"As a RAP, we want the behavioural problems of Heritage Advisors addressed. There are shonky people out there actively facilitating the destruction of Culture through bad business practice, ineptitude and general poor regulation."
Issue
HAs are actively participating in the destruction of Aboriginal Cultural Heritage through inadequate CHMPs and inappropriate work practices.
Background
Section 58 of the Act gives specific responsibility over the preparation of a CHMP to HAs. During the preparation of a CHMP, they are expected to fulfil a range of obligations, including consulting with Traditional Owner Groups and RAPs, conducting Cultural Heritage assessment of an activity area in compliance with the Act, and preparing the final CHMP in accordance with the prescribed standards. HAs therefore have a key role in the protection and management of Aboriginal Cultural Heritage in Victoria.
Sponsors of development activities engage and pay HAs to prepare CHMPs. Whilst Sponsors can be held liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act, there are no consequences for misconduct on the part of the HA. This makes them unaccountable for failure to engage in proper consultation with Traditional Owners, or for drafting poor or incomplete CHMPs. Furthermore, their economic relationship with the Sponsor gives them more incentive to act in the Sponsor’s interests, rather than the interests of Traditional Owners.
Recommendation
That the Act be amended to create a regulation system for HAs. Regulation would include a formal registration system, a binding code of conduct, a formal complaints process and the enforcement of sanctions. This would protect Traditional Owners and the public from poor practices. It would also benefit Sponsors and HAs as it would provide them with stronger relationships with Traditional Owners and better Heritage management outcomes.
Preceding the implementation of the relevant amendments to the Act have been the introduction of non-binding guidelines holding Heritage Advisors to a standard of conduct. These guidelines were produced by Council under their statutory function to publish policy guidelines consistent with the functions of the Council as per section 132(2)(ck) of the Act and published in February 2021. It is hoped that these will assist in establishing a foundation for the introduction of the amendments in 2021.
The onus to produce satisfactory CHMPs that are the result of thorough Cultural Heritage assessments and proper engagement with Traditional Owners needs to be on HAs themselves. Implementing a system where HAs will be held accountable for their actions will help to create an industry standard that lifts quality of work and builds stronger relationships for all parties involved in the CHMP process.
Consideration
Financial cost
Naturally, the need to ensure better regulation and training of HAs will reflect a change in projected spending/expenditure. However, with the key aim of the Act (and this proposal) being to ensure respect for Traditional Owners and protection of Cultural Heritage, the benefits far outweigh the disadvantages. These advantages also extend to protecting the public from poor practices.
Current regulation by industry specific bodies is not adequate
While the suggestion that industry speci.c bodies should be able to undertake the regulation of HAs, there is a need for a better system (including ensuring proper consultation with Traditional Owners) where HAs can be held liable for causing unauthorised harm to Aboriginal Cultural Heritage under the Act. Doing this would help to create an industry standard that lifts quality of work and builds stronger relationships for all parties involved in the CHMP process.
Submission response to the recommendation
The current system would be strengthened by ensuring that the accreditation of Heritage Advisors and others that have a statutory role under the Act included formal training in the provisions of the Act, policies and guidelines, and the functions of their role.
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Community support for the recommendation
Most submissions support the recommendation, with the general position being to support the introduction of non-binding guidelines for the conduct of HAs engaged in the preparation of CHMPs. It was also widely encouraged that HAs should belong to at least one professional association relevant to their field of expertise and be bound by its standards and code of ethics.
However, some submissions expressed concern at an erroneous proposal that HAs, who had an appropriate standard of expertise, training and experience in working with Traditional Owners and Aboriginal Cultural Heritage in a sensitive and respectful way, would be disadvantaged.
UNDRIP and Best Practice Standards
| UNDRIP |
This issue should be considered in relation to Article 31:
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| Best practice standards in Indigenous cultural heritage management and legislation |
This recommendation should be considered in relation to Best Practice Standard 5 - Incorporation of principles of self-determination:
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