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Proposal to Vary Registration of Wurundjeri Woi Wurrung Cultural

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Proposal to Vary Registration of Wurundjeri Woi Wurrung Cultural STATEMENT OF BASIS ON WHICH THE VICTORIAN ABORIGINAL HERITAGE COUNCIL CONSIDERS IT WOULD BE APPROPRIATE TO VARY THE REGISTRATION AREA OF WURUNDJERI WOI WURRUNG CULTURAL HERITAGE ABORIGINAL CORPORATION DATE OF PROPOSAL: 7 June 2021 1 Council’s View The Victorian Aboriginal Heritage Council (Council) has formed the view that it would be appropriate to exercise its power pursuant to section 155 of the Aboriginal Heritage Act 2006 (Act) to vary the registration area of Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation (WWW). The variation Council considers appropriate relates to some, but not all, of an extension of its registration area sought by WWW.1 2 Procedural Background of Proposal The following section provides a summary of the procedural steps leading to Council’s eventual substantive consideration of whether to exercise its power to vary the area of the WWW’s RAP application area. Council received a written request to vary the registration boundary from WWW in August 2020. It is to this request that this proposal relates. However, the procedural background to consideration of this request involves earlier discussions between WWW and Bunurong Land Council Aboriginal Corporation (BLCAC) regarding their respective registration boundaries. It is therefore useful to commence by setting out the procedural background also to the BLCAC registration boundary variation request. In 2017 BLCAC applied to Council for appointment as a registered Aboriginal party (RAP) under s 150 of the Act. Council acknowledged receipt of BLCAC’s RAP application on 24 February 2017. BLCAC’s RAP application was determined for part of the area it applied for on 19 July 2017. Council was advised shortly thereafter that BLCAC and Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation (WWW) had entered negotiations regarding overlapping areas of interest in respect of that part of BLCAC’s application which Council had not determined in its favour. These negotiations were facilitated through the Victorian Government’s Right People for Country program (RPfC). Council acknowledged receipt on 25 September 2017 of correspondence from BLCAC advising that all negotiations between the parties had been put on hold, for some 6 to 12 months, at the request of WWW. Council understood that negotiations facilitated by RPfC progressed throughout 2019. Council wrote to BLCAC on 17 December 2019 informing it that any unresolved boundary 1Whilst Council has discretion under s.155 to vary the registration area of a RAP of its own motion in practice consideration of this discretion to vary also occurs due to a request from the relevant RAP. Council has published a policy and procedure to assist RAP’s who make such a request. OFFICIAL 1 registration issues (arising from the 2017 RAP Application) would be resolved pursuant to under section 155 of the Act. On 23 April 2020 Council gave public notice of BLCAC and WWW negotiations within what was described as “the Decision Area” (the area of BLCAC original RAP application that was not included in the original BLCAC RAP registration boundary), to seek current views of any affected party in relation to the Decision Area. Due to concerns regarding COVID-19 during 2020 and the ability of parties to physically meet, Council undertook to refrain from making a decision on the BLCAC variation request. On 26 August 2020 Council acknowledged receipt of WWW request for variation pursuant to section 155 of the Act. It is this request to which this proposal relates. The WWW request for variation was divided into three zones. The area referred to as “Zones 1, 1A, 1B, 1C, 1D” overlapped the entirety of the BLCAC request for variation. Council wrote to WWW on 30 November 2020 advising that as negotiations had been on foot between WWW and BLCAC since 2017, continuing through 2019 to date, Council had resolved to determine the areas referred to as ‘Zones 1, 1A, 1B, 1C, 1D’ from materials that were the outcomes of the RPfC facilitated negotiations. Given this overlap, Council had to form a view as to whether and how it should exercise its power of variation under s.155. Accordingly, Council wrote to both parties on 13 January 2021 issuing a direction seeking all material relevant to each party’s respective claims. 3 Area considered by Council under s.155 As noted above, Council received WWW’s request for boundary variation pursuant to s 155 of the Act on 26 August 2020 (Attachment 1). The variation request was made up of three zones, namely: Zone 1 Melbourne CBD and surrounds; contiguous with the southern boundary of WWW’s current registration area. 1A extends over Melbourne’s inner suburbs and continues in an easterly direction along the southern boundary of WWW’s current registration area. 1B extends over Melbourne’s western suburbs to the Werribee River. 1C extends over the Melbourne CBD. 1D extends over Melbourne’s south-eastern suburbs to the northern boundary of BLCAC’s current registration area and the western boundary of Gunaikurnai Land and Waters Aboriginal Corporation (GLaWAC)’s current registration area. Zone 2 Hanging Rock and surrounds; contiguous with the north western boundary of WWW’s current registration area. Zone 3 Mount Baw Baw Plateau and the Loch Valley, and including Noojee and Neerim East; contiguous with the eastern boundary of the existing RAP area. Council has previously advised WWW of a process for dealing with Zone 2. That process (involving negotiations with other RAPs is ongoing at this time. As such, Zone 2 is excised from the current s.155 variation consideration. Council noted correspondence from Gunaikurnai Land and Waters Aboriginal Corporation (GLaWAC) dated 20 June 2020 which it provided to WWW on 28 June 2020 and again on 2 OFFICIAL 29 January 2021. The correspondence stated that GLaWAC noted that part of the proposed boundary negotiation area is still subject to negotiations between GLaWAC and the WWW and should not be included in the proposed boundary negotiation area. Council noted correspondence from Wadawurrung Traditional Owners Aboriginal Corporation (WTOAC) from mid-2020 raising concerns over boundary negotiations between WWW and BLCAC overlap with asserted interest of WTOAC over the waters in the west of Port Phillip Bay, nearby WTOAC’s RAP area. On balance, Council considered it was simplest for the purposes developing of the current proposal to excise from this proposal all areas of asserted interest by GLaWAC (relevant to Zone 3) and WTOAC (relevant only to waters adjacent to Zone 1) (Attachment 2) depicts the current Proposal Area. Council will communicate with affected parties shortly with a process of developing a proposal in relation to those areas of WWW’s boundary variation request that have been excluded from the current proposal. 4 Council’s approach to s.155. WWW is not a registered native title holder for the proposed boundary variation area within the meaning of section 151(2) of the Act, and has not entered into a RSA in relation to the Decision Area within the meaning of section 151(2A) of the Act. As such, Council is not obliged to approve WWW’’s application over the proposed boundary variation area to align with sections 151(2) or 151(2A) of the Act. Council has broad discretionary power to make a variation to the registration of a RAP, including geographic boundary variations under s 155(2). Section 155 (1) of the Act requires the consent of the affected RAP to a variation of its registration boundary. As the boundary variation proposed by Council is to vary WWW’s registration boundary to a somewhat lesser extent than was sought by WWW it will be necessary for Council to write to WWW to confirm WWW does in fact consent to the boundary variation proposed by Council. No other RAPs are within the proposed boundary variation area therefore no other consent is required. It is clear Council’s discretion to vary a registration area under s.155 must be exercised according to law. In forming its view about how its discretion should be exercised Council had regard to: (a) the overall scheme and purposes of the Act2. (b) the requirements under ss.150 and 151 [in so far as they are relevant to a variation as opposed to a first registration]. (c) consistent with (a) and (b) Council considered factors such as WWW’s relationship to the undetermined part of the application area including traditional or familial links, its representativeness and inclusivity, any demonstrated expertise in managing and protecting Aboriginal cultural heritage in the area under consideration and its capacity to discharge its statutory functions in general (d) the contentions of other interested parties (e) Its obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (f) Whether WWW is prepared to consent to the variation Council thought appropriate. 2 The purposes are set out in s.1 of the Act 3 OFFICIAL 5. The Material considered When forming its view as to how its discretion under s.155 should be exercised in this case Council had regard to the material in Schedule 1 to this Statement. As the Act also requires Council members to be Aboriginal persons with demonstrable traditional or familial links to an area within Victoria and have relevant experience or knowledge of Aboriginal cultural heritage in Victoria (s 131(3)(a) and (c)) Council uses these attributes when considering the material before it and forming its views. Interested parties are expressly made aware of this in Council’s publication Section 155 Requests for Variations of Registration Policy and Procedure. 6. Proposal Area The following section particularises the area Council considers would be appropriate to add to WWW’s existing registration area. The relevant area (Proposal Area) is shown in the attached map (Attachment 2) and is described as: The Proposal Area is comprised of two parcels.
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