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Focus: Review of Victoria's Aboriginal heritage legislation

22 September 2011

In brief: Developers and land managers need to be aware of the Victorian Government's review of its Aboriginal heritage legislation which is aimed at improving its efficiency and effectiveness. Partner Chris Schulz (view CV) and Senior Associate Emily Gerrard look at the review in more detail.

How does it affect you?

  • The review is an opportunity for land managers and developers to provide feedback on the operation of the Aboriginal Heritage Act 2006 (Vic) (the AHA), including the efficiency and effectiveness of specific provisions or regulations.
  • Clients who have interacted, or regularly interact, with processes under the AHA should consider making a submission by 25 November 2011, as part of the first phase of the review process.
  • The review coincides with a parallel and separate Parliamentary inquiry into the establishment and effectiveness of Registered Aboriginal Parties (RAPs) under the AHA. Under the terms of reference for this inquiry, the Environment and Resources Committee will report by no later than 28 September 2012.

Overview of the AHA review and discussion paper

The scheduled review of the AHA is an opportunity for all persons who are, or have been, involved with implementation or operation of the AHA to provide input on ways to improve its efficiency and effectiveness.

The Victorian Department of Planning and Community Development (the DPCD) has released a discussion paper as the first step in this review process. Submissions on the operation of the AHA and matters set out in the discussion paper can be made up until 25 November 2011. There will be an opportunity for further consultation and submissions in February 2012 before the final advice on the outcomes of the review and review recommendations are completed in May 2012.

While the discussion paper provides guidance to stakeholders wanting to make a submission on the effectiveness of the AHA, submissions are not only limited to issues identified in the paper.

The discussion paper is broken into key sections. These sections relate to:

  • respect and status for Aboriginal people;
  • timely and efficient cultural assessment;
  • cultural heritage agreements;
  • penalties and enforcement; and
  • integrating cultural heritage management with other land use planning systems and other matters.

Appendix 1 to the discussion paper sets out common issues that have been raised over the past five years by stakeholders interacting with the AHA and the cultural heritage regime. Key issues identified for discussion in various sections will be of interest to land use managers and developers. These include:

  • cultural heritage management plans (CHMPs) – complexity of required plans and the time and cost involved;
  • the cultural heritage agreement process and whether other types of agreements could be accommodated within the AHA as cultural heritage agreements;
  • the effectiveness of offences in the AHA, audits, stop orders and protection declarations in deterring and preventing harm to cultural heritage;
  • maintaining the Victorian Aboriginal Heritage Register – whether it serves stakeholder needs effectively and what could be improved in relation to the register; and
  • integrating cultural heritage management with other land use planning systems and whether there is sufficient understanding of the AHA by local government and other statutory agencies in terms of their engagement with RAPs and whether these systems could be better integrated

In our experience, perceived or actual confusion by local government and other statutory agencies about the need to engage with RAPs is likely to arise from ambiguities in the operation of the AHA and its regulations. One way in which the cultural heritage management system and land use planning systems could be better integrated could include reflecting areas of cultural heritage sensitivity in planning schemes. While sensitivities associated with revealing the location of sites and objects of significance to Aboriginal people are acknowledged, the existing cultural heritage sensitivity mapping tool could be integrated with heritage overlays within planning schemes. Such an approach could improve certainty in relation to the location and extent of areas of cultural heritage sensitivity.

Other issues raised by stakeholders outlined in the discussion paper, which mirror issues clients have reported in our dealings with them, include:

  • confusion about who to consult within areas where a RAP has not been appointed or where there are known to be other Aboriginal groups also claiming traditional owner status;
  • the types of activities triggering a mandatory CHMP;
  • sponsor's understanding of when a CHMP is mandatory and when a voluntary cultural heritage management plan should be prepared;
  • whether there should be a simpler CHMP process designed specifically for smaller projects;
  • whether and how the cultural heritage industry might be regulated;
  • whether RAPs are effectively consulted by cultural heritage advisers in the preparation of due diligence reports;
  • whether random audits of compliance with CHMP recommendations should be conducted;
  • the way the register identifies some sites as dots on a map rather than site extents;
  • the accuracy of the mapping of areas of cultural heritage sensitivity; and
  • consistency between planning permits, other statutory authorisations and cultural heritage management plan recommendations.

The discussion paper also questions whether the AHA effectively deals with cumulative impacts of development on cultural heritage, for example, where there are numerous CHMPs in one region or in relation to particular types of cultural heritage. Stakeholder input is specifically sought on this issue.

In our view, the review also presents an opportunity to address inflexibility of the CHMP process when it comes to minor amendments of approved plans. An analogy here is the planning system, in which planning permits can be issued with conditions requiring final plans and designs to be submitted and approved before use or development commences. This provides some flexibility in the approvals process for concepts to move forward subject to final details being approved. A similarly flexible approach would be useful for CHMPs.

Allens is happy to discuss or assist with potential submissions on the discussion paper.

For further information, please contact:

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