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Cultural Heritage Permits are required to;
- disturb or excavate land for the purpose of uncovering or discovering Aboriginal Cultural Heritage, or
- carry out research on an Aboriginal place or Aboriginal Object, including the removal of an Aboriginal Object from Victoria for the purposes of that research,
- carry out an activity that will, or is likely to, harm Aboriginal Cultural Heritage
- sell an Aboriginal Object,
- remove an Aboriginal Object from Victoria
- rehabilitate land at an Aboriginal place, including land containing burial grounds for Aboriginal Ancestral Remains, or
- inter Aboriginal Ancestral Remains at an Aboriginal place.
The approval body for Cultural Heritage Permits is the RAP or, in areas where there is no RAP, the Secretary. If the applicant is either of these parties, then the approval body is Council. Whilst the Secretary must consult with Council when granting Cultural Heritage Permits that impact Ancestral Remains, the control still lies in the hands of government and not Traditional Owners.
The Act undermines the principles of self-determination to provide Traditional Owners with the responsibility to make decisions about their Ancestors.
That in areas where there is no RAP, Council is the approval body for Cultural Heritage Permits impacting Aboriginal Ancestral Remains.
The Secretary being the approval body for applications for permits to do any activity that relates to the management of Ancestral Remains raises several issues. Firstly, and most most concerning, is that even though the management of the physical Ancestral Remains was transferred to Council in the 2016 amendments to the Act, the granting of permissions, decisions around processes, risk management and outcomes for any such activity is not in the hands of Council and by extension, Traditional Owners themselves. Within the current framework, it is very difficult for Traditional Owners to realise and exercise their rights to self-determination.
The assessment of permit applications and the drafting of permit conditions relating to applications for activities in non-RAP areas, is often undertaken by FPSR regional offices. These offices often have large workloads, particularly as they are also the approval body for CHMPs undertaken in non-RAP areas within their jurisdiction. Due to this, the timeframes around the granting of permits is often in conflict with the urgent needs of stakeholders and of Council’s Ancestral Remains Unit (ARU) when managing Ancestral Remains, particularly when found on private land.
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. This arrangement would make the most of the stakeholder engagement already established by the ARU. The new streamlined system would also facilitate quicker response times in actioning Traditional Owner decisions and the needs and interests of external stakeholders.
UNDRIP and Best Practice Standards
This issue should be considered in relation to Article 8:
“Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.”
Best practice standards in Indigenous cultural heritage management and legislation
This recommendation should be considered in relation to Best Practice Standard 8 – Resourcing compliance and enforcement:
“Wherever possible, affected Indigenous communities should be adequately empowered and resourced to undertake necessary compliance and enforcement functions.”
Reviewed 04 October 2021