NATIVE TITLE: PUBLIC OR PRIVATE LAND?

The CMPA contacted extractive industry consultant Peter Bentley, of Bentley Consulting, to provide some discussion about the impact Native Title issues can have with our industry.  Read on for an account of Mr. Bentleys response to questions raised by CMPA members:

There is a whole raft of issues that require addressing sooner rather than later that can have drastic consequences for members.

Last week one of my clients lost his livelihood through Native Title issues after 34 years of operation – so there is much to discuss and learn from current and past events.

Native Title is an issue mainly being handled by Land Victoria in the Department of Sustainability (DSE) rather than Minerals and Petroleum Victoria (MPV) that is in the Department of Primary Industries (DPI) group.

To answer some general questions-

Native Title claims cannot be made over private (freehold) land. Native Title Act (NTA) claims cannot also be made over certain types of pastoral and other leases.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Aboriginal and Archeological Relics Act 1972 (Vic), the Heritage Act (Vic) and the Planning and Environment Act 1987 (Vic) (as amended) have provisions that relate to private land in Victoria and affect archeological issues.

There are time frames for reporting of finds of artifacts and human remains and not necessarily to the Secretary of DPI/DSE.

1. Where an archeological survey is being undertaken the reporting requirements set out by Aboriginal Affairs Victoria (AAV) apply (see Guidelines for Conducting and Reporting upon Archeological Surveys in Victoria).
2. Where demonstrably or suspected human remains are found the Secretary DSE/DPI is only one of several organizations and individuals that should be informed. Others are the Police, AAV and naturally representatives of Aboriginal people in the area.
3. Where an Indigenous Landowner Utilisation Agreement (ILUA) is in place site monitors may also have to be advised and may order a shutdown of operations pending forensic and further archeological investigations. There may be specific spatial or time frames in an ILUA that may or may not be confidential between the parties.
4. Police may also wish to involve the State Coroner.
5. The owner of the land should also be advised as soon as practicable.

In general terms it is incumbent upon the extractor to be honest and report the finding of known or suspected human remains as soon as possible and not to disturb the dignity of the site unnecessarily to maximize forensic and archeological information gathering.

Most archeological investigations for commercial purposes such as Work Authorities are carried out by Consultant Archeologists. In the past AAV (and predecessor organisations) has carried out limited and often landscape size strategic investigations for academic and data base purposes.

University students at undergraduate level or postgraduate level may also undertake archeological investigations as part of study and course requirements under the auspices of the university or AAV or both. From time to time AAV may also appoint an archeologist to undertake an investigation particularly at sites considered of state or national significance

Archeologists are not registered as such by AAV though AAV retains a register of suitably qualified practicing archeologists for Victoria that is updated from time to time. This list of archeologists is available from AAV free of charge.

As indicated above investigations are undertaken under fairly strict guidelines and a system of permits and registration of sites does apply. A practicing archeologist is bound by this system of permits and site registration and must report all findings to AAV.

Aboriginal people play several roles in archeological investigation dependent on the scope, scale and legislative or agreement arrangement that have or are contemplated being entered into by the parties.

The first role that the Aboriginal community play is one or more members of the community will accompany the archeologist(s) in the field to observe techniques and findings in the field. The work authority proponent is expected to pay wages and in some locations accommodation and transport. Normally this amounts to $400 — 500 per person per day plus where required accommodation and transport.

The second role that the Aboriginal community plays is assessing the significance of any archeological findings in conjunction with examination of any artifacts found and the registration of the site in the AAV records. This may lead for requests by an Aboriginal community to AAV to protect the site by fencing or reburial of artifacts and remains.

In the second half of this article (next issue), Mr Bentley, provides further information on processes involved should artifacts or remains be found on your site.

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