Council is committed to ensuring that the reporting required of RAPs to Council is neither onerous nor duplicates other reporting. To this end, RAPs authorise the distribution of their Aboriginal Victoria Registered Aboriginal Party Operations Performance Reports to Council. Council is not responsible for the AV administered base funding attached to this reporting process. It should be noted however that data received through this reporting does not undergo a process of cross-referencing through the Natural Resource Management System from which AV draws much of its own reporting data. Although it is considered appropriate in terms of self-determination that RAPs are trusted by government to report accurately, it should be noted that it provides an opportunity for reporting discrepancies.
The information that is provided to Council through these reports is extensive and can provide a strong comparative base from which Council can identify areas of concern, growth and achievement across the state and provide targeted advocacy and recommendations.
Achievements and challenges
Through a range of communication channels, RAPs engage with Council and advise of both their achievements and challenges. Council’s capacity to adopt a state-wide analysis of these challenges and the broader impacts of large projects and relationships, has enabled it to incorporate many recommended challenges into their legislative review discussion paper. Additionally, much work has been undertaken throughout the year to address concerns as they arise. One example of this is the communication Council made both public and in letters to individual Local Government Authorities (LGAs) about the inappropriate use of Due Diligence reporting in the preparation of CHMPs.
Use of a due diligence approach
Concerned at reported problems arising from LGAs’ use of the ‘Due Diligence’ approach, to assess the requirement for a CHMP for specifi c 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 2018, clearly set out the type of activities and the circumstances in which 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.
The Council contacted LGAs and posted on its website 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 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.
Challenges and concerns
Across the reporting period, RAPs have identified in their reporting the following challenges. The table on the following page notes these identified challenges and the percentage of concerns raised in the overall reporting issues reported. As the reporting format changed between the 2018-19 and 2019-20 reporting periods, a targeted question relating to RAP challenges was not included prior to the current cycle and so previous fi gures are unable to be included.
From the reported fi gures on the following page, it is clear that a lack of suitable resourcing impacts the day to day management of RAPs’ responsibilities for Cultural Heritage. This issue has been raised by RAPs on many occasions at public forums, to Council, AV and directly with the Minister. Whilst the Act provides for some income streams through the consideration of functions, and some ongoing base funding is provided by the Secretary through the Fund, this is not appropriate for some RAPs. A broader consideration of requirements and funding models needs to be undertaken, as Council discusses in the above recommendations.
Access to VAHR in non-RAP areas
Lack of Heritage Advisor accountability
Capacity to monitor broader compliance issues
Communication/engagement with LGAs
Developing strategies and processes
Insurance for VCAT cases
Lack of licensed drivers and cars and distance for TOs
Receiving recognition in Cultural Heritage management during fi re emergencies
Respect as Cultural authorities from government departments
Building skills and capabilities
Use of Due Diligence
Need more resources (fire recovery, staff, recording/registration of Cultural Heritage, general, community engagement)
Supporters and stakeholders
Across the reporting period, RAPs have identified in their reporting the following stakeholder engagement. The below table notes stakeholders and the engagement as a percentage of the overall reporting and details both the current and previous reporting periods to enable direct comparison. Due to the reporting format change between the 2018-19 and 2019-20 reporting periods, the differences in fields are noted as not applicable (N/A) when the field was not previously included in the reporting framework.
From examination of the 2018-19 and 2019-20 reporting figures below, we can note a significant increase of 211% with ‘other government’, relating largely to the Department of the Environment, Land, Waters and Planning (DELWP), Parks Victoria and infrastructure projects. The increase can be attributed to a significant shift in the range and scale of projects being undertaken by government and the increasing willingness to include RAPs in projects that may not necessarily have requirements under the Act.
A notable decrease in consultation can be noted with industry (15%) and local government (30%). Whilst the increase above relates to government bodies that have been largely unaffected by COVID-19 restrictions, such restrictions have significantly impacted industry and local government. It can be seen as a direct consequence then that consultation and engagement with these stakeholders has decreased during this period. It would be expected that, with an easing of restrictions and significant work Council and RAPs are currently undertaken in relation to engagement with LGAs, these figures will present a drastic upswing in the next reporting period.
Managing sensitive cultural heritage
Of note in the reporting is the significant decline in nominations of Intangible Heritage to the register. Since the capacity of the Register was enabled to include Intangible Heritage under the Amendments of 2017, only one registration has been made. Council has been informed that the reticence of Traditional Owners to nominate Intangible Heritage for inclusion on the Register is largely due to the process of registration and in some part to management of the Register by non-Traditional Owners. In addressing this concern, Council has recommended that the Register be managed by Traditional Owners through the Council.
The decline in applications to access sensitive information on the Aboriginal Heritage Register can be attributed to the restrictions imposed by COVID-19 and the decrease in academic and nondevelopment based access requests.
|Managing Sensitive Cultural Heritage||2019-20||2018-19|
|Receipt of Secret (or Sacred) Objects||0||0|
|Intangible Heritage Management Agreements||0||2|
|Applications for access to the Register considered and supported or declined||1||11|
|Repatriation of Cultural Heritage||2||0|
|Receipt of Ancestral Remains||3||0|
|Intangible Heritage nominated fir registration on the VAHR||7||1|
Governance and compliance
During the current reporting period, all RAPs have identified appropriate decision-making delegations and an absence of operating conditions imposed on them by Council. Although some organisational skills development has been undertaken, RAPs have identified through other channels that the absence of previously provided AV governance training is still sought.
Enforcement and compliance with the Act
RAPs are critically involved with the enforcement and compliance aspects of the Act through their own AHOs and working with Aboriginal Victoria’s AOs. The significant increase in actions across all reporting fields can be seen to reflect the increase in development across the state.
|Enforcement and Compliance with the Act||2019-20||218-19|
|Reports of non-compliance (breaches of the Act)||16||5|
|Compliance and Enforcement Training||20||N/A|
|Reports of other enforcement matters||20||15|
|Provision of expert advice and assistance with compliance and enforcement matters||80||1|
|Compliance inspections undertaken as required by the Act||200||41|
The impact of COVID-19 restrictions on the day to day work of RAPs can be seen through the decrease across all statutory service reporting fields, bar one. The 129% increase in heritage assessment activities, including archaeological surveys, can be seen to better identify the broader range of fieldwork undertaken by RAPs not necessarily previously reported on.
The significant work being undertaken by RAPs to monitor CHMPs should be noted and that works are being undertaken per these plans. However, for those CHMPs approved in non-RAP areas, there are significant concerns for the ongoing monitoring of management conditions for archaeological salvage and non-compliance with the CHMPS. RAPs have raised concerns with Council about the potential for outright destruction of Cultural Heritage under approved CHMPs through noncompliance, in instances where ongoing monitoring and review is not undertaken in non-RAP areas. Identified as a concern by the Minister through the SoE, Council concurs with this being set as an identified expectation and would seek to have a more signifcant target attached to this regulatory performance.
|Cultural Heritage Agreements developed with private landowners||0||0|
|Preliminary Aboriginal Heritage test surveys participated in||0||3|
|Aboriginal Cultural Heritage Land Management Agreements (ACHLMAs) developed with public land managers||9||4|
|CHP applications approved/declined||66||129|
|Notices of intent responded to||424||487|
|Heritage assessment activities undertaken||708||546|
Reviewed 25 March 2021