage values are protected under the AHA.6
Budj Bim Cultural Landscape included on National Heritage List.
Aboriginal Heritage Act 2006 (Vic) - Replaced the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) and Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) for protection of Aboriginal Cultural Heritage.
Traditional Owner Settlement Act 2010 (Vic) – Introduced as a comprehensive, non-litigated claims process that provided an alternative to native title that Traditional Owners could use to gain rights to country and settle native title claims in Victoria. The Victorian Government has identified self-determination and partnerships as foundational to the Act, and rights include recognition of Traditional Owners of Country, funding, and use and management of natural resources.7
Though adopted in 1979, the Burra Charter is updated periodically. The current version was adopted in 2013.
Set up of Bunjilaka at Museum Victoria & establishment of Yulendj group (members of the Bunjilaka Community Reference Group).
Aboriginal Heritage Amendment Act 2016 (Vic) - Amended the AHA to improve reporting requirements in relation to Aboriginal Cultural Heritage, to introduce provisions regarding Aboriginal intangible heritage, and to establish an Aboriginal Cultural Heritage Fund.
Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic).
May 2017 – Uluru Statement from the Heart, a gift to the Australian people, calling for a First Nations voice in the Constitution and the establishment of a Makarrata Commission to oversee the process of agreement making between governments and First Nations and truth telling.
Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) (Treaty Act).
Budj Bim Cultural Landscape inscribed on World Heritage List.
First Peoples’ Assembly of Victoria established on 9 Dec 2019 under Treaty Act.
Auntie Eleanor A. Bourke, ex-Chairperson of the Victorian Aboriginal Heritage Council remembers the past denialism of Aboriginal existence and the lack of rights stemming from justification of invasion:
It’s because of the history of dispossession and dislocation. In the beginning, when you’re a colonised society, people really don’t want you there because you remind them of the bad things that have been done in taking over the country. There’s whole waves of experiences that people have, right up until when we got the protection phase, which lasted for about 60 years in Victoria, where people thought we were going to die out, that was the general belief.8
Over a career working in Cultural Heritage policy, Bourke pointed out in the Council’s 10 Year Anniversary Report, "Aboriginal Cultural Heritage is now managed by Registered Aboriginal Parties (RAPs) in more than fifty percent of the state."9 This percentage has increased to 74%, and the Council has a clear goal of seeing RAPs appointed with respect to the whole of the State.10 In a recent interview she proudly stated - 'My goal is to see that recognition of Traditional Owner groups is carried through to all aspects of everyday life, beyond just Cultural Heritage matters.' 11
While the AHA and the 2016 amendments have introduced positive change and altered the previous outdated focus on protection of relics, there exists ‘a general lack of understanding about how the heritage protection system currently works’,12 and more needs to be done to ensure appropriate control of Cultural Heritage by Victorian Aboriginal Peoples into the future.