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Recommendation Fifteen: Compulsory Consultation of RAPs During the CHMP Process

Realising self-determined ownership of our Culture, Heritage, History and Country 2021

"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 contributions 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.

Recommendation 

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 and better governance 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 recommendation will increase complexity in the process has been raised. However, this recommendation aims to further minimise harm to Aboriginal Cultural Heritage and ensure accountability – which the current regime does not sufficiently 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 recommendation 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 recommendation

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 recommendation

Most submissions support this recommendation, 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 (Preliminary Aboriginal Heritage Test) is supported for works within areas of cultural heritage sensitivity, particularly if the PAHT process includes consultation options that are eff icient and effective for both RAPs and Sponsors."

Some submissions expressed concerns about the potential delays and additional costs this proposal would incur. However, it is important to consider that much time would be saved if RAPs were involved from the outset, not to mention the greater community trust they would build by respectfully consulting with Traditional Owners.

UNDRIP and Best Practice Standards

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, utilization 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 03 October 2021

Recommendations for reform of the Aboriginal Heritage Act 2006 Publication

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