Aboriginal Cultural Heritage: Information for the construction material extractive industry

First Peoples – State Relations have developed the following information for the preparation of Cultural Heritage Management Plans (CHMP).

Info for the construction materials extractive industry.

Requirements of Victoria’s Aboriginal Heritage Act 2006 for protecting and managing Aboriginal cultural heritage.

The Aboriginal Heritage Act 2006

The Aboriginal Heritage Act 2006 (Vic) (the Act), together with its regulations, provides for the protection and management of Aboriginal cultural heritage in Victoria. The Act requires that all known Aboriginal cultural heritage is recorded on the Victorian Aboriginal Heritage Register. The Act also enables the appointment of Registered Aboriginal Parties (RAPs, which are Traditional Owner corporations) as decision-makers for cultural heritage in particular regions . There are various processes for minimising and managing the impacts of land-use activities on Aboriginal cultural heritage, such as via permits and plans.

The triggers for Cultural Heritage Management Plans
Where a ‘high impact activity’ is proposed in an ‘area of cultural heritage sensitivity’, the Act requires that a Cultural Heritage Management Plan (CHMP) must be prepared. Relevant work authorisations must not be issued until a CHMP is approved.

High impact activities
(as relevant to extractive activities) include:

• the extraction or removal of stone (other than sand or sandstone) for sale or commercial use, or in construction, building, roadway or manufacturing works, where the land from which the stone is removed is more than 2,000 square metres
• the extraction or removal or crushing of loose stone on agricultural land on the Victorian Volcanic Plain not used for crop raising, for the purposes of land improvement, provided it entails significant ground disturbance.

Areas of cultural heritage sensitivity are areas where Aboriginal cultural heritage has been registered (plus a 50 meter buffer), and also designated landscape types where heritage is more likely to be present. This includes all land within 200 metres of named waterways, declared Ramsar wetlands, prior waterways and ancient lakes, and also all coastal Crown land, high plains, greenstone outcrops, stony rises, volcanic cones, caves, lunettes, dunes and sand sheets, and land across the Koo Wee Rup Plain. An online map of areas of cultural heritage sensitivity is available at: https://achris.vic.gov.au/#/dashboard

Cultural Heritage Permits and Voluntary CHMPs

Where a CHMP is not triggered but an activity will harm, or is likely to harm, known Aboriginal cultural heritage, then a cultural heritage permit is required. A proponent or developer may also choose to prepare a voluntary CHMP that enables assessment of whether Aboriginal cultural heritage is present. This can reduce risks of harm or of future delays, should unregistered heritage be found during works.

Preliminary Aboriginal Heritage Tests (PAHTs)

Where proponents are unsure whether a CHMP is mandatory or not, they can apply for a Preliminary Aboriginal Heritage Test (PAHT). The Secretary to the Department of Premier and Cabinet certifies whether a CHMP is required for a proposed activity.

Key steps to developing a CHMP

1. Sponsor (proponent) must engage a Heritage Advisor to prepare a CHMP
   See the List of Heritage Advisors on the FPSR website. There are large consulting companies through to sole traders. Seek multiple quotes. Consider not only cost, but also experience.
2. HA gives ‘Notice of Intention to Prepare a CHMP’, on the sponsor’s behalf to:
   • any relevant RAP for the activity area
   • the Secretary of Dept. Premier and Cabinet
   • the owner or occupier of the activity area
   • the relevant municipal council.
   In areas where no RAP is appointed, the notice should include other proposed consultation with Aboriginal people or organisations.
3. Sponsor and HA meet with the relevant RAP and plan ahead
   Meetings should take place as early as possible to discuss the proposed activity, to agree on protocols and to plan the way ahead.Plan for (i) presenting assessment findings, and (ii) consulting about proposed conditions, with the RAP or other Traditional Owners. RAPs can elect to be involved in the assessment processes.
4. HA prepares the CHMP, which includes:
   • assessment of what Aboriginal cultural heritage, if any, exists within the proposed activity area, via tiered assessment (desktop assessment, site surveys and/or excavations); and
   • conditions to be complied with before, during and after the proposed activity, plus contingencies for if unregistered heritage arises during works.

5. HA submits the CHMP for approval
   The evaluator (RAP or Secretary) must evaluate the CHMP within 30 days (but requests for further information can ‘stop the clock’). The approval decision is reviewable in VCAT.
   Once work plans are approved, sponsors must ensure on-site operators are fully informed of all conditions and contingencies. It is an offence under the Act to fail to comply with an approved CHMP.

Costs and timeframes

The regulated fees (for the 2023/2024 financial year) are:
Notice of Intention = $159 Application to access the Register = $286.20
Approval of CHMP = ranges from $472 to over $6,000, depending on the size of activity area, level of assessment and whether 1 or 2 RAPs evaluate.
PAHT = ranges from $382 to $1,129, depending on size of activity area
Other costs:
• the engagement fees for Heritage Advisors, and
• fees that RAPs charge for consultation meetings, cultural inductions and for assisting with assessment processes.

These costs will vary, depending on the size and location of an activity area and the nature of identified Aboriginal cultural heritage.
Timeframes for preparation of a CHMP will also depend on the level of assessment appropriate to a particular area and the timetabling of meetings with RAPs or other Traditional Owners. As it takes time for a CHMP to be prepared and approved, consider requirements and costs at the feasibility stage of projects.

Further information
For further information about the operation of the Aboriginal Heritage Act 2006, including guides and practice notes, go to
www.firstpeoplesrelations.vic.gov.au/aboriginal-culture-and-heritage, or call FPSR on 1800 762 003 or send an email to aboriginal.heritage@dpc.vic.gov.au.
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To view RAP appointment areas go to: https://www.aboriginalheritagecouncil.vic.gov.au/victorias-current-registered-aboriginal-parties
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See Division 5 of Part 2 of the Aboriginal Heritage Regulations 2018.
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See Division 4 of Part 2 of the Aboriginal Heritage Regulations 2018.
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FPSR = First Peoples State Relations group in the Department of Premier and Cabinet, which includes Heritage Services.
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FPSR does not take responsibility for any loss or damage associated with the engagement of any HAs on this List.
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‘Relevant RAP’ means the RAP whose appointment area is inclusive of the sponsor’s proposed activity area.

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