Aboriginal Heritage

Implications for Quarry Owners – Aboriginal Heritage Amendment Bill 2015

DR ELIZABETH GIBSON, General Manager of the CMPA discusses amendments to the Aboriginal Heritage Bill 2015.

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 of Victoria.

The Aboriginal Heritage Amendment Bill 2015 (the Bill) was introduced into the Parliament of Victoria in November 2015. The purposes of the Bill are: “to improve reporting requirements
in relation to Aboriginal cultural heritage, to include provisions regarding Aboriginal intangible heritage, to establish an Aboriginal Cultural Heritage Fund and to provide for further protection of
Aboriginal Cultural Heritage and for other purposes.” It is likely to come into operation by 1 August 2016 or earlier.

The Bill makes significant changes to the Aboriginal Heritage Act 2006 that quarry owners should be aware of. One of the most worrying is the huge increase in fines including a new offence for
not having a Cultural Heritage Management Plan (CHMP) when one is required.

The Amendment Bill further enhances the objective of Aboriginal cultural heritage management being a central consideration in the land use and development process. Additionally, the Bill provides:

1. The registered Aboriginal parties (RAP) with the power to evaluate cultural heritage permit applications;
2. The Nation’s strongest protection and most comprehensive process for treating Aboriginal ancestral remains;
3. Enforcement powers to Aboriginal Victorians: Aboriginal heritage officers who will have special powers to stop works for 24 hours if they believe an offence has occurred or is likely to occur; and
4. Increased powers and functions of the Aboriginal Heritage Council.

The following amendments are proposed:

Cultural Heritage Management Plans (CHMP)

• Allows the amendment of approved CHMPs. However, the amendment will be treated as if a new CHMP for the purpose of evaluation and approval or refusal. It only applies to minor amendments. There is a 5 year time limit on amending CHMPs. Fees can be charged for evaluation of CHMPs.
• Substituting “conditions” for “recommendations” in a CHMP. The intent of this amendment is to establish the mandatory nature of the “conditions”.
• RAP may ask the sponsor in writing for further information regarding a CHMP – time to make a decision stops and then recommencing once the information has been supplied. Secretary may ask for further information.
• Victorian Aboriginal Heritage Council may also charge a prescribed fee for evaluation of a CHMP.
• Unresolved disputes between a RAP and the sponsor of a CHMP may be referred to the Victorian Aboriginal Heritage Council.
• VCAT is restricted to making amendments only to the conditions in a CHMP.

Preliminary Aboriginal Heritage Tests (PAHT)

• New PAHT whereby a person may apply to the Secretary  for certification that the Secretary agrees with the conclusions, that is, a CHMP is not required.
• Certification that a CHMP is not required does not absolve the proponent liability if it later harms Aboriginal cultural heritage.

Aboriginal intangible heritage

• Introduces a new right facilitating traditional owners recognised by the State to control and protection and use of their intangible heritage. However, it is intended the Secretary will make appropriate inquiries and investigations to assess the veracity of an application before making a decision.
• Aboriginal intangible heritage is owned collectively by traditional owners of the area, region or culture from where it is reasonably believed that intangible heritage originates.
• Aboriginal heritage officers
• Aboriginal heritage officers are introduced as an employee of a RAP and are appointed by the Minister after consultation with the Council. They are to undertake enforcement and compliance activities and have similar powers to an authorised officer.
• Introduces authorised officers, that along with Aboriginal heritage officer, can issue a 24 hour stop order where there is or likely to cause harm to Aboriginal cultural heritage.

Cultural heritage audit

• New provisions have been inserted which remove the requirement for the Secretary to pay the costs for a sponsor of a cultural heritage audit for the engagement of a heritage advisor to undertake the audit unless the sponsor has not contravened a CHMP or cultural heritage permit.

Victorian Aboriginal heritage register

• The Victorian Aboriginal Heritage Council will be able to nominate information on the Register (Aboriginal ancestral remains; secret or sacred objects, Aboriginal places and Aboriginal objects) to be restricted information.

Enforcement and compliance

• The definition of harm now includes “disturb” or “interfere with” to clarify that collecting or removing Aboriginal objects from and Aboriginal place is an offence.
• New offence of failing to comply with a CHMP with 3 levels of mental culpability: with knowledge, was reckless or was negligent.
• A new offence is created for Aboriginal intangible heritage whereby when registered on the Aboriginal Heritage Register it is protected from unauthorised commercial use.
• A person is still subject to prosecution under the Act for causing harm to Aboriginal heritage despite having received a certified PAHT from the Secretary that a CHMP was not required for the activity.
• New enforcement power – improvement notices – where there are contraventions of the Act e.g. CHMPs which may be issued by authorised officer or Aboriginal heritage officer. If the contravention is an offence the holder may be found guilty regardless of whether an improvement notice has been issued. A new indictable offence is also established.
• Sensitive information is treated with particular caution. Creates a new offence for misuse of information included in the Register.
• Criminal liability will be extended to the officers of a body corporate where the officer has failed to exercise due diligence.
• New 24 hour stop orders are introduced which may be issued by authorized officers or Aboriginal heritage officers. It will be an indictable offence to knowingly contravene a 24 hour stop order.

Strict liability offence

A strict liability offence for harming Aboriginal cultural heritage so it is no longer necessary to prove knowledge or intent is being proposed. This is quite serious for operators where the Aboriginal cultural heritage alleged is of an intangible nature and AAV are not required to give the operator any notice of its existence.

What should you do?

• Familiarise yourself with the proposed changes.
• Seek appropriate advice where needed.
• Review and update (if necessary) internal policies to take into account the amendments the Bill will introduce if passed.

What will CMPA do?

• Continue to provide input to AAV regarding the onerous nature of the Bill if introduced in its current format.
• Provide input to any future reforms to Victoria’s Aboriginal cultural heritage management system.
• Inform Members of when the Bill is passed.

The CMPA would like to acknowledge Andrew Natoli of Equipe Lawyers for his input into this article.

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