Use of a Due Diligence Approach to Assessment of Aboriginal Cultural Heritage

Recommendations for RAPs and LGAs on the use of the "Due Diligence" approach, as a means to assess the requirement for a Cultural Heritage Management Plan

Council, RAPs and LGAs

The Victorian Aboriginal Heritage Council, as a statutory authority under the Aboriginal Heritage Act 2006, is responsible for a variety functions including overseeing the work and operational functionality of the Regional Aboriginal Parties (RAPs). In addition to this work, Council will periodically review and publish policy and guidelinesin support of its work and the work of RAPs.

Whilst undertaking this work, Council receives reports from RAPs on a variety of issues.  A large majority of these issues relate directly to the work of the local government authorities (LGAs) operating within their RAP boundary.

Due Diligence Approach

More specifically, RAPs have reported problems arising as a result of the LGA’s use of the “Due Diligence” approach, as a means to assess the requirement for a Cultural Heritage Management Plan (CHMP) for specific activities. The reported harm to Aboriginal Cultural Heritage caused by the resulting activity is an issue that RAPs are facing regularly and is something Council feels strongly about addressing.

The regulations to the Aboriginal Heritage Act 2006, the Aboriginal Heritage Regulations 2016, clearly set out the type of activities and in which circumstances a CHMP is required. It is only through the preparation, approval and implementation of a CHMP that a defence can be raised to the offence of harming Aboriginal Cultural Heritage. Completion of a “Due Diligence” approach will not create such a defence.

RAPs are the Primary Knowledge Keepers

The Council would like to take this opportunity to remind LGAs that Victoria’s RAPs and Traditional Owners are the primary knowledge keepers of all matters relating to Victorian Aboriginal Cultural Heritage. This is not only true for physical, tangible Aboriginal Cultural Heritage, but also for Intangible Aboriginal Cultural Heritage.

Although most certainly not a new concept to Traditional Owners, it was not until the 2016 amendments to the Act were enacted that the significance and subsequent means for registration and protection of Intangible Aboriginal Cultural Heritage became part of Victorian law.

Heritage Advisors

The Cultural Heritage Advisors that are often contracted to undertake “Due Diligence” assessments are not the authority on all matters of Aboriginal Cultural Heritage. This is especially true when considering potential risks to Intangible Aboriginal Cultural Heritage values.

This is also true when considering the physical, tangible Aboriginal Cultural Heritage that is not already recorded on the Victorian Aboriginal Heritage Register but is well known to the Traditional Owners of the area. These unrecorded sites, artefacts and Aboriginal Cultural Heritage values are still protected under the Act, and any individual or body corporate who through their actions cause harm to these sites could potentially be prosecuted under the Act.

Responsibilities of LGAs

As a land manager with statutory obligations, LGAs have a responsibility to ensure the authority and interests of the RAP(s) within their tenure are acknowledged and suitably considered throughout the planning approvals process.

Evidence to date has indicated to Council that the frequency of the use of a “Due Diligence” approach, in its current form, does not effectively assess the potential risks to Aboriginal Cultural Heritage, and does not suitably consider the rights and interests of Traditional Owners.

Protection of Aboriginal Cultural Heritage

Council would like to encourage all LGAs to ensure all planning applications are subject to the legislated processes necessary to ensure the protection of Aboriginal Cultural Heritage. One method of achieving this is to ensure that any development proposal that has relied on a “Due Diligence” approach to an assessment of risks to Aboriginal Cultural Heritage has at the very least involved consultation with the relevant RAP.

In the longer term in order to assess the effectiveness of the legislation in contributing to the attainment of the legislation’s objectives, Council has produced the Legislative Review Discussion Paper, Taking Control of Our Heritage.

Along with a number of other possible amendments to the Act canvassed in the Discussion Paper, the shortcomings of the current use of a “Due Diligence” approach as a legitimate means of assessing risks to Aboriginal Cultural Heritage is discussed.

Reviewed 27 July 2020

Aboriginal Heritage Council

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