“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.”
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.
Section 59 of the Act sets out the obligations between a Sponsor and a RAP during the CHMP process:
- “This section applies if a registered Aboriginal party gives notice under section 55 of its intention to evaluate a CHMP.
- The sponsor must make reasonable efforts to consult with the registered Aboriginal party before beginning the assessment and during the preparation of the plan.
- 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.
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.
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.”
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.
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.”
Reviewed 19 April 2021