The Aboriginal Heritage Act 2006 (Vic) (Act), is designed to replace and consolidate the previous legislation on the protection and preservation of Aboriginal cultural heritage, including relics, human remains and land in Victoria, came into operation in May 2007.In this article LEVENT SHEVKI and MARELDA HIBBERD consider its key features including advice for landowners and Aboriginal organisations,
A key aim of the Act is to link the protection of Aboriginal cultural heritage more closely with planning and land development in Victoria.
For owners and users of land and natural resources in Victoria, the most relevant of the Act’s objectives is set out in s3(d):
“3(d) to promote the management of Aboriginal cultural heritage as an integral part of land and natural resource management”.
Objectives also include establishing processes to protect and promote Aboriginal cultural heritage in Victoria. The potential conflict between the objectives of the Act and the aims of land and natural resource users lies in situations where the land or natural resources exists in an Aboriginal place which is defined in the Act as “… an area in Victoria or the coastal waters of Victoria that is of cultural heritage significance to the Aboriginal people of Victoria.”
Aboriginal Heritage Council
The Act establishes a new body known as the Aboriginal Heritage Council. The Council consists of 11 members and its role is to register Aboriginal parties (discussed below) and advise the Minister on Aboriginal heritage management in Victoria.
Aboriginal parties
Local Aboriginal organisations can apply to the Council to become registered Aboriginal parties which confers on them the right to become involved in decision-making on issues of Aboriginal cultural heritage at their local level.
Cultural Heritage Management Plans
Certain larger developments or high impact activities such as earthworks may have the potential to cause harm if they occur in areas of significance. In these cases, the Act sets out a process in which developers or users must enter into a Cultural Heritage Management Plan before the development or use can continue. High impact activities are specified in the regulations to the Act and include extraction or removal of sand, sandstone and stone.
Areas of Aboriginal cultural sensitivity are designated in the regulations and it is possible to check whether an activity is located in an area of cultural sensitivity by looking at maps on the Department for Victorian Communities website (www.dvc.vic.gov.au).
In these circumstances, councils and statutory authorities will be unable to issue permits, work authorities or licences for use or development of land unless a Management Plan is approved. The application process for obtaining a Management Plan is discussed below.
Cultural Heritage Permits
Where land use or development is located in culturally sensitive areas, but the use or development is not of such a significant nature to require a Management plan, a Cultural Heritage Permit may be required as an alternative.
Cultural Heritage Agreements
Cultural Heritage Agreements may be entered into between land owners and registered Aboriginal parties where there is an Aboriginal cultural heritage place on a landowner’s property. These Agreements are aimed at preserving and protecting significant Aboriginal cultural heritage places.
The Act obliges any person who discovers an Aboriginal place or object to report it to the Secretary of the Department of Victorian Communities as soon as practicable. Failure to report a discovery attracts a maximum penalty of 300 penalty units or $33,036.00 in the case of a body corporate.
If a discovery is made on the surface of land, an owner or occupier of the land is entitled to continue to use and enjoy the land surface despite the discovery. This use and enjoyment is subject to the proviso that the owner or occupier will not knowingly harm or perform an act likely to harm Aboriginal cultural heritage. If either occurs, a maximum penalty of 10,000 penalty units or $1,101,200.00 applies to a body corporate found guilty of knowingly harming Aboriginal cultural heritage.
Where land is to be developed or used in a more high-impact way as is the case in the extractive industries, the Act requires the user or developer of the land to obtain either a Cultural Heritage Management Plan or a Cultural Heritage Permit.
a) Cultural Heritage Management Plans
Briefly, the process for obtaining a Management Plan is:
- Decide whether a Management Plan is required by assessing whether the development is in an area of Aboriginal cultural sensitivity. This will involve checking the regulations.
- Engage a cultural heritage adviser to prepare a management plan.
- Notify the Secretary of the Department of Victorian Communities and any relevant registered Aboriginal parties.
- Registered Aboriginal party responds within 14 days on whether they wish to review the Management Plan.
- Finalise Management Plan and submit to registered Aboriginal party for review
- Registered Aboriginal party to respond within 30 days.
- Right of appeal to the Victorian Civil Administrative Tribunal (VCAT).
- Provide final Management Plan to statutory authority or local council to allow permit or licence application to proceed.
(b) Cultural Heritage Permits
Where the use or development is not of a high impact nature but still has the potential to harm areas of Aboriginal cultural heritage, a permit may be required. The approval process for permits also involves endorsement from the relevant registered Aboriginal party.
Formidable enforcement mechanisms exist in the new Act. These include heavy monetary penalties, stop orders (formerly known as emergency declarations), a “cultural heritage audit” and interim and ongoing protection declarations. Audits are directed at monitoring compliance with the terms of Management Plans and permits. Declarations can override a Management Plan or permit by prohibiting all disturbances to declared areas.
The Act requires the Secretary of the Council to establish and maintain an Aboriginal Heritage Register, which includes details pertaining to aspects such as Aboriginal places and private collections of Aboriginal objects in Victoria, permits, approved plans, and agreements, stop orders and protection declarations. Access to the register will be restricted to relevant parties.
The Minister is empowered to acquire land where it contains an Aboriginal place of irreplaceable significance, and no other arrangements can be made to protect it.
The Act highlights the importance Aboriginal planning issues play in Australia’s heritage environment today as indicated by the fact that all states and territories have legislation dealing exclusively with Aboriginal heritage issues. The Act also serves to involve Aboriginal communities in issues affecting their local cultural values, providing a framework for their involvement in the planning process.
For further information, please contact Levent Shevki on + 61 3 9608 2278 or l.shevki@cornwalls.com.au
or Marelda Hibberd on +61 39608 2241 or m.hibberd@cornwalls.com.au
