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Recommendation Five: Appointment of Members through existing representative Victorian Traditional Owner institutions

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

“Self-determination means Our People making decisions for our mob, our Culture and our Country. We can’t do that if we have no say in who is making those decisions.”

Issue

The Ministerial appointment of Council members does not actively support the principles of self-determination.

Background

Council is composed of up to eleven Traditional Owners. Each Council member must be an Aboriginal person who is a Traditional Owner, a resident in Victoria, and has relevant experience or knowledge of Aboriginal Cultural Heritage in Victoria. Council members are appointed by the Minister for Aboriginal Affairs (Minister).

Recommendation

That section 133 of the Act be amended to allow nomination for appointment of Council Members from two existing representative Victorian Traditional Owner institutions - the First Peoples Assembly of Victoria (FPAV) and the RAPs.

The eleven members of Council should be appointed by the Minister from amongst Victorian Traditional Owners nominated by these two institutions. It is proposed that five members of Council be nominated by the FPAV and six nominated by meeting of authorised representatives of the RAPs (a “College” of RAP representatives).

Whilst the Minister would retain the ultimate power to decline an appointment at their discretion, they would be unable to appoint to Council members not nominated by the FPAV or the College of RAPs.

This would be in keeping with principles of self-determination and would enable Council to be representative of the RAP sector, which Council has the function of overseeing, as well as the broader Victorian Traditional Owner community, some of whom may not participate in the RAPs.

Consideration

Transparency Issues

Council understands concerns that this recommendation may result in less transparency within the RAP appointment process, as Council is the body that determines RAP applications under the Act. Furthermore, Council is also the body that manages, oversees and supervises the operations of RAPs.

However, the current proposal is not to guarantee an allocated number of membership positions on the Council to any particular RAP(s). The proposal aims instead to allow a group of RAP representatives to nominate Council and another group to nominate from a broader representation. It is erroneous to presume that a Council member who has been nominated by a group of RAP representatives, rather than the Minister, would be beholden to the interests of a singular RAP or several RAPs and may therefore make decisions in a way that threatens the transparency of the RAP appointment process.

The operation of pre-existing legislative and procedural protections further allays transparency concerns. A precondition for appointment to the Council is to be a Traditional Owner, resident in Victoria, who has extensive knowledge of Aboriginal Cultural Heritage. Naturally, this means that many current and former Council members have held associations with particular RAPs. There are safeguards in place for protecting decision-making processes from bias in these scenarios. For example, section 142 of the Act states that if a Council member has a pecuniary or personal interest in a particular decision, they must declare their interest and take no further part in the making of the decision. The Council’s Procedures Manual further stipulates that upon receipt of a RAP application, the Office of the Council must contact each Council member to identify whether there is any potential bias in relation to the application and prevent such bias accordingly. These types of protections mitigate the need for any concern that members’ decisions may lack transparency.

Individual RAP representation

Council acknowledges that several submissions to its Discussion Papers voiced a desire for each RAP to have a representative member sit on the Council. Council understands the motivation for having direct RAP representation on Council. However, such a form of representation is likely unworkable at present. There are currently eleven RAPs in Victoria and there is only a maximum of eleven available membership places on the Council at any given time. If each individual RAP was given representation, that would leave no positions for any other members, whether those members were to be nominated by the Minister or by the FPAV.

Furthermore, individual RAP representation on the Council would not be in keeping with the underlying spirit of the recommendation, which is aimed at increasing representation of the RAP sector generally. The use of a ‘College of RAPs’ or another similar electoral process would ensure that Council becomes an advocate for the entire RAP sector, rather than any specific RAP. Maintaining some positions that are outside of this process would ensure the capacity for inclusion of voices from regions without formal RAP recognition.

Submission response to the recommendation

RAPs’ nomination of Council members will ensure self-determination and advocacy of cultural activities by the Traditional Owners through the Council.

Barengi Gadjin Land Council Aboriginal Corporation

The Barengi Gadjin Land Council Aboriginal Corporation represents Traditional Owners from the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples, who were recognised in a 2005 Native Title Consent Determination, the first in south-eastern Australia. It is a federally recognised authority to speak on behalf of the Wotjobaluk peoples, the Prescribed Body Corporate for the Wotjobaluk claim area, as outlined in the Native Title Act, and a Registered Aboriginal Party under the Act.

Community support for the recommendation

Responses to a previous proposal, that was to allow Ministerial and College of RAP appointment of Council members, relate also to this amended recommendation. Largely, the balanced approach of some Council members elected by the College of RAPs, and others in a way that would allow positions for representation from areas without a RAP appointment, was largely supported by the Traditional Owner and Heritage sectors submissions received.

A Traditional Owner Organisation submission stated that it:

“supports the proposal to amend the Act to allow at least five of its eleven members to be appointed by the RAPs themselves.”

Whilst a Heritage – Business sector submission identifed that:

“Aboriginal People and (Traditional Owner) representative bodies, not currently recognised as a RAP or affiliated with a RAP, should continue to have access to representation on the Victorian Aboriginal Heritage Council (VAHC). This appears to be considered and possible with the proposed changes.”

However, one submission from the Building and Development sector criticised the proposal on the grounds that it would not ensure sufficient transparency in the RAP appointment process. Furthermore, several parties criticised the proposed ‘College of RAPs’ electoral body and sought individual RAP representation.

UNDRIP and Best Practice Standards

UNDRIP

This recommendation should be considered in relation to Article 33:

“Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.”

Best practice standards in Indigenous cultural heritage management

This recommendation should be considered in relation to Best Practice Standard 5 - Incorporation of principles of self-determination:

“The affected Indigenous Community itself should be the ultimate arbiter of the management of the Indigenous Cultural Heritage (ICH) aspects of any proposal that will affect that heritage.”

Reviewed 03 October 2021

Recommendations for reform of the Aboriginal Heritage Act 2006 Publication

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