Submission to the Parliamentary Inquiry Into the Establishment and Effectiveness of Registered Aboriginal Parties

Submission to the Parliamentary Inquiry into the establishment and effectiveness of Registered Aboriginal Parties

Department of Planning and Community Development

Table of contents

Acronyms and abbreviations ...... 3

Executive Summary ...... 4

Background ...... 6

Background to the Aboriginal Heritage Act ...... 7

The Cultural Heritage Management Plan Process ...... 9

Victorian Aboriginal Heritage Council ...... 11

Registered Aboriginal Parties (RAPs) ...... 12

International law responsibilities ...... 15

Review of the Aboriginal Heritage Act ...... 15

Response to the Inquiry’s Terms of Reference ...... 16

1. Victorian Aboriginal Heritage Council policies in relation to the appointment of RAPs, including the factors that should be taken into account by the Council in making decisions..16

1(a) The degree to which Traditional Ownership is contested in the area of the subject of an application...... 16

1(b) The impact that decisions may have on the community...... 19

1(c) The capacity of the applicant to fulfil legislative responsibilities if appointed...... 22

1(d) The process used to determine and identify the successful RAP...... 23

2. The support available to the Council in making decisions about the appointment of RAPs ...... 25

2(a) Membership and structure of the Council...... 25

2(b) Council's capacity to inquire into matters relevant to applications, including supporting applicants to provide information needed to fully assess applications.....26

3. The effectiveness of the established RAPs to perform their duties under the Act...... 28

Acronyms and abbreviations

In full Shortened form

Aboriginal Affairs Victoria AAV

Aboriginal Heritage Act 2006 (Vic) The Act

Aboriginal Heritage Regulations 2007 (Vic) the Regulations

Commonwealth Aboriginal and Torres Strait Islander Heritage the Commonwealth Act Protection Act 1984 (Cwlth) cultural heritage management plan CHMP

Department of Planning and Community Development DPCD

Parliamentary Inquiry into the establishment and effectiveness Inquiry of RAPs

Registered Aboriginal Party RAP

Scheduled review into the efficacy and efficiency of the the review operation of the Act

Traditional Owner Settlement Act 2010 (Vic) The TOS Act

Victorian Aboriginal Heritage Council The Council

Victorian Civil and Administrative Tribunal VCAT

Executive Summary

1. This Department of Planning and Community Development (DPCD) submission to the Parliamentary Inquiry into the establishment and effectiveness of Registered Aboriginal Parties (RAPs) outlines the legal framework, underpinning policy, and the practical operation of areas relevant to the terms of reference. 2. Victoria‘s Aboriginal Heritage Act 2006 (the Act) represents a fundamental shift from the previous legal framework for managing and protecting Aboriginal cultural heritage. 3. The Act seeks consistency and compliance with international obligations including the United Nations Declaration on the Rights of Indigenous People which recognises that Indigenous people have international human rights: to ―maintain and strengthen‖ connection to their country; to ―maintain, control, protect and develop their cultural heritage‖; and to ―maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites‖. 4. One of the Act‘s key objectives is to accord appropriate status to Traditional Owners in the protection and management of Aboriginal cultural heritage. It also seeks to better align native title and cultural heritage management in terms of the groups who are legally recognised over a particular area for carrying out native title and cultural heritage responsibilities. 5. The Act establishes the Victorian Aboriginal Heritage Council (the Council) as a state- wide advisory body about Aboriginal cultural heritage matters and a decision making body about which Aboriginal organisations should become recognised decision makers (as RAPs) under the Act. 6. RAPs are incorporated Aboriginal groups, recognised under the Act as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage. RAPs have both advisory and decision making responsibilities. There are currently nine RAPs operating, covering 56% of Victoria. 7. The Council is bound to comply with requirements of the Act, administrative law and the Victorian Charter of Human Rights and Responsibilities Act 2006 when making decisions about RAP appointments. The Council is also subject to public sector accountability measures including the Ombudsman, Auditor-General, Freedom of Information and Parliament. 8. Victoria‘s history of dispossession, forced relocation and family separations creates special challenges in achieving consensus about Traditional Owner group composition and membership, and land area boundaries. 9. A number of Aboriginal organisations that exercised cultural heritage responsibilities under the previous framework have not been appointed as RAPs. Some had developed

cultural heritage expertise, had excellent relationships with developers and other stakeholders and were well regarded by their local communities. There have also been positive examples of groups who formerly held cultural heritage responsibilities working well with appointed RAPs. 10. The Right People for Country Project is currently being piloted to support agreement making amongst and between Traditional Owner groups. This project aims to assist the Council‘s RAP appointment process and the State‘s negotiations under the Victorian Traditional Owner Settlement Act 2010 (the TOS Act). 11. Under the current Act, effective RAPs are important to efficient development, land planning and natural resource management in Victoria. Government, industry and other stakeholders expect and rely upon a professional standard of service from RAPs. 12. The scheduled review of the efficacy and efficiency of the operation of the Act (the review) is currently underway. 13. Attachment 1 provides a summary of the first round of consultations and submissions in the review process. 14. RAPs are extremely diverse in terms of capacity, infrastructure and access to resources. Some RAPs are long-established organisations, able to generate sufficient revenue to support their activities or have operating costs funded through native title or TOS Act settlement arrangements. Other RAPs are emergent organisations largely operated by volunteers with limited resources. 15. Governance skills, organisational development and technical skills are critical to the effective operation of RAPs. 16. The Victorian Government provides a range of support to strengthen RAP capacity. 17. A PWC report on the socioeconomic impacts of the Aboriginal Heritage Act, including an economic assessment of RAPs, is provided at Attachment 2.

Background

A DPCD submission led by AAV

Aboriginal Affairs Victoria (AAV) is leading this submission to the Parliamentary Inquiry into the establishment and effectiveness of RAPs (Inquiry) on behalf of the DPCD.

AAV is a community development agency, working to build on the strengths of Victoria‘s Aboriginal communities. AAV‘s vision is:

Aboriginal and Torres Strait Islander Victorians are confident, able, involved, connected and informed, making decisions about things that matter.

A society that understands, values and celebrates Aboriginal and Torres Strait Islander people and culture and the ongoing contribution of Aboriginal and Torres Strait Islander Australians.

AAV administers and implements the Aboriginal Heritage Act on behalf of the Minister for Aboriginal Affairs.

Other areas of DPCD, including areas responsible for planning, Regional Development Victoria, Local Government Victoria and Heritage Victoria were consulted, and had no further comment.

About this submission

This submission outlines the legal framework, underpinning policy, and the practical operation of areas relevant to the terms of reference of this Inquiry.

DPCD respects the independence of the Council and does not seek to influence Council policies or decisions. Accordingly, this submission will avoid positional comments regarding Council policies, practices or decisions.

This submission also avoids commenting on the performance of individual RAPs, recognising that RAPs are making independent submissions to this Inquiry.

The review of the Act is partially relevant to the terms of reference of this Inquiry. Attachment 3, the Issues and Options Paper resulting from the first round of submissions on the review, is provided to assist the Committee in this regard.

Background to the Aboriginal Heritage Act

The Act commenced in May 2007 following passage through Parliament in May 2006.

It represented a major policy shift from the previous legal framework under Part IIA of the Commonwealth‘s Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Commonwealth Act).

The Aboriginal Heritage Act was developed following two years of consultation with Aboriginal communities, industry, local government and other stakeholders. It was intended to address a range of concerns. Major concerns included:

 Industry was unclear when to consider its impact on Aboriginal cultural heritage. Aboriginal heritage assessments prior to development were neither routine nor regulated. Recommendations of a heritage assessment carried no legal weight at all and were routinely ignored as penalties were inadequate and difficult to prosecute. This absence of regulation led to substandard heritage work and poor protection and management of Aboriginal heritage.  A developer could obtain a permit to proceed before considering and ameliorating heritage impacts. Consequently, impacts weren‘t being recognised until development had started. This resulted in destruction of heritage in the majority of cases or costly delays to developers after works had already begun, where damage to Aboriginal heritage was noticed and acted upon.  A developer had no avenue other than the Supreme Court to appeal a decision to refuse consent to disturb. Local Aboriginal organisations could only rely on this threat of a veto to force a heritage assessment to determine whether development that would harm Aboriginal cultural heritage could occur. This created enormous pressure on Aboriginal organisations and incentives for undesirable behaviour to secure approvals for development to proceed. In most cases heritage decisions were not being made by Traditional Owners, but instead by Aboriginal organisations representing the local residential Aboriginal community. This did not accord with the way that Aboriginal people wanted to control the management of their heritage or with how the State wanted to progress its dealings with Aboriginal Victorians in the native title sphere.

The new Act was designed to provide clarity, certainty and consistency:

 Clarity about who makes decisions:

The Act established the Victorian Aboriginal Heritage Council (the Council), a body of Victorian Traditional Owners, to determine which Aboriginal groups should speak for

their cultural heritage. These groups of Text Box 1: Aboriginal Heritage Act Purpose and Objectives people – RAPs – would be the sole arbiters

of cultural heritage management decisions Purpose: and were provided with approval powers The main purpose of this Act is to provide over a new system of cultural heritage for the protection of Aboriginal cultural heritage in Victoria. management plans. Objectives:  Certainty about what to do, when and how: The objectives of this Act are -

The Act establishes a clear process for (a) to recognise, protect and conserve Aboriginal cultural heritage in Victoria assessing impacts on Aboriginal cultural in ways that are based on respect for Aboriginal knowledge and cultural and heritage; provides a transparent approval traditional practices process; establishes regulated timelines for (b) to recognise Aboriginal people as the primary guardians, keepers and decisions and provides capacity for an knowledge holders of Aboriginal independent review of decisions. It creates cultural heritage certainty for developers and others which (c) to accord appropriate status to Aboriginal people with traditional or had not been a feature of Aboriginal familial links with Aboriginal cultural heritage in protecting that heritage cultural heritage management in Victoria (d) to promote the management of under previous laws. Aboriginal cultural heritage as an integral part of land and natural  Consistency in heritage management and resource management protection: (e) to promote public awareness and understanding of Aboriginal cultural The Act established the cultural heritage heritage in Victoria management plan (CHMP) process – a (f) to establish an Aboriginal cultural heritage register to record Aboriginal proactive approach managing cultural cultural heritage heritage at the front end of developments (g) to establish processes for the timely and efficient assessment of activities which are likely to have a high impact on that have the potential to harm sensitive areas of land. CHMP standards Aboriginal cultural heritage (h) to promote the use of agreements that and evaluation fees are regulated. Heritage provide for the management and protection and management is no longer protection of Aboriginal cultural heritage arbitrary. They are required when certain (i) to establish mechanisms that enable conditions are met by a development the resolution of disputes relating to the protection of Aboriginal cultural proposal, all detailed in the Act and heritage Victoria‘s Aboriginal Heritage Regulations (j) to provide appropriate sanctions and 2007 (Regulations). penalties to prevent harm to Aboriginal cultural heritage. The purpose and objectives of the Act are set out in Text Box 1.

The cultural heritage management plan process

The means by which Victoria assesses the impact of development on Aboriginal cultural heritage is through the CHMP process. CHMPs are an assessment of the impacts of development on Aboriginal cultural heritage; which may involve ground survey and excavation, usually undertaken by qualified personnel; and a report detailing the results of the assessment and recommendations for the developer to follow before, during and after the proposed development project. Most other similar jurisdictions also have heritage assessment processes in place, with varying degrees of Indigenous control of decision- making and regulation around methodology, and when such assessments are required.

The process for determining when a CHMP is required is outlined in Text Box 2.

Text Box 2: When a CHMP is required

CHMPs are required by the Act under three circumstances:

 if the Minister for Aboriginal Affairs so orders  if an Environment Effects Statement is required for the project  if the project meets the CHMP triggers outlined in the Regulations.

CHMPs may also be prepared voluntarily.

In the Regulations there are two triggers used to determine if a CHMP is required for a project:

 if it is a listed high impact activity, and  it is proposed for a designated area of cultural heritage sensitivity.

Both of these triggers are detailed in the Regulations, and mapping is available to assist developers. Sensitive areas are no longer sensitive if they have been subjected to significant ground disturbance, defined in the Regulations as disturbance to the ground ―by machinery in the course of grading, excavating, digging, dredging or deep ripping.‖ If land has been subject to this disturbance, it no longer meets the second trigger and a CHMP is not required.

Once a CHMP is required, the steps are as follows:

1. Sponsor (developer) submits a notice of intention to undertake a CHMP to a RAP (if one exists for the relevant area) or to the Secretary, DPCD (delegated to AAV). 2. The RAP has 14 days to notify the sponsor whether or not it intends to participate in the CHMP. 3. The sponsor notifies the Secretary, DPCD if the RAP does not wish to participate or fails to respond in time.

4. The sponsor engages a cultural heritage advisor (usually a qualified archaeologist) to prepare the CHMP. 5. In preparing the CHMP, the cultural heritage advisor provides technical expertise (for example, archaeological or anthropological) and the RAP provides the cultural perspective and is responsible for determining cultural significance. 6. All three parties (sponsor, RAP and cultural heritage advisor) meet to discuss the process for proceeding with the CHMP. 7. The cultural heritage advisor in consultation with the RAP conducts a desktop assessment. If the result of this assessment shows a reasonable possibility of Aboriginal cultural heritage being encountered in the activity area, a standard assessment must take place. 8. A standard assessment usually involves an archaeological survey by foot, undertaken by the RAP and the cultural heritage advisor. If, after this assessment, Aboriginal cultural heritage is found or is likely to be found, and if it is not possible to determine the nature, significance or extent of Aboriginal cultural heritage without excavation, a complex assessment is required. 9. A complex assessment usually involves excavation, which must be undertaken or supervised by a qualified archaeologist. The RAP is also usually involved in this assessment. 10. Once the field component of the CHMP is completed, the CHMP report is written by the cultural heritage advisor for the sponsor. 11. Recommendations in the CHMP report must follow a hierarchy established in s61 of the Act. First, avoid harm to Aboriginal cultural heritage. If avoidance is not possible, minimise harm. Recommendations must establish measures to manage cultural heritage in these terms, provide contingencies for unforseen circumstances arising during development, and state what is to be done with any Aboriginal cultural heritage discovered. 12. The CHMP report is then submitted to the RAP or AAV for evaluation. The CHMP must be evaluated within 30 days. 13. The RAP or AAV must refuse to approve the CHMP if it does not meet the minimum standards for preparation as established in Part 3 of the Regulations. The RAP or AAV may refuse to approve the CHMP if it does not adequately address the matters listed under s61. There are no other lawful grounds for approval of a CHMP to be refused. 14. In the event of a refusal, a sponsor may appeal the decision to the Victorian Civil and Administrative Tribunal (VCAT).

The Victorian Aboriginal Heritage Council

The Act establishes the Council, the first ever Victorian, and one of only two national, all- Aboriginal statutory bodies invested with legal and decision making powers over Aboriginal cultural heritage (the other being the South Australian State Aboriginal Heritage Committee).

Establishment of the Council represented a major shift from Victoria‘s previous framework for protecting and managing cultural heritage. It placed Traditional Owners at the centre of decision making and providing advice on Aboriginal cultural heritage in Victoria.

The Council consists of up to eleven Victorian Traditional Owners with expertise in cultural heritage appointed by the Minister for Aboriginal Affairs.

The Council‘s main roles include:

 Deciding on applications from Aboriginal organisations seeking to become Registered Aboriginal Parties (RAPs). Appointed RAPs have responsibilities for the management and protection of cultural heritage decision in their local areas

 Advising the Minister for Aboriginal Affairs and the Secretary, DPCD about the exercise of powers under the Act and the protection of Aboriginal cultural heritage

 Promoting public awareness and understanding of Aboriginal cultural heritage.

The Council has been very active since its establishment. Its major focus and priority continues to be considering RAP applications from Aboriginal groups across Victoria.1 So far, the Council has considered 42 valid RAP applications. Of those, 9 were appointed, 25 applications were declined (one partly); four withdrawn and five are still to be determined.

The Council has provided expert advice in a number of areas including:

 the operation of the Act and desirable legislative reform  the need to provide appropriate resources for RAPs including providing recurrent Government funding and capacity building programs  various Parliamentary Inquiries relevant to the management of Aboriginal cultural heritage including the recent Inquiry into greenfields mineral exploration and project development in Victoria  matters that the Minister cannot progress prior to consulting the Council such as the appointment of inspectors. Council‘s functions and processes are discussed in greater detail on pages 29-35.

1 Victorian Aboriginal Heritage Council’s strategic plans 2011-2014 and 2008-2011

Registered Aboriginal Parties

RAPs are incorporated Aboriginal groups, recognised under the Act as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage.

RAPs have both advisory and decision making responsibilities. RAPs are pivotal to the protection and management of cultural heritage in their local area. They provide advice to the minister, Secretary and Council on Aboriginal cultural heritage for their registered area. RAPs also facilitate development in a way that protects and respects heritage values.

To date, the Council has appointed nine RAPs across Victoria, covering 56% of the state (refer Table 1 and Figure 1).

Table 1: Appointed RAPs

RAP RAP organisation Region Location Other appointment

Gunditj Mirring Traditional Owners Aboriginal Corporation South West Victoria Heywood May 2007 Native title holder

Wurundjeri Tribe Land and Compensation Cultural Melbourne Melbourne August 2008 Heritage Council metro

Recognised as Traditional Barmah and Owners as part of a Co- Yorta Yorta Nation Aboriginal Corporation North Central Victoria September 2007 Shepparton operative Management Agreement with the State

Barengi Gadjin Land Council Aboriginal Corporation Wimmera Region Horsham September 2007 Native title holder

Martang Pty Ltd Grampians Region Pomonal September 2007

Native Title holder Gunaikurnai Land and Waters Aboriginal Corporation Gippsland Region Bairnsdale May 2008 TOS Act agreement

Currently negotiating a TOS Dja Dja Wurrung Clans Aboriginal Corporation Loddon Mallee Region Bendigo September 2008 Act agreement

Central/ Barwon/ Wathaurung Aboriginal Corporation Ballarat May 2009 Surf Coast Region

Taungurung Clans Aboriginal Corporation North Central Kilmore July 2009

Figure 1: Location of appointed RAPs

International law responsibilities

The United Nations Convention Concerning the Protection of the World Cultural and Natural Heritage establishes the responsibility for state parties, of which Australia is one, to ―ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory‖.2

Australia is also a signatory to the United Nations Declaration on the Rights of Indigenous People. The declaration recognises that Indigenous people have international human rights: to ―maintain and strengthen‖ connection to their country; to ―maintain, control, protect and develop their cultural heritage‖; and to ―maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites‖.3

The Aboriginal Heritage Act seeks consistency and compliance with these international obligations.

Review of the Aboriginal Heritage Act

A review of the efficacy and efficiency of the Act is currently underway. This review, by DPCD, is a statutory requirement.

In conducting the review, widespread consultation has been held across Victoria. Eighty public and three confidential written submissions have been received. Public submissions are publically available on the DPCD website. A Summary of Submissions and Consultation outlining issues raised during the review is provided at Attachment 1.

PricewaterhouseCoopers Australia has completed a report on Socioeconomic impacts of the Aboriginal Heritage Act 2006 provided at Attachment 2. This report was commissioned to inform the review.

Issues identified through the review process will inform the next phase of consultation where feedback is sought on an Issues and Options Paper, describing potential options for improving the operation of the Act. Feedback on the Issues and Options Paper will be compiled in a review report, which will be provided to the Inquiry. Recommendations from the review and this Inquiry will be brought together to inform Government‘s responses to the issues and recommendations identified in both processes.

2 UN Convention concerning the protection of the world cultural and national heritage, article 5. 3 UN Declaration on the rights of Indigenous peoples, articles 11, 25 and 31.

Response to the Inquiry’s Terms of Reference

1. Council policies in relation to the appointment of RAPs, including the factors that should be taken into account by the Council in making decisions

(a) the degree to which traditional ownership is contested in the area of the subject of an application

Identifying Traditional Owner groups and the extent of each groups‘ country is not straightforward. This is particularly so in Victoria.

Aboriginal people lived in, maintained and looked after Victoria‘s natural resources for at least 50,000 years before European settlement. Over thirty different dialect or sub-language groups (or tribes) spoke about eleven distinct languages. Each dialect group contained half a dozen or more clans.

Victoria‘s history of dispossession of Aboriginal Victorians and forced relocation to missions and reserves around the State meant Aboriginal Victorians were physically separated from their traditional country. Further, family breakup through removal of Aboriginal children from their families was more prevalent in Victoria than other parts of Australia.

In appreciating the challenges inherent in contemporary identification of Traditional Owners, it is important to recognise that dislocation, dispossession and family separation have contributed to broken knowledge about ancestral lands.

Many different maps have been produced by anthropologists showing language, nation and tribal areas (two examples are provided in Figure 2 and Figure 3). They are all different. In some cases, entire nations disappear on one map when compared to another. While there are considerable areas of broad agreement, there is no definitive consensus around the Traditional Owner landscape of Victoria.

Indigenous Victoria today is a mix of Aboriginal and Torres Strait Islander people from across Australia. Over eight percent of the Indigenous population has Torres Strait Islander background, and there continues to be substantial emigration of Aboriginal people to Victoria. Many Victorian Traditional Owners live away from their traditional country, yet still retain strong relationships to it.

Figure 2: Language areas

(Clarke)

Figure 3: Aboriginal tribal areas

(Tindale)

(b) the impact that decisions may Text Box 3: Commonwealth Indigenous have on the community Heritage Law Reform

A key objective of the Act is to accord Proposed changes to the Commonwealth appropriate status to Aboriginal people with Aboriginal and Torres Strait Islander traditional or familial links with Aboriginal Heritage Protection Act 1984 canvassed in cultural heritage in protecting that heritage. a 2009 discussion paper, Indigenous The second reading speech referred to the Heritage Law Reform explicitly acknowledges the role of Traditional appointment of RAPs as ―recognition of Owners in making cultural heritage Aboriginal nations within a Victorian legislative decisions. Proposals include introducing framework.‖ 4 an accreditation process for Victorians The Act was developed bearing in mind the cultural heritage laws that would remove United Nations Declaration on the Rights of the current uncertainty about Indigenous Peoples reflected in (the then Commonwealth intervention on the part of a draft) Victorian Charter of Human Rights to proponent who meets all Victorian cultural heritage requirements. recognise the right of Aboriginal people to ―maintain their distinctive spiritual, material Of concern to the Commonwealth was the and economic relationship with the land and ability for non-Traditional Owners to be appointed as RAPs. The Commonwealth waters and other resources with which they indicated accreditation would be possible if have a connection under traditional laws and Victoria required any non-Traditional Owner customs‖.5 RAP to consult with the appropriate It is also consistent with Commonwealth Traditional Owners before making any proposals to reform its Indigenous cultural decisions under the Victorian Act. 6 heritage legislation .

The Act also aims to better align native title and cultural heritage responsibilities, avoiding the previous situation where different groups exercised similar responsibilities under two different legal regimes (cultural heritage laws and ‗right to negotiate‘ provisions under the Native Title Act 1993 (Cwlth) over the same land. Only Traditional Owners can be recognised as native title holders and protection of cultural heritage is an identifiable native title right.

This alignment has been broadened by the interaction of the Act with the TOS Act. Traditional Owner groups that have entered TOS Act agreements with the State are elevated to the same status as native title holders and are entitled to exclusive RAP appointment.

4 2nd reading speech, Aboriginal Heritage Bill, 6 April 2006 – Legislative Assembly 5 See s.19(2)(d) Victorian Charter of Human Rights and Responsibilities Act 2006 6 Commonwealth Government, 2009, Indigenous Heritage Law Reform, p.11

Consistency between RAPs and groups seeking native title or TOS Act outcomes streamlines the groups that developers and land managers need to work with

Native title and TOS Act arrangements require the existence of a single, inclusive organisation to represent the Traditional Owners of a particular area. Many Traditional Owner groups in Victoria are still going through the process of identifying, forming and developing inclusive membership and representative structures, and establishing corporate vehicles capable of satisfying these requirements.

There is still significant work to take place amongst and between Traditional Owner communities across Victoria before consensus on group boundary and composition issues can be achieved, as well as developing legal and organisational structures that satisfy both native title and cultural heritage requirements.

The Report of the Steering Committee for the Development of a Victorian Native Title Settlement Framework (2009) identified Indigenous disputes as a major barrier to native title settlements and appointing of Registered Aboriginal Parties.

Establishment of the Council places decision making about which groups should exercise cultural heritage responsibility in Aboriginal hands. The Council has established a number of processes to engage with Aboriginal groups around these issues, including facilitated meetings, voluntary mediation and engagement with neighbouring Aboriginal groups.

The Right People for Country Project

The Right People for Country project is currently being piloted. This pilot project is being driven by a partnership of the Council, the Victorian Traditional Owner Land Justice group, the State and Native Title Services Victoria. An Australian first, it aims to support groups to reach agreement over group composition and boundaries and build consensus about which groups should have cultural heritage responsibilities under the Act, and recognition under the TOS Act.

The Right People for Country project is profiled in the current Native Title Report7 as a new approach to resolving disputes between Aboriginal peoples over land ownership and cultural heritage that embodies rights in the United Nations Declaration on the Rights of Indigenous Peoples and minimises the potential for contributing to lateral violence.

Although the Act emphasises the special role of Traditional Owner groups, it also enables other groups to be appointed as RAPs. The Act also allows the Council to appoint multiple

7 Native Title Report 2011 pp.111-114 http://www.hreoc.gov.au/social_justice/nt_report/ntreport11/pdf/Native%20Title%20Report%202011%20- %20Full%20Report.pdf

RAPs over the same area in limited circumstances although no such appointment has yet been made.

A number of Aboriginal organisations that exercised cultural heritage responsibilities under the previous framework have not been appointed as RAPs. Some had developed cultural heritage expertise, had excellent relationships with developers and other stakeholders and were well regarded by their local communities.

There have also been positive examples of groups who formerly held cultural heritage responsibilities working well with appointed RAPs. For example, Gunditj Mirring Traditional Owners Aboriginal Corporation works with Windamara Aboriginal Co-operative in managing land that contains significant Aboriginal cultural heritage in south west Victoria.

While formal cultural heritage decision making responsibility is increasingly sitting with Traditional Owners under the Act, this does not preclude Aboriginal and Torres Strait Islander people from across Australia from employment in cultural heritage related fields. There are current examples of RAPs, cultural heritage industry and government employing Aboriginal and Torres Strait Islander people in the protection and management of cultural heritage. This level of employment is currently limited, but has potential to grow.

Where a RAP applicant represents people with historical and contemporary links to an area, the Act requires the Council to consider the organisations ―demonstrated experience in managing and protecting Aboriginal cultural heritage in that area.‖8

This same requirement does not apply to organisations representing people with traditional or familial links to an area, in recognition that Traditional Owner groups were often not responsible for cultural heritage management under the previous legal framework.

However, there is provision in the Act for the Council to take into account ―any other matter that the Council considers to be relevant‖ when determining an application. 9

AAV works in partnership with newly appointed RAPs to develop and strengthen capacity.

8 See s150(1)(c)(ii) of the Act 9 See s. 151 (3)(g) of the Act

(d) the process used to determine and identify the successful RAP

The Council‘s decision making process is framed by the Act and by administrative law requirements.

The Act requires that the Council must appoint an applicant who holds native title or is party to a settlement under the TOS Act as a RAP. It cannot appoint any other applicant for those areas. 10

In all other cases, the Council has discretion over whether to appoint an applicant as a RAP. In making its decision, the Council must consider factors set out in the Act (refer Text Box 4)

Text Box 4: Determination of application for registration

151(3) Subject to subsection (2), in determining an application, the Council must take the following into account—

(a) whether the applicant is a native title party for the area to which the application relates

(b) the terms of any native title agreement that the parties to that agreement agree to make available to the Council

(c) whether the applicant is a body representing Aboriginal people with traditional or familial links to the area to which the application relates

(d) whether the applicant is a body representing Aboriginal people that have—

(i) a historical or contemporary interest in the Aboriginal cultural heritage relating to the area to which the application relates, and

(ii) demonstrated expertise in managing and protecting Aboriginal cultural heritage in that area

(e) the existence of any grant of land in fee simple made by the State or the Commonwealth to an Aboriginal body under a specific power in a State or Commonwealth Act

(f) whether the applicant has entered into an agreement with the State in relation to land and natural resource management in the area to which the application relates

(g) any other matter that the Council considers to be relevant.

The Act gives the Council 120 days to determine a RAP application.11 Council decisions have consistently taken a longer period for consideration.

10 See s. 151 (2) and (2A) of the Act 11 See s. 151 (1) of the Act

The Council can approve or decline a RAP application. There is no specific ability under the Act for the Council to make a conditional appointment.

Administrative law and other public sector accountabilities

Additional to the requirements set about above, as a statutory decision maker, the Council is also bound by administrative law principles. These include natural justice, procedural fairness and the provision of transparent reasons for decision.

The Council is also subject to other public sector responsibilities including the Victorian Charter of Human Rights and Responsibilities Act 2006, the Information Privacy Act 2000 (Vic) and the Public Administration Act 2004 (Vic).

The Council‘s operations are also subject to public sector accountabilities including scrutiny under Freedom of Information, by Parliament, the Ombudsman and the Auditor-General.

Avoiding conflict of interest

The Act requires that Council members not participate in making decisions about applications in which they have a conflict of interest.12 Administrative law principles of bias also apply to the Council.

Council’s guiding principles

Early in its operations, the Council published the following guiding principles regarding its approach to RAP applications:

 The Council will give priority consideration to applications made by groups who represent Traditional Owners.

 Where appropriate, the Council will move quickly to register the core Country of applicants representing Traditional Owners who have sufficient capacity to become a RAP.

 The Council will also give priority consideration to uncontested applications by other groups that meet the Acts requirements that are supported by the Traditional Owners of the Country affected by the application.

 The Council may invite certain Applicants to participate in regional meetings and mediations to resolve competing applications and overlapping boundaries.

 The Council wants to ensure that groups recognised under the cultural heritage laws as best as possible reflect those under native title arrangements.

12 See s. 142 of the Act

 The Council encourages smaller groups to create sustainable RAP structures by working together to create a single RAP or to develop co-operative arrangements with other Aboriginal organisations.

The Council are not bound by these principles. These principles do not limit its discretion.

Potential for appointment of multiple RAPs

The Act allows more than one RAP to be appointed for an area.13 However, before appointing a second or subsequent RAP, the Council must be satisfied that having more than one RAP for the area will not unduly hinder the ability of either RAP to exercise their functions or powers and will not otherwise hinder the effective operation of the Act.

To date, the Council has not appointed more than one RAP for the same area. However, this may change following a recent native title determination that involved shared country between two Traditional Owner groups in south-west Victoria.

Reviewability of Council decisions

Council decisions are subject to judicial review on the grounds of error of law. To date, no decisions have been reviewed.

Decisions of the Council are made independently of the minister and the parliament. Decisions regarding RAP applications are not subject to merits review.

Council’s ability to vary a RAP appointment

The Council has limited ability to vary the registration of a RAP once appointed. A variation can only be made with that RAP‘s consent.14 Council has not yet sought to alter a registration.

Revocation or suspension of a RAP

The Council has powers to suspend or revoke RAP registration under certain circumstances, including if the RAP has failed to act in good faith, ceases to be a body corporate, where a native title determination is made over the area or where the RAP requests its appointment by revoked or suspended.15 Decisions to revoke or suspend are appealable to VCAT.16

To date, the Council has not exercised these powers.

13 See s. 153 of the Act 14 See s. 155 of the Act 15 See ss. 156 – 157 of the Act 16 See s. 158 of the Act

2. The support available to the Council in making decisions about the appointment of RAPs

(a) membership and structure of the Council

Council membership

The Council comprises up to eleven members, appointed by the minister.

Members must be Aboriginal people with traditional and familial links in Victoria, who live in Victoria and have knowledge and experience in cultural heritage management in Victoria.17

Eleven members were initially appointed. Following a number of resignations the Council has operated with as few as 9 members. It currently has 10 members.

Members‘ terms of appointment are for three years, with half of the membership becoming vacant each eighteen months. Inaugural Council members who sought re-appointment when their initial terms expired were re-appointed.

An expression of interest process is currently underway for the appointment of 6 members commencing 29 May 2012.

The Council also has the power to co-opt members, subject to ministerial approval, but has not exercised this power as yet.

Members are paid sitting fees18 based on meetings attended and other work carried out relevant to Council business. The Council must meet at least 6 times per year. Recently, Council commenced meeting every second month. In its earlier days of operation, it met more frequently.

Council structure

The Council is a statutory body.

The Act establishes the Council as an expert, advisory and decision making body, rather than a representative body. This structure and focus is comparable with similar bodies interstate and in Victoria, including the Victorian Heritage Council.

Representative and advocacy structures for Traditional Owners exist elsewhere, notably the Victorian Traditional Owners Land Justice Group.

17 See s. 131 of the Act 18 Fees set out in the Appointment and Remuneration Guidelines for Victorian Government Boards, Statutory Bodies and Advisory Committees

The Council is staffed by a dedicated Secretariat that operates out of AAV. It is currently staffed by approximately 4.5 full time equivalent positions that include a mix of permanent and contract roles.

The Council‘s expenses come out of the AAV budget.

(b) Council's capacity to inquire into matters relevant to applications, including supporting applicants to provide information needed to fully assess applications

Text Box 5: Aboriginal Heritage Act s.151

(5) In determining an application, the Council may—

(a) request further information from the applicant, and

(b) obtain assistance from any person that the Council considers has relevant knowledge or expertise.

The Council relies on the following information to determine a RAP application: information from RAP applicants and neighbouring Aboriginal groups; research materials including historical, anthropological and genealogical materials, including research commissioned by the Council; and Council members‘ own knowledge as a group of Victorian Traditional Owners (refer Text Box 5).

Council has employed contract researchers to meet with applicants and analyse information provided by the applicants, as well as considering secondary materials regarding Traditional Ownership in an area.

The TOS Act framework seeks protocols for sharing information between native title, TOS Act and RAP applicants. A cross-agency working group is currently engaged to advance this objective.

Text Box 6: Sharing information between native title, TOS Act and RAP applicants

Principle 39 in the report of the Steering Committee developing an alternative Native Title Settlement Framework, stated the sharing of connection material is desirable if it:

a) results in streamlined and simplified processes and reduces the burden placed on all parties, most notably Traditional Owner groups, in preparing and assessing connection material;

b) is in the best interests of Traditional Owner groups and does not compromise client privilege or pose a risk to native title claimants if connection issues are not resolved in native title negotiations and go on to a litigated outcome; and

c) assists the Victorian Aboriginal Heritage and the Victorian Government to make the best possible decisions about who are the right people for country.

A joined-up research project has recently commenced involving the Council, Native Title Services Victoria and the Department of Justice in a shared project focussing on Woi Wurrung interests. The project involves all three bodies sharing resources and guidance for the researcher as well as involving the Traditional Owners who were involved in the design of the research and will continue to be involved throughout the project.

Supporting RAP applicants to provide information

Aspirant groups seeking to be appointed as RAPs apply to AAV for up to $5,000 financial support, (once per applicant group). This is to contribute to expenses relating to the development and submission of a RAP application to the Council.

The Council first called for applications in 2007. To date, 32 groups have applied for, and received, assistance.

Each group is assisted with mapping by an AAV GIS officer. The officer is available to meet face to face with the applicant to clarify details of boundaries. In addition to mapping assistance, many groups gain assistance with completing their applications by asking the Secretariat or AAV for guidance, or by the Secretariat offering them the opportunity to meet to discuss Council's principles.

The Council has conducted community forums across Victoria.

It also arranged a land summit in Gariwerd (Halls Gap) in June 2011. The Gariwerd Workshop provided an opportunity for groups to express their connections to Gariwerd and their opinions about how cultural heritage should be managed.

Although the Act does not specifically provide the Council with a mediation role in relation to RAP applications, the Council has offered mediation to competing RAP applicants. Text Box 7: Review submissions – Some RAP applicants are now receiving assistance Registered Aboriginal Parties under the Right People for Country Project, through Many submissions to the Act review a number of pilot projects that have been discussed RAPs. Issues raised in commenced. submissions included:

 The establishment of RAPs in the Act is a positive step 3. The effectiveness of the established  A need to adequately resource RAPs to perform their duties under the Act. RAPs to fulfil their statutory functions RAPs are directly involved in development, land  Training and capacity planning and natural resource management in strengthening for RAPs in technical Victoria. As such, they are one element of Victoria‘s aspects of cultural heritage land, natural resource and cultural heritage management management system.  More contact between RAPs and Traditional Owner organisations are increasingly local government exercising cultural, social and economic  More cultural heritage advice provided by RAPs development functions. They may also be involved  Need for RAP oversight and in native title act processes. They interface on monitoring cultural matters with the broader community and  RAP responsiveness in the CHMP provide advice to government, developers and process other land users. Traditional Owner organisations  More consistent and transparent can also be a vehicle for economic development for RAP fees and charges associated their local communities. with CHMPs

RAPs have significant statutory responsibilities  RAPs should be able to grant cultural heritage permits under the current Act.

RAP statutory functions

The Act provides RAPs with a number of important advisory, decision making and protection functions. These are examined below.

Providing advice

RAPs are the primary source of advice and knowledge for the minister, Secretary, DPCD and the Council on matters relating to Aboriginal places located in or Aboriginal objects

28 originating from the area for which the RAP is registered. RAPs are not funded for this service.

Repatriation of human remains

RAPs functions include advising the minister and negotiating the repatriation of Aboriginal human remains relating to their area. One example is the recent agreement between the Museum of Victoria, the Wurundjeri RAP and the Weeroona cemetery management for the repatriation of unprovenanced Aboriginal human remains to the Weeroona cemetery. An ongoing challenge for RAPs is access to land for reburial of ancestral remains.

Cultural heritage management plans

The major focus of the Act, and therefore RAP activity, has been involvement in the CHMP process. CHMPs are required for high impact development activities proposed in areas of Aboriginal cultural heritage sensitivity. The minister may also order a CHMP, and a CHMP is also required if an environmental effects statement is otherwise required for a development project.

The Act allows RAPs to participate and provide input into the CHMP process, and requires RAPs to make robust, transparent and timely decisions about CHMPs. These decisions are appealable to VCAT.

RAPs almost always elect to evaluate a CHMP19 and are evaluating an increasing share of CHMPs across Victoria. AAV has recorded two instances of a RAP failing to respond in time to a notice of intent to prepare a CHMP. RAPs have approved 338 CHMPs out of a total of 1191 approved CHMPs (from the commencement of the Act to the end June 2011). In the 2010 to 2011 financial year, RAPs approved 182 (just under 47%) out of a total of 390 approved CHMPs.

Some RAPs have developed particularly strong processes for engagement in the CHMP process, including pro-active involvement in plan development and compliance monitoring. Other RAPs have tended to limit involvement to evaluating plans and participating in assessment fieldwork.

With the exception of one instance where a decision was signed off by someone without the required authorisation to do so, RAPs have complied with the Act in the way they undertake evaluations. In this particular instance an amendment to the Act validated the decision.20

19 AAV records show that RAPs have opted out of the evaluation process on 16 occasions, out of 371 CHMPs submitted to RAPs for approval 20 (s197) (No. 30/2011 s. 3.)

CHMPs are often complex, lengthy, and technical documents. At least one RAP has in- house technical expertise, some RAPs have developed processes for obtaining technical advice where needed. This is not a feature of all RAPs.

Fees: Price Waterhouse Coopers estimates that RAPs receive between 20 – 30% of the fees associated with the CHMP21 process, with the remainder going to cultural heritage advisors (who are mostly archaeologists) that prepare the CHMP documentation.

For evaluating CHMPs, RAPs attract a regulated fee of between $120 for a small desktop assessment to $3,910 for a large complex assessment.22 Around 80% of CHMPs undertaken involve complex assessments.

RAPs are also able to charge for other activities relating to the development and preparation of CHMPs including participating in meetings and fieldwork and advising about cultural places. AAV publishes guidelines23 for fees for participation and consultation work related to CHMPs.

Cultural heritage permits

The Act creates a regulated cultural heritage permit process for excavation, research, harm, buying, selling or removing objects from Victoria. Cultural heritage permits to cause harm are the most common type of permit requested, often for smaller-scale works in an area where cultural heritage is known to be present. Permit applications are administered by the Secretary, DPCD.

RAPs are responsible for considering and advising on applications for cultural heritage permits. A permit cannot be issued without RAP agreement, so RAPs effectively exercise control over permit approvals. The Secretary charges an administration fee, two-thirds of which is forwarded to the RAP. The fees range from 8 fee units ($97.67) for a permit to excavate or conduct research, 13 fee units ($158.86) for a permit to buy or sell an Aboriginal object or to remove one from Victoria, to 46 fee units ($562.12) for a permit to harm cultural heritage.

The majority of cultural heritage permits are issued for particular activities that will or are likely to cause harm to Aboriginal cultural heritage. A recent example is a permit issued for works on a walking track in the You Yangs Regional Park by Parks Victoria. This was agreed to by the Wathaurong Aboriginal Corporation – the responsible RAP for the area. It stipulates

21 Pricewaterhouse Coopers 2012 Socioeconomic impacts of the Aboriginal Heritage Act 2006 22 Aboriginal Heritage Regulations 2007 r71-73 23 Fees and Conduct Guidelines for Registered Aboriginal Parties

30 what the activity is allowed to harm, and provides for certain conditions agreed to by the RAP.24

Cultural Heritage Permits are particularly useful to coordinate research into Aboriginal cultural heritage in Victoria. They mandate the involvement of Aboriginal people in such research in areas where a RAP exists. This enables RAPs to actively participate in the generation of knowledge and understanding about their cultural heritage, this was not a feature of the previous legal framework. A recent example is research being conducted by Monash University on an Aboriginal stone circle near Mt Eccles National Park. In addition to stipulating appropriate archaeological standards for conducting the field research, the permit also requires the research team to consult with the Gunditj Mirring Traditional Owners Aboriginal Corporation, arrange storage of materials discovered as well as require the return to Gunditj Mirring Traditional Owners Aboriginal Corporation of any cultural heritage within 12 months of the excavation.25

Cultural heritage agreements

Cultural heritage agreements can be negotiated between landowners and the relevant RAP. An agreement cannot allow harm to Aboriginal cultural heritage; rather its purpose is to formalise the ongoing management or access to heritage – such as through rights of access or rehabilitation of objects and places. This provision of the Act has had limited use, with only one agreement under negotiation.

Interim and ongoing protection declarations

RAPs are empowered to apply to the minister for interim and ongoing protection declarations. These declarations are intended to apply to areas of particular significance for Aboriginal people.

No applications have been received so far.

RAP capacity

RAPs are extremely diverse in terms of capacity, infrastructure and access to resources. Some RAPs are long-established organisations, some are able to generate sufficient revenue to support their activities or have part of their organisational operating costs funded through native title or TOS Act settlement arrangements. Some RAPs are emergent organisations largely operated by volunteers and with limited resources.

Once appointed, RAPs are immediately faced with taking on all the legal responsibilities under the Act. The majority of RAP organisations have been recently established, and have

24 Aboriginal Affairs Victoria, Cultural Heritage Permit 11/009477 25 Aboriginal Affairs Victoria, Cultural Heritage Permit 12/000567

31 been operating for less than 4 years. For some Traditional Owners, this has involved a substantial transition from advocating for rights and recognition to operating legal entities with significant statutory responsibilities.

The effectiveness of RAPs requires:

 establishing sound governance arrangements also capable of representing members‘ commitment to caring for their country and cultural heritage;  developing systems to fulfil statutory responsibilities under the Act and successfully engaging future revenue opportunities; and

Governance and organisational capacity

To competently fulfil their functions as corporate entities, RAPs need to establish and maintain effective governance structures, organisational development strategies and comply with their corporate responsibilities.

RAPs also have to operate across cultural boundaries. Decision making that respects cultural protocols, including the use of Elders and including representatives of different family (or kinship) groups are a feature of many RAPs. For RAPs also exercising native title responsibilities and natural resource management agreements, the imperative to operate as a single inclusive corporate entity creates a number of particular challenges. Traditional Owner organisation membership tends to be spread across the State reflecting Victoria‘s history of dispersal of its Aboriginal population. This creates complexities and additional costs in holding meetings and satisfying governance requirements.

RAPs continue to work on strengthening their governance arrangements. Some RAPs have experienced considerable difficulties.

Capacity strengthening support

Program and support measures aimed at strengthening organisational and governance capacity include -

Governance training: AAV has developed the “Managing in two worlds” governance training program to build the governance skills of people on boards. It is delivered to individuals, with courses running each year in Melbourne and regional Victoria. AAV is currently developing a stream of governance training tailored specifically for Traditional Owner organisations.

Organisational development mentoring: Expert facilitators have been engaged to work intensively with the Board and CEO of two RAPs (to date) to support organisational establishment, development and organisations experiencing difficulties.

Strategic Business Planning: Strategic business planning for emerging RAPs has been funded by the Victorian government and is an important tool in strengthening RAPs to develop a strategic vision for the operation of their organisations. The initial plans were developed in 2008/9 and 2009/10.

RAP network support: The Victorian Aboriginal Heritage Council identified the need to engage with RAPs regularly to share ideas and identify common issues affecting RAPs. AAV is supporting regular state-wide forums of RAPs to share experience, network and engage with stakeholders.

RAP Establishment Grants: Each newly appointed RAP organisation receives a one-off grant of $20,000, and $3000 to purchase computer equipment to enable access to the Aboriginal Cultural Heritage Registry Information System. This contributes to establishing their administration processes and to purchase any necessary equipment and furniture. This funding supports meetings of the directors and/or membership in order to refine decision making and delegations necessary to meet RAP responsibilities.

Infrastructure support: In addition to the establishment grant, four RAPs received total funding of $111,149 to assist with establishing infrastructure, office space, information technology and other necessary equipment.

Technical capacity

Many Traditional Owners across Victoria have cared for their cultural heritage and country regardless of any legal recognition to do so over time.

Two RAPs exercised cultural heritage responsibilities under the previous legal framework.

RAP organisations are invested with significant technical and legal responsibilities that are very different to the roles and responsibilities of other Aboriginal organisations.

AAV provides hands on cultural heritage management training through its regional heritage staff, mapping support and electronic access to Heritage Site Data.

Formal training through the development and rollout of the Certificate IV course in Aboriginal cultural heritage management has produced 32 Aboriginal and Torres Strait Islander graduates. The course focuses on the technical aspects of cultural heritage management and archaeological method and theory as it pertains to Victoria. This training is an Australian first and according to an evaluation report commissioned by La Trobe University, received positive feedback in terms of enhancing the capacity and professionalism of their RAP and traditional owner organisations, providing opportunities to work in the cultural heritage management field and to engage in further study. Many of the graduates returned to work in

RAPs, traditional owner organisations and government land management agencies, where the skills learned in the course will be applied.26

AAV is working with La Trobe University to create pathways for Aboriginal students into existing undergraduate and postgraduate courses in archaeology and cultural heritage management.

Financial position

The PWC report on the Socioeconomic Impacts of the Aboriginal heritage Act 2006 describes the financial position of RAPs among other things (Attachment 2).

26 Certificate IV in Aboriginal Cultural Heritage Management Draft Evaluation Report 2009/2010 La Trobe University 2010