Aboriginal Culture and Heritage - Consideration of Acts and cases

28 July 2020

Presenter: Astrid Di Carlo Acknowledgement of Country

Russell Kennedy acknowledges the Traditional Owners of the lands on which we meet and work. We pay our respects to their Elders past, present and emerging.

2 Aboriginal culture and heritage and planning

Specific cultural heritage protection laws -  Environment Protection and Biodiversity Protection Act 1999 (Cth)  Aboriginal Heritage Act 2006 (Vic)

Native title considerations  Native Title Act 1992 (Cth)  Traditional Owner Settlement Act 2010 (Vic)

Other laws  Planning and Environment Act 1987 (Vic)  Victorian Planning provisions

Treaty  Purpose and impacts?

3 EPBC Act

Why consider the EPBC Act? More for developers than planners… 1. A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values, to the extent that they are indigenous heritage values of a National Heritage Place. Civil Penalty:

(a) for an individual--5,000 penalty units;

(b) for a body corporate-50,000 penalty units

4 EPBC Act – National Heritage Places

Victoria – Some Examples

Budj Bim National Heritage Landscape - Mt Eccles Lake Condah Area National Heritage Landscape - Tyrendarra Area National Park (Gariwerd) 's Domain Parkland and Memorial Precinct Mount William Stone Hatchet Quarry

5 Aboriginal Heritage Act - Planners

Why consider Aboriginal Heritage Act? Both developers and councils as decision makers 1. The decision maker must not grant a statutory authorisation (planning permit) for the activity unless a cultural heritage management plan is approved under the Act for the Activity. 2. Permit can be sought, but time stops until CHMP given. 3. Decision maker cannot grant the permit if it would be inconsistent with the CHMP.

https://www.aboriginalvictoria.vic.gov.au/fact-sheet-aboriginal-flaked-stone-tools

6 Aboriginal Heritage Act

 CHMP only required in accordance with the Act. . Must be area of cultural heritage significance . Must be high impact activity . Some exemptions just need to read the regulations – activities link to planning . Numerous cases now

 If don’t need a CHMP – not in the clear – Still criminal penalties if you harm Aboriginal Cultural Heritage

 Aboriginal Cultural Heritage includes: . Aboriginal places, objects and remains . Place can be an area of land, an expanse of water, a natural feature, a building or structure

7 Cases of interest

104-105 Station Street Pty Ltd v Kingston CC (Red Dot) [2019] VCAT 1546 • Issue of whether CHMP required to be prepared when activity is over two lots each less than 0.11 hectares or whether the exemption contained in Reg 10 AHR 2018 Applies:

8 Cases of interest 104-105 Station Street Pty Ltd v Kingston CC (Red Dot) [2019] VCAT 1546

. Proposal was to construct a three storey building containing 19 dwellings and basement car park over two lots . Question was whether the exemption in regulation 10 applied . 10(a) was met the land was 231 meters from the edge of Port Phillip Bay; but . 10(b) must also be satisfied in that the lot or allotment must be less than 0.11 hectares . Tribunal said that activity area covers two lots and the combined area of the two lots is more than 0.11 hectares . The exemption relates to the high impact activity being undertaken on the whole of the area to be used for the activity

9 Cases of interest 104-105 Station Street Pty Ltd v Kingston CC (Red Dot) [2019] VCAT 1546

. Tribunal applied: . S. 37(c) of the Interpretation of Legislation Act 1984 words in the singular include the plural . S. 35 of the Interpretation of Legislation Act 1984 when interpreting a provision of a subordinate instrument a construction that would promote the purpose or object underlying the Act is to be preferred

‘One of the main purposes of the Aboriginal Heritage Act 2006 (AHA) is ‘to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria’. This protection is provided by the undertaking of a cultural heritage management plan to determine the nature of Aboriginal cultural heritage present in the area in which an activity is to occur. ‘Allowing the assessment of each individual lot that is to contain the proposed activity would in my view defeat the purpose of the AHA and the AHR’.

10 Cases of interest Lake Park Holdings Pty Ltd v East SC & Ors (Red Dot) [2014] VCAT 826 overrides Three Pillars Property Group v Brimbank CC (Red Dot) [2012] VCAT 368  Three Pillars

. Question whether pre-existing CHMP can be used for an amended development proposal . Yes – Real and substantial purpose

11 Cases of interest Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Red Dot) [2014] VCAT 826 overrides Three Pillars Property Group v Brimbank CC (Red Dot) [2012] VCAT 368  Lake Park

. Question whether pre-existing CHMP can be used for an amended development proposal . Not necessarily - Three Pillars test (real and substantial purpose test) too broad and not followed . Permit applicant had a CHMP prepared in relation to a residential subdivision of Land . Initial subdivision for which the CHMP was prepared was refused at VCAT . Applicant relied on same CHMP for another permit although parts of the subdivision layout and open space areas had changed . Tribunal said it is not sufficient to broadly characterise ‘the activity’ at some generic level, nor to allow a pre-existing CHMP o be applied to any high impact activity

. Test reformulated….

12 Cases of interest Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Red Dot) [2014] VCAT 826 overrides Three Pillars Property Group v Brimbank CC (Red Dot) [2012] VCAT 368  Lake Park

. The statutory test under s 52(1) is whether there is a CHMP in respect of the activity for which a statutory authorisation is sought.

. There needs to be some continuing nexus between the CHMP and the activity for which the planning permit is sought – i.e. the relevant development or use of the land. The CHMP has been approved in respect of that activity. The references in the Act are to ‘the activity’ and ‘the development or use’. A CHMP is not necessarily a ‘one size fits all’ document that, once approved, can be applied to any high impact activity on any part of the land or activity area. . If a new statutory authorisation (i.e. a permit) is sought for a different development proposal, the question should be posed as to whether, on a fair and objective reading of the pre- existing CHMP as a whole, the CHMP still reasonably covers or contemplates the activity now proposed in the amended development proposal that requires the new permit.

13 Cases of interest Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Red Dot) [2014] VCAT 826 overrides Three Pillars Property Group v Brimbank CC (Red Dot) [2012] VCAT 368  Lake Park - Tribunal

“The decision in this case also suggests that it would be helpful if those who prepare CHMPs pay more attention to this issue – for example, by indicating in a CHMP whether the CHMP or particular recommendations are for some reason tied to a specific development proposal, or indicating what flexibility exists for certain types of changes, or what are the areas of sensitivity or change that might trigger the requirement for further assessment or a new CHMP.”

14 Native Title Act

• Native Title Act applies in Victoria • Need to consider it in light of developments particularly of Crown land • Are there any – Determinations? – ILUAs? • Native Title Register • Separate to planning but still important for developers including Councils before developing

15 Native Title Act

16 Traditional Owner Settlement Act

• Aims to settle native title claims in Victoria • Results in Recognition and Settlement Agreements • Can result in Land Use Activity Agreements (LUAA) • LUAA can include requirements to obtain permission from traditional owners to carry out works on the land • A LUAA may specify conditions as to Aboriginal Cultural Heritage that must be accepted by the parties to the agreement and any person seeking to carry out those activities on the agreement land • There is a Register of Land Use Activity Agreements • Only one for Dja Dja Wurrung 17 Other Laws

 Planning Schemes  Clause 15 – Aboriginal Cultural Heritage

18 Other Laws

 Planning Schemes  Clause 43 – Heritage

 Clause 52 – Extractive industry

 Clause 52 – Wind Energy

19 Treaty

 Advancing the Treaty Process with Act 2018

“this Act requires the State and a future Aboriginal Representative Body, as the voice chosen by Aboriginal Victorians, to work together in partnership to establish the entities, rules and resource base necessary to facilitate future treaty negotiations. The State and future Aboriginal Representative Body will at all times work collaboratively and always in good faith to achieve their joint vision for a state that celebrates Aboriginal Victorians in all areas of life.” …

“A future treaty or treaties should enhance the existing laws of this State, acknowledge the importance of culture to Aboriginal identity, bring pride to all Victorians and have positive impacts for all of Victorian society.”

20 Treaty

 Advancing the Treaty Process with Aboriginal Victorians Act 2018  Victorian Treaty Advancement Commission – Created  Job was to set up the First People’s Assembly of Victoria to establish the ground rules for a treaty  Commission ceased to operate when Assembly created in 2019  Assembly is a incorporated company limited by guarantee  Traditional owners elected to be members of the company  Assembly has a constitution  Purpose to advance the treaty process with Aboriginal Victorians

21 Future laws

 What happens next...  Treaty may impact on all laws, change some laws, create new laws  Consideration of Aboriginal and Heritage voices in creation of laws  Watch this space….

22 Disclaimer

The information contained in this presentation is intended as general commentary and should not be regarded as legal

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