Review of the Aboriginal Heritage Regulations 2007 – Discussion Paper

DR ELIZABETH GIBSON, General Manager of CMPA provides an update on the review of the Aboriginal Heritage Regulations 2007.

On 25 May 2017 the Aboriginal Heritage Regulations 2007 sunset after ten years of operation. The Subordinate Legislation (Aboriginal Heritage Regulations 2007) Extension Regulations 2017 came into effect on 25 May 2017 and will extend the operation of the Aboriginal Heritage Regulations 2007 for twelve months.

Aboriginal Victoria is carrying out the review to ensure any new regulations are justifiable and present the most effective and efficient form of regulation available. The review will inform how
any new regulation might be improved to better achieve the desired benefits and reduce the costs they impose.

Aboriginal Victoria released a “Review of the Aboriginal Heritage Regulations 2007” discussion paper on 10 August 2017.

The CMPA was appreciative of the extension to the submission due date, given we were unaware the Discussion Paper was released, having not received any notification, apart from an information session with Aboriginal Victoria in June 2017.

The CMPA recognises and respects the State’s Aboriginal Heritage and Culture and the need to preserve significant and important sites. The CMPA also supports responsible, balanced legislation that is in the best interests of the State.

The following are CMPA responses to selected discussion points and questions in the discussion paper.

Cultural Heritage Management Plans (CHMP)

The cost of carrying out management conditions in CHMPs, including salvage requirements:

The costs are excessively high. CMPA member Sponsors indicate that there is a generic problem with CHMPs arising from the fact that the Registered Aboriginal Parties (RAP) dictate the process, methods, outcomes and pace (as a result of their availability for meetings, fieldwork etc.) of CHMPs and that the system appears to be designed to encourage over-servicing by RAPs and heritage advisors. Management conditions are a key component of the high costs, and this is largely due to the reality that the RAP frequently dictates and determines that their standard management conditions are to be incorporated into the CHMP without regard for the views of the Heritage Advisor about the level of heritage risk or the views of the Sponsor about the practical, financial or engineering workability of the RAP’s management conditions. The RAP’s standard management conditions frequently exceed the requirements of the Regulations. It is not uncommon for stone material of dubious provenance to be recorded as artefacts at the insistence of the RAP. This results in additional survey and recording requirements (complex assessment) or costly management conditions such as avoiding works in areas where this material was recorded, or processes for salvage, relocation or reburial.

An additional and unnecessary cost component is the widespread requirement in the RAPs’ management conditions for “compliance inspections”. The Sponsor is required by law to comply with the CHMP management conditions, so there is no practical reason to justify management conditions requiring the Sponsor to pay the RAP to conduct additional compliance inspections.

A further cost component is that management conditions are often written in a complicated, repetitive and confusing manner, which has the potential for accidental breaches of the conditions to occur through misreading: prosecutions for breaches of CHMP conditions carry the potential for very large fines. To mitigate the risk of such a situation, some heritage advisors now advise Sponsors to have the management conditions evaluated and approved by lawyers before they are incorporated into the final version of a CHMP. It would be useful if the Regulations included
a requirement for management conditions to be written in ‘plain English’, as would having Aboriginal Victoria produce a Practice Note about management conditions in CHMPs that emphasised the need to avoid complicated wording and costly over-servicing.

The thresholds for progressing through the types of assessment when preparing a CHMP:

There are desktop, standard and complex levels of assessment. Extremely few stop at the desktop assessment level and proceed on to standard or, more likely, complex assessments. The level of detail required by RAPs continues to increase and quite often will not refer to the Cultural Heritage Advisor or regulations.

What is your experience in making amendments to approved CHMPs?

It is perceived that undertaking an amendment to a CHMP is no shorter than undertaking a new CHMP.

Preliminary Aboriginal Heritage Tests (PAHT)

Does the prescribed form include all the necessary information?

CMPA members’ experience is that few heritage advisors are recommending Sponsors undertake PAHTs because of the relatively high cost (~$10k or more) the time requirement for both the preparation of the PAHT and the 21 day assessment period, and because the PAHT is assessed at officer level within Aboriginal Victoria. There is the perception that PAHT assessments are weighted in accordance with AV policy/political views rather than being a fair assessment of the facts and/or the requirements of the Regulations and VCAT precedents – so that PAHTs are likely to be refused (i.e. CHMP is required). The fact that there is no opportunity for an independent contest of ideas (as would occur at VCAT) and that there is no right of appeal also does not encourage Sponsors to undertake PAHTs.

Would you consider preparing a PAHT for a proposed activity? Why or why not?

Unlikely, as per the previous point.

In summary, the interpretation of the Regulations and the policy and practice of the RAPs has created an adversarial environment for CHMPs, which was never the intent. An environment for cooperative discussion and exchange between Sponsor, heritage advisor and RAP does not currently exist. There are a number of issues that have not been addressed by the Discussion Paper, including:

• Costs and delays in the CHMP process;
• Lack of a prompt and binding arbitration mechanism;
• Disconnect between RAPs expectations and the regulations;
• Triggers for CHMPs – inaccurate or excessive mapping of cultural heritage sensitivity;
• Excessive penalties and enforcement.

It is pleasing to note that a regulatory impact statement (RIS) will be conducted.

Mandatory public reporting of the total cost for each approved CHMP with a breakdown between the RAP fees and consultants’ fees, together with the time taken for preparation and approval of the CHMP would be of benefit.

For the full submission go to https://cmpavic.asn.au/publications/submissions/

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