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aboriginalheritagecouncil.vic.gov.au

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.”

Reviewed 19 April 2021

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