A fundamental responsibility of Council is to determine applications for the registration of RAPs and variations to the boundaries of those RAPs once appointed. In this reporting period, Council received three RAP applications and one boundary variation, declined one application zone and varied the boundary of one RAP. During the reporting period, Council examined five boundary variation requests and revoked the registration of one RAP.
At 30 June 2020, Council had appointed 12 RAPs which collectively cover 74% of the state:
- Barengi Gadjin Land Council Aboriginal Corporation
- Bunurong Land Council Aboriginal Corporation
- Dja Dja Wurrung Clans Aboriginal Corporation
- Eastern Maar Aboriginal Corporation
- First People of the Millewa-Mallee Aboriginal Corporation
- Gunaikurnai Land and Waters Aboriginal Corporation
- Gunditj Mirring Traditional Owners Aboriginal Corporation
- Taungurung Land and Waters Council Aboriginal Corporation
- Wadawurrung Traditional Owner (formerly Wathaurung) Aboriginal Corporation
- Wurundjeri Woi-Wurrung Cultural Heritage Aboriginal Corporation
- Yorta Yorta Nation Aboriginal Corporation.
- On 1 August 2019, Martang Pty. Ltd. (Martang) had its formal registration as an Aboriginal Party revoked.
- A RAP application was received on 22 August 2019 from Boonwurrung Land and Sea (Aboriginal Corporation) (BLSAC).
- A RAP application was received on 22 October 2019 from Eastern Maar Aboriginal Corporation (EMAC).
- A RAP application was received on 6 April 2020 from Bangerang Aboriginal Corporation.
- Notice of Registered Aboriginal Party boundary negotiation to vary existing boundary area between the Bunurong Land Council Aboriginal Corporation and Wurundjeri Woi-Wurrung Cultural Heritage Aboriginal Corporation was published on 23 April 2020.
- A RAP application was received on 6 June 2020 from Barapa Country Aboriginal Corporation.
Council notices and decisions
Boonwurrung Land and Sea Council (Aboriginal Corporation)
At its meeting on 12 December 2019, the Victorian Aboriginal Heritage Council decided to decline BLSC’s RAP application in relation to:
'an area that includes the part of the Melbourne CBD, and extends out to include Richmond and Cremorne in the inner east, part of Collingwood in the inner north-east, and Kensington in the inner west; the Dandenong Ranges in the east, and extends further east to Neerim and Noojee; includes the Mornington Peninsula and Tarwin and Wilson’s Promontory to the south and to the west an area that includes Caroline Springs, Deer Park, Hoppers Crossing, Laverton, Plumpton and Sunshine.'
Eastern Maar Aboriginal Corporation
At its meeting on 6 February 2020, the Victorian Aboriginal Heritage Council decided to approve EMAC’s boundary variation application in relation to:
'an area that extends easterly to the Wathaurung Aboriginal Corporation’s RAP boundary including the Great Otway National Park and the townships of Warrnambool, Terang, Mortlake, Camperdown, Colac, Apollo Bay, Lorne and Cressy. The area is bounded to the north west by the Grampians National Park and extends through Ararat to a point just north of the Wimmera River.'
In effect, this decision extends EMAC’s RAP area.
As a collective of Traditional Owners, the work undertaken through the Victorian Aboriginal Heritage Council moves the Victorian community towards a place of understanding and respect for Aboriginal Cultural Heritage and the cultural responsibilities of our People.
One of Council’s primary functions is to appoint RAPs to manage their Cultural Heritage on Country. These organisations represent Traditional Owners and hold decision-making responsibilities under the Aboriginal Heritage Act 2006 for the protection, management and preservation of Aboriginal Cultural Heritage within an appointed area. RAPs are the primary source of advice and knowledge on matters relating to their Heritage.
'Council supports Eastern Maar as the Rightful People to speak for and manage their Country under the Aboriginal Heritage Act 2006. Accountability to their membership is a key and fundamental practice which we encourage.
Traditional Owner assets are not materialistic, our Culture cannot be measured in monetary forms, it is in the shape of Our Peoples’ strength, knowledge and in the Peoples’ unified voices.'
Sissy Pettit, Deputy Chairperson
Council has been considering this land for over a decade and are satisfied that EMAC are an inclusive representative organisation, with the organisational capacity, sustainability and ability to undertake Cultural Heritage management and protection responsibilities for their Country.
Martang Pty. Ltd.
On 1 August 2019, Martang Pty. Ltd. had its formal registration as an Aboriginal Party revoked.
As Traditional Owners, Martang protected, managed and preserved Aboriginal Cultural Heritage in their appointed area from 13 September 2007 until 31 July 2019.
On 13 September 2007, the Council appointed Martang as a RAP in south-west Victoria. It recognised Martang as an organisation representing Traditional Owners with strong traditional links to the area, supported by members of the Djab Wurrung and neighbouring communities.
Martang have said of their work:
“The identification, preservation and protection (management) of Aboriginal Culture is fundamental to the rights and responsibilities of Traditional Owners, which are enshrined in state, national and international legislation, policies and conventions on the protection of Aboriginal Cultural Heritage.”
Martang had its formal registration as an Aboriginal Party revoked under the Aboriginal Heritage Act 2006 S.156(2)(a). When the RAP is no longer registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, de-registration is automatic.
The revocation of registration of a RAP does not impact on statutory decisions made by that RAP when registered.
Council’s Support for RAPs
The Victorian Aboriginal Heritage Council, as a statutory authority under the Act, is responsible for a variety functions including overseeing the work and operational functionality of RAPs. Additionally, Council will periodically review and publish policy and guidelines in support of its work and the work of RAPs.
Whilst undertaking this work, Council receives reports from RAPs on a variety of issues.
Registered Aboriginal Parties and Fieldwork During coronavirus (COVID-19) Stage 3 Stay at Home Restrictions Policy Guidelines
In May 2020, Council developed guideline for RAPS, heritage advisors and sponsors to the circumstances in which Cultural Heritage Management Plan (CHMP) or Cultural Heritage Permit (CHP) fieldwork can proceed under coronavirus (COVID-19) Stage 3 Stay at Home restrictions. The guideline’s development was largely responding to concerns from RAPs at Aboriginal Victoria’s Advisory Notice regarding Registered Aboriginal Party Fieldwork during the current restrictions issued on 6 April 2020. That Advisory Notice may have given the impression that the provisions of ss 59 and 60 of the Act operated in the current circumstances to the effect that where a RAP declined to participate in proposed fieldwork activities related to a CHMP or CHP as a result of concerns relating to the health and well-being of its employees then the fieldwork could proceed and still satisfy the requirements of the Act.
The purpose of the Guideline was to clarify that impression and to provide guidance for RAPs, Heritage Advisors and Sponsors as to the circumstances in which CHMP or CHP fieldwork can proceed in the current circumstances.
Recommendations on the use of a Due Diligence approach to assessment of Aboriginal Cultural Heritage
Council has been concerned at reported problems arising from LGAs’ use of the ‘Due Diligence’ approach, to assess the requirement for a 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.
During the reporting period, Council reminded 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.
Council encouraged 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.
Appointment of Authorised and Aboriginal Heritage Officers
Council has a responsibility to advise the Minister for Aboriginal Affairs on the training and appointment of Authorised Officers (AOs) and Aboriginal Heritage Officers (AHOs). The Officers enforce the Act and have responsibility for Cultural Heritage Audits and assess compliance with CHMPs and CHPs. During this reporting period, Council was pleased to advise the Minister on the appointment of nine AHOs and six AOs.
Whilst these regulatory positions contribute to effective management of Aboriginal Cultural Heritage, they could be stronger. Council’s Discussion Paper for legislative reform considers that the work undertaken by AHOs could be significantly strengthened if they could enter land or premises without the consent of the occupier.
The current legislation restricts AOs’ and AHOs’ powers to the point where they are inhibited from carrying out their functions. In the likely event that an individual who is suspected of an offence against the Act does not give an Officer consent to enter their premises, the Officer is stopped from carrying out their duty to protect Aboriginal Cultural Heritage.
During the reporting period, Council has undertaken the following statutory functions in support of Traditional Owners.
Council has not provided advice or made recommendations to the Secretary of the Department of Premier and Cabinet relating to:
- measures to establish appropriate standards and guidelines for the payment to RAPs of fees for doing anything referred to in section 60 of the Act
- Council has however developed RAP Fees and Guidelines and a Heritage Advisor Code of Conduct for release after the reporting period
- the exercise of his or her powers under this Act in relation to CHPs, CHMPs and Cultural Heritage Agreements
- consideration of proposed CHMPs for which the Secretary is the sponsor
- cultural heritage permits related to Aboriginal Ancestral Remains in areas without a RAP
- Council has however provided advice to the Secretary on a CHMP related to Aboriginal Ancestral Remains in areas without a RAP
- Council has not provided advice to the Minister administering the Planning and Environment Act 1987 on proposed amendments to planning schemes which may affect the protection, management or conservation of places or objects of Aboriginal Cultural Heritage significance
- Additionally, Council has not performed any functions under the Act in relation to CHPs, including the granting of CHPs