TRANSCRIPT

ENVIRONMENT AND NATURAL RESOURCES COMMITTEE Inquiry into the establishment and effectiveness of registered Aboriginal parties

Melbourne — 28 May 2012

Members

Mr T. Bull Mr J. Pandazopoulos Ms J. Duncan Ms L. Wreford Mr D. Koch

Chair: Mr D. Koch Deputy Chair: Mr J. Pandazopoulos

Staff

Executive Officer: Dr G. Gardiner Research Officer: Dr K. Butler

Witnesses

Mr I. Hamm, executive director, and Mr J. Moon, senior heritage policy officer, Aboriginal Affairs .

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The CHAIR — I formally open the committee meeting. I welcome all those who have joined the public hearing today; we certainly hope you find it interesting. We are fortunate that Mr Hamm has been able to join us prior to going on his holidays. We have been looking forward to this opportunity for some time. As the submission from the AAV is in, it is a good opportunity to attend to that through this public hearing process. Having said that, I welcome both Ian and Jamin to this hearing for the Environment and Natural Resources Committee’s inquiry into the establishment and effectiveness of registered Aboriginal parties. I will introduce you formally: Mr Ian Hamm is the executive director of AAV, and his colleague Mr Jamin Moon is the senior heritage policy officer.

All evidence taken at this hearing is protected by parliamentary privilege as provided by the Constitution Act 1975 and is further subject to the provisions of the Parliamentary Committees Act 2003. Any comments you make outside the hearing may not be afforded such privilege. I also mention that while public hearings are open to the public, only those witnesses, in today’s case from AAV, are able to speak and address the committee on this occasion. All evidence given today is being recorded, and as witnesses, gentlemen, you will be provided with proof versions of the transcript in the next couple of weeks. With those few words, Ian, I invite you to begin your presentation in relation to the RAPs process in Victoria.

Mr HAMM — Thank you for that introduction, and thank you for allowing us the opportunity to present to the committee this afternoon. The presentation we have today I have kept relatively short and I will not go into much detail; you have our submission. As we had already provided a lot of background in preparation for the committee’s work, I will not go into that in detail but rather will give you an overview. I imagine there will then be particular questions that you would want to ask of me that will prove more useful for the committee rather than us going over our submission again.

Referring to the handout and the first page, the Aboriginal Heritage Act has been in place five years. It is a systemic approach to managing Aboriginal heritage. It established two unique features, which were the Aboriginal Heritage Council and the registered Aboriginal parties. It is partly as a result of the commonwealth overlay of heritage management as well. The commonwealth still operates on an act that is, I think, nearly 30 to 40 years old at the moment, the Aboriginal heritage protection act, which overrides state legislation. One of our drivers of this new act was taking into account how that legislation might have to be taken into consideration and might play out in Victoria. That was one of the key drivers, and one of the outcomes of this act is the commonwealth has essentially said, ‘The act you have now is a good one and it works well with the commonwealth arrangements’.

Referring to page 3, we are currently reviewing the Aboriginal Heritage Act because it was established really as a breakthrough piece of legislation and so changed everything that it was prudent to build into the act a review mechanism. The review is well under way. In fact the formal closure date for submissions for the second round of consultations was last Thursday, and we still have many to come in; people have asked for extensions, which we have granted because there were so many people wanting to put in substantive submissions. It shows people have a real stake in Aboriginal heritage management.

We have an external advisory group. One of the key things we did was recognise that government is not the font of all wisdom and departments are not the font of all wisdom when it comes to these things — as extraordinary as that may seem, we conceded that. So we established an advisory group made up of the relatively high-level stakeholders — primarily a lot of land developers, or their body; the Municipal Association of Victoria on behalf of local government; the archaeology profession; and the Victorian Aboriginal Heritage Council on behalf of the traditional owners of Victoria and also as a prime body as one of the constituent members of this process. We also had separately a piece of work done by PWC which was to look at what the impact of this act has been not just in a financial sense but in an economic sense and in a social sense. Because this act fundamentally changed, if you like, the relationship of how we regard traditional owners in Victoria, what has changed in the past five years at an economic level but particularly at a social level? That was quite a big brief, to look at how this has panned out. We had PWC do that. I have to say its findings, in one sense, were consistent with what a lot of the submissions have been around; a lot of them were financial/economic. But the social part, which it really did not go into in a lot of depth, provided some fascinating insight into some of the broader impacts the heritage act has had.

Essentially what the review tells us about the act to date is that it does have the support of stakeholders by and large. It is a vast improvement on the previous arrangements for managing Aboriginal heritage from the

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perspective of the majority of stakeholders or people who have an interest in this. The cultural heritage management plan process provides a framework that is consistent around managing Aboriginal heritage, and people have benefited from that. There is better protection for cultural heritage, and it has also provided certainty for people wanting to use land in Victoria — they know who they are supposed to deal with. Essentially it has established the relationships that people need to have on an ongoing basis, so there is a consistency about those relationships. Industry in particular supports working with a specified group for whatever particular land it is. That also is true of the Aboriginal community, having confirmation or, if you like, a shoring up of people’s assertion over their particular area of land.

The Aboriginal Heritage Council having a group of Aboriginal people making the decision around who speaks for country or who is the right body to deal with around country was a key part of the legislation, as it was neither the government via a minister nor the courts — and these days that would usually be the federal court for the Native Title Act. There have been nine RAP determinations in Victoria, covering 50 per cent of the state. RAP determinations are made in accordance with administrative law and other relevant matters, and other laws such as the Native Title Act, and making sure that it takes into account the implications of that. Quite simply you cannot act as if there are two separate things operating around the one group of people; they have to take each other into account.

An alternative which is being piloted or being worked at to try to find a better way forward for the Aboriginal community is the Right People for Country project, which is really about providing the opportunity, the skills and the capacities to the Aboriginal community to resolve who speaks for particular areas of country rather than a third party — the heritage council, the government, the courts. I would be happy to talk to any of these points later. I think that one is particularly worth having a look at.

The Right People for Country project is about resolving disputes about who is responsible for what pieces of country, or who should be engaged in decisions around country. There are three pilots under way; one of those pilots has an element of five subcomponents to it, so in one sense there are almost seven pilots under way — one of them is made up of five bits. It is a partnership between us as government facilitating it and working with traditional owners. It is quite comprehensive in its outcomes. It is not just about land management but about a lot of the capacity building and skills development going on in the Aboriginal community; and the mediation industry, if you like, is quite comprehensive as well. There are a range of different things coming out of that project.

On the issue of RAP sustainability, it is varying across Victoria. By and large, I would have to say, given the starting point for this, the RAPs themselves are not performing too badly. In fact I believe they are performing quite well in the circumstances in which they were created and the circumstances in which they exist. Their capacity to perform their functions or their capacity to also be sustainable is variant due to a lot of things that are quite simply beyond their control. For example, one of the things which has recently come to some of the RAPs that are in areas that have high development, and therefore high CHMPs, is that with the downturn in the economy there are simply fewer cultural heritage management plans being done. That impacts on their ability to generate income through work to do with the development of cultural heritage management plans. So they, too, are affected by the economy. A year ago two of them were looking quite okay. They are quite okay at the moment; it is just that there has been a trail-off in the amount of work coming to them that they have noticed.

There are also issues around their development — moving from advocacy group to corporate entity — so governance, organisational development and technical skills are all things which contribute to a RAP’s sustainability. They are an ongoing development need, or an ongoing need that is slowly taking shape. It is not that because you are appointed as a RAP or a traditional owner body you instantly are imbued with all this wonderful knowledge about how things should operate and it is really good from day one.

On their effectiveness, as I said, I think in the circumstances they are working quite well. They are fulfilling their legislative functions. They are increasing their share of the evaluation work that is done for CHMPs. That is obviously shifted on day one of this act. Obviously Aboriginal Affairs Victoria is responsible for 100 per cent of the state’s CHMPs evaluations. Now that is moving across to the various RAPs. As they become responsible for evaluating, it is shifting out of Aboriginal Affairs Victoria.

Their effectiveness is also fostering good relationships between traditional owner groups and different land users around Victoria. It is giving people a better understanding of heritage and other more people-focused

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outcomes as well. I will relate to you later, if it comes up, the reflection of one of the major building companies on the CHMP and heritage process and what in fact it has done for them beyond simply shoring up how they manage land or develop new suburbs in Victoria. Sponsors, local government and state government, prefer working with RAPs in their local area as opposed to state government, so they are finding it quite good as well. As I said, dealing with the one body also gives industry surety around native title matters and heritage matters.

To go to the last page, in summary the act is working well. It is an improvement on where we were, and the components of the act are doing well to form that overall view. In this case the heritage council, for what it is, is doing its job within the boundaries that are set by the Aboriginal Heritage Act 2006. The RAPs are doing their job within the boundaries of the Aboriginal Heritage Act and the wider boundaries that they were established under and the assumptions that were made about them.

The act aligns particularly with the issue of native title in Victoria. We have worked hard at doing that with the Traditional Owner Settlement Act 2010, which has come after the Aboriginal Heritage Act but it is fundamentally of the view that there is one group of people — in this case traditional owners — and our job as government is to have our various requirements line up to work with them, as opposed to breaking them up and expecting them to work with government in a range of different facets that we might approach them with.

Certainly the review and this parliamentary inquiry provide the opportunity at the five-year mark to ascertain how we have gone to date, how the act has gone to date and how its constituent parts — and the subject matter before this inquiry is a key part of that — have gone to date and to look at how we can enhance this system from here or what direction it should take into the future.

That is essentially the presentation. I am sure you would have got a lot of feedback in your consultations to date and there would be a lot of documentation that you would have read, so I will leave it there. I am happy to answer your questions on any subject that you might put to me, and hopefully I can answer.

The CHAIR — Thank you very much, Ian. Jamin, did you want to make a contribution at this stage, or would you prefer to make a contribution during the question process? You are very welcome to add something at this stage and then we will move to questions.

Mr MOON — No, thanks. I will just contribute as required during the questions.

The CHAIR — Just before we move to questions, gentlemen, I would like to apologise for committee member Tim Bull, who is unable to join us today. We would like to ask you some questions. We have quite a few questions we have prepared that we would like to put forward. In saying that, I am very happy to ask the first one, and we will move around the committee accordingly.

In relation to traditional ownership and community conflict, the committee has heard from a number of groups and individuals that feel disenfranchised, angry and frustrated by the RAP appointment process. Many have no respect for the heritage council, which they believe has managed the appointment of RAPs to its own benefit. Some have called for the RAP system to be scrapped altogether. How do you respond to these criticisms? Is the system inherently flawed, or can it be reformed to address the concerns of its critics?

Mr HAMM — I think the place to start is to bear in mind that Aboriginal Victoria is going through massive change at the moment. It is still working through the re-emergence of traditional identity in this state after it really had been in abeyance for 120 years, just as an approximate date to work with. Post Eddie Mabo everything changed and traditional identity started to come with some meaning and some rights. In Victoria, as I said, we moved from a point where Aboriginal people’s identity was primarily framed around the places that they lived as opposed to the places that their heritage may be from. Victoria is a place where people have shifted around, by and large. If you like, what would have been the lore around how you define traditional identity, what are the social norms we had around it had to be either re-established, or more pertinently probably reinvented might be the way of putting it.

The elements of people being able to trace their heritage back to such and such a person at a point in time are still there, but with the moving around Victoria of people you find that there are people who identify with a range of different traditional owner groups as opposed to a singular one. So the starting point, I guess, for this legislation, the Traditional Owner Settlement Act, and how we deal with the native title legislation is

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recognising that Victoria is in a state of trying to cope with all of that change in a relatively short period of time. It is 20 years in fact since Eddie Mabo won his case, and all that has fallen out from there.

Obviously when something like that is happening it is going to cause conflict and it is going to cause debate and discussion within the community that it is affecting, in this case the Aboriginal community. Even as of today there is no consistent or accepted social framework for how people identify their traditional origin. There are those who say you have one single identity and that is your primary one and you work with that group only or you consciously belong to that group. You might have others and you acknowledge those but you do not play an active part in them because you know you belong to this group. There are others at the other end of it who say that no matter what group you belong to, you have traditional owner rights with everyone you have a blood relationship with. In fact I know of one person who at one stage was signing his name off as a multiclan traditional owner because he was listing all the clans that he belonged to, or the tribal groups he belonged to at one stage, and it was quite long. So he changed it to ‘multiclan traditional owner’. There are people who want to play an active part in every group that they can have lineage with. The bulk of the Victorian Aboriginal community is somewhere in the middle there. Should it be your mother and father? Should be your mother, father and grandparents? Should it be the wider group, but how far does that go out to? So there is all that kind of thing that the Aboriginal community is working through. As I said, that does cause discussion, debate and conflict within the community in trying to resolve those issues.

You overlay that with what the heritage act replaced, which was a system under which heritage was managed in this state by place-based communities, not traditional owner groups; we should not confuse the two, because they are two different things. By and large it was managed by place-based communities. Shepparton, for example, was managed by the Rumbalara Aboriginal Cooperative. That is the one in Mooroopna, and it is about the Aboriginal and Torres Strait Islander community residing in Shepparton; it services their needs. That is opposed to what we have now, which is a traditional owner group, in this case the , having responsibility for that area. So there was a shift away from the place-based identity to the traditional owner identity of managing heritage, and that caused, I guess, a great shift in who was responsible.

By and large the cooperatives were happy — that is the only way I can put it. The bulk of them were not happy, they were not disaffected by not having heritage responsibilities anymore, because one of the things that had come up post-Mabo was the traditional owner groups asserting to cooperatives, ‘We want to be involved in heritage management that you are responsible for and you do not represent us as traditional owners’. So it is becoming a bit of an issue for them. With that shift away, the bulk of the cooperatives had plenty of other work to do, such as health provision, community service provision, education and those sorts of things, and they quite rightly themselves saw that heritage management along with other land management issues should be the preserve of the traditional owner groups to take care of.

Do I think that the processes of the council have caused conflict? I have to be honest and say I do not think they have caused any more conflict than would have been dealt with under any other process of a third party making a decision, whether it is the courts, whether it is the minister or whether it is any other mechanism. I think this was always going to happen because of the relationship of Aboriginal people particularly to the government but to decision making generally.

For 120-odd years we have advocated for our rights to somebody else to make a decision in our favour. When you are talking about, say, the 1967 referendum example, we were a united front making an advocacy to at large and led by the Australian government to make a decision in our favour. So we are all one big happy group doing that. When you have people with different interests within the Aboriginal community advocating to a third party, be it the Federal Court or the Aboriginal Heritage Council, that is a dispute within the community. You still have people advocating to a third party to make a decision. This disputation and conflict was always going to happen so long as there was someone having to make a decision that affects the people that it is about. Usually with decision making of this nature there is a winner and there is a loser. That is how people see it. I would not say the council has exasperated this situation, but I would say the council was in no different position to any other decision-making body in that when it makes a decision somebody is going to be pleased and somebody is not.

The CHAIR — Thank you, Ian. Jamin, do you want to make any contribution in relation to the RAP process? I have just a couple of supplementary questions on the way through. Ian, earlier you mentioned that RAPs now accommodate approximately 50 per cent of the state.

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Mr HAMM — Yes.

The CHAIR — The committee has been informed across its hearings that it is 60 per cent. Could we have a clarification? With the nine RAPs currently in place, is it 60 per cent or is it 50 per cent? We know there are 14 pending applications, I believe. The other one is that it became pretty clear in our public hearings that there is grievance and ill feeling from the point of view that it had become apparent that all the heritage council members in actual fact have RAPs on their respective country, and that has been expressed to us on several occasions. If we could pick up on those in the responses.

Mr HAMM — In answer to your first question, the answer is 56 per cent. So 60 as a whole number but 56 per cent of the state. In answer to your second question, the council members did not appoint RAPs on the basis of self-interest. In the beginning the RAP applications that came in were quite clear ones. In fact if you look at the ones the council has done to date, I would say by and large that the bulk of those are what I would call, and I put this in inverted commas, the ‘easy ones’, because they were no-contest areas. People basically accepted that in this area there had been one group that had identified with this area for ages, most people acknowledge that, so we will appoint them. So where you have areas such as particularly Barengi Gadjin and country or Gunditj Mirring, they already had been granted native title in any case, so the council just appointed those because it was beyond dispute as it was anyway. An area like the , which covers the greater metropolitan area, the area of that that was undisputed they appointed, and where there were boundary issues to do with the Wurundjeri, and Mordialloc Creek actually is one of those contested areas, they did not appoint anybody. So some of those areas were appointed, but where there was dispute, the council said, ‘We will appoint what we call core country where there is no disputation. Where there is disputation we will decline that’. So they made determinations in part or determinations in whole, saying, ‘We have declined that bit, but we will appoint this bit’.

The bulk of the council members come from those areas, and the areas that were appointed initially come from those places where there was just one single identified group basically accepted. The Gunai Kurnai cover the bulk of , and even now there are areas around their boundary that were claimed under their native title area and still have RAP applications that are still unresolved and not appointed, but that area where there was nobody else, the council appointed. I would say by and large the council members did not appoint on the basis of self-interest. They appointed on the basis of looking at what are the ones where there is clearly a single-identified group to take responsibility for heritage management. Having said that, obviously the council is a much better place to get the detail around their processes and considerations, but I would not for a moment suggest that from the get-go they looked at self-interest as their main driver.

There are those who could easily see that — or easily want to see that — or interpret some of their decisions as that, but I guess with any decision-making process there is always inference that can be drawn. There are always decisions where it does not matter how clear you try to make them, people do not fully accept or do not fully understand the decision-making processes or they are not made crystal clear. In that regard I would say that the council has done as equitable a job as it could.

The CHAIR — Thanks, Ian. Jamin, did you want to comment?

Mr MOON — Just to add that the act actually prevents the council from making decisions about areas in which they have a pecuniary or familial interest anyway, so they have to recuse themselves from any of those decisions, and also to add that of the nine appointed RAPs, three have had to have been appointed because they had native title determinations. The act makes it clear that where there is a native title determination they have to become a RAP if they apply for it.

Mr PANDAZOPOULOS — I notice in the budget there was some extra funding for supporting RAPs — not a huge amount of funding. Can you tell us how that would be prioritised?

Mr HAMM — You are right; it is not a lot of money. What we look at is providing some direct financial assistance to the RAPs, and we look at what the level of need is. As I said before in the introduction, a couple of the RAPs have actually generated quite a substantial amount of income from the CHMP work they were doing — or the heritage work they were doing — because they are in the development areas around and around and Ballarat in particular. Their need for financial support was a lot less than those who did not have a great deal of work going on but nonetheless have to have some sort of core so they exist corporately.

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We look at what their need is, and we allocate funds on the basis of a formula so that with our relatively small amount of money we can provide the best-targeted assistance. We do not provide the same flat amount to everyone. It is proportionally a greater impact.

The other thing we do is look at, ‘What are some things we can do that are not direct financial support but are sectorial support that we can provide to the RAPs?’. We might use some of that money, for example, for business planning or strategic planning for RAPs as a whole. There is support we can provide to them as a collective as opposed to individually. We use some of that money for that and also within other things we do in Aboriginal Affairs Victoria — tailoring those to fit RAPs as well. Although we did get a $200 000 increase on last year, from $500 000 to $700 000, on the great scale of what RAPs say they need, it is not a lot of money, so we try to stretch it as much as we can.

Mr PANDAZOPOULOS — Just on the issue of sustainability of RAPs, we heard from quite a few that do not have a lot of activity, so they are not involved in any of the income-earning opportunities through CHMPs. There is some concern they have about their viability and longevity. Any thoughts about how they could be sustained for the future if RAPs are to survive?

Mr HAMM — I think I would break it up into two parts, but I would actually re-conceive the question. I would say, ‘How can the state of Victoria best support traditional owners to have sustainable organisations for the long term?’. The reason I do that is because I think that is how we have to focus if we are to deliver the best outcomes for not only these groups but Victoria as a whole. How can we best support traditional owners? It is one of the reasons we have sought an alignment and have an alignment between the Traditional Owner Settlement Act and the heritage act: we are dealing with the one group of people.

Really the long-term sustainability is to look at how we can give these corporate entities the support they need to carry out a range of different functions for the state rather than each function looking after its own self-interest — that is, how do we keep these going as RAPs? How do we support these traditional owner corporations to be sustainable to do heritage work and native title work and other land management activities and contribute to reconciliation? How do we support that as the state of Victoria? That, in my view, is the key to making them sustainable in the long term. The Gunai Kurnai is the best example I can give of that — and hopefully the pending agreement with the Dja Dja Wurrung. As RAPs — and just as RAPs — both those groups have a moderate amount of work. I think Dja Dja Wurrung has a bit more because it has Bendigo around it, but in Gippsland the work that the Gunai Kurnai have was not a lot.

Not only do Gunai Kurnai have RAP responsibility, but last year or the year before they signed a native title agreement with the state where the state provided them a financial settlement of $12 million plus another $2.5 million, I think it was, in other programmatic supports. The Gunai Kurnai have basically banked that money. They have it in a trust that was established to run alongside the Traditional Owner Settlement Act, and they are looking at building their organisation over a long period of time. What are the things we need to conduct all of our different businesses? They are actually having a well-planned approach to long-term sustainability so that for the purposes of, say, heritage they can perform the heritage function into the long term and do other things they need to into the long term. The Dja Dja Wurrung are taking exactly the same kind of approach in their negotiations around a settlement with the state so they can be sustainable as an organisation doing a range of things with the state and local government and the community they live in, as well as, for our purposes, managing Aboriginal heritage.

If you asked me, ‘How do we make them sustainable just as single entities just doing this work?’, I do not think that is actually a doable thing unless we put a lot of money on an annual basis into them. Should we approach it as finding a sustainable situation or entity for traditional owners to do, in a business sense, a range of things for a range of interests, for state and local government in particular and for the communities they live in? That is how we should approach it if we are going to make it sustainable.

The CHAIR — Just following on from John’s question, earlier you mentioned, Ian, that AAV originally were responsible for the production of the cultural heritage management planning, and that is now slowly moving across to the RAPs. Are the resources associated that were used by AAV in the management of that project also moving across to the RAPs to assist them in the production of those plans?

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Mr HAMM — Just to clarify for you, Aboriginal Affairs Victoria was not responsible and is not responsible, and neither are the RAPs responsible, for the production of the plans but responsible for the assessment of the plans.

The CHAIR — Sorry. Your earlier statement indicated — I assumed you were responsible for the production of them. You have always been responsible for that.

Mr HAMM — For the evaluation?

The CHAIR — Yes.

Mr HAMM — I will clarify that and say that we are responsible for evaluation. When I say ‘production’, in the early days Aboriginal Affairs Victoria worked with cultural heritage advisers and proponents around the preparation of plans. ‘Assistance to production of plans’ might be the best way of putting it because proponents and cultural heritage advisers were responsible but obviously we had a big hands-on role. As that has shifted across to RAPs, for example, as they are appointed, they work with proponents and cultural heritage advisers around the preparation of plans.

I have to say that, no, resources did not go from us to RAPs to do that. RAPs charge proponents and cultural heritage advisers for their services, and we never charged for it. In one sense did I have resources dedicated to the assistance of helping? No, I did not. Therefore as a head of an agency who counts their dollars, I was not looking to move money from us to the RAPs for that purpose.

The CHAIR — I was just interested in the transition of the responsibility moved. Did finances follow or resources follow — —

Mr HAMM — Short answer: no. Other finances we have sought to support RAPs, hence the $500 000 or $700 000 of what we do.

Mr MOON — We did regionalise, though, during the transition, and that was done to support RAPs so that regional offices are there to help the RAPs in their work. That is why the regionalisation of AAV happened.

Mr HAMM — We moved our staff out of Melbourne to various parts of Victoria as a resource on the ground as opposed to financial — —

The CHAIR — Thanks. Lorraine, did you have something you would like to raise?

Ms WREFORD — Yes, I guess a couple of comments. You gave a very positive presentation today. As you said, the act is working well, benchmarked nationally and all the rest of it. Interestingly enough, though, I guess this committee got these terms of reference because there were problems out in the community in regard to the whole process and conflicts. We have seen and heard that as we have been travelling around. You said that where there is a winner, you will also get a loser. I wonder if we can get some win-wins rather than winners and losers; that would be one comment I would like to make. Quite a number of the groups feel excluded, and where we have had positive feedback is where the RAPs are appointed and the people on the RAPs like it. Everyone else around appears to be unhappy for one reason or another. The committee notes that some groups with historical and contemporary interests in heritage feel excluded from the RAP system. Do you think RAPs should be required to consult with non-traditional owners on heritage matters? Maybe this might help a little bit more with trying to get a win-win situation instead of a winner-loser situation.

Mr HAMM — To answer your question about whether we can get a win-win situation, yes, through supporting Aboriginal communities to make their own decisions. Just briefly, that is probably where the Right People for Country project is a project around giving Aboriginal communities, particularly traditional owner groups in this case, the ability to resolve their own problems as opposed to advocating to a third party to make a decision for them.

Ms WREFORD — What sort of problems are you talking about?

Mr HAMM — In the case of the appointment of RAPs or a native title we have situations where you have two groups claiming the same area as a boundary issue or in fact two on top of each other — literally like that.

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Again, your area is quite high profile in that particular scenario. There are two groups asserting the same heritage over the same piece of land and in the past they have advocated to everyone else how the other one was not legitimate and, ‘It should be us in there’ or, ‘They are not the right people and they are all horrible and we are the best’ and that kind of stuff. It reached, if you like, a point where nobody saw this as a positive way forward.

The Right People for Country project is about supporting those two groups to actually reach an agreement between themselves, so moving away from advocating to a third party to make a decision about a winner and a loser and moving to a situation where both parties are capable of negotiating with each other, with assistance. I am not saying this is easy by a long shot; this is really hard. But it is getting to the point where they can negotiate with each other to have something that they can live with and something they can work with together so they can have a single approach to managing land — in this case the , the southern metropolitan area of Melbourne and West Gippsland.

It is actually quite hard, but it is a situation where I do not think anybody would feel like it was a win-win, but certainly they would feel like they had skin in the game as it were; that they are doing this jointly and that they are not being excluded. I think that is a really important thing to do.

Ms WREFORD — So how do you go back to where RAPs have been appointed and you have still got a lot of people who feel excluded or, indeed, marginalised from their own Aboriginal communities?

Mr HAMM — I suppose that is a different answer to that. The first part around historical or contemporary people’s engagement in heritage management, it depends which context we are talking about. Again, this is debated within the Aboriginal community. Should traditional owner groups be compelled to include people who are not from that area in managing heritage that is particularly pre-European contact heritage? My personal perspective, because there is not an official position on this, would be that it would have to be a compelling argument for people to be compelled to do that. Should people seek to do that as a matter of good community spirit, that is a different question. I would think that yes, they could do that. There is nothing stopping them from doing it.

When it comes to heritage that is post-contact and particularly around missions, for example, where different groups did come together, the traditional owners of that area are not the only ones who are impacted by or have connections to that mission site. That is where it is important that people who are of a contemporary nature or who have a contemporary or post-contact engagement or lineage to that particular site — that mission — their view is as important as anyone else’s. It is not just an exclusive thing that belongs to the traditional owners on whose land that mission sits, but it is about people who have a heritage that has been through that mission. You find that around Victoria where a lot of groups were brought in from a range of different places and plonked in a place — , Cumeragunja, . Half the people down at the Lake Tyers Aboriginal mission — their heritage is Gunditjmara in the west of the state — —

The CHAIR — Elsewhere.

Mr HAMM — Yes. There are people who are very emotionally attached to the Lake Tyers mission. It is not their traditional country but it has a tradition in its own right. The Gunai Kurnai themselves in fact say, ‘We are only interested in pre-contact heritage issues on the Lake Tyers mission. Anything to do with the mission as a place, we are not going to assert any right over that other than we, too, have an engagement with that for historical reasons’.

As I said, I do not know if you can compel people to engage with people who have a contemporary interest, but I would certainly suggest it would be something that I would encourage people to do. But I think that has to be done in the context of respect for us as Aboriginal people always acknowledging traditional owners and their primacy over pre-contact heritage. That is probably one of the most wishy-washy answers I have given to anything ever, but I am really trying to convey that this is a complexity — —

Ms WREFORD — We understand it is complex.

Mr HAMM — To which there is no right or wrong answer. It is a bit like foreign affairs; it is a bit like that.

Ms WREFORD — It is a bit like politics.

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Mr MOON — If I could add some things to that as well. If you read your submissions to the review of the act, we do not get that message at all. We get the message that where RAPS are appointed, all of the stakeholders are quite happy so, industry and all the other stakeholders involved in the legislation. In fact there is only one submission from a former cooperative that complained about the current legislation. No other cooperatives complained at all.

In our consultations around the legislation back in 2004–05 we spoke to all of the cooperatives, and it was fairly unanimous that traditional owners should be making decisions about cultural heritage — even among those cooperatives that did not include traditional owners in those organisations. Again, I agree with Ian that in cases where the cultural heritage is not exclusively a traditional owner domain, then other groups should certainly be involved in this decisions. However, I would just like to point out that in the commonwealth’s deliberations and in their proposals for changing and updating their act, one of the only aspects of the Victorian legislation that would not have been compatible with the proposals that the commonwealth was putting forward was that it allows for non-traditional owners to be appointed as RAPs. The commonwealth were very clear that they only wanted the ability for traditional owners to be making decisions about cultural heritage. Any provision for allowing other people to make decisions about cultural heritage would potentially put Victoria in a position where they would not comply with future commonwealth legislation and would not be accredited.

Also, my research is showing that it goes against international and other states as well to allow non-traditional owners to make decisions about cultural heritage. That is all I can add to that.

Mr HAMM — From the aspect of other stakeholders, yes, they are happy with one group. From a business perspective we deal with the RAP, and we are happy to do that. Within the Aboriginal community that is where this area is complex because there is no right or wrong answer, I think. It is just a very complex thing to try to work out. But if you were to ask me how you resolve this in the future or how to do this in the future, and I am probably going to stick my neck out here in doing this, I would actually not have a third decision-making authority at all. I would put it on, and it is moving to, traditional owner claimants to resolve their differences and to have a way forward where they can effectively have agreements on how Victoria is carved up, for want of a better term. That empowers them to make decisions about themselves.

The council, as I said before, in the circumstances in which it is constructed — that is, as a third-party decision-making body — is as open to criticism as anyone else, such as a minister, a court or whatever. If you ask me what I would do, it would be to say that we should say to the traditional owner groups, ‘Here is the opportunity for you to determine what your country looks like and who is part of it, but the state does not want to get involved in who is in and who is out. You need to work that out for yourselves, and we will provide as much support as we can to support you to do that’. It might take longer to do, but it is a more sustainable outcome that will last generations beyond any of us sitting here.

Ms WREFORD — Are there areas in the state where it may not be possible to identify traditional owners? If so, what would be the basis for RAP appointment in these areas?

Mr HAMM — I am pretty sure that you will find pretty well every square inch of Victoria has at least one applicant over it. There are a couple of tiny pieces that have fallen between the gaps, but once you say to people, ‘This is vacant; what are we going to do?’, they work out something to cover it. By and large there are traditional owner claims — at least one claim — over Victoria as a whole, as it were, over the different parts of Victoria. It is where there is more than one claim that we really need to do the work around supporting them to resolve how they move forward with this.

I think one of the quaint notions, and I call it quaint because as an Aboriginal man — and I do this a bit, QED Aboriginal person — is that native title and heritage should be about reconstructing what may or may not have existed prior to European contact. But we cannot do that. The research or historical documents in Victoria were not constructed at the time for use 150 years later when Aboriginal people would perhaps be asserting their rights. It was done as scientific observation or social observation. So one of the things we have to do is really look at what use is that research and, more importantly, where do we go from here into the future as opposed to recreating the past.

Ms WREFORD — In addition, what kind of evidence do you think RAP applicants should provide to demonstrate their connection to country?

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Mr HAMM — I think that question needs to be prefaced with, ‘Who is the evidence for?’. Is it for a third-party decision-maker, which is different to demonstrating to ourselves and to other Aboriginal groups that we have skin in this game directly? There are two sorts of evidence. I guess in terms of what sort of evidence, clearly there has to be some basic normalised connection to whatever it is that you are claiming. My heritage is this place, and I can trace back five, six, seven generations to the first known European contact that my great-great-great-grandparent was of this group at this place. There is some basic heritage there. I think then, as I said, it is who that information is for as to what type of information you try to collect. But if it is about demonstrating to other Aboriginal groups that you have a right to be heard or have a seat at the table in decision making about what happens in this place in the future, I think that lowers the bar on what the evidence needs to be analytically, but then moves to how do we resolve differences between your views and my views so that we come to a joint position and can move forward.

Ms DUNCAN — Ian, thank you for that. Do you see the Right People for Country program helping specifically with those scenarios where you have two traditional owner groups that are vying to be the RAP for the same country?

Mr HAMM — Yes, I do. In fact I know that is what is happening with our three pilot areas. Those pilots are moving along, and it is getting people to sit down and talk with each other around perhaps finding a way forward, not liking each other. I do not think there will be an outbreak of peace, don’t get me wrong in that regard. But they are at least agreed on what they are going to talk about. The Bunurong/Boon wurrung one is probably the best demonstration of this: two groups who would not talk to each other and advocated to every third decision-maker about how they should find in favour of them and flick the other ones off. Because nobody did that, it kind of put them in the space of, ‘We don’t have any alternative but to talk to each other’, and obviously we pushed with the Right People for Country project. It is a quite complex project but it has them agreeing on what they are going to talk about. They have not started talking about the detail of it but they have agreed to what the negotiation points are, which is a huge step forward for them. They have tacitly accepted the other one has a right to be engaged in determining what happens over this parcel of land to the south and east of Melbourne.

I think that, while it will take longer to do, will provide a much more sustainable outcome. The question I suppose for this committee to pose is: notwithstanding that we are just dealing with heritage here and decisions by the council and so forth, is there an opportunity through the heritage, native title and this Right People for Country project to actually have a very long-term sustainable outcome for Aboriginal Victoria and therefore for the wider Victoria as well? I think that is one of the things that the committee has been put in the very difficult position of trying to work through.

Ms DUNCAN — Just following on from that then, Ian, would you say that project is progressing well?

Mr HAMM — Yes.

Ms DUNCAN — How far off do you think that process is from being able to help determine the appointment of RAPs?

Mr HAMM — I know of one group. It was a thin border area between the Dja Dja Wurrung and the Wathaurung, so it is at the north of Ballarat. It was actually a strip of land that nobody had claimed. If you like, this was in reverse. But they are in the process now of negotiating an agreement where the border will actually be. Instead of both of them claiming it outright and then you have that unresolved because two groups are claiming it, we assisted with a process whereby they worked through it, which for them was essentially a three-day hike across country working out where they would put the boundary. What were the important landmarks? What did they know of that country from each of their ways? That agreement is being written up now.

The Bunurong/Boon wurrung one I would say is still some way off, but they have begun talking to each other and they have agreed on what the discussion points will be initially and have deferred some of the more difficult things for later discussions once they get going. That could be a year away, but given where they have been for the past 10, 15 years in entrenched disputation, this is a hugely progressive step. It is the same with another project, the Wadi Wadi, which essentially has brought together different groups who no longer contest

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particular ancestral linage. They have decided to put that aside and agree that everybody is in their group, and that is a huge step forward.

Ms DUNCAN — Would it be that same program that would assist non-traditional owners, who might have had some role in heritage protection and who have not been appointed a RAP, in having an ongoing role? I know you say that it should only be traditional owners that make those determinations, but is the Right People for Country program another way of bringing those parties back into the fold if they have been alienated by the RAP appointment process?

Mr HAMM — Yes. I would say the principles of the Right People for Country project rather than the project itself. The principles of it are around empowering the groups themselves to be able to negotiate an outcome that works for them all. Once, say, you have a singular RAP and you have place-based communities, who used to be responsible for heritage management but no longer are, still wanting to be involved because they have an attachment to or affiliation with a place, I think those same principles rather than compulsion — supporting the two groups to come to some arrangement that works for them — is the more sustainable outcome, because people feel like they have been involved in what that outcome is as opposed to advocating for their part and then somebody else making the decision for them. For me, those long-term investments in skilling up people and making them independent of the need for seeking as their first port of a call a third-party arbitrator is a greater outcome for all Aboriginal people in the state. That in itself is a cultural shift and for me would, in a bigger sense, go to a place where Aboriginal people’s connection to government is more like that, which is normal circumstance as opposed to the symbiotic relationship that exists at the moment.

Ms DUNCAN — If I can just quickly ask my last question, which I think is about one of the most critical issues. Do you think the RAP system is more effective than the old legislation in terms of the actual protection and management of heritage sites?

Mr HAMM — What do I think about the overall heritage act and the engagement of RAPs in that? I think the structures provided by the heritage act, the development of cultural heritage management plans with particular disciplines and frames around the standards is a much better way. It is much better as opposed to what was done — there were no standards, no frames. Quite frankly undisciplined work was being done prior to the act coming in.

The CHAIR — I know time is against us, and I think we are nearly out of time. I would also like to ask a question in relation to the council membership and its structure. You do say in your submission, no. 57, that you declined to comment on the decision making of the council from the point of view they have put their own submission in. Be that as it may, Ian, in the issues and options paper released as part of the review of the act there is a suggestion that the council should be reviewed and possibly expanded into a fully independent authority with extra responsibilities, with funding diverted from AAV. What do you see as the benefits of this proposal, and how would this option support the appointments of RAPs? I guess we would look at that on one side, and we would probably look at reviewing the current council and seeking a more geographic outcome in front of growing its size. It has been again put to the committee that the existing council has five members from one country. I would like to hear your comments in relation to where the council sits currently. Obviously there is a review process that should or may be considered. Is the direction to make it more geographic or just to grow it?

Mr HAMM — I guess part of our thinking was around where this council should go from here, if it should go anywhere, and I guess Aboriginal heritage as a whole. One of the tenets of Aboriginal heritage is that it should be managed by Aboriginal people. The idea of giving the council greater responsibility — more operational responsibility — was that it does shift it out of AAV. One of the criticisms that we routinely get in government is: why is government involved so heavily in the operation of things pertaining to Aboriginal heritage management? We looked at whether there is an opportunity to give more responsibility for operational matters to the Aboriginal Heritage Council — if you like, beefing it up in terms of the statutory authority that has its own workforce, more involvement in day-to-day operations and so on and so forth.

I think one of the things that that does raise — and this is a separate issue — is: should that same body then be responsible for appointing groups who it works with. I think that is a debatable point as well. Certainly fundamentally there is the express desire of Aboriginal people to be involved and responsible for day-to-day operations of heritage, particularly those pertaining to the whole state, being expressed through a statutory

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authority that the Aboriginal Heritage Council might become, so it has an operational perspective and things move from where they are with AAV at the moment to this body. Therefore government’s role, or AAV’s role, becomes a very high-level one. There are some fundamental things which the government would never give away, nor should it ever give away — prosecutions, for example — or some framework for that to happen, but stay within the purview of AAV.

The second issue is what constitutes the council into the future. As you would have seen in the submission, the council was originally set up as a group of individuals who have knowledge around this particular subject matter, and they were not represented. On notions that you have five of them from one area, I have to say there is that hierarchy of connection, which is what I spoke about in the first instance — one identity, many identities, somewhere in between. We do not have five people on the council whose prime identity is of one group. I think I am correct and pretty sure in saying — I may need to correct this later — the most we have of people who identify as their prime group, the one group, is two. For example, we have got two Gunditjmara, we have got two Dja Dja Wurrung. I think that might be it, to be honest, I would have to check that.

What you find is that people also have a lesser affiliation or their secondary one, or one that they are attached to but they do not play an overarching active role in. For example, you have , who have also got Gunditjmara connections. You have Dja Dja Wurrung, who also have Yorta Yorta connections. You have Gunaikurnai, who also have I think it is Nirai connections. In that context where people have said you have five people from one group, yes and no; it depends on how you want to interpret how people say who they are connected to and who they are not connected to.

The CHAIR — Ian, I think interpretation is the difficulty in a lot of what has been presenting.

Mr HAMM — It is.

The CHAIR — From our point of view that is why we raise some of these questions. In closing, the committee understands that there is a limited scope for failed RAP applicants to appeal decisions of the council. What kind of support appeals options do you think RAP applicants should be afforded in these situations?

Mr HAMM — That is a very difficult question.

The CHAIR — We have got two principal things: the first is the results are not timely on the legislated time of 120 days; the second is when they do not fall as some applicants believe they may have, there is no appeals process. I am very interested to hear AAV’s — —

Mr HAMM — Yes. Firstly on the 120 days, again on the public record and sticking my neck out, I was involved in the development of the act and I was part of the key leadership group that had discussions and debate around this. I have never quite forgiven myself for not being forceful enough in saying this is not simple. This is difficult — 120 days for what we are asking this council to do — given that the Federal Court has only done three RAP determinations in 15 years. It just ain’t going to fly. If I had to say where does responsibility rest for that situation, I would say with me for not being forceful enough. I should have been, and I was not.

In terms of the appeals processes that we have now, should we be affording state support to RAP applicants whose application has been declined? I think on the surface of it you could argue the state does have an obligation or does not have an obligation. I suppose the bigger question is: in the long term, at the end game, what would that actually achieve for us? Would we support somebody to go to the Supreme Court or to VCAT to either overturn a decision, to set aside a council and replace it with something, to send it back to the council for reconsideration? Would that ultimately actually achieve anything sustainable for the Aboriginal community, or would it merely continue that entrenched culture that we are trying to break out of now of disputing the Aboriginal community and seeking solace with third parties that have almost become a surrogate parent in the way we resolve things in the Aboriginal community, be it the government, the courts or even the aboriginal heritage council?

I cannot say whether the state should or should not support RAP applicants or failed applicants. I suppose what I would say is: are there alternatives to the continuance of doing what we might think might provide a short-term resolution but in fact has not changed anything? I cannot give you a yes or no answer. I can only give you the answer: what does this landscape look like in 10 years from now, and what are the alternatives for us to get there? 28 May 2012 Environment and Natural Resources Committee 177

The CHAIR — Jamin, do you see any policy initiatives on the horizon that may be put in place to follow through from where Ian is in relation to a possible appeals process which would be of benefit to all parties, because there is certainly grievance in the Aboriginal community statewide of not having that opportunity?

Mr MOON — I would probably echo what Ian said.

The CHAIR — My apologies. I should say those whose application has failed.

Mr MOON — I will echo what Ian said. It would be difficult. One of the core principles of the legislation was empowering Aboriginal people to make decisions about who speaks for their country and their cultural heritage. It would be difficult for me to see an appeals mechanism that went to an external agency that then was able to overturn a decision of a traditional owner organisation. I suppose it would be flying in the face of the principle of allowing traditional owners to make decisions about their heritage. Having said that, I think it probably would be beneficial to establish some sort of support for appealing decisions, but I would not know where that would go. In order to maintain the principle of traditional owner decision making you would need to have an external committee of the council or something like that which was comprised of Aboriginal people to hear those disputes as well. I do not think the government would want to step into the role of overturning a decision of Aboriginal people about their traditional ownership. I think it would be very difficult.

Ms DUNCAN — Would you argue that with the principles that underpin this Right People for Country project an appeals process might look like something that you would get out of that kind of — —

Mr MOON — I think that the Right People for Country project is definitely heading down the right direction. That is certainly the best scheme that I have seen anywhere for resolving these sorts of disputes.

Mr HAMM — It is essentially not doing things for and to Aboriginal people; it is getting things done by Aboriginal people — a fundamental shift in the very nature of the way we conceive things. As Michael Long was quoted in the Age on Saturday — I do not know whether you read it or not — if you think black-and-white politics is hard, try black-and-black politics. I read that, and I thought never a truer word was spoken, Michael.

The CHAIR — Ian and Jamin, thank you so much for sparing us your time today and joining us for the public hearing. We have long looked forward to this opportunity. We know very well the impact that AAV has within the whole process, and we have expressed some of the concerns the committee has received as we have moved around the state of Victoria. Thank you very much on behalf of everyone here at the committee.

Mr HAMM — I have some information on the Right People for Country project that I could table for the committee, just to give you a bit of background on it — fact sheets and so forth.

The CHAIR — Thank you, Ian. We appreciate that.

Committee adjourned.

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