The fundamental principles of self-determination and Aboriginal control and management of Cultural Heritage are enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) and other international instruments.21
The AHA is considered by some to be progressive in how it deals with Aboriginal Cultural Heritage in Australia in comparison to other states and territories, but this is not necessarily a difficult measure to achieve. The Victorian Government has committed to self-determination as the guiding principle in Aboriginal affairs and to ‘working closely with the Aboriginal community to drive action and improve outcomes’.22 However, the AHA is yet to truly embed these principles or the UN Declaration’s related obligation for free, prior informed consent (FPIC) for impacts to Cultural Heritage.
Aboriginal Peoples involvement in Cultural Heritage management remains primarily in the form of consultation and advice, rather than formal decision-making (with some exceptions), and there is a lack of legal avenues or formal rights for Aboriginal Peoples seeking to enforce protections of their heritage.23 As identified in the State of Indigenous Cultural Heritage report that accompanied the 2011 Commonwealth State of the Environment report:
A revision of the framework for determining the ‘condition’ of Indigenous heritage is needed, driven by Indigenous stakeholders, to better reflect Indigenous heritage, particularly in relation to the role of cultural practices and the relationship between Indigenous ‘heritage’, ‘culture’, ‘traditional knowledge’ and Australia’s lands, waters and natural resources. 24
There is currently no consistency across jurisdictions in relation to the protection and management of Aboriginal Cultural Heritage, but each of the Commonwealth and State and Territory governments are taking steps to review their approaches. For example:
- The Australian Government has commissioned an independent review of Environment Protection and Biodiversity Conservation Act 1999 (Cth) to among other things, improve heritage listings and consultation processes for heritage places25, and is working with the Australian Heritage Council to promote best practice engagement with Indigenous People, including FPIC for assessments and listings.
- In 2018, the draft Aboriginal Cultural Heritage Bill 2018 (NSW) (Bill) providing for a new framework for the management of Aboriginal Cultural Heritage was released for consultation in NSW. Heritage NSW and Aboriginal Affairs are currently working on finalising the Bill pursuant to public feedback.26
- The Heritage Amendment Act 2020 (ACT) took effect in the ACT on 26 February 2020, introducing amendments to the Aboriginal Heritage Act 2004 (ACT) providing for a more flexible and responsible system of heritage directions and compliance notifications to strengthen the way damage to heritage places and sites is dealt with.
- The Western Australia Government in consultation with the Aboriginal Advisory Council of WA is developing a Biodiscovery Bill which seeks to provide an accreditation or certification regime in WA in accordance with the Nagoya Protocol on Access and Benefit Sharing.
The Victorian Aboriginal Heritage Council is also advocating for a review of the AHA. In June 2020, the Council issued Taking Control of Our Heritage, a Discussion Paper calling for further reforms to the AHA. The key discussion points included:
- RAPs need to be Local Government’s primary authority on all matters relating to Aboriginal Cultural Heritage, both tangible and intangible.
- Sponsors should be required to consult with RAPs from the outset of the CHMP process.
- RAPs should have a veto power over CHMPs that threaten harm to Aboriginal Cultural Heritage.
- The Victorian Aboriginal Heritage Council should hold responsibility of the Victorian Aboriginal Heritage Register.
- The Victorian Aboriginal Heritage Council should hold the rights and responsibilities of prosecution.
- That there should be a regulation system for Heritage Advisors.
The consultation period for the Discussion Paper closed on 30 November 2020 and Recommendations for changes to the Act will be made in early 2021.
Other mechanisms for self-determination of Victorian Aboriginal Peoples include the nation-leading work towards a Treaty currently being undertaken in accordance with the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic). On 9 December 2019, the First Peoples’ Assembly of Victoria was declared to be the Aboriginal Representative Body, independently reporting to the Parliament of Victoria each year on progress towards negotiation of a treaty.
The Assembly released their first annual report on 15 September 2020.
Mick Harding, Member of the Victorian Aboriginal Heritage Council, considers that there is also the need for Aboriginal Peoples to be in leading political positions: "Having an Aboriginal person who is Minister for Aboriginal Affairs, or [being] promised seats in parliament. [It is important to have] our person as the head in Government."
Discussion question: What are the current measures in place that promote self-determination and Aboriginal control of Aboriginal Cultural Heritage in Victoria?
- Why does Victoria need to have good Cultural Heritage protection?
- Is the current regulatory framework (the AHA, NT and TOSA) effective for the protection of Aboriginal Cultural Heritage?
- What are the strengths?
- What are the weaknesses?
- What are the gaps in the law?
- How do Aboriginal Peoples want to see Cultural Heritage managed?
- How can the current regulatory framework be improved?