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aboriginalheritagecouncil.vic.gov.au

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.”

Reviewed 19 April 2021

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