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Taking Control of Our Heritage

Recommendations for self-determined reform of the Aboriginal Heritage Act 2006

Through the release of the Taking Control of our Heritage Discussion Paper in mid-2020, followed by comprehensive community consultation and rigorous review of submissions in late 2020, Council has developed these proposals informed by policy and community perspectives.

Council is making these recommendations to enshrine both self-determination and the United Nations Declaration on the Rights of Indigenous Peoples, in Victorian Aboriginal Cultural Heritage legislation.

Consideration of these recommendations by the broad Victorian community is being sought

After an initial consultation on Council's Discussion Paper, community feedback was incorporated into these recommendations. Council is now undertaking a further period of consideration by the community to inform the final recommendations to be introduced.

The proposed suite of reforms is planned to be introduced in mid-2021. By this time, during the life of the current Parliament, it will be 5 years after the 2016 amendments to the Act and 15 years since the Act came into existence.

Council’s ambition for the proposals is that through incorporating a benchmarked, national set of Best Practice Standards into Victoria’s own legislation while fully realising the Declaration, Victoria’s Aboriginal Cultural Heritage legislative can set a benchmark at both national and international levels.

How to make a submission for a proposed change

Please send any submissions through to vahc@dpc.vic.gov.au by Friday 11 June 2021.   


Author:
Victorian Aboriginal Heritage Council
Date:
April 2021

Introduction

A seismic change has happened in the way that Traditional Owners’ rights, responsibilities, knowledge and voice is considered and appreciated in the broader community.

In a landmark piece of legislation, the Victorian Aboriginal Heritage Council (Council) was created through the Aboriginal Heritage Act 2006 (Act), as the only statutory authority composed entirely of Victorian Traditional Owners. Then, as now, the significance of Councils representation is a positive step towards empowerment. The Minister for Aboriginal Affairs in 2006, the Hon. Gavin Jennings, supported the policy shift towards self-determination in that “the Council will ensure Aboriginal people throughout Victoria play a central role in protecting and managing their heritage and that this role is widely acknowledged and respected in the broader community”.

Today, some 15 years later, a seismic change has happened in the way that Traditional Owners’ rights, responsibilities, knowledge and voice is considered and appreciated in the broader community. As a Council, we are true to our values and provide leadership that is constructive, visionary and forward thinking. Government’s own policies of self-determination for Victorian Traditional Owners are reflective of this change but it is time that they are implemented in legislation as, whilst the Act is good, it can be better. The time has come for Traditional Owners to do more than play a part, they must realise their rights to control their Cultural Heritage through the law that governs the protection and management of that Cultural Heritage, we do this is not only for us but for all Victorians.

In 2007, the United Nations General Assembly (Assembly) adopted the significant Declaration on the Rights of Indigenous Peoples (Declaration). Even then they recognised “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.” It is with great sadness, that as First Peoples, as members of the broader Victorian community and as those with responsibilities for Victoria’s Cultural Heritage legislation, we must acknowledge the Assembly’s call for action has fallen on deaf ears. Through strong leadership and constructive conversations we will help others better understand that the positive contributions we put forward are not only just, for self-determination, but are what is needed to ensure the uniqueness of Victoria’s Aboriginal Cultural Heritage is not further eroded. together we can ensure that our Cultural Heritage will be seen as the treasure it is, built upon origins of our Culture, celebrated as soon as tomorrow if we protect it and nurture it as a living Culture.

What do we mean by Aboriginal Cultural Heritage? Aboriginal Cultural Heritage refers to the knowledge and lore, practices and people, objects and places that are valued, culturally meaningful and connected to identity and Country. It shapes identity and is a lived spirituality fundamental to the wellbeing of communities through connectedness across generations. Our Cultural Heritage has been passed from the Ancestors to future generations through today’s Traditional Owners, whose responsibilities are profound and lifelong.

As we reflect on a decade and a half of implementation of the Act in Victoria, I am proud of the strength of our Cultures and the many ways Victorian Traditional Owners express and promote their Cultural Values. The health and wellbeing of our communities is underpinned by strong Culture and a strong sense of connection with it. Working together, within the inclusive and representative community-based structures that we have always been part of, we can effect great change for our People.

Council works towards appointment of inclusive, representative Traditional Owner corporations to speak for all Country. Through 100% Registered Aboriginal Party (RAP) appointment for Victoria, we can be sure that the right People speak for their Country, for their Culture and their communities. Enshrined in the Act with statutory responsibilities, our People must be further supported, continuously supported, through changes to the Act, to protect and effectively manage Country.

Currently, RAPs represent almost 4,000 Victorian Traditional Owners across the Country through their inclusive representative structures. This engaged membership base is double the voters who participated in electing the First Peoples’ Assembly of Victoria, making them a powerful voice for Traditional Owners in Victoria. Their concerns and comments have been heard in these proposals because it is fundamentally important that in management of our Cultural Heritage, our Peoples are listened to and heard. Our Culture and in fact, all Cultures in all its forms, is what makes us uniquely individual and brings us together through the respect of one another.

Together, across generations, we are the protectors of Cultural Heritage through imposed legislation and community cultural expectations. It is in our children’s lifetimes that our ambitions to be accorded the rights outlined in the Declaration will be realised. This Declaration enshrines the rights of our People and affi rms that Indigenous Peoples are equal to all other peoples, while recognising the right of all peoples to be different, to consider themselves different, and to be respected as such. And as equals, and respectfully treated so, we would want to be afforded the responsibilities of leadership and to take all on this journey to protect and build on our significant and ancient heritage.

The Act and Declaration, together, provide some of the greatest protections for Traditional Owners in the country. However, there is still much to be done in realising a fundamentally self-determined and tangible ownership of our Culture, Heritage, History and Country. Council’s consideration of the Act that regulates our Heritage was undertaken to enshrine self-determination at every level of the government of our People and their Culture. Council is pleased that such a broad range of people, businesses and organisations responded to its Taking Control of Our Heritage, discussion paper on legislative reform of the Aboriginal Heritage Act 2006 (Discussion Paper). Each submission was thoughtful and made a valuable contribution to our work, we thank all those who participated for their engagement.

Whilst Council appreciates the diversity of perspectives in the submissions, it has grave concerns at the underlying racism in many of the submissions. Discrimination can take many forms and, at its worst, is applied wrongfully when it is based on forms of prejudices. My People are resilient, as we understand the beauty of our Culture, but we are judged on who we are and by unhealthy values. However, the good values that most communities have, if not aspire too, is what the majority of us agree on and have in our hearts. Overall, the responses are considered and appropriate but, across some sectors, the overwhelming considerations are that Aboriginal Peoples cannot responsibly undertake the function of the Act. It is our ancestry, our genetic makeup, our connection to Culture that makes us resilient, informed and consultative Peoples. These are the same things that some consider render us unable to manage the functions of the Act that are often in the hands of bureaucrats, non-Traditional Owners and other entities whose Culture it isn’t.

It is essential that, as a society, we truly understand that Traditional Owners are the only comprehensive knowledge holders of their Cultural Heritage. Once we understand that one, fundamental truth, then the changes recommended for their management of that Cultural Heritage are clear and purposeful. We do this for you, we do this so as not to further lose what we have, we do this to reverse the destruction that began not so long ago and to now build and create together.

Our Cultural Heritage is best understood through demonstrating respect for Traditional Owners – our knowledge, our skills, our appreciation of our Heritage. The practising of our Culture and Traditions makes us stronger and this strength offers all Victorians opportunities to value, understand and celebrate the unique Cultural Heritage we care for on behalf of all of us. We all have a part to play in ensuring our Peoples’ rights to self-determination, our Culture and Country.

Walk beside us to ensure that the statutory protections our Peoples have for their Culture is commensurate to over 40,000 years of connection to Country.

Rodney Carter
Chairperson, Victorian Aboriginal Heritage Council


Background

Taking Control of Our Heritage Aboriginal People caring for Aboriginal Heritage Recommendations for self-determined reform of the Aboriginal Heritage Act 2006.

As Victorian Traditional Owners, custodians of the oldest living Culture on earth and an independent statutory authority, Council felt that it was time to for the Act to realise its intention. Whilst strong, the Act fails in key areas to enshrine self-determination adequately or respectfully in its prescription for the management and protection of Aboriginal Cultural Heritage on the lands now known as the state of Victoria.

On 22 June 2020, Council published Taking Control of Our Heritage, a discussion paper on legislative reform of the Aboriginal Heritage Act 2006. The objective of the Discussion Paper was to have a genuine conversation with Traditional Owners, land managers, the broader community and the government on the operation of the Act.

The primary focus of the review was the Act, however, it has necessarily brough to the fore issues around the Act’s associated Aboriginal Heritage Regulations 2018 (Regulations) and the Geographic Place Names Act 1998. Council will consider this work later in 2021.

Council’s Legislative Review and Regulatory Functions Committee (LRRFC) has overseen the development of Council’s proposals for legislative reform. Through release of the Discussion Paper in mid-2020, followed by comprehensive community consultation and rigorous review of submissions in late 2020, it has developed these proposals informed by policy and community perspectives.

In September 2020, the Heritage Chairs of Australia and New Zealand welcomed and supported Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia. Council’s contribution to the Vision, in the development of the Best Practice Standards in Indigenous Cultural Heritage management and legislation, meant that Victorian Traditional Owner voices were heard on a national level.

The proposed suite of reforms are planned to be introduced in early-mid 2021. By this time, during the life of the current Parliament, it will be five years after the 2016 amendments to the Act and fifteen years since the Act came into existence.

Council’s ambition for the proposals is that, through incorporating a benchmarked, national set of Best Practice Standards into Victoria’s own legislation, whilst fully realising the Declaration, Victoria’s Aboriginal Cultural Heritage legislative can set a benchmark at both national and international levels.


Summary

Council’s legislative review is pursuant to its responsibilities under Sections 132(2)(cg) and 132(3) of the Act.

I) Consultation

Council’s legislative review is pursuant to its responsibilities under Sections 132(2)(cg) and 132(3) of the Act. It has undertaken this reform process to ensure that the voices of Traditional Owners are heard at all levels of government and that their responsibilities to their Cultural Heritage and Ancestors is not only lived but supported in legislation.

Council sought feedback from key rightsholders, including RAPs, organisations representing Traditional Owners/Traditional Owner Corporations, and stakeholders in Victoria’s development and land-use industry, heritage advisors, local government authorities (LGAs), and public land managers.

More than 22 submissions were received in response to the Discussion Paper. These submissions include positive, negative and mixed responses on individual Themes and Proposals. Overall, responses to the Proposals were resoundingly positive.

II) Submissions to the Discussion Paper

Council is pleased at the breadth and depth of submissions it received to the Discussion Paper. Above all else, the informed and impassioned responses showed that Aboriginal Culture, whether it be your cultural heritage or not, is slowly being appreciated for its value to all Victorians.

Significantly however, the responses also revealed the inherent racism that exists in some sectors and the fear of change that this in turn engenders. It is not a surprise that, as a society, we still have a long way to go to achieve reconciliation. But, what is surprising, is the perception within government and powerful industry bodies that Aboriginal People are unable to manage their own affairs and are unqualified to speak with authority on their own Cultural Heritage. Whilst Aboriginal People understand what loss of Country means, to many non-Aboriginal people, the threat of any interference with what could be considered as inappropriate management of Country is met with hostility and ever-present racial slurs.

To better understand the perspectives and voices in this Proposals document, the submissions have been grouped into the following broadly representative sectors.

Traditional Owner Organisations

The Traditional Owner Organisation sector is broad in Victoria, comprising a range of organisations including but not limited to Registered Aboriginal Parties, Aboriginal Controlled Heath Organisations, the First Peoples’ Assembly of Victoria, Federation of Victorian Traditional Owner Organisations, Victorian Aboriginal Corporation for Languages, Victorian Aboriginal Education Association Inc. and independent wellbeing and cultural entities. Across these groups, the membership or primary users are Victorian Traditional Owners with connection to Culture, community and Country at the centre of service delivery. As they had been instrumental in working with Council’s LRRFC on development of the proposals and Discussion Paper, this sector was largely supportive of the proposed reforms.

Heritage – Policy

The Heritage Policy sector encompasses a range of organisations that oversee the broader policy direction of Heritage in Victoria. This includes both the Victorian Aboriginal Heritage Council and Heritage Council of Victoria, peak heritage organisations outside of statutory bodies, like the National Trust and Royal Historical Societies of Victoria, university and public policy individuals and policy divisions within broader organisations. The considered submissions received from this sector had targeted concerns largely relating to the intersection of legislation with practical implications of change.

Heritage – Business

The Heritage Business sector is the ‘on the ground’ heritage industry of archaeologists, Heritage Advisors (HAs), researchers, and industry bodies such as the Australian Association of Consulting Archaeologists Inc. and Australian Archaeological Association Inc. The sector is supported by tertiary education departments and associated areas within government. As a sector, submissions largely took an ‘if it isn’t broken, it doesn’t need fixing’ approach. Such an approach is unable to consider that Traditional Owners do feel that the system is broken and so fundamentally lacked constructive critical insight whilst conceptually supporting Traditional Owner responsibilities and rights. Largely, concerns raised were around practical application of any proposed amendments and regulation of the broader Heritage Business industry.

Building and development

The Building and Development sector is a significant contributor to the Victorian economy and employees almost 240,000 people. Given the sector’s size and influence, it is important that these submissions be considered, however these submissions revealed the most significant lack of understanding of the principles of self-determination and overt racism of any sector. Whilst some consideration has was made of the need for Traditional Owners to retain a connection to Country, the submissions were clear that it should not come at any cost to the sector’s requirements for access to Country and quick planning and building decision approvals.

Local government sector

The Local Government Sector includes Local Government Authorities and those community organisations that exist to support community within geographic specific and community-based areas. Whilst generally submissions from this sector supported the rights of Traditional Owners to participate in management of their Cultural Heritage on Country, there were also significant concerns raised for the practical implications of implementing changed consultation processes within the LGAs themselves. Such considerations of implementation are necessarily raised through a Discussion Paper process but should not impact on broader legislative considerations of Traditional Owner rights and responsibilities.


Theme One

Furthering Self-Determination for Registered Aboriginal Parties.

Victoria’s RAPs are a fundamental function of the effective management of the Act. They are a primary source of advice and knowledge of Aboriginal places, Cultural Heritage and Objects on Country. The strength of RAPs lies in their representative and inclusive structures for their Peoples, allowing discourse, engagement and intergenerational knowledge sharing within community. The United Nations Declaration on the Rights of Indigenous Peoples is clear at Article 33, of the fundamental importance that:

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


Proposal One

Registered Aboriginal Party nomination of Council Members.

“Self-determination means Our People making decisions for our mob, our Culture and our Country. We can’t do that if we have no say in who is making those decisions.”

Issue

The Ministerial appointment of Council members does not actively support the principles of self-determination.

Background

Council is composed of eleven Traditional Owners. Each Council member must be an Aboriginal person who is a Traditional Owner, a 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 (Minister).

Proposal

That section 133 of the Act be amended to allow Council to have at least fi ve of its eleven members appointed by the RAPs themselves, rather than having the entire Council appointed by the Minister. This 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.

Consideration

Transparency issues

Council understands concerns that this proposal may result in less transparency within the RAP appointment process, as Council is the body that determines RAP applications under the Act. Furthermore, Council is also the body that manages, oversees and supervises the operations of RAPs.

However, the current proposal is not to guarantee an allocated number of membership positions on the Council to any particular RAP(s). The proposal aims instead to allow a group of RAP representatives to nominate Council members. It is erroneous to presume that a Council member who has been nominated by a group of RAP representatives, rather than the Minister, would be beholden to the interests of a singular RAP or several RAPs and may therefore make decisions in a way that threatens the transparency of the RAP appointment process.

The operation of pre-existing legislative and procedural protections further allays transparency concerns. A precondition for appointment to the Council is to be a Traditional Owner, resident in Victoria, who has extensive knowledge of Aboriginal Cultural Heritage. Naturally, this means that many current and former Council members have held associations with particular RAPs. There are safeguards in place for protecting decisionmaking processes from bias in these scenarios. For example, section 142 of the Act states that if a Council member has a pecuniary or personal interest in a particular decision, they must declare their interest and take no further part in the making of the decision. Upon receipt of a RAP application, the Office of the Victorian Aboriginal Heritage Council (OVAHC) must contact each Council member to identify whether there is any potential bias in relation to the application and prevent such bias accordingly. These types of protections mitigate the need for any concern that members’ decisions may lack transparency.

Individual RAP representation

Council acknowledges that several submissions to its Discussion Paper voiced a desire for each RAP to have a representative member sit on the Council. Council understands the motivation for having direct RAP representation on Council. However, such a form of representation is likely unworkable at present. There are currently eleven RAPs in Victoria and there is only a maximum of eleven available membership places on the Council at any given time. If each individual RAP was given representation, that would leave no positions for any other members, whether those members were to be nominated by the Minister or whether they were to represent regions without formal RAP recognition.

Furthermore, individual RAP representation on the Council would not be in keeping with  the underlying spirit of the proposal. Proposal 1 is aimed at increasing representation of the RAP sector generally. The use of a ‘College of RAPs’ or another similar electoral process would ensure that Council becomes an advocate for the entire RAP sector, rather than any specific RAP. Maintaining some positions that are outside of this process would ensure the capacity for inclusion of voices from regions without formal RAP recognition.

Submission response to the proposal

“RAPs’ nomination of Council members will ensure self-determination and advocacy of cultural activities by the Traditional Owners through the Council.”

Barengi Gadjin Land Council Aboriginal Corporation

The Barengi Gadjin Land Council Aboriginal Corporation represents Traditional Owners from the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk peoples, who were recognised in a 2005 Native Title Consent Determination, the first in south-eastern Australia. It is a federally recognised authority to speak on behalf of the Wotjobaluk peoples, the Prescribed Body Corporate for the Wotjobaluk claim area, as outlined in the Native Title Act, and a Registered Aboriginal Party under the Act.

Community support for the proposal

The balanced approach of some Council members elected by the College of RAPs, with retention of some Ministerial appointment to allow positions for representation from areas without a RAP appointment, was largely supported by the Traditional Owner and Heritage sectors submissions received.

A Traditional Owner Organisation submission stated that it:

“supports the proposal to amend the Act to allow at least five of its eleven members to be appointed by the RAP’s themselves.”

Whilst a Heritage – Business sector submission identified that:

“Aboriginal people and (Traditional Owner) representative bodies, not currently recognised as a RAP or affiliated with a RAP, should continue to have access to representation on the Victorian Aboriginal Heritage Council (VAHC). This appears to be considered and possible with the proposed changes.”

However, one submission from the Building and Development sector criticised the proposal on the grounds that it would not ensure sufficient transparency in the RAP appointment process. Furthermore, several parties criticised the proposed ‘College of RAPs’ electoral body and sought individual RAP representation.

UNDRIP

This recommendation 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.”

Best practice standards in Indigenous cultural heritage management

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 Indigenous Cultural Heritage (ICH) aspects any proposal that will affect that heritage.”


Proposal Two

Expansion of the Legislative Functions of a Registered Aboriginal Party.

“This is about sovereignty. They’re a local government Council and we’re a Council of Traditional Owners. We acknowledge their responsibilities, but they don’t acknowledge ours. And it’s not just us, the RAP, they don’t acknowledge Aboriginal People most of the time either.”

Issue

People who are not representative of inclusive and representative Traditional Owner Aboriginal Corporations are speaking for Aboriginal Cultural Heritage.

Background

The legislative functions of a RAP mainly relate to the technical aspects of managing Aboriginal Cultural Heritage, such as 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 DPC] (Secretary) and (Victorian Aboriginal Heritage) 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.”

Proposal

That the current legislative framework to be expanded to encourage increased government engagement and consultation with RAPs on Cultural Heritage matters relating to both tangible and intangible Aboriginal Cultural Heritage. In particular, 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). 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 RAP’s voices as the primary source of advice to government on other Aboriginal affairs in their registration area.

This proposal 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. The actual amendments would constitute the following:

  1. Legislating that RAPs need to be the Minister’s primary consultant on all matters relating to Aboriginal Cultural Heritage in the registration area.
  2. Legislating that LGAs need to build a close relationship with their relevant RAP(s) and that RAPs need to be their primary consultant on all matters relating to Aboriginal Cultural Heritage in the LGA area.
  3. Legislating that both State and local government should be directed to consult with RAPs on matters of intangible Aboriginal Cultural Heritage as well as tangible Aboriginal Cultural Heritage.
  4. Legislating that both State and local government should be directed to consult with RAPs on matters relating to other Aboriginal affairs in their registration area beyond Aboriginal Cultural Heritage.

Consideration

RAP expertise and ability

Key criteria for registration as a RAP include expertise in Cultural Heritage management and organisational sustainability. No RAP application is approved by Council without extensive scrutiny on these matters. Several groups criticised this proposal on the basis that RAPs do not have the expertise or capability to carry out increased functions. Council believes that this opinion is formulated upon an incorrect understanding of the competency of existing RAPs.

For example, established RAPs employ an extensive staff that may include Heritage Unit Managers, Heritage Advisors, Heritage Bookings Officers, Elders, Cultural Heritage Officers, Compliance Officers, anthropologists, research assistants and other employees. Although not all RAPs commence operations with access to a large staff or considerable resources, Council has observed the strong ability of RAPs to grow their organisational capacity in line with industry demands. Council is confident that RAPs will be able to fulfil any new legislative functions that arise as a result of Proposal 2.

Furthermore, if Proposal 3 (following) is passed, RAPs may not be obliged to perform every single legislative function from the time of their registration. This will enable RAPs to establish themselves in the industry before taking on certain responsibilities that they may not yet be able to complete.

Responsibilities outside Cultural Heritage

Since the establishment of the first RAPs in 2007, their responsibilities and expertise have grown to a point where many are able to act as representatives of the Traditional Owners 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 source of advice to government on other Aboriginal affairs in their registration area.

However, Council recognises that legislating for RAPs to assume an advisory position on matters such as health, housing and social services may be outside the objectives of the Act. Council commits to investigating this matter further

Submission response to the proposal

“This will assist RAPs to establish commercial enterprises and related training and employment opportunities from a strength-based development approach rather than the current risk-based approach which is predicated on the management of tangible heritage.”

Federation of Victorian Traditional Owner Corporations

The Federation is the Victorian state-wide body that convenes and advocates for the rights and interests of Traditional Owners while progressing wider social, economic, environmental and cultural objectives. We support the progress of agreement-making and participation in decision-making to enhance the authority of Traditional Owner Corporations on behalf of their communities.

Community support for the proposal

Council wishes to note the strong support that this proposal received in relation to its subproposals to legislate for stronger relationships between RAPs and local LGAs. Importantly, RAPs and LGAs made some of the more vocal submissions on this issue. A Traditional Owner organisation stated that it:

“Supports the expansion of the legislative framework to encourage greater and more meaningful engagement to occur between RAPs and other stakeholders including but not limited to Local Government.”

Whilst another said that it:

“Strongly agrees that RAPs should have primacy regarding matters related to our cultural heritage within local government areas.”

A submission from the LGA sector identified that:

“This would benefit local governments by providing specific obligations that local governments have to their relevant RAP(s).”

The above submissions demonstrate that both RAPs and LGAs (urban and rural) have a strong support for increased collaboration. They indicate that this proposal could have highly desirable outcomes for the parties that it affects most. This type of support exemplifi es that communities are welcoming of the stronger relationships that the suite of amendments could introduce.

Whilst most submissions supported this proposal, some organisations believed that RAPs may not have sufficient capacity to carry out increased legislative functions. It is diffi cult to appreciate that currently the Act has capacity to support an approach that fundamentally questions the expertise of Traditional Owners in their own Cultural Heritage.

A notable submission from the Building and Development Sector stated that:

“It would be irresponsible and unprecedented to provide such legislative advocacy power to a group where such a group does not have the requisite skill, knowledge or expertise to provide opinions.”

Furthermore, several submissions specifically raised concerns that RAPs may not have the expertise to consult on matters outside the ambit of Aboriginal Cultural Heritage as proposed in sub-proposal 4 and that to legislate on such an area may be outside the objectives of the Act.

UNDRIP

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.”

Best practice standards in Indigenous cultural heritage management and legislation


This recommendation should be considered in relation to Best Practice Standard 4 – Definitions:

“Definitions should recognise that an essential role of ICH is to recognise and support the living connection between Indigenous Peoples today, our ancestors and our lands.”


Proposal Three

Enabling Council to approve Registered Aboriginal Party 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.

Proposal

This proposal 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 CHMPs, its appointment could be subject to the condition that for the fi rst 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 effi cient 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 proposal 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.

Proposal 3 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 proposal 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 proposal

“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

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).

Submissions to the discussion paper

This proposal 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 staff ing resources are fundamental to the process.”

Notably, one Traditional Owner organisation submission identifi ed 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 financial 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 sufficient 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

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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 7 – Resourcing, participation:

“There must be acceptance that the Indigenous representative organisation engaging with proponents and assessing their proposals are performing a statutory function under the relevant jurisdiction’s project assessment and approval regime and must be adequately resourced to perform this function.”


Proposal Four

Registered Aboriginal Party preparation of Cultural Heritage Management Plans.

“This is our Country. Our mob speaks for our Country, that is our inherited responsibility as Traditional Owners. Our Ancestors did not draw a line between responsibilities for Lore and responsibilities for Culture and nor do we. Our Country, our Culture, our Responsibility.”

Issue

Aboriginal Cultural Heritage is insufficiently protected by CHMPs due to the absence of Traditional Owner involvement during the development stage.

Background

Currently, the responsibility of preparing a CHMP lies solely with Heritage Advisors (HAs). This gives HAs control over the preparation of CHMPs. Meanwhile, the role of RAPs in the CHMP process is to consult with the Sponsor of the CHMP (Sponsor) and participate in any required fieldwork, throughout the preparation of the plan. All consultation with the RAP is usually undertaken by the HA on behalf of the Sponsor. At the conclusion of this process, RAPs have the authority to approve or refuse the CHMP.

Proposal

That section 58 be amended to allow a Sponsor to engage RAPs to assist in the preparation of CHMPs that relate to activities within their registration areas, as an alternative to HAs.

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.

By comparison, in the Northern Territory the consultation and approval of the CHMP equivalent is done within the one government agency. The Aboriginal Areas Protection Authority (AAPA) is a statutory body mainly composed of Aboriginal custodians of sacred sites that is commissioned by the Northern Territory Aboriginal Sacred Sites Act 1984 (NTASSA). If a person proposes to use or carry out work on land in the vicinity of sacred sites, they are obliged to apply to the AAPA for an “Authority Certificate” under section 19B of NTASSA. The AAPA then must consider a range of relevant issues and must decide whether to issue an Authority Certificate under section 22. Therefore, Traditional Owners are positioned as both the primary consultants and preparers of the Authority Certificate application, and the primary approval body. This is a viable model that could be followed in Victoria.

As long as the Act maintains the two-party relationship between Sponsors as proponents of the CHMP, and RAPs as the preparers and approval bodies of the CHMP, there is no reason to suggest that the role of the third-party Heritage Advisor could not be omitted in certain circumstances.

Consideration

Strategic basis and alignment with the intention of the Act

Self-determination underpins the Act and is clearly identified in its purpose ‘to empower Traditional Owners as protectors of their Cultural Heritage on behalf of Aboriginal People and all other peoples.’

This purpose provides a strategic basis for the introduction of provisions allowing RAPs to participate more fully in Cultural Heritage management processes. This would be enabled through their engagement of HAs to prepare CHMP’s, empowerment to determine who works on their Country and is who entrusted with the recording of their Heritage.

The proposed amendment provides greater opportunity to meet the intended legislative objective and better acknowledges the expertise and skillset existing within the RAPs. As well as providing an economic opportunity for RAPs to leverage that skillset.

Potential conflict of interests

The proposed amendment will maintain the two-party relationship between Sponsors as proponents of the CHMP, and RAPs as the preparers and approval bodies of the CHMP. In this way, potential for confl ict of interest is obsolete. There is no reason to suggest that the role of the third-party HA could not be omitted.

As identified, the Northern Territory provides an existing and viable model that could be followed in Victoria.

Considering this model, the proposed amendment could prescribe relevant considerations and thus provide a transparent and accountable process for decision making.

Whilst concern was raised regarding dispute resolution, in the Victorian context the Victorian Civil and Administrative Tribunal (VCAT) is a well placed to resolve any dispute arising between the approval body and proponents. As such, this concern does not negate the benefits greater RAP participation would have in furthering self-determination and empowerment of Traditional Owners in managing their own Cultural Heritage on Country.

Submission response to the proposal

“RHSV support provision in the Act for an increased involvement of RAPs in preparation of CHMPs in relation to activities within their registration areas, with provision for both independent tribunals and alternative dispute resolution procedures in cases of conflict of interest and interpretation of heritage.”

Royal Historical Society of Victoria

Formed in 1909, the Royal Historical Society of Victoria is the centre of Victoria’s non-Aboriginal history movement, with nearly 1,000 individuals and 350 local historical societies as members. We are the peak body for those local historical societies and heritage groups.

Community support for the proposal

Most submissions supported this proposal and acknowledged its value in furthering self determination.

A Traditional Owner organisation details that:

“The heritage advisor industry received a combined $42.71 million from CHMP preparation fees in 2010 -2011. Prior to the introduction of the AHA 60 cultural heritage advisors operated in Victoria; as at October 2022, there are over 300 cultural heritage advisors registered with Aboriginal Victoria. Traditional Owners are largely excluded from the economic benefits that this industry stimulates. We support the empowerment and recognition of Traditional Owners as the keepers and knowledge holders of Aboriginal cultural heritage and agree that the AHA be amended to allow for Sponsors 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.”

However, some industry groups advocated for maintaining the status quo, expressing concern regarding potential conflict of interests and credibility of the Cultural Heritage assessment industry.

A Building and Development Sector origination noted that:

“There should be a separation between the functions of preparing a CHMP and the statutory evaluation of a CHMP. Having one agency to do both potentially exposes the process to risk and potential conflict of interest particularly for the RAP.”

UNDRIP

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 aff ecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 6 – Process:

“The role of ICH in the process of consideration of development proposals in a jurisdiction is important. So, to is the process of consideration of the management of ICH in the context of a specific proposal.”


Proposal Five

Registered Aboriginal Party Veto Power in relation to Cultural Heritage Management Plans.

“Don’t kid yourself. We’re managing destruction, not protecting heritage, when we approve a CHMP. There has to be a way that we can say: ‘No, this is too important a place to tens of thousands of generations of my old people, you can’t put a drain there’.”

Issue

Traditional Owners have no capacity to stop harm to Aboriginal Cultural Heritage.

Background

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 section 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 important Cultural Heritage.

Under these current provisions of the Act in Victoria, destruction like that of Juukan Gorge in Western Australia, would be permitted as minimisation of harm could be argued.

Proposal

That the Act be amended to allow RAPs a veto power over CHMPs that threaten harm to Aboriginal Cultural Heritage.

This would be in accordance with section 1(b) of the Act, which states that a purpose of  the legislation is to empower Traditional Owners as protectors of their Cultural Heritage. It would also accord with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that Indigenous peoples have the right to maintain, control, protect and develop their Cultural Heritage.

Victoria would not be the first jurisdiction in Australia to introduce a provision of this kind. Section 10(f) of NTASSA gives the AAPA the function to refuse to issue an Authority Certificate it believes that there is a threat of harm to sites of Cultural Heritage significance. Developers are then unable to carry out activities without this Authority Certificate. They are also unable to apply again for that same Authority Certificate, except with the permission in writing of the Minister. Allowing RAPs in Victoria this same authority would enable them more control over the management of their Cultural Heritage.

As a community-based member organisation, we are not part of government and work with partners to deliver our mission to “inspire the community to appreciate, conserve and celebrate its diverse natural, cultural, social and Indigenous heritage.”

Consideration

Veto power provides greater protection from harm and greater alignment with the prescribed functions of a RAP

Section 148 of the Act contemplates the functions of a RAP, including “to act as a primary source of advice and knowledge for the Minister, Secretary and Council on matters relating to Aboriginal places located in or Aboriginal objects originating from the area for which the party is registered”. It is therefore notable that RAPs across the State are reporting that, in the course of CHMP approval process, the application of section 61(b) means that Sponsors have the power to argue that an activity must still go ahead despite the threat of harm to Aboriginal Cultural Heritage and despite the RAP’s advice to protect and manage their cultural heritage differently.

RAP’s are finding that the approval process, as it currently stands, is less focused on protecting Aboriginal Cultural Heritage. RAPs are often placed in a diffi cult position very much at odds with the purpose of the Act and stated function of RAPs, having to approve CHMPs that still cause harm to their Cultural Heritage in a manner that they do not find acceptable. A veto power would allow RAPs to refuse to approve a CHMP where harm to Aboriginal Cultural Heritage is considered too great, and in contradiction to the requirement to care for Country.

Notably, the veto power would be enlivened when certain conditions are met and would best be applicable to all stages of a CHMP, given that continuing assessment in the circumstance where a veto threshold has already been met will result in harm to Aboriginal Cultural Heritage.

Furthermore, conferring such a power is considered an appropriate refl ection of the RAP’s function as primary knowledge holder and custodians over the Country to which they are registered and again align the Act better with self-determination principles.

This issue of certainty

The Northern Territory’s regime strikes the balance between providing protection and certainty. This is done by the AAPA offering certainty to developers by providing adequate information about places that do require protection.

Whilst a veto power in the form of an authority may introduce in level of initial uncertainty, it does not outweigh the longstanding benefits of certainty delivered that the project once approved will not cause harm to sites of signifi cance and will not face longstanding challenges and subsequent longstanding uncertainty that the current system creates.

Submission response to the proposal

“We strongly support the consideration of veto powers in relation to CHMPs, recognising that the current threshold under Section 61 of the Act, which requires CHMPs to consider “whether the activity will be conducted in a way that minimises harm to Aboriginal Cultural Heritage”, can facilitate approvals resulting in the destruction of cultural heritage, with Registered Aboriginal Parties powerless to prevent it. We note that providing veto powers would more closely align with the purpose of the Act to “empower Traditional Owners as protectors of their Cultural Heritage”, as well as Article 31 of the Declaration.”

National Trust of Australia (Victoria)

Since 1956 the National Trust of Australia (Victoria) has been actively conserving and protecting our heritage for future generations to enjoy. We are an independent non-profi t charity organisation and the leading operator of house museums and heritage properties in the state.

Community support for the proposal

The proposal was in majority supported by submissions from across the community.

A Traditional Owner organisation said that:

“For RAP’s to have full functions under the Act they must have powers to veto in matters where highly significant Aboriginal Cultural Heritage is under threat of harm or possibly destroyed.”

Another identified that:

"Veto power would introduce a degree of certainty to the protection of the Aboriginal Cultural Heritage. The amendment would allow Traditional owners to stop harm on aboriginal heritage as opposed to managing destruction after it has taken place."

Whilst a Local Government sector submission stated that:

“The Act should be amended to allow RAPs a veto power over CHMPs that threaten harm to Aboriginal Cultural Heritage. It would make sense to intervene/identify the potential for harm at the preliminary stages of a CHMP preparation process.”

Some Building and Development sector submissions were concerned that a veto power would introduce a degree of uncertainty in the assessment process required for investment in infrastructure. Whilst others, expressed the view that such a power of selfdetermined control over their own Cultural Heritage was inappropriate for RAPs to hold.

A notable submission from this sector articulates a common thread through the sectors submissions that Traditional Owners are not authorities of their Cultural Heritage and should not be entrusted with management processes and approvals.

"The function of a RAP…is to act as an advisory and evaluation mechanism. It is not appropriate to provide veto powers to such a body. These functions should remain to be determined by appropriately qualified Heritage Advisors."

Whilst another from this sector explains that destruction of Aboriginal Cultural Heritage is just ‘the cost of doing business’.

“The veto option as described in the discussion paper focuses upon current approval provisions and these could be amended to meet the requirements of both industry and Aboriginal Peoples. The ubiquitous nature of heritage and the fact that all heritage is significant means that it is not possible to undertake development in Australia without the risk of some impact on cultural heritage.”

Support was also expressed by Traditional Owner organisations for the power of veto to apply in the preparatory stages of the CHMP process. Particularly in the event the threshold for veto was met in those stages and to better align the Act with the UNDRIP.

“… veto power should be extended and or included as part of CHMP preparation, so that no harm to heritage is caused during the preparation of a CHMP.”

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.”


Theme Two

Increasing the autonomy of the Victorian Aboriginal Heritage Council.

The Victorian Aboriginal Heritage Council is unique in Victoria as a statutory authority with membership of only Victorian Traditional Owners. Members have knowledge and experience of Aboriginal Cultural Heritage and strong governance experience and leadership at a state level.

The establishment of Council enables self-determination in its registration of inclusive and representative Traditional Owner Aboriginal Corporations to speak for their Country and Culture on Country.

The failure of the Council to realise true autonomy from government, since its creation in 2006, has been a great disappointment in realising the self-determination benchmark set by the Declaration. 


Proposal Six

Transferring responsibility of the Register from Aboriginal Victoria to the Aboriginal Heritage Council.

“It must be hard for other people to understand the impact of government controlling what we can and can’t say is our own culture. My mum’s still with us and she grew up classified as ‘not’ an Australian by the government and they’re still classifying us.”

Issue

Significant registration delays have created obstacles for Traditional Owners trying to protect their Cultural Heritage.

Background

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. AV staffs’ views on what is appropriate for Registration can often conflict with those of both Traditional Owners and HAs, meaning that what appears on the Register is not always representative of the views of Traditional Owners.

Proposal

That the Act should be amended to transfer responsibility of the Register (including Registration of both tangible and intangible Heritage) to Council.

Section 1(b) states that 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.

Section 144A(a) states that a main purpose of the Register is for Victorian Traditional Owners to store information about their Cultural Heritage. It follows on from this notion that Victorian Traditional Owners should be the group that actually stores the information on the Register. As Council is composed solely of Traditional Owners, they are the most suitable authority to oversee the storing of this information.

In practice, the transfer of responsibility of the Register would result in the current staff who monitor and maintain the Register having their operations transferred to the Offi ce of the Victorian Aboriginal Heritage Council (OVAHC). There, they would report to and be overseen by Council to ensure that Traditional Owners had oversight over the Registration process and the ongoing maintenance of the Register.

Submission response to the proposal

“The Act should be amended to transfer of responsibility for the Victorian Aboriginal Heritage Register from AV to the Victorian Aboriginal Heritage Council as this would be an important and appropriate acknowledgement of the role of Traditional Owners as custodians of Aboriginal Cultural Heritage.”

Dr Katie O’Bryan
Faculty of Law, Member, Castan Centre for Human Rights Law

The Castan Centre is a world-renowned academic centre using its human rights expertise to create a more just world where human rights are respected and protected, allowing people to pursue their lives in freedom and with dignity. The Centre’s innovative approach to public engagement and passion for human rights are redefining how an academic institution can create important and lasting change. Dr O’Bryan is a lecturer in the Faculty of Law and former solicitor in native title, acting for native title claim groups in both Western Australia and Victoria.

Community support for the proposal

Most submissions supported transfer of responsibility. It was generally acknowledged that having control over the Register is perceived as fundamental to Aboriginal self determination and subsequent participation of Traditional Owners in the registration, security and storage of their cultural knowledge and places.

One Traditional Owner organisation stated that they:

“Support the right of Traditional Owners to maintain, control, protect and develop their Aboriginal cultural heritage and agree that Traditional Owners should have greater oversight over the Registration process and the ongoing maintenance of the Register.”

The only submission opposed to the proposal was raised by the Building and Development sector, who stated preference for responsibility for the register to remain with AV. However, no explanation was proffered. Another from this sector was notably not in opposition of transfer of responsibility to Council but that they did not support ‘any change to the Registry’s main functions which is to act as a repository of information.’

UNDRIP

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.”


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.”


Proposal Seven

Amending the procedures for dispute resolution under the Act.

“We’re placed in a situation where we have to defend our inherited, spiritual understandings of the importance of culture to mob and country. We live in the real world and understand that but if we can’t afford to go to VCAT, or find the processes disrespectful, we lose. We should be able to have our say on our Culture.”

Issue

RAPs are unable to meet the significant costs of going to court when their considerations on Cultural Heritage are disputed.

Background

Part 8 of the Act outlines the procedures to be followed when disputes arise regarding Aboriginal Cultural Heritage. These procedures mainly involve applying to VCAT for review of a decision made by a RAP, the Secretary, the Minister or another approval body. Division 1 deals with disputes regarding CHMPs, Division 2 deals with disputes regarding Cultural Heritage permits, and Division 3 deals with disputes regarding protection declaration decisions.

Division 1 is the only one of these three Divisions to provide procedures for alternative dispute resolution (“ADR”). Section 111 outlines exactly which disputes can be subject to ADR under Division 1:

“Dispute means a dispute between 2 or more registered Aboriginal parties, or between the sponsor of a Cultural Heritage management plan and a registered Aboriginal party, 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 in section 111 are therefore the only type of disputes that are eligible for ADR. The specific process for ADR under Division 1 is outlined in section 113(2):

“The Chairperson may…arrange for the dispute to be the subject of mediation by a mediator; or another appropriate form of alternative dispute resolution by a suitably qualified person.”

Therefore, ADR under Division 1 can only be facilitated through mediation or another form of ADR by this external arrangement.

Proposal

This would mean that parties have more options for dispute resolution before applying to Victorian Civil and Administrative Tribunal 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.

These changes can be made in the following 3 ways:

  1. The amendments should expand the types of disputes that are eligible for ADR under the Act beyond the one type that is outlined in section 111. For example, the meaning could be expanded to include disputes regarding Cultural Heritage permits and disputes regarding protection declaration decisions. Ideally, it would include all disputes that arise under the Act.
  2. The amendments should expand the parties that are eligible for ADR under the Act beyond RAPs and Sponsors. For example, ADR could be arranged for disputes between RAPs and other non-RAP Traditional Owner groups.
  3. The role of Council in the ADR process should be expanded beyond arranging the dispute to be the subject of external ADR. Council should be the initial body that facilitates disputes arising under the Act, as an alternative to external mediators. The facilitation would likely occur through the OVAHC. This proposal would be in line with Council’s statutory function “to manage, oversee and supervise the operations of registered Aboriginal Parties” set out in section 132(2)(ch) of the Act. It would also be in line with the new “Complaints Against RAPs” and “Imposition of Conditions” Policies, which outline a more structured process for the way that Council deals with complaints and disputes relating to RAPs. If the parties did not wish for Council or the OVAHC to facilitate the mediation of their dispute, then they could elect for external mediators to facilitate it.

These amendments would ensure that there are more formal options and processes that are available to more parties in regard to 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. 

Considerations

Parties have more options to resolve disputes, alleviating VCAT case load VCAT is Australia’s largest and busiest tribunal. As the Act currently stands it provides no other form of dispute mechanism than to go directly to VCAT which is both costly and time consuming for all involved. These amendments would ensure that there are more formal options and processes that are available to parties in regard to disputes that arise under the Act.

Furthermore, the proposal to expand the use of ADR as the primary mechanism for the resolution of any dispute arising under the Act, would reduce caseload and be of benefi to parties by reducing costs and increasing efficiency of VCAT processes.

ADR Increases engagement with the RAP

The concern that ADR processes would divert Sponsors away from the RAP is alleviated by the process of ADR itself, which relies on the parties coming together to reach agreement. It would therefore encourage Sponsor’s to work closely with the RAP at first instance because, if an ADR process is employed, they will still be engaging with the RAP. Through the ADR process though, discussions will be mediated/ or facilitated with a third-party present and an externally imposed structure and timeframes. Although this may be more efficient than VCAT, it will still be less efficient than negotiating with the RAP directly. It is considered that this alone will provide a large enough disincentive for Sponsor’s to circumnavigate the RAP.

Engaging skilled, trained independent mediators and facilitators through a Traditional Owner led and designed dispute resolution process

The facilitation involved in ADR methods, such as mediation, would likely occur through the OVAHC. They would either staff trained mediators or, alternatively, engage and manage independent facilitated mediation and discussions.

If the parties did not wish for Council or the OVAHC to facilitate the mediation of their dispute, then they could elect for external mediators to facilitate.

The Council as a Traditional Owner led statutory authority, independent of the process, is best placed to conduct and/or facilitate ADR between RAPs and other non-RAP Traditional Owner groups. This would mean dispute resolution processes are designed and managed by Traditional Owners for Traditional Owners and better align Cultural Values.

Increasing Council’s status as the peak body representing Traditional Owners in Victoria

The proposal would provide Council more authority in the dispute resolution process, therefore increasing their autonomy and status as the peak body representing Traditional Owners in Victoria. Where a party is a RAP, the proposal would also be in line with Council’s statutory function “to manage, oversee and supervise the operations of registered Aboriginal Parties” set out in section 132(2)(ch) of the Act.

Submission response to the proposal

“Alternative dispute resolution is a valuable tool in any statutory environment. From our experience, mediation and similar options work well when undertaken by parties independent of the process.”

Strathbogie Shire Council

The Strathbogie Shire Council oversees a vibrant and progressive rural municipality located approximately two hours from the Melbourne CBD along the Hume Highway. We have diverse and picturesque communities served by townships such as Euroa, Nagambie, Violet Town, Avenel, Longwood, Ruffy and Strathbogie with a population of approximately 10,000.

Community support for the proposal

The proposal to introduce greater use of ADR was widely supported. One Traditional Organisation submission noted that:

“RAPs are unlikely to be as well-resourced as proponents to pursue matters through the Court and mechanisms should be enlivened that would mitigate the RAP’s costs and see disputes mediated in a manner that accords more with, and is respectful of, Aboriginal law and custom as opposed to mediation through VCAT, where the RAP is already at a disadvantage due to VCAT ’s limited interaction with Cultural Heritage matters, and Traditional Owners more generally, and extensive experience in dealing with developers.”

Notably, one Traditional Owner organisation submission expressed desire for:

“Further details around the capacity and expertise of the Council to undertake this role.”

And another from this sector, whilst supportive, raised that:

“The main concern with this proposal is an increase in the reliance on external ADR rather than coming to the table directly with the RAP. If ADR is to be listed as the primary mechanism for dealing with disputes regarding CHMPs there needs to be an appropriate threshold for entry into the program.”

A submission from the Heritage – Business sector identifi ed that:

“Enabling the Council or its off ice to facilitate a dispute resolution option subject to the agreement of both parties appears reasonable and would not negate the options for external mediation or further legal action.”

And another from this sector was the only opposing submission expressing the view that it:

“does not believe that Council members should have a role to play in mediating disputes… to ensure fairness for all parties and efficacy in the process, a mediator must be an independent party to the mediation and is engaged to assist the parties.’

UNDRIP

This issue should be considered in relation to 18:

“Indigenous peoples have the right to participate in decision-making in matters which would aff ect 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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 8 – Resourcing compliance and enforcement:

“Wherever possible, affected Indigenous communities should be adequately empowered and resourced to undertake necessary compliance and enforcement functions.”


Proposal Eight

Amending the prosecution powers.

“There’s no punishment, no comeuppance for destroying our sacred places. So, if making money’s your only interest, why would you bother to work with us?”

Issue

There is no prosecution and so no disincentive for destruction of Aboriginal Cultural Heritage.

Background

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].”

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.

Proposal

That the rights and responsibilities of prosecution be moved from DPC (as delegated by the Secretary) to the Council so that it can prosecute as a statutory authority on its own behalf. Other statutory authorities, such as the Environmental Protection Agency and the Royal Society for the Prevention of Cruelty to Animals, have prosecution powers. 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. Infringement notices enable offences to be dealt with without a court. 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. AV has often taken a cautious approach to prosecution. RAPs often expend large amounts of time and resources on gathering evidence for potential offences yet are not closely involved in AV’s investigation process. However, 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.

Consideration

Shifting responsibility will lead to increased protection for Aboriginal Cultural Heritage

Legislation is only as effective as it is enforceable. Since the introduction of prosecutorial rights and responsibilities in 2016, there has been a negligible number of prosecutions.

As stated by a Traditional Owner organisation:

“Infringement notices should be issued when: Harm to cultural heritage has been caused outside what is permissible in an approved CHMP/CHP; the Sponsor has not adhered to a condition or contingency; and a CHMP/CHP has not been prepared when one is required.”

In turn, this would have a denunciating and deterrent effect to encourage increased compliance with the Act.

Shifting responsibility from the Secretary to the Council aligns with self-determination and the intended purpose of the Act.

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.

Notably, a Heritage – Policy submission also supported the proposal and proposed further transfer of powers to the Council stating:

“although not one of the proposals in the discussion paper, the Victorian Aboriginal Heritage Council should also be given the power to make protection declarations under Part 7 of the Act.”

Infringement notices provide sanction for harm to Cultural Heritage without burdening the courts

Offences against the Act result in harm to Aboriginal Cultural Heritage, which is harm against the interests of RAPs and Traditional Owners and the general public.

One Heritage – Business sector submission identified that:

“an infringement notice could be issued where there has been a contravention of the Act that requires a more formal sanction but where the matter may be resolved without legal proceedings.”

Notably, this would create required protections swiftly and expediate the level to which offences under the act are taken seriously as well as alleviating the burden that the current system places on RAPs, the Director of Public Prosecutions (DPP) and the court system.

Submission response to the proposal

“Increasing powers to the Aboriginal Heritage Council by transferring some of the Secretary functions will increase and strengthen their autonomy to align with RAP’s and Victorian Aboriginal community views and aspirations.”

Gunaikurnai Land and Waters Aboriginal Corporation

Gunaikurnai Land and Waters Aboriginal Corporation represents Traditional Owners from the Brataualung, Brayakaulung, Brabralung, Krauatungalung and Tatungalung family clans, who were recognised in the Native Title Consent Determination, made under the new Traditional Owner Settlement Act 2010, the first such agreement under that Act. It is the Registered Aboriginal Party for the Gunaikurnai claim area under the Aboriginal Heritage Act, 2006 and has a membership of more than 600 Traditional Owners.  

Community support for the proposal

Whilst one Building and Development sector submission called for more evidence that existing powers to prosecute were not being used appropriately, the proposal was widely supported by submissions. Overwhelmingly, Traditional Owner organisations expressed views aligning with this one, that this proposal:

‘Allows the interests of the Traditional Owners to beheld higher and specifically than those of potentially politicised industry. Traditional Owners can now enforce or prosecute actions and actively protect heritage and customs as necessary.’

Industry bodies, local government authorities and Traditional Owner organisations supported the proposal in principle though some submissions also expressed that adequate training and resourcing would be necessary. For example, one Traditional Owner organisation said:

“for this responsibility to be successful, it needs to be properly resourced”;

and a LGA sector submission stated that:

“Changing the responsibility of prosecution should only be done with clear parameters and policies around how these powers will be enacted. Due consideration of what sort of enforcement will be undertaken should be made to ensure that the application of any prosecution powers is done in a balanced and consistent manner.”

UNDRIP

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 eff ective 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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 8 – Resourcing compliance and enforcement:

“Wherever possible, affected Indigenous communities should be adequately empowered and resourced to undertake necessary compliance and enforcement functions.”


Proposal Nine

Extension of Chairperson terms.

“When you’re trying to develop relationships and really connect with people, to make a difference through education, it’s almost impossible in under a year.”

Issue

There are concerns about management of stakeholder relationships and the stability of Council due to the Council Chairperson and Deputy Chairperson one-year terms.

Background

Under section 138 of the Act, the Councils Chairperson and Deputy Chairperson, “hold office for one year; and are each eligible for re-election for two further terms of 1 year.”

Proposal

That the Act be amended to extend election terms to two years. The current system of one-year leadership terms is unworkable. Longer terms 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.

Consideration

Four-year term most appropriate

Currently, both the Chairperson and the Deputy Chairperson are only eligible for terms of one year at a time. As outlined by this proposal, and supported by Traditional Owner organisation submissions, short leadership terms can be disruptive.

While it can be urged that longer terms can enhance confidence, 4-year terms (as opposed to 6) would enable a good balance between stability of leadership and development/strengthening of relationships with all of Council’s stakeholders. It would also allow room for progression and the flow of new ideas, diverse views and skill sets.

Submission response to the proposal

“AACAI supports the proposal to extend the term of the Chair and Deputy of the VAHC. No precise determination has been made on timing, however in principle it could align to the terms for ‘local government’, currently 4 years.”

Australian Association of Consulting Archaeologists Inc. (AACAI)

The AACAI is an organisation for professionals working in all fields of contract and public archaeology. As the professional association for consulting archaeologists in Australia, it develops best practice in this field, promotes training and communication and provides support for its members. The Association liaises with Traditional Owner groups and other stakeholders and influences policy and decision makers to protect and manage cultural and historical heritage in this country. It is affiliated with the Australian Archaeological Association Inc and is a Foundation Member of the Council for the Humanities, Arts and Social Sciences.

Community support for the proposal

Most submissions had no comment on this proposal or supported it with no further or alternative suggestions. The general view was that the extension of the Chairperson’s term is fitting, and that the overall term for a Chairperson and Deputy Chairperson being restricted to four years is appropriate.

However, the following notable suggestion was received from a Heritage – Policy sector submission:

“Terms of appointment should be extended by 3 years (not 2). This would be in line with the current 3-year term of appointment of Council members generally. Consequently, eligibility for re-election should be limited to once, i.e. the total amount of time a Council member could hold either of those offices would be six (6) years.”

UNDRIP

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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 6 – Process:

“The role of ICH in the process of consideration of development proposals in a jurisdiction is important. So, to is the process of consideration of the management of ICH in the context of a specific proposal.”


Proposal Ten

Empowering Council to employ its own staff.

“If they [Council] are appointed by the Minister and have government staff who are giving advice to them as well as to AV and the Minister; then they’ve all got to be singing from the same hymn sheet don’t they? They’re lapdogs aren’t they?”

Issue

The self-determination and autonomy of Council is significantly compromised as it is unable to control its own staff and their work.

Background

Currently, the OVAHC is a branch of AV. Therefore, all its staff members are employed through DPC. It has been a long held perception in the community that Council is a government entity, as Council’s budgeted work is approved by AV, it has no control over the Aboriginal Cultural Heritage Fund or the Register, and Council members are appointed by the Minister.

Proposal

That the Act be amended to allow Council to employ its own staff. This would be in keeping with principles of self-determination and would provide greater autonomy to Council as an independent statutory authority.

Consideration

Strategic justification or operational benefits for this proposal

With the primary purpose of this proposal being to increase the autonomy of Council, enabling Council to employ its own staff would be an important part of allowing such autonomy. In order to maintain its ability to undertake its functions it is important that Council, as an independent statutory authority, is given powers that allow decisions that impact its operation to be made by it. The strategic justification and operational benef ts of this extend to the ongoing process of enabling and furthering principles of self-determination – in line with the Victorian government’s commitment, and the Act’s purpose of empowering Traditional Owners to meet their social, cultural and economic needs.

Employment based on skill and expertise

Council, as an established statutory body responsible for managing and overseeing multiple functions, would have the ability to adopt a recruitment process that is fair and based on appropriate levels of skill and expertise.

Submission response to the proposal

“The Act should be amended to allow Council to employ its own staff . This would be in keeping with principles of self-determination and would provide greater autonomy to Council as an independent statutory authority.”

City of Melbourne

The City of Melbourne is the capital city of Victoria, and Australia’s second-largest city. The municipality of Melbourne includes metropolitan Melbourne’s innermost suburbs, including the central city. Our municipality is around 37 km2 and shares its borders with seven other councils. The municipality of Melbourne is the gateway to Victoria, the seat of the Victorian Government and the headquarters of many local, national and international companies, peak bodies, and government and non-government agencies.

Community support for the proposal

Most submissions were in support of empowering Council to employ its own staff – with the majority holding the view that this is in line with principles of self-determination.

Criticism of this proposal mainly came from Building and Development, and Heritage – Business sectors. These submissions reinforced the sector’s underlying reluctance to support the principle of self-determination and questioning of the capacity of Traditional Owners to manage their own Cultural Heritage.

“The current arrangements for employment through the Department of Premier and Cabinet are considered appropriate in the absence of any further strategic justification or operational benefits for this proposal.”

“It is to be recalled the Council is a statutory body exercising statutory duties and responsibilities under the Act… It is an imperative decision-makers are employed based on the right skill set leading to robust and considered decision making.”

UNDRIP

This issue should be considered in relation to Article 35:

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

Best practice standards in cultural heritage cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 7 – Resourcing; participation:

“There must be acceptance that the Indigenous representative organisation engaging with proponents and assessing their proposals are performing a statutory function under the relevant jurisdiction’s project assessment and approval regime and must be adequately resourced to perform this function.”


Proposal Eleven

Transfer of various other secretarial functions to the Aboriginal Heritage Council.

“To me, self-determination is our mob making decisions for ourselves. Some secretary of a department of white-fellas can’t really understand.”

Issue

Important Aboriginal Cultural Heritage statutory functions are not being undertaken by Traditional Owners.

Background

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

  1. to take whatever measures are reasonably practicable for the protection of Aboriginal Cultural Heritage
  2. to establish and maintain the Victorian Aboriginal Heritage Register;
  3. to grant Cultural Heritage permits
  4. to approve Cultural Heritage management plans in the circumstances set out in section 65
  5. to develop, revise and distribute guidelines, forms and other material relating to the protection of Aboriginal Cultural Heritage and the administration of this Act
  6. to publish, on advice from Council, appropriate standards and guidelines for the payment of fees to registered Aboriginal parties for doing anything referred to in section 60
  7. to publish standards for the investigation and documentation of Aboriginal Cultural Heritage in Victoria
  8. to manage the enforcement of this Act
  9. to collect and maintain records relating to the use by authorised officers of their powers under this Act
  10. to facilitate research into the Aboriginal Cultural Heritage of Victoria;
  11. to promote public awareness and understanding of Aboriginal Cultural Heritage in Victoria
  12. to maintain a map of Victoria which shows each area in respect of which an Aboriginal party is registered under Part 10, and to make the map freely available for inspection by the public
  13. to maintain a list of all Aboriginal parties registered under Part 10 that includes contact details for the parties, and to make the list freely available for inspection by the public
  14. to carry out any other function conferred on the Secretary by or under this Act
  15. to consider applications for the registration of Aboriginal intangible heritage and make determinations regarding sensitive Aboriginal heritage information. These functions are all carried out by AV in the name of the Secretary

Proposal

That some of the above responsibilities, as well as others outlined in other parts of the Act, should be transferred from the Secretary to the Council. The transfer of some of these functions has already been considered in other proposals in this paper (such as Proposals 6 and 8).

For example, one of Council’s statutory functions is “to manage, oversee and supervise the operations of registered Aboriginal Parties” set out in section 132(2)(ch) of the Act. However, the majority of 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. 

Consideration

While there was concern raised in relation to potential conflict of interest around this proposal and abuse of power, Council underscores that it is governed by strong principles of ensuring that there is no conflict of interest or abuse of power in any of its functions.

Pursuant to section 142 of the Act:
1) If a member of the Council has a pecuniary or personal interest in the subject matter of a decision that is to be made by the Council, the member must—
a) declare his or her interest (including the nature of the interest) to the Council; and
b) take no further part in the making of the decision by the Council.

If a Council member has an interest (personal or pecuniary) in a matter or bias (whether actual or apprehended), they cannot take part in making a decision in relation to that matter. This is to safeguard the validity and legitimacy of Council decisions, ensuring that decisions are made by Council members who are independent from the subject matter of the decision.

The transfer of various other Secretarial functions to the Council aligns with the intended purpose of the Act and principles of self-determination

The various powers that would be transferred under this proposal are in line with the intended purpose of the Act and principles of self-determination. That is, the increase of powers would strengthen the autonomy of the Council to better align with RAPs and empower Traditional Owners to meet their social, cultural and economic needs and aspirations.

With one of Council’s statutory functions being ‘to manage, oversee and supervise the operations of RAPs’, it is fitting that the support functions that underpin this be transferred to Council. This would strengthen the relationship between RAPs and Council and, equally, Traditional Owners.

Response to the proposal

“As a Council of Traditional Owners, we feel it is our responsibility to ensure that our People manage our Cultural Heritage. Whether the responsibilities are held by RAPs or Council, it is essential that statutory responsibilities reflect the principles of self-determination, respecting and supporting Traditional Owner rights and responsibilities.”

Victorian Aboriginal Heritage Council

The Council was created under the Aboriginal Heritage Act 2006 to ensure the preservation and protection of Victoria’s rich Aboriginal Cultural Heritage. With important decision making responsibilities and all eleven members Victorian Traditional Owners, the Council is the only statutory body of its kind in Australia.

Community support for the proposal

Most submissions supported this proposal. One Traditional Owner organisation sector submission stated that it:

“supports the transfer of functions and say that they must include Registry, Enforcement and Compliance and Registration of Intangible Places.”

Whilst another from this sector noted that they are supportive of only the following responsibilities being transferred to the Council. Those to:

  1. facilitate research into the Aboriginal Cultural Heritage of Victoria
  2. promote public awareness and understanding of Aboriginal Cultural Heritage in Victoria
  3. maintain a map of Victoria which shows each area in respect of which an Aboriginal party is registered under Part 10, and to make the map freely available for inspection by the public
  4. maintain a list of all Aboriginal parties registered under Part 10 that includes contact details for the parties, and to make the list freely available for inspection by the public

Significant concern was raised however by one submission from the Heritage – Business sector regarding:

“a conflict of interest and consequent potential for abuse of power and ensuring enforcement is independent.”

UNDRIP

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.”

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.”


Theme Three

Recognising, protecting and conserving Aboriginal Cultural Heritage.

The Act seeks to keep safe Aboriginal Cultural Heritage for Aboriginal Peoples and all Victorians. Whilst some consideration is made for this custodianship to be held by Traditional Owners, the Act can be strengthened to ensure that Aboriginal Peoples hold the statutory responsibilities to speak for all their Culture on Country.

This should be done without the intercedence of non-Traditional Owners in the management of a cultural and spiritual legacy older than the state of Victoria by tens of thousands of years.


Proposal Twelve

Regulation of Heritage Advisors

“As a RAP, we want the behavioural problems of Heritage Advisors addressed. There are shonky people out there actively facilitating the destruction of Culture through bad business practice, ineptitude and general poor regulation.”

Issue

HAs are actively participating in the destruction of Aboriginal Cultural Heritage through inadequate or inappropriate CHMPs.

Background

Section 58 of the Act gives specific responsibility over the preparation of a CHMP to HAs. 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 fi nal CHMP in accordance with the prescribed conditions. HAs therefore have a key role in the protection and management of Aboriginal Cultural Heritage in Victoria.

Sponsors of development activities engage and pay HAs to prepare CHMPs. Whilst Sponsors can be held liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act, there are no consequences for misconduct on the part of the HA. 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.

Proposal

That the Act be amended to create a regulation system for HAs. 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 HAs 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 have been the introduction of non-binding guidelines holding Heritage Advisors to a standard of conduct. These guidelines were produced by Council under their statutory function to publish policy guidelines consistent with the functions of the Council as per section 132(2)(ck) of the Act and published in February 2021. It is hoped that these will 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 HAs themselves. Implementing a system where HAs 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.

Consideration

Financial cost

Naturally, the need to ensure better regulation and training of HAs will reflect a change in projected spending/expenditure. However, with the key aim of the Act (and this proposal) being to ensure respect for Traditional Owners and protection of Cultural Heritage, the benefi ts far outweigh the disadvantages. These advantages also extend to protecting the public from poor practices.

Current regulation by industry specific bodies is not adequate

While the suggestion that industry specific bodies should be able to undertake the  regulation of HAs, there is a need for a better system (including ensuring proper consultation with Traditional Owners) where HAs can be held liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act. Doing this would help to create an industry standard that lifts quality of work and builds stronger relationships for all parties involved in the CHMP process.

Submission response to the proposal

“The current system would be strengthened by ensuring that the accreditation of Heritage Advisors and others that have a statutory role under the Act included formal training in the provisions of the Act, policies and guidelines, and the functions of their role.”

APA Group

The APA Group is a leading Australian energy infrastructure business. We’ve been connecting Australian energy since 2000. From small beginnings we’ve become a  top 50 ASX-listed company, employing around 1,900 people, and owning and operating the largest interconnected gas transmission network across Australia. We deliver smart, reliable and safe solutions through our deep industry knowledge and interconnected infrastructure.

Community support for the proposal

Most submissions support the proposal, with the general position being to support the introduction of non-binding guidelines for the conduct of HAs engaged in the preparation of CHMPs. It was also widely encouraged that HAs should belong to at least one professional association relevant to their field of expertise and be bound by its standards and code of ethics, even in presence of Council’s current non-binding guidelines.

However, some submissions expressed concern at an erroneous proposal that HAs, who had an appropriate standard of expertise, training and experience in working with Traditional Owners and Aboriginal Cultural Heritage in a sensitive and respectful way, would be disadvantaged.

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."


Proposal Thirteen

Compulsory consultation of Registered Aboriginal Parties during the Cultural Heritage Management Plan process.

“Co-design is just a new way of saying working together. It’s always been essential in all projects on Country. If we have input at the start, we can identify problems and make genuinely positive contribution to the project. I know the broader Melbourne based mobs have been involved in some great projects that worked for everyone. Saving Culture, saving time and saving money – for everyone.”

Issue

Sponsors can start preparing a CHMP before a RAP has knowledge of the activity, excluding co-design of the project and putting at risk Aboriginal Cultural Heritage and Values.

Background

Section 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 HAs and begin preliminary discussions regarding a CHMP before a RAP has even been provided with the Sponsor’s Notice of Intention to prepare the CHMP. This means that preparation of a CHMP begins to occur before a RAP has knowledge of the activity. It encourages the development of a relationship between the Sponsors and HAs that omits the interests of Traditional Owners.

Proposal

That the Act be amended to require Sponsors to consult with RAPs from the outset of the CHMP process. This will 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 HA, 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 HAs. Additionally, Sponsors who establish a relationship with the RAP of the area in which they wish to undertake an activity will be able to make an informed decision when engaging a HA.

Consideration

Minimising harm to Aboriginal Cultural Heritage and ensuring accountability

The argument that this proposal will increase complexity in the process has been raised. However, this proposal aims to further minimise harm to Aboriginal Cultural Heritage and ensure accountability – which the current regime does not suffi ciently provide for. It will also ensure that stronger relationships are formed between RAPs, HAs and Sponsors. As the aim of the Act is to ensure RAPs are continuously and adequately consulted with, this proposal would manage enhanced accountability of Sponsors and HAs.

Section 59 of the Act is not sufficient

While section 59 of the Act sets out the obligations between a Sponsor and a RAP during the CHMP process, there is no binding obligation to consult with a RAP during this process. One notable Traditional Owner organisation submission identified that:

“there have been known cases of HAs conducting ‘due diligence’ without the RAP even knowing and, in such circumstances, this allows for HAs to have too much say on Country without the respectful consultation with Traditional Owners.”

Submission response to the proposal

“From our perspective, this proposal is an absolute priority inclusion in any reform package and this should be the main element/centrepiece of the Act for engagement with Sponsors.”

Bunurong Land Council Aboriginal Corporation

The Bunurong Land Council Aboriginal Corporation represents Bunurong Peoples’ rights and interests and manages the statutory responsibilities of the Corporation. The Corporations aims to preserve and protect the sacred lands and waterways of our Ancestors, their places, traditional cultural practices, and stories. Registered as a Registered Aboriginal Party under the Aboriginal Heritage Act (2006) in 2017, their recent experiences in undertaking that significant statutory responsibility for Country inform their support for this recommendation.

Community support for the proposal

Most submissions support this proposal, citing the introduction of stronger relationships and interactions between HAs, RAPs, and Sponsors, as well as sufficient consultation and referral processes.

A Heritage – Business sector submission stated that:

“a compulsory RAP consultation or referral processes for voluntary PAHTs is supported for works within areas of cultural heritage sensitivity, particularly if the PAHT process includes consultation options that are eff icient and eff ective for both RAPs and Sponsors.”

Some submissions expressed concerns at additional layers regarding timeframes and costs that implementation of this proposal may impose but fail to consider the savings to these timeframes if RAPs were involved from the outset of the project.

UNDRIP

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.”


Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 6 – Process:

“The role of ICH in the process of consideration of development proposals in a jurisdiction is important. So, to is the process of consideration of the management of ICH in the context of a specific proposal.”


Proposal Fourteen

Amending the Power of Entry for Authorised Officers and Aboriginal Heritage Officers.

“If someone has our Old People in the shed and they know they’re not supposed to, of course they’re not going to let one of our mob in to check the shed. The thing that keeps me awake at night is the vision that they can just say ‘no, you can’t come in here’ and our Old People can just stay there, on a concrete shed floor under a blanket forever. And there’s nothing we can do about it.”

Issue

AOs and AHOs are inhibited from carrying out their functions, to protect Aboriginal Cultural Heritage, as they are unable to enter land or premises without the consent of the occupier.

Background

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 section 166 of the Act, both AOs and AHOs have a general power to enter land or premises to carry out these functions.

Section 166(2) specifi cally 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.”

Proposal

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

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 Offi cer 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.

Consideration

Currently, AOs and AHOs have powers limited to monitoring compliance with the Act, investigating suspected offences against the Act, and issuing and delivering stop orders - under Part 6 of the Act. These functions cannot be effectively undertaken if the suspected wrongdoer is allowed time to consent and provide access to various places. As such, there are instances that warrant entry to land or premises without the consent of the occupier.

With the primary aim of this proposal being to ensure the recognition, protection and conservation of Aboriginal Cultural Heritage – amending the power of entry for AOs and AHOs would lead to better compliance with archaeological investigations, subsequent management plans, and many other functions.

Submissions from the Building and Development sector erroneously noted there are limited laws that support entry without authority. However, making these amendments would be in accordance with similar provisions for Authorised Offi cers under 55 of the Victorian Environment Protection Act (1970) and part 7.4 of the NSW Protection of the Environment Operations Act (1997).

The submissions from this sector also considered that there are current laws that support the use of a warrant to access various places, thus invalidating the need to have the authority to enter places without consent. While this argument has merit – giving AOs and AHOs this power would enable them to adequately and efficiently carry out their functions. Council underscores that Traditional Owners have a general tenant to uphold the legislation, not try and overextend their rights.

Submission to the response to the proposal

“The Board believes that changes proposed are an important step in meeting the purposes stated in Section 1 of the Act, and by promoting these changes into law they will strengthen the protection of Aboriginal cultural heritage and further empower traditional owners in supporting their culture.”

Dja Dja Wurrung Clans Aboriginal Corporation

The Dja Dja Wurrung Clans Aboriginal Corporation represents the Dja Dja Wurrung Peoples of central Victoria. As our Country’s fi rst people, Dja Dja Wurrung have an established place in society and are empowered to manage our own affairs. Our Recognition and Settlement Agreement (Native Title) is an important milestone for Dja Dja Wurrung people and the Victorian Government now recognises us as the Traditional Owners of this Country and acknowledges the history of dispersement and dispossession that has affected our people. Our Agreement allows for continued recognition, through protocols and acknowledgements and Welcomes to Country, and signage on Dja Dja Wurrung Country.

Community support for the proposal

This proposal received some support, with many holding the view that it would bring a necessary balance between occupier’s rights and the rights of Traditional Owners. However, the general view was that powers of entry should be measured, and that consideration could be made to allow for written notice (or reasonable attempt to contact the owners) to be provided prior to entry – which would maintain the occupiers rights, while still allowing AOs to attend site.

An LGA sector submission noted that:

“the standard of proof in this instance should be beyond reasonable doubt.”

They further noted that:

“…it is far preferable that the Power of Entry be used with occupiers present and with their consent. [We] would therefore support wording that balanced that preference with the need to provide AOs with the practical ability to monitor and enforce compliance with the Act.”

There were a number of negative submissions received around Traditional Owner capacity to undertake this responsibility and appropriate entry to sites with specific HO&S requirements.

There was very strong opposition from one Building and Development sector submission, that noted that they ‘vigorously oppose this legislative change.’ Further (incorrectly) adding:

“There are very few acts or legal instruments allowing authorised off icers to enter land without consent… it would be a disproportionate abuse of power to almost all conceivable breaches of the Act to allow an AO or AHO to enter land without consent. It would also be a breach of the right to privacy under the Charter.”

UNDRIP

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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 8 – Resourcing compliance and enforcement:

“Wherever possible, affected Indigenous communities should be adequately empowered and resourced to undertake necessary compliance and enforcement functions.”


Proposal Fifteen

Amending evidentiary provisions regarding Aboriginal Objects

“The Museums still have our Old People and won’t return them. How can they be trusted to know what is sacred to us? We’re still little typed numbers on a dusty box to them.”

Issue

Council is required to make decisions about the Sacred status of an Aboriginal Object but is unable to certify Objects as such.

Background

Section 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, section 187(2)(e) states the following:

"a) a certificate signed by the Minister to the effect that a person named in the certificate is an authorised officer is evidence of that fact;

b) a certificate signed by the Minister administering the Conservation, Forests and Lands Act 1987 to the effect that land identified in the certificate is Crown land is evidence of that fact;

c) a certificate signed by the Secretary to the effect that a Cultural Heritage permit has not been issued in respect of particular Aboriginal Cultural Heritage is evidence of that fact;

d) a certificate signed by the Secretary to the effect that an entry in respect of particular Aboriginal Cultural Heritage has been made in the Register is evidence of that fact;

e) 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 Sacred.

Proposal

That section 187(2) of the Act be amended to include an additional provision similar to section 187(2)(e). This would enable certifi cates signed by the 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.

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.

Consideration

Provision of certainty regarding Aboriginal Objects and Secret or Sacred Objects

There is currently no mechanism under the Act to determine whether an Aboriginal Object is Secret or Sacred. The proposed amendment allows Council to certify whether an Object is Secret or Sacred and provides greater certainty (for the general public, collectors, museums and Traditional Owners). Such certainty is warranted given then offences outlined in section 33 of the Act.

Drawing on Traditional Owner’s expertise to protect Cultural Heritage and provide certainty

The proposal to allow the Council (an expert and Traditional Owner led statutory authority) to certify Aboriginal Objects as such, appropriately recognises that ownership of Aboriginal Cultural Heritage rests with Traditional Owners. It also appropriately utilises the knowledge and expertise of the Council to better achieve the purpose of the Act, as outlined in section 1(b): “ to empower Traditional Owners as protectors of their Cultural Heritage on behalf of Aboriginal People and all other peoples”.

Subcommittee operations ensure transparency and efficiency

The Council, like many bodies, operates expertly and efficiently by use of sub-committees. In this case, the subcommittee tasked with certification of Aboriginal Objects and Sacred or Secret Objects may make recommendations to the Council for decision or would be delegated aspects of Council’s decision making. Furthermore, any decisions made by subcommittees are Council’s responsibility. Council’s subcommittees operate with transparency as documented by clear terms of reference, circulated meeting minutes and with accountability through their reporting procedures to Council.

Submission to the response to the proposal

“We support the recommendation to amend section 187 (2) to include an additional provision similar to section 178(2)(e) that enables certificates signed by the VAHC to the eff ect that an object referred in the certificate is an Aboriginal or Secret or Sacred Object to be evidence of that fact.”

Federation of Victorian Traditional Owner Corporations

The Federation is the Victorian state-wide body that convenes and advocates for the rights and interests of Traditional Owners while progressing wider social, economic, environmental and cultural objectives. We support the progress of agreement-making and participation in decisionmaking to enhance the authority of Traditional Owner Corporations on behalf of their communities.

Community support for the proposal

This proposal was widely supported across all sector submissions.

One LGA sector submission stated that it:

“considers the Traditional Owners/Custodians of the lands in which certain objects originate, to be in the best position to verify whether items are Aboriginal objects and whether they are secret or sacred. [We] support an amendment that enables certificates to be signed by the Victorian Aboriginal Heritage Council to that eff ect, where that approval process involves relevant Traditional Owners/Custodians. Where there are multiple interests in non-RAP areas (or contested areas), a Sub-Committee should be created that would act as a mechanism to determine specific matters in relation to Secret or Sacred Objects.”

Some concern was raised about how any sub-committee would operate, transparency of decision making and accountability. Additional concerns relating to the need for such certifi cates at all was raised as there is the existing provision for the Museums Board to do so under the Act.

Given the nature of these responses, there is an underlying community concern at the implementation of self-determination in legislation. This is a clear example, where concerns are raised about Aboriginal People making these decisions instead of institutions like Museums.

UNDRIP

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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 9 - Secret and Sacred Objects:

“ICH legislative regimes must acknowledge that property in secret and sacred objects can only legitimately vest in the community of origin of the object and deploy mechanisms to achieve the repatriation of these objects.”


Proposal Sixteen

Introducing civil damages provisions.

“Juukan Gorge is one awful, soul destroying example of destruction. Here, in Victoria, ask any RAP and they’ll give you others that were destroyed on their Country and in the last few years. Something has to change because this system is well and truly broken.”

Issue

The destruction of Aboriginal Cultural Heritage is considered an acceptable risk as there are very few prosecutions.

Background

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

Proposal

That civil damages be introduced for offences against the Act. Introducing civil damages provisions will result in greater compliance for the following key reasons:

  1. Introducing civil damages will urge higher rates of compliance amongst corporations, for whom the possibility of criminal prosecution may be 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. The DPP has strict evidentiary requirements for pursuing legal action, meaning that many suspected offences are not prosecuted. In comparison, the decision to prosecute civil offences would not lie with 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.
  4. The capacity for prohibition of use or development of land for a period of up to 10 years on a site where unlawful destruction has occurred would be introduced. This is to align the Act with the provisions introduced to the Planning and Environment Act 1987 in 2021, that give similar protections for non-Aboriginal heritage. This would also be in line with other provisions of the same Act, that allow for the protection of areas and landscapes with heritage and cultural significance – both Aboriginal and non-Aboriginal. 

Consideration

Key proposal for ensuring compliance

The criticism that civil damages will not encourage higher rates of compliance is made on an erroneous basis. Currently, very few compliance breaches are prosecuted as the threshold ‘beyond reasonable doubt’ is considered too challenging to prove in relation to many offences that harm Cultural Heritage. The implementation of Proposal 16 and the subsequent use of the ‘balance of probabilities’ liability threshold would result in increased liability for breaches of the Act. In turn, this would encourage greater compliance amongst all parties.

Council acknowledges that businesses are deterred by both criminal prosecution and civil liability. For the purposes of this proposal, it is not important to conclude definitively whether criminal or civil liability is a stronger deterrent for corporations who may be liable for harming Cultural Heritage. Proposal 16 is simply aimed at maximising compliance with the Act by ensuring that there are multiple layers of legal responsibility for certain offences. It does this by ensuring that parties will be held liable for civil damages and may also attract the threat of criminal prosecution for certain breaches of the Act.

Nuanced implementation

Council affirms that it will introduce any civil damages provisions with nuance, taking into account the severity and harm of each offence. Although the introduction of civil damages for every offence in the Act would ensure the highest rates of compliance, such a blanket approach will not necessarily be adopted. Council will consider each individual offence and decide whether civil liability is applicable to that offence.

Council confi rms that civil damages would co-exist with potential criminal responsibility for certain offences. Council also confirms that the introduction of civil liability for offences against the Act will not preclude the DPP’s discretion to prosecute potential incidences of criminal liability. The responsibility to pursue legal action for criminal offences will still ultimately lie with the DPP.

Submission to the response to the proposal

“I fully support the proposal to introduce liability for civil damages. I believe we are losing so much significant cultural heritage due to the punishment being worth the risk or cheaper/easier than doing the right thing.”

Helen Kalajdzic, Secretary of the Stanley Park Committee of Management

Helen Kalajdzic is Secretary of the Stanley Park Committee of Management. The land that became Stanley Park was purchased by the community in 1919 and now belongs to the Macedon Ranges Shire Council. The 1983 Ash Wednesday bush fires caused significant damage, leading to massive regrowth of blackberry and broom. Our volunteers meet eight times a year for on-ground works with mainly weed control and revegetation. Additionally, we have a number of partnerships that attend at other times of the year to work on projects. The restoration works have brought back indigenous grasses, shrubs, wildfl owers and maidenhair fern. The park forms a wildlife corridor close to the Macedon Regional Park.

Community support for the proposal

This proposal received widespread support, with several parties noting the importance of ensuring high levels of compliance with the Act. The Traditional Owner organisations sector particularly welcomed the introduction of civil damages provisions as a key priority for reform.

However, one submission from the Traditional Owner organisation sector was critical of the idea that civil damages should be introduced at all whilst some minor concerns relating to the procedural implementation of the amendments were also raised:

“In developing this proposal, it would need to be clarified whether civil damages would coexist in the system with potential criminal charges (with the option of criminal prosecution in particular instances) or whether it would be a change entirely to civil damages with this the only option.”

UNDRIP This issue should be considered in relation to Article 11:
“States shall provide redress through eff ective 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.”
Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 8 – Resourcing compliance and enforcement:
“Wherever possible, affected Indigenous communities should be adequately empowered and resourced to undertake necessary compliance and enforcement functions.”


Proposal Seventeen

Changing the definition of waterways.

“I’ve been in the field where you can you look at a landscape and know there used to be a watercourse there. You also know that there will be stacks of artefacts at several stratigraphic levels. But, there’s no CHMP trigger. So, you just hope that nothing is disturbed and then hope that if it is, someone says something instead of just digging through. I’ve seen that happen. A lot.”

Issue

Aboriginal Cultural Heritage is being damaged and destroyed if it lies on the course of an inactive or unnamed waterway.

Background

Section 26 of the Regulations states that a waterway or land within 200 metres of a waterway is an area of Cultural Heritage sensitivity, unless it has been subject to significant ground disturbance. Section 5 of the Regulations defines ‘waterway’ as the following:

  1. a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998 and includes any artificially manipulated sections; or
  2. a natural channel the name of which is registered under the Geographic Place Names Act 1998 and includes any artifi cially manipulated sections in which water regularly flows, whether or not the flow is continuous; or
  3. a lake, lagoon, swamp or marsh, being –
  •  a) a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into or through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or
  •  b) a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) of the Water Act 1989 to be a lake, lagoon, swamp or marsh.

This definition of waterway means that many waterways in Victoria are ‘unnamed’, so 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.

Proposal

That the Regulations of the Act be amended to expand the definition of waterway to include all courses of water in Victoria, regardless of whether they are:

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

Additionally, all references to the Geographic Place Names Act 1998 should be removed. This would provide proper protection to all areas of Cultural Heritage sensitivity that exist in and around waterways.

Consideration

Many of Victoria’s waterways are not registered under the Geographic Place Names Act 1998, as they are erroneously considered ‘unnamed’. Many ‘unnamed waterways’ are known to locals by a name, have previously been widely known by a name, or were once known by a name which was included in many early surveyors and pioneering maps. The transfer of these names of watercourses to the Department of Environment, Land, Water and Planning (DELWP) managed VICNAMES Register of Geographic Names Victoria (VICNAMES) has not been comprehensive. The named watercourses within the VICNAMES dataset include primary watercourses and, for the most part but certainly not entirely, their tributaries. It seems priority has been given to these watercourses over the vast number of secondary and tertiary watercourses across the State.

The location of the Aboriginal Cultural Heritage along waterways is concentrated, due to our need for water to drink both for ourselves and the animals and plants that are used as food sources. An analysis undertaken in one RAP looked at the proximity of Aboriginal Cultural Heritage Places within the RAP area to fresh water. The analysis identified that of all Aboriginal Cultural Heritage Places in their area, 76.8% of that Heritage was found within 300m of a waterway (named or unnamed). Additionally, it found that 37.18% of places were within 100m and 59.6 % were within 200m. In instances where the waterways are unnamed, this Heritage is not protected.

In the pursuit of comprehensively protecting areas of Cultural Heritage sensitivity associated with all waterways, this proposal is supported by a two-part recommendation.

Removal of the requirement within the Regulations for the name of a watercourse to be registered under the Geographic Place Names Act 1998 would result in any watercourse currently mapped within the Aboriginal Cultural Heritage Register and Information System (ACHRIS), named or unnamed, becoming an area of Cultural Heritage sensitivity. This option is supported by the Registrar of Geographic Names.

Changing this definition would also reflect the fact that watercourses change substantially in size, flow and direction over long periods of time. Many waterways that were formally significant have shrunk in size or have dried up and changed course. They are therefore often unnamed, even though they can still be areas of Cultural Heritage sensitivity.

Submission to the response to the proposal

“I am supportive of ‘Proposal 1’ that all references to the Geographic Place Names Act 1998 are removed.”

Registrar of Geographic Names

Craig Sandy is the Registrar of Geographic Names. Geographic Names Victoria (GNV) provides state-wide advice to Victorian naming authorities and the public about appropriate and compliant naming practices. As the Registrar of Geographic Names and through my management of GNV, I oversee the gazettal and registration of place names in Victoria.

Responses to the discussion paper

This proposal was widely supported across sectors, particularly noted by one LGA sector submission:

“The Act should be amended to expand the definition of waterway to include all courses of water in Victoria, regardless of whether they are named or unnamed, whether they are current or prior, whether they are diverted or original, or whether they are permanent or seasonal. All references to the Geographic Place Names Act 1998 should be removed. This would provide proper protection to all areas of Cultural Heritage sensitivity that exists in and around waterways in the State.”

Some concerns were raised on the impact of such implementation of proposal on an increased requirement to undertake CHMPS. However, the burden of pre-emptive care for Cultural Heritage is one that is much better dealt with by a Sponsor during the planning stage of a project than during on ground works.

UNDRIP

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.”

Best practice standards in Indigenous cultural heritage management and legislation


This recommendation should be considered in relation to Best Practice Standard 4 – Definitions:

“Definitions should recognise that an essential role of ICH is to recognise and support the living connection between Indigenous Peoples today, our Ancestors and our lands.”


Proposal Eighteen

Changing the definition of Significant Ground Disturbance (SGD).

“All disturbance is significant, and all the earth holds significance - the top that feeds the grasses, the deep earth that feeds the roots of the trees and the underground that feeds our underground waterways. Our Old People have left themselves and their places and stories across all this Country.”

Issue

Aboriginal Cultural Heritage is being damaged or destroyed through inappropriate classification of places as having no Cultural Heritage sensitivity.

Background

CHMPs are required for an activity if all or 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 Regulations as “disturbance of the topsoil or surface rock layer of the ground”.

However, as soil that contains artefacts can be found far deeper than what is recorded as topsoil, those deeper lying artefacts are not protected by a CHMP if the topsoil has been disturbed.

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 as it means that CHMPs are not mandatory for activities that are often harming Cultural Heritage. For regions where there are large numbers of post-contact items that are of Cultural Heritage significance, this is a particularly pertinent concern.

Proposal

That the Regulations of the Act be amended to replace the use of SGD with a different term in Part 2 Division 2 section 19, Division 3 subsections 25-41 and Division 4 section 44. This new term (and definition) would more adequately defi ne what type of disturbance could render a place devoid of Cultural Heritage.

It is proposed that the term SGD needs to be replaced with ‘subject to complete removal of all culturally relevant stratigraphy’.

The definition of ‘culturally relevant stratigraphy’ should be inserted in section 5 as ‘Topsoil, subsoil and loose, weathered basal rock’.

The current use (and definition) of SGD would remain in Part 2 Division 5 of the Regulations.

An addition to the definition of the new term in relation to waterways should also be inserted to ensure any Cultural Heritage present in the stratigraphy of the floodplain of a watercourse is adequately protected.

In section 26(2) of Division 3 in Part 2, the use of SGD for the purposes of waterways should be replaced with the new term with the additional definition ‘subject to complete removal of culturally relevant stratigraphy and all alluvium and colluvium considered to be younger than 100,000 yrs BP.’

Consideration

The use and definition of SGD needs to be reviewed to ensure that places are only classified as not being areas of Cultural Heritage sensitivity when it is appropriate. 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.

The definition being limited to ‘topsoil’ is inadequate when used to define an area of Cultural Heritage sensitivity. Thousands of test pits have demonstrated that Cultural Heritage can be found within stratigraphy at depths far greater than what is considered topsoil. Consequently, Cultural Heritage located in those deeper parts of the stratigraphy are not sufficiently protected under the Act and Regulations by the current definition of SGD.

Another significant issue with the current framework is that Aboriginal Places and Objects do not lose their significance just because they have been disturbed. The Act is meant to protect all Cultural Heritage from harm, so by excluding areas from assessment that have been superficially disturbed means that often CHMPs are not mandatory for activities that are in fact harming Cultural Heritage. For regions where there are large numbers of postcontact Objects that are of Cultural Heritage significance, this is of particular concern.

However, simply changing the definition of SGD is problematic. This is because the Regulations also employ the current defi nition of SGD to assist in determining whether an activity is ‘high impact’ or not. Part 2 Division 5 subsections 46, 47, 50-56 state that certain activities are high impact if they do result in SGD. A CHMP will only be required for an activity if all or part of that activity is high impact. Any change to the defi nition of SGD needs to take this into account.

Submission to the response to the proposal

“Changing the Definition of Significant Ground Disturbance is a key priority for reform.”

Wurundjeri Woi-Wurrung Cultural Heritage Aboriginal Corporation

The Wurundjeri Woi-Wurrung Aboriginal Cultural Heritage Aboriginal Corporation is a Registered Aboriginal Part appointed under the Aboriginal Heritage Act 2006 that holds statutory responsibilities for the protection and management of Aboriginal cultural heritage places and objects; other functions of the Corporation include water governance, the provision cross cultural training and events, cultural heritage and land management services.

Community support for the proposal

This proposal was widely supported across the sectors. One submission from the Heritage – Policy sector stated it:

“it is important that the definition of waterway in the regulations encompass all waterways that the relevant Traditional Owners and RAPs are of the view should fit within the definition of an area of cultural heritage sensitivity.”

The concerns raised by the Building and Development sector related to the feasibility of protecting Aboriginal Cultural Heritage and the resultant impacts on development.

“The notion of seeking to preserve all Aboriginal Cultural Heritage (irrespective of the object or place) on land that has been disturbed would have the eff ect of sterilizing large amounts of developable land.”

It should be noted that this proposal seeks to ensure that planning for the management of known Aboriginal Cultural Heritage on Country is required. As with other proposals. the burden of pre-emptive care for Cultural Heritage is one that it much better dealt with by a Sponsor during the planning stage of a project than during on ground works.

UNDRIP

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.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 4 – Definitions:

“Definitions should recognise that an essential role of ICH is to recognise and support the living connection between Indigenous Peoples today, our ancestors and our lands.”


Proposal Nineteen

Registered Aboriginal Party consultation in the due diligence assessment/Preliminary Aboriginal Heritage Tests (AHT) process.

“People are using due diligence to make sure that the Traditional Owners aren’t asked whether that particular part of Country is important. It just sounds dodgy doesn’t it? Why not even ask?”

Issue

RAPs have reported harm to Aboriginal Cultural Heritage caused by activities undertaken without a CHMP first being conducted, as a result of advice given from a due diligence assessment.

Background

Due diligence assessments are advisory assessments undertaken by HAs. These assessments quantify the risk about a defined situation or recognisable hazard in relation to Cultural Heritage and are not regulated under the Act. Due diligence assessments 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 consulting the relevant RAP. This means that RAPs can often be completely unaware that an assessment has been undertaken for a proposed activity.

Additionally, HAs are not required to consult with RAPs in the preparation of a PAHT, which is a formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP.

Proposal

That the Act be amended to require that all building and construction related planning applications include RAP or Traditional Owner consultation. This would require Heritage Advisors seek participation and input from RAPs in the preparation of a PAHT, as with a CHMP.

Additionally, the Act would also be amended to require a PAHT to be undertaken if a planning application does not trigger a CHMP.

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.

If a mandatory CHMP is required and a Sponsor is seeking to undertake a due diligence assessment, provisions within the Act should be amended to ensure this due diligence assessment is undertaken as a PAHT, and includes RAP/Traditional Owner consultation and/or participation. 

Consideration

The current due diligence mechanism accepted by approving bodies, disempowers RAP’s and Traditional Owners and is insufficient in adequately assessing the potential impact of a proposed activity on Cultural Heritage.

Section 49B of the Act also provides for PAHTs, which are a formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP. Currently, Heritage Advisors are not required to consult with RAPs in the preparation of a PAHT.

The definition of SGD also impacts on this proposal. Some Sponsors have abused the provisions within the Regulations that state an area that has been subject to SGD is not an area of Cultural Heritage sensitivity and therefore not subject to a mandatory CHMP. This has been done through their employment of an HA to then undertake a due diligence assessment to defi ne this disturbance, which, as described previously, needs only to demonstrate disturbance to ‘the topsoil or surface rock layer of the ground’ in order to avoid undertaking a mandatory CHMP.

Additionally, these amendments would be extremely effective in mitigating the risk posed by construction activities to highly sensitive Cultural Heritage such as Ancestral Remains and intact Traditional burials.

Currently it is possible to undertake an activity that disturbs large volumes of previously undisturbed soil, in a locality known to have a high probability of Traditional burials, without a CHMP first being undertaken. This can be undertaken without the notification or involvement of the RAP or Traditional Owners because the activity itself is not considered a high-impact activity within the Regulations. If a proponent was required to undertake a PAHT before a planning permit is granted, measures could be put in place to mitigate this risk to Cultural Heritage.

These amendments would ensure that the Act provides a comprehensive system of Cultural Heritage protection throughout all the stages of any proposed activity.

Submission to the response to the proposal

“Evidence has shown that the current practice of relying on due diligence reports is undermining efforts to protect Aboriginal Cultural Heritage throughout the state. The reliance of Local Government Authorities (LGAs) on the expert testimony of Heritage Advisors, without any evaluation, has resulted in a corrupt system, where some practitioners are supplying due diligence reports that do not correlate with legislative requirements.”

Wadawurrung Traditional Owners Aboriginal Corporation

The Wadawurrung Traditional Owners Aboriginal Corporation is the Registered Aboriginal Party for Wadawurrung country. With the statutory authority for the management of Aboriginal heritage values and culture, under the Victorian Aboriginal Heritage Act, 2006. Wadawurrung People are determined to see their unique cultural heritage protected and respected. Wadawurrung aims to restore Traditional knowledge and authority over the management of Wadawurrung Country for the betterment of those living on, prospering from and/or simply enjoying its land, waterways and coastal areas.

Community support for the proposal

This proposal received mostly supported or were not concerned with the proposal. However, one submission from the Heritage – Business sector explicitly did not support this amendment:

‘A due diligence tool remains an acceptable management tool for LGAs to make decisions on matters of Cultural Heritage.’

UNDRIP

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, utilisation or exploitation of mineral, water or other resources.”

Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 6 – Process:

“The role of ICH in the process of consideration of development proposals in a jurisdiction is important. So, to is the process of consideration of the management of ICH in the context of a specific proposal.”


Reviewed 10 May 2021