Amendments to the Aboriginal Heritage Act 2006

By on January 31, 2017

The following is a summary of the presentation given at the General Meeting held   in   Epping   on   20   October  2016 by Harry Webber, A/Director Heritage Services, Aboriginal Victoria, Department of  Premier  & Cabinet  on  the  Aboriginal Heritage Act 2006 (the Act) Amendments.

Harry commenced  his presentation with some statistics on the construction material industry:

  • There are approximately 10 Extractive Industry Work Authorities approved each year.
  • Of those 10 Work Authorities 30% trigger a Cultural Heritage Management Plan (CHMP) where 70% find Aboriginal artefacts.
  • There have been 26 Cultural Heritage Management Plans (CHMP) for Extractive Industry Work Authorities in the last 8 years.

Whilst the intent may have been to indicate that the Act has limited impact on the extractive industry, there are no records kept of those who have not proceeded with a Work Authority or Work Plan Variation due to the expense of conducting a CHMP.

The Key amendments to the Act are as follows:

  • Preliminary Aboriginal Heritage Test (PAHT) – An optional process for certifying when a CHMP is required.
  • Activity Advisory Groups – Establishing a clear consultation process in non-Registered Aboriginal Party (RAP) areas.
  • Amending approved CHMPs – Eliminating the need to redo CHMPs.
  • New offences and compliance measures – Including strengthening harm provisions, role of RAPs in enforcement/compliance, 24 hour stop orders.
  • New protections for Aboriginal intangible heritage – A processes to enable registration on the Victorian Aboriginal Heritage Register, and new form of agreement to enable Traditional Owners to decide whether and how their traditional knowledge is used.
  • Aboriginal Cultural Heritage Land Management Agreements (ACHLMAs) – Enable public land managers and RAPs to negotiate and agree on how cultural heritage will be managed for low-medium impact works and management activities.
  • Establishing Aboriginal Cultural Heritage Management Fund- Better supports sustainable funding of RAPs and the Aboriginal cultural heritage system through collection and dispersal of fees and charges collected under the Act.
  • New Aboriginal ancestral remains system- making the Victorian Aboriginal Heritage Council (VAHC) the central coordinating body.

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The PAHT is a voluntary process, which allows for the Secretary to certify whether a CHMP is required and is discussed here in more detail.

A PAHT can be undertaken by any person who is seeking to determine whether a CHMP is required for a proposed activity

A person  may be unclear whether  an approved  CHMP  is required for a proposed activity, specifically:

  • They are unsure as to whether significant ground disturbance has previously occurred;
  • They are unsure as to whether the proposed activity is a high impact activity; and
  • They are unsure as to whether the proposed activity will cause significant ground disturbance.

A PAHT submitted to the Secretary for certification must also be accompanied by the fee prescribed in the Regulations.

How is a PAHT certified by the Secretary?

The conclusions of a PAHT must include:

  • a statement of whether a CHMP is required for the proposed activity;
  • a statement of whether significant ground disturbance is evident in the proposed activity area and the nature and extent of that disturbance; and
  • details of any other action recommended to protect or preserve any Aboriginal cultural heritage in the proposed activity area.

A PAHT will be certified by the Secretary if the conclusions are informed and confirmed by the supporting information. The Secretary must certify the PAHT within 21 days of receiving the application.

There are no appeal provisions for PAHTs as an application for certification of a PAHT is voluntary. Compliance with the certified PAHT decision is mandatory if it requires an approved CHMP for the proposed activity.

The CMPA  supports  responsible,  balanced  legislation and community  engagement that is in the best interests of the State and acknowledges  Victoria’s Aboriginal communities and cultural heritage.

There were a number of questions from the audience, one of which being the issue of when to use a PAHT. The response was that the PAHT should not be used where it is known that a CHMP is required.

The CMPA thanks Harry Webber for his informative presentation.

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.

In the Victorian Government Response to the Parliamentary Inquiry into the establishment of and effectiveness of RAP May 2013 the Victorian Government states that the Victorian system is widely recognised in Australia as being best practice. It goes on to say that there is certainty for industry with an efficient and effective best practice system. The CMPA is of the opinion that this is not the case. There are a number of issues that have not been addressed by the Bill, including:

  • Costs and delays in the CHMP process – the average time for a CHMP approval is 9.5 months;
  • Lack of a prompt and binding arbitration mechanism;
  • RAPs delay the process;
  • Triggers for CHMPs – inaccurate or excessive mapping of cultural heritage sensitivity;
  • Excessive penalties and enforcement.
  • Mandatory public reporting of the total cost for each approved CHMP with a breakdown between the RAP fees and consultants’ fees and the time taken for the conduct and approval of the CHMP.

Additionally, an economic impact statement still needs to be conducted of the changes to the Act.

The extractive industry has many issues with the Act (in its previous version, it is too  early to  predict  the  detrimental impact the changes that came into force in August 2016 will have on the industry). The most worrying to date (and still ongoing) has been those associated  with Aerolite Quarries and the recent listing of land (on which the existing quarry operates) on the Aboriginal Heritage Register due to its cultural significance based on indigenous creation stories which is in dispute putting into jeopardy the access to scare earth resources and jobs.

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