Aboriginal Heritage Act
BRUCE MCCLURE, CMPA General Manager reports on the review of the Aboriginal Heritage Act 2006.
The Aboriginal Heritage Act 2006 commenced operation on 28 May 2007. The original intent of the regulations was to provide for the effective protection and management of Aboriginal cultural heritage in Victoria by, amongst other things, specifying the circumstances in which a Cultural Heritage Management Plan (CHMP) is required, prescribing standards for the preparation of CHMPs, and prescribing a range of fees.
This new legislation substantially changed the management and protection of Aboriginal heritage in Victoria. Under the new Act (2006), the State has sole responsibility for its Aboriginal cultural heritage, whereas previously it was a combination of State and Federal legislation. The ultimate responsibility for issuing permission to disturb Aboriginal archaeological sites is the Minister for Aboriginal Affairs. Controls are no longer based on a Memorandum of Understanding and/or an archaeological report, but now through a CHMP required by the Aboriginal Heritage Act.
The Minister for Aboriginal affairs the Hon Jeanette Powell MP announced in September 2011 that a review of the 2006 act is to be carried out. It is a requirement of the act that a review has to be carried out by May 2012 to determine its efficacy and efficiency.
The CMPA wants to make it quite clear that the association infers no disrespect to the recognition of the country’s heritage, and in particular aboriginal heritage. That has never been or will be an issue.
The CMPA has been publically stating for a considerable time that there are many serious issues that are becoming evident from the application of the 2006 regulations. It is one area that many of our members who are attempting to expand current sites, change or commence operations in a greenfields site are continually expressing considerable frustration and concerns with especially the time being taken to complete surveys, the considerable cost and the complete lack of predictability of results.
As part of the review a focus group and workshop have been conducted for or run by Aboriginal affairs Victoria to ascertain stakeholder concerns and issues with the current act. The CMPA was represented at both of these meetings and presented the concerns of members with the current act.
The CMPA has consistently stated its concerns, its member’s frustration with the current act in numerous submissions to state government departments and parliamentary inquiries. The following is a summary of the CMPA’s comments:
Balanced regulatory approach
- The Association infers no disrespect to the recognition of the country’s heritage, and in particular aboriginal heritage.
- A balanced approach to regulation of this important aspect of the State’s culture will see respect for all parties.
- It is not a sustainable argument that bestowing respect for earlier generations at the expense of future generations is a balanced regulatory approach.
Issues for the industry with cultural heritage
- Exceedingly High Compliance Costs
- Requirements under the AH Act are exceedingly demanding, ime consuming to obtain, and the results are difficult to predict. Prior to this Act the typical cost for a cultural heritage assessment was in the range of $3,000 to $15,000. Since the Act the typical range is from $40,000 to in excess of $200,000 oft en with substantial future salvage costs to be incurred once development commences.
- Case studies in CMPA Unsustainable Future Report (UFR) illustrate that the requirements add considerable cost for land use proponents where costs of compliance for the same site altered from $5,600 under the former legislation to $40,000 under the AH Act within only two years!
- The initial costs of Aboriginal Affairs Victoria investigations were estimated by the Allen Consulting Group in their Regulatory Impact Statement (RIS) to average $4,250 for a desktop study (The Allen Consulting Group, 2007, Aboriginal heritage regulations 2007 regulatory impact statement).
- In the same RIS, a complex study was predicted to cost from $12,000 to $100,000 (weighted average of $31,575 – Allen Group). The average cost of a complex study within the UFR in 2009 was $120,000. A complex study today involves estimated expenditure by a potential greenfield extractive developer of $200,000 to $300,000 plus! The demands have involved costs rising by more than 100% in 2 years!
- Some of the areas where a compulsory CHMP is required include all dune sand deposits which have been a long utilised and a valuable construction material resource in this state. The cost of a CHMP ($100,000 to $300,000 plus) in the case of small regional businesses would make these resources unviable.
- Unrealistically Long Resolution of Applications
- Timely resolution to the approval process is not occurring under the existing regulations.
- While the AH Act requires a Registered Aboriginal Party (RAP) to respond to an application for a permit within 30 days (s39) there are no time frames around which applicants can expect a resolution of their request.
- The Act is equally deficient with respect to CHMPs.
- The upshot is that applicants are now waiting between 1.5 to 2 years for these matters to be finalised!
- This in turn is causing excessive delays and large extra holding costs in progressing through the planning permit process.
- Finally, there is no dispute resolution process available to proponents when they disagree with a decision made by a RAP apart from VCAT.
- Unpredictability in the Assessment
- Assessment of cultural heritage is not scientifically based and can be simply based on the ‘feelings’ of members of the local aboriginal community. We have examples of artifacts that after further investigation are shown to be from far more recent (European) activities.
- The assessment process covers an excessively broad scope of potential artifacts compared with legislation in other states.
- This unpredictability and subjective nature of the assessment process makes the purchase (or lease) of land for extractive operations a black hole for a proponent’s risk capital that can quickly exhaust investment interest.
- Property Devaluation
- In cases where artifacts are found, the proposed use of the land for extractive resources is no longer possible resulting in a serious devaluation of the land’s value
- Furthermore, all information sourced by the proponent at their own considerable expense is required to be provided at no cost in full to the government
- Costs associated with cultural heritage legislation should be compensable
- The regulatory demands of the cultural heritage legislation impose significant risks for landowners, and ownership no longer assigns rights to the landowner but shares these rights with potential claimants under the legislation.
- In view of the impact of the cultural heritage requirements it is proposed that compensation clauses be inserted in the legislation so that a landowner can be compensated for monies spent in complying with the legislation merely to be able to conduct business for which the land was purchased. In these cases compensation should be set at the highest value use of the land.
These unjustified and unreasonable costs and delays clearly cannot be sustained and are only serving as a complete disincentive to investment in the State.
- The high cost and uncertainty of this process has forced the abandonment or curtailment of a number of extractive industry applications since the inception of this Act. This represents a hidden cost in lost opportunities and the extra cost incurred on reliance on more distant and expensive alternate supply sources.
There should be a survey of the incomes of the RAP’s and all heritage consultants involved before and aft er the 2006 Act and Regulations. There should also be a review of the significance of the cultural heritage value of the discoveries resulting from the CHMP process to allow this Review of the costs and benefits of this Act to be soundly based.
In future there should be mandatory reporting of the cost and time taken for the preparation and approval of CHMP’s and includes an estimate of future costs to meet salvage requirements. This would allow a realistic assessment of the cost/benefits of the Act to be undertaken in the future.
Adoption of the West Australian model where artifact scatters are not registered as sites would help reduce the costs of this process.
The use of Geological Survey Mapping to define areas of cultural heritage sensitivity needs to be reviewed as this mapping is often incorrect and the categories or classifications given may not relate to potential sensitive areas.
Consideration should be given in extractive sites to the fact that the soil material that might contain cultural material is oft en only temporarily displaced and then reinstated in the course of the extractive operations.
The CMPA has been consistent in its comments regarding the current Aboriginal Heritage Act 2006 and will be making a submission to the review of the 2006 Act.
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