“People are using due diligence to make sure that the Traditional Owners aren’t asked whether that particular part of Country is important. It just sounds dodgy doesn’t it? Why not even ask?”
As a result of advice given from a due diligence assessment, Aboriginal Cultural Heritage is being harmed through activities undertaken without a CHMP first being conducted.
Due diligence assessments are advisory assessments undertaken by HAs. These assessments quantify the risk about a defined situation or recognisable hazard in relation to Cultural Heritage and are not regulated under the Act. Due diligence assessments are intended to establish a Sponsor’s legislative requirements for a proposed activity, such as whether a CHMP is required for that activity. However, they are usually made without consulting the relevant RAP. This means that RAPs can often be completely unaware that an assessment has been undertaken for a proposed activity.
Additionally, HAs are not required to consult with RAPs in the preparation of a PAHT, which is another formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP.
That the Act be amended to require that a PAHT 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.
This would not only offer RAPs an opportunity to provide input and guidance as to whether an activity requires a CHMP but would also offer an opportunity for RAPs to draft conditions for inclusion within the PAHT. These conditions could include provisions for RAPs to undertake compliance inspections they may deem necessary during the proposed activity.
If a mandatory CHMP is required and a Sponsor is seeking to undertake a due diligence assessment, provisions within the Act should be amended to ensure this due diligence assessment can only be undertaken as a PAHT, and includes RAP/Traditional Owner consultation and/or participation.
The current due diligence mechanism accepted by approving bodies disempowers RAPs and Traditional Owners and is insufficient in adequately assessing the potential impact of a proposed activity on Cultural Heritage.
Section 49B of the Act also provides for PAHTs, which are a formalised mechanism for determining whether a proposed activity requires the preparation of a CHMP. Currently, Heritage Advisors are not required to consult with RAPs in the preparation of a PAHT.
The definition of Significant Ground Disturbance (SGD) in the Regulations to the Act also impacts on this recommendation. Some Sponsors have abused the provisions within the Regulations that state an area that has been subject to SGD is not an area of Cultural Heritage sensitivity and therefore not subject to a mandatory CHMP. This has been done through their employment of an HA to undertake a due diligence assessment to define this disturbance, which needs only to demonstrate disturbance to ‘the topsoil or surface rock layer of the ground’ in order to avoid undertaking a mandatory CHMP.
Additionally, these amendments would be extremely effective in mitigating the risk posed by construction activities to highly sensitive Cultural Heritage such as Ancestral Remains and intact Traditional burials. If a proponent was required to undertake a PAHT before a planning permit is granted, measures could be put in place to mitigate this risk to Cultural Heritage.
These amendments would ensure that the Act provides a comprehensive system of Cultural Heritage protection throughout all the stages of any proposed activity.
Submission response to the recommendation
Evidence has shown that the current practice of relying on due diligence reports is undermining efforts to protect Aboriginal Cultural Heritage throughout the state. The reliance of Local Government Authorities (LGAs) on the expert testimony of Heritage Advisors, without any evaluation, has resulted in a corrupt system, where some practitioners are supplying due diligence reports that do not correlate with legislative requirements.
Wadawurrung Traditional Owners Aboriginal Corporation
The Wadawurrung Traditional Owners Aboriginal Corporation is the Registered Aboriginal Party for Wadawurrung Country. With the statutory authority for the management of Aboriginal Heritage values and Culture, under the Victorian Aboriginal Heritage Act 2006. Wadawurrung People are determined to see their unique Cultural Heritage protected and respected. Wadawurrung aims to restore Traditional knowledge and authority over the management of Wadawurrung Country for the betterment of those living on, prospering from and/or simply enjoying its land, waterways and coastal areas.
Community support for the recommendation
This recommendation received mostly supported or were not concerned with the proposal. However, one submission from the Heritage – Business sector explicitly did not support this amendment:
‘A due diligence tool remains an acceptable management tool for LGAs to make decisions on matters of Cultural Heritage.’
UNDRIP and Best Practice Standards
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