Appendices

Expansion of the Legislative Functions of a RAP

Registered Aboriginal parties (RAPs) should be the primary source of advice to government on both tangible and intangible Aboriginal Cultural Heritage in their registration area. The current legislative framework should be expanded to encourage increased government engagement and consultation with RAPs on Cultural Heritage matters, relating to both tangible and intangible Aboriginal Cultural Heritage.

Enabling Council to approve RAP applications with conditions

To support Traditional Owner organisations that are not yet registered as RAPs, and thus unable to carry out their functions, the recommendation is for Council to approve RAP applications with conditions. This allows for staggered commencement dates for RAP obligations, to ensure that RAPs are not flooded with responsibilities upon registration.

Native title definitions and RAP applications

This recommendation removes confusion in the Aboriginal Heritage Act 2006 (the Act) around the use of these terms, giving effect to the original intent of the legislation, but in a manner that is consistent with the fact that a RAP (or a RAP applicant) is required to be a body corporate.

RAP Cultural Heritage Consent in relation to CHMPs

To eradicate instances of harm of Aboriginal Cultural Heritage, this recommendation gives RAPs the authority of Cultural Heritage Consent. This would provide a mechanism to both give and withhold consent for harm to Aboriginal Cultural Heritage proposed in CHMPs.

Appointment of Members through existing representative Victorian Traditional Owner institutions

The eleven members of Council should be appointed by the Minister for Aboriginal Affairs from amongst Victorian Traditional Owners nominated by two existing representative Victorian Traditional Owner institutions - the First Peoples Assembly of Victoria and the RAPs (through meeting of authorised representatives of the RAPs, or “College” of RAP representatives).

Victorian Aboriginal Heritage Council name change

This proposal seeks to redefine Council and the body corporate structure of Council as separate but related functions. The body corporate should be changed from the ‘Aboriginal Heritage Council’ to the ‘Victorian Aboriginal Heritage Authority’. The existing Council would be renamed as the ‘Victorian Aboriginal Heritage Council’ and become the Authority’s governing body.

Transferring responsibility of the Register from Aboriginal Victoria to Council

In order to increase Traditional Owners’ control of their Cultural Heritage, the transfer of the responsibility of the Victorian Aboriginal Heritage Register (Register) from First Peoples – State Relations (FPSR) to Council is proposed. This would allow Traditional Owners to be the custodians of all information on their Cultural Heritage.

Transfer of various other Secretarial Functions to the Council

To instil the principles of self-determination, this recommendation proposes to transfer a range of functions and responsibilities from the Secretary (Secretary) of the Department of Premier and Cabinet (DPC) to Council. These functions include a majority of the RAP support functions that are currently undertaken by FPSR.

Amending the procedures for dispute resolution under the Act

In support of better methods of conflict resolution, this recommendation expands the use of Alternative Dispute Resolution as the primary mechanism for any issue under the Act.

Amending the prosecution powers

This recommendation is to transfer rights and responsibilities from the Department of Premier and Cabinet (DPC) (as delegated by the Secretary of DPC) to Council. A further proposal is for Aboriginal Heritage Officers (AHOs) and Authorised Officers (AOs) to be empowered to issue infringement notices in relation to minor offences.

Extension of Chairperson Terms

This proposal seeks to extend the terms of the Chairperson of Council to two years. Further, the Chairperson and Deputy Chairperson would only be eligible for one further term of re-election. This will provide Council with stability of leadership, development of relationships, effective representation of the Traditional Owner sector, maintenance of tacit knowledge and continuation of momentum built over the last term.

Council’s Financial Operation

Subject to the requirements of the Financial Management Act, this recommendation seeks for Council to be able to establish other bank accounts for the purposes of its day-to-day operations.

Empowering Council to employ its own Staff

To maintain and support the principles of self-determination and autonomy, the reform proposes amendments to the Act to allow Council to employ its own staff.

Regulation of Heritage Advisors

This recommendation seeks to create a regulation system for Heritage Advisors (HAs) including a formal registration system, a binding code of conduct, a formal complaints process and the enforcement of sanctions. This is aimed at protecting Traditional Owners and the public from poor practices.

Compulsory Consultation of RAPs during the CHMP Process

To ensure that RAPs are informed and have a say in activities regarding the assessment of Aboriginal Cultural Heritage value – a requirement for Sponsors to consult with RAPs at the outset of the CHMP process is proposed.

Elective power for RAPs to engage as HAs in the preparation of CHMPS

This recommendation seeks for the Act to specify that RAP’s can operate as HA’s in the preparation of a CHMP, and to define the obligations of a Sponsor to provide the RAP with a first option to provide HA services.

Amending the Power of Entry for AOs and AHOs

Currently, Officers have limitations that prevent them from sufficiently undertaking their responsibilities. This recommendation seeks to amend the Power of Entry for Officers, to allow them to enter land/premises without the consent of the occupier.

Amending evidentiary provisions regarding Aboriginal Objects

Evidentiary provisions regarding Aboriginal Objects would be amended to enable certificates signed by 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.

Clarifying ownership with regards to Secret and Sacred Objects

It must be clear that the rightful owner of a Secret or Sacred Object is a Traditional Owner from where the object is reasonably believed to have originated (also identified as an Aboriginal Person who is the rightful owner of the object).

Secret and Sacred Objects – Search and Seizure Powers

This proposal seeks to introduce search and seizure powers when AOs and AHOs reasonably believe that there is a need for such an action around Secret or Sacred Objects or Aboriginal Ancestral Remains.

Granting of permits pertaining to the management of Ancestral Remains

If Council was to be the approval body for all permits relating to the management of Ancestral Remains, this would not only give Traditional Owners control of their Ancestors but would also ensure all aspects of work associated with the management of Ancestral Remains is undertaken by one centralised entity.

Introducing civil damages provisions

To urge increased rates of compliance, this recommendation would introduce a provision that would deem some offenses as civil damages.

Heritage Test (PAHT) be required to be undertaken for all building and construction related planning applications that do not trigger a CHMP. Additionally, the HA would be required to seek participation and input from RAPs in the preparation of a PAHT, as with a CHMP.

Prohibition on use of land of up to 10 years

This recommendation is that the Court has the capacity to order the prohibition of use or development of land for a period of up to 10 years on a culturally significant site where there has been deliberate or wilfully negligent unlawful destruction of Cultural Heritage– whether in full or in part.