ANTaR Victoria - Victorian Cultural Heritage Bill - Double Standards in Cultural Heritage

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Protecting Cultural Heritage Legislation in Victoria

Aboriginal people have inhabited Australia for over 60,000 years and are one of the world’s longest surviving cultures. A spiritual attachment to land and historical values is synonymous to Aboriginal people and it is imperative to safeguard Aboriginal cultural heritage for present and future generations. The sudden and detrimental changes to Aboriginal culture and traditions following colonisation and self-imposed British rule accentuate the importance of preserving Aboriginal heritage.

The recent changes to Victorian Aboriginal cultural heritage legislation are an attempt by the Victorian Government to balance the rights of Aboriginal and Indigenous groups to maintain their cultural heritage with the interests of commercial groups’. Although some of the changes improve the process by which Indigenous groups can seek to maintain and preserve their cultural heritage, disputes can be appealed to the Victorian Civil and Administrative Tribunal (VCAT) – a body with no Indigenous expertise and a leaning in favour of approving development.

Overview of the Aboriginal Heritage Act 2006
The Aboriginal Heritage Act 2006 incorporates a number of bodies and processes that have important roles in the safeguarding of Aboriginal cultural heritage.

Aboriginal Heritage Council
A newly created body, Victorian Aboriginal Heritage Council’s eleven Indigenous Victorian members are appointed by the Minister for Aboriginal Affairs. The key functions include:

Approving Registered Aboriginal Parties

Advising the Minister for Aboriginal Affairs

Advising the Secretary of the Department for Victorian Communities

Evaluating Cultural Heritage Management Plans

Promoting public awareness and education

Resolving disputes between registered Aboriginal parties

Registered Aboriginal Parties
Any Aboriginal party that has an interest in the cultural heritage of an area can apply to be a Registered Aboriginal Party. Registered Aboriginal Parties will carry out a number of key roles throughout the process, including:

Involvement with the preparation of a Cultural Heritage Management Plan

Approving or refusing the Cultural Heritage Management Plan

Opining on applications for Cultural Heritage Permits

Cultural Heritage Management Plan
A Cultural Heritage Management Plan assesses the extent to which a project will impact Aboriginal cultural heritage and if required, details appropriate strategies to manage the impact. Registered Aboriginal Parties are involved in both the preparation of and approving Cultural Heritage Management Plans. If no Registered Aboriginal Party for the area exists, the Secretary of the Department for Victorian Communities will evaluate the plan

Cultural Heritage Permits
Certain pre-defined activities that will have an impact on Aboriginal cultural heritage (eg. harming, buying or selling, removal from Victoria) requires a permit to be sought from the Secretary of the Department for Victorian Communities. The Secretary will refer the application to the relevant Registered Aboriginal Party, who will advise if they do or do not object to a permit being granted. If the Registered Aboriginal Party objects, the Secretary must refuse the grant of the permit.

Victorian Civil and Administrative Tribunal (VCAT)
In cases whereby a Registered Aboriginal Party does not approve a Cultural Heritage Management Plan or whereby a Registered Aboriginal Party objects to a Cultural Heritage Permits being granted, the applicant may seek review by the Victorian Civil and Administrative Tribunal.

ANTaR’s Key Concerns
Under previous legislation, Traditional Owners had final authority on all matters in relation to cultural heritage on their country. This authority has now been taken away from the Traditional Owners. In addition, the establishment of an appeals process will see non-Indigenous persons having the final say on the significance of Aboriginal Cultural Heritage.

Key concerns stemming from the new legislation include:

Where a Cultural Heritage Management Plan is not approved by the Registered Aboriginal Party, the sponsor may apply to the Victorian Civil & Administrative Tribunal (VCAT) for review of the decision. This is inappropriate as VCAT members are not Aboriginal nor do they have the local knowledge and skills of Traditional Owners and their Elders.

The Aboriginal Heritage Council has no direct authority with regards to Aboriginal cultural heritage – it primarily has an advisory and facilitation role.

Members of the Aboriginal Heritage Council are appointed solely by the Minister and not appointed by Indigenous groups. This extinguishes any rights of Aboriginal group’s to appoint their own representatives and ensure that the council comprises the foremost experts on Aboriginal cultural heritage.

Any Aboriginal party that has an interest in the cultural heritage of an area can apply to be registered as an Aboriginal party. A Registered Aboriginal Party has the same rights whether they represent Traditional Owners or historical Aboriginal people.

The requirement for all Registered Aboriginal Parties to be incorporated entities with substantial reporting requirements and governance structures may be a challenging constraint for some Aboriginal groups, and the Government’s funding and administrative support may be inadequate.

The Registered Aboriginal Party has the power to endorse or reject Aboriginal Cultural Heritage Assessments without making it compliant on the informed consent of the Traditional Owners or Native Title group.

The new legislation is likely to cause conflict between different Aboriginal groups. It also does not provide certainty to developers in dealing with Aboriginal Cultural Heritage as they could potentially have to deal with any number of Registered Aboriginal Parties all with opposing interests.