Submission to the review of the
Aboriginal Heritage Act 2006
Discussion paper
Municipal Association of Victoria
25 November 2011
6
This submission has been prepared by the Municipal Association of Victoria (MAV) in response to the
invitation by Aboriginal Affairs Victoria.
The MAV is the statutory peak body for local government in Victoria, representing all 79 municipal
councils within the State. This submission has been prepared by the MAV following consultation with
councils. While this submission aims to broadly reflect the views of local government in Victoria, it does
not purport to reflect the views of every individual council, who will also make individual submissions.
For further information about this submission contact:
Michelle Croughan
Municipal Association of Victoria
Tel: 9667 5541
Email: mcroughan@mav.asn.au
November 2011
© Copyright Municipal Association of Victoria, 2011
The Municipal Association of Victoria is the owner of the copyright in this publication.
No part of this publication may be reproduced, stored or transmitted in any form or by any means
without the prior permission in writing from the Municipal Association of Victoria.
The MAV can provide this publication in an alternative format upon request, including large print, Braille
and audio.
Table of Contents
1
Executive summary................................................................................................... 3
2
Introduction ............................................................................................................... 5
2.1 About the MAV ...................................................................................................... 5
2.2 Background ........................................................................................................... 5
2.3 What is the role of local government? .................................................................... 6
3
MAV comments ........................................................................................................ 7
3.1 According respect and status to Aboriginal people................................................. 7
3.2 Timely and efficient cultural heritage assessment .................................................. 7
3.3 Cultural heritage agreements ................................................................................. 9
3.4 Dispute resolution .................................................................................................. 9
3.5 Penalties and enforcement .................................................................................. 10
3.6 Maintaining the Victorian Aboriginal Heritage Register ........................................ 10
3.7 Integrating cultural heritage management with other land use planning systems . 11
3.8 Public awareness of Aboriginal cultural heritage .................................................. 11
3.9 Recognising, protecting and conserving Aboriginal cultural heritage .................... 12
4
2
Conclusion .............................................................................................................. 12
1 Executive summary
The MAV is pleased to participate in the review of the Aboriginal Heritage Act 2006 and
provide comments to the Discussion Paper released on 30 August 2011.
The MAV represents 79 councils in Victoria and advocates on their behalf. Councils are
involved in the management of Aboriginal heritage as Planning Authorities in undertaking
strategic studies and the preparation of planning scheme amendments, as Responsible
Authorities where a Cultural Heritage Management Plan (CHMP) is required, and as
infrastructure providers.
The MAV believes the Aboriginal Heritage Act 2006 (the Act) has created a much clearer
legislative framework for the protection and management of Aboriginal heritage and that the
framework should continue to be supported.
Improvements can, however, always be made and the primary areas of concern for the MAV
and councils relate to:
 Ongoing confusion about the definition of ‘significant ground disturbance’ and the need
for a CHMP
 The resourcing and lack of structure around the administration of the CHMP function
by Registered Aboriginal Parties (RAPs)
 The enforcement provisions of the Act and need to include additional breaches and
penalty clauses
 Funding for strategic work and technical assistance.
The MAV makes a number of recommendations throughout this submission:

The provision of adequate resourcing to the Aboriginal Heritage Council and RAPs to
enable them to successfully undertake their responsibilities and appropriate training.

Support for strategic studies and technical support through an Aboriginal Heritage Fund.

Modifications to the CHMP process that include:
3

Prescription of fees for CHMPs

In the case of a dispute, responsibility for decisions about whether a CHMP is needed
or not should reside with Aboriginal Affairs Victoria (AAV)

Greater spatial definition to areas of cultural sensitivity that applicants can easily
discover. This could be done through the Department of Planning and Community
Development (DPCD) Property Reports in a similar way to bushfire prone areas

Further refinement of the triggers and consideration about the appropriateness of
including ‘urban areas’

Exemptions from the need for a CHMP in identified circumstances

Graduation of assessment according to level of impact and site condition.

Greater support to RAPs through the provision of templates and guidelines for the
assessment of cultural heritage management plans and identification of appropriate
requirements in a range of different circumstances. This would help aid consistency in
decision making.

Ensuring that the onus on determining whether a CHMP is required does not reside
with councils, through assigning this to AAV, and if not using a ‘declaration’ form or
modification to the planning application form that refers to CHMPs.

The development of local agreements on public land where councils are the Committees of
Management.

A State Government led community education campaign to encourage whole of community
support.

Enhancement of the enforcement provisions to include penalties for:


4
Failure to prepare a CHMP if one is required
Failure to comply with an approved CHMP.
2 Introduction
The MAV welcomes the review of the Aboriginal Heritage Act 2006 and the release of a
Discussion Paper for stakeholder comment.
This submission has been prepared by the MAV following consultation with members. While
the submission aims to broadly reflect the views of local government in Victoria, it does not
purport to reflect the views of every individual council. It is expected that a number of councils,
particularly those with significant areas of cultural sensitivity will also make submissions.
The MAV approaches this submission from the policy perspective that preserving Aboriginal
heritage is important so that the rich history of the original inhabitants of the land is there for
generations to come. Acknowledgement of the cultural heritage of today’s Aboriginal people is
important in promoting reconciliation between current generations of Indigenous and nonIndigenous Australians.
The MAV believes the Aboriginal Heritage Act 2006 provides a stronger and more
comprehensive framework for the protection of Aboriginal Heritage in Victoria. The initial five
years has unearthed some teething problems with procedural matters under the Act and
regulations but the substantive intent of the legislation is being well met.
It is understood that Aboriginal Affairs Victoria (AAV) will release a summary of submissions
along with a socio-economic assessment late in 2011 and review findings in February 2012. A
further round of consultation will be undertaken in March 2012.
2.1
About the MAV
The MAV is the peak representative and advocacy body for Victoria's 79 councils and was
formed in 1879. The MAV represents and advocates the interests of local government, raises
the sector's profile, ensures its long-term security and provide policy advice, strategic advice,
capacity building programs and insurance services to local government.
2.2
Background
The MAV made a detailed submission to the Aboriginal Heritage Bill in 2005 and supported
the intentions of the Bill. At the time it was felt that the new legislation was likely to strengthen
the planning system and the preservation of Aboriginal heritage.
Some concerns were raised in the MAV’s submission about the whether the interpretation of
prescribed matters would contribute added complexity to an already overburdened planning
system, potential delays in decision making and the level of structure and resourcing for
Registered Aboriginal Parties.
The MAV asked for:
5

The establishment of an Aboriginal Heritage Fund to provide funding for projects such
as studies and technical support for managers of heritage places and assets, and
loans to cover costs incurred for repairs and maintenance of heritage places. This
could provide funding for necessary local strategic work and policy development.

Greater structure around the operation of RAPs including the regulation of fees and
templates.

Training of RAPs around their responsibilities and involvement in the planning system.

That a review of the legislation be undertaken after three years.
The MAV also made a submission to the Aboriginal Heritage Regulations 2007. In this
submission the Regulations were supported in principle subject to a number of clarifications.
Particular concerns related to the need for greater definition around the term ‘significant
ground disturbance’, consistency between CHMPs and planning permit conditions and
implementation costs for local government.
In 2007 the MAV employed an Aboriginal Heritage Officer for a 12 month period with
assistance from AAV Victoria to help implement the new Aboriginal heritage framework. The
primary activities carried out by the officer included targeted training for local government,
preparation of a cultural heritage management toolkit for planners and promotion of
engagement with RAPs.
2.3
What is the role of local government?
A council considers Aboriginal cultural heritage in three primary ways, as a:

Planning Authority when considering an amendment to its planning scheme

Responsible Authority when making a decision on a planning permit application

Infrastructure provider and land manager.
The State Planning Policy Framework of all planning schemes requires Planning Authorities
to:
 ‘Identify, assess and document places of natural and cultural heritage significance as a
basis for their inclusion in the planning scheme.
 Provide for the protection of natural heritage sites and man-made resources and the
maintenance of ecological processes and biological diversity.
 Provide for the conservation and enhancement of those places which are of, aesthetic,
archaeological, architectural, cultural, scientific, or social significance, or otherwise of
special cultural value.’
Councils do this through strategic planning exercises that include master and structure
planning and when preparing planning scheme amendments to their planning scheme.
Responsible Authorities become involved where a development might fall within a range of
prescribed activities. In these circumstances a Cultural Heritage Management Plan (CHMPs)
must be prepared and approved by the RAP or AAV. Councils are closely involved in
determining what applications are prescribed developments. At whatever stage of the planning
permit process this occurs, it will be necessary for councils to provide information to
developers. Responsible Authorities can not issue a planning permit where a CHMP is
required unless a CHMP has been approved. A planning permit cannot be granted for an
activity that is inconsistent with an approved CHMP.
Councils as infrastructure providers maintain a program of capital works ranging from minor
works such as gross pollution traps to road and drainage construction. These works can
require significant ground disturbance and may also be in areas of cultural sensitivity requiring
the preparation and approval of CHMPs
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3 MAV comments
The MAV is pleased that many of its suggestions to the Aboriginal Heritage Bill in 2005 and to
the Aboriginal Heritage Regulations 2007 were taken up including provisions for the Victorian
Civil and Administrative Tribunal (VCAT) to review decisions and inclusion of a review period.
There are however several key recommendations that were not addressed and have proven to
be issues in the administration of the Act. These are:

Transparent and consistent structures and processes for RAPs including prescribed
fees and templates for decision making.

Adequate resourcing the Aboriginal Heritage Council and RAPs to enable them to
successfully undertake their responsibilities and appropriate training.

Support for strategic studies and technical support through an Aboriginal Heritage
Fund.

The development of local agreements on public land where councils are the
Committees of Management.

A community education campaign to encourage whole of community support.
These ongoing concerns are addressed in the themes below. The themes reflect those
identified in the Discussion Paper.
3.1
According respect and status to Aboriginal people
The MAV considers that the Aboriginal Heritage Act 2006 provides a much clearer and
stronger framework for the involvement of Aboriginal people in identifying, managing and
protecting their cultural heritage. The CHMP regime provides a process entirely managed and
administered by RAPs.
Under the previous legislative regime it was not always obvious to councils who they should
be engaging with when considering Aboriginal Heritage. The establishment of RAPs, to protect
cultural heritage in their local areas through the cultural heritage management plan process,
allows for a defined point of contact for both applicants and councils.
The discussion paper, however, indicates that RAPs have not been provided with secure
resourcing to undertake their role with their funding coming from a range of sources external to
Government. The MAV recommends that this situation be rectified so that RAPs are not as
reliant on fees from CHMPs and can appropriately plan for and manage their resources.
3.2
3.2.1
Timely and efficient cultural heritage assessment
Need for a CHMP
For local government, clarity of the list of prescribed activities and areas of cultural sensitivity
that necessitate an Aboriginal cultural heritage assessment is critical to councils level of
exposure to legal liability and its ability to easily administer the Act’s requirements.
There are on average 350 to 400 CHMPs each year out of an average of 50,000 planning
permit applications. The bulk (36%) of these are for subdivision applications. The councils
most impacted are Casey, Frankston, Greater Geelong, Mornington Peninsula and Whittlesea.
7
The MAV supported, in its submission to the Aboriginal Heritage Bill, and continues to support
the legislative obligation being on the proponent to prepare the Aboriginal cultural heritage
assessment if required.
Feedback from councils indicates that the primary area of concern for councils about the
administration of CHMPs relates to:

The lack of ‘discoverability’ regarding the need for a CHMP. This results in councils
needing to advise applicants, at potentially a late stage.

The level of discretion around what is ‘significant ground disturbance’ and the position
councils find themselves in as arbiters of that decision.

The lack of detail in the maps for cultural sensitivity despite the need to consider
matters at a property level
Councils would like to see:

Better definition of the term ‘significant ground disturbance’.

AAV as the arbiter of decisions about whether a CHMP is needed or not and a defined
process for councils to refer matters.

Greater spatial definition to areas of cultural sensitivity that applicants can easily
discover. This could be done through DPCD Property Reports in a similar way to
bushfire prone areas.

Further refinement of the triggers and consideration about the appropriateness of
including ‘urban areas’.

A ‘declaration’ form or modification to the planning application form that refers requires
applicants to identify whether a CHMP is required or not.
Councils are also concerned about some ‘work arounds’ that have been identified. Developers
are, for example, now undertaking multiple two lot subdivisions to get around the need to
prepare a CHMP. It is acknowledged, however, that boundaries must be set somewhere.
3.2.2
Infrastructure and capital works
Councils as infrastructure providers find the CHMP requirements to be problematic. This
feedback is similar to that of developers.
The main issues raised include:

Inconsistent advice from cultural heritage advisers about whether a CHMP is needed.

Prohibitive costs

Delays in commencement primarily caused by under resourcing of RAPs and delays in
site visits

Impacts on programing maintenance works and the capturing of matters that should
not require a CHMP.
While in some circumstances a CHMP is part of expected background work that is normally
required for significant works. However, because of inconsistent advice small value
maintenance works such as gross pollution traps are being captured and this is not considered
to reasonable by councils.
8
Suggestions for improvements in this area are:

Clear exemptions from the need for a CHMP in identified circumstances such as
repairs and maintenance work

Graduation of assessment according to level of impact and site condition.
3.2.3
Registered Aboriginal Parties
The absence of secure funding to ensure a basic capability for RAPs has resulted in great
discrepancies in fees across the different RAPs and a lack of certainty about the likely fees for
the development industry. This makes it difficult for costs to be identified and factored into
project planning.
The MAV considers that RAPs must have some security in their funding so that they are not as
heavily reliant on fees from cultural heritage management plans. This would enable the
regulation of fees (or at the very least a threshold) to provide greater certainty to the
development industry.
Inconsistencies between RAP requirements have also been reported by councils and are
disturbing to capital works programs as there is currently no predictability of outcome. The
MAV considers that AAV and the Aboriginal Heritage Council need to work with RAPs to
identify what might be appropriate requirements in a range of different circumstances.
The MAV believes that greater support should be provided to RAPs by AAV through the
provision of training, support, templates and guidelines for the assessment of CHMPs. This
would help aid consistency in decision making.
Some councils are also concerned about the absence of a RAP in their areas. This results in
consultation being required with AAV as well as a number of Aboriginal communities seeking
to become the RAP for an area. This becomes a time consuming process in which agreement
is difficult to achieve. The early resolution of RAP applications is of benefit to councils and
applicants.
3.3
Cultural heritage agreements
It is understood that there is only one cultural heritage agreement and it is currently under
negotiation. This suggests that agreements are not seen to provide additional benefit beyond
cultural heritage management plans.
The MAV in its submission to the Aboriginal Heritage Bill suggested that cultural heritage
agreements could offer potential benefit to council committees of management for coastal
land.
The MAV recommends that if it is desired that the number of agreements grow that the
Department of Sustainability and Environment provide financial support to committees of
management for coastal land to prepare cultural heritage agreements.
3.4
Dispute resolution
The Aboriginal Heritage Act 2006 provides a number of opportunities for appeal to VCAT.
There have however been no VCAT cases about CHMPs or permit decisions. There is,
however, some case history about planning permit decisions involving Aboriginal cultural
9
heritage. The two cases that have influenced practice have both involved the Mornington
Peninsula Shire Council.
Mainstay Australia Pty Ltd v Mornington Peninsula SC & Ors (Red Dot) [2009] VCAT 145 (24
February 2009) provided some clarity around ‘significant ground disturbance’ and when a
CHMP is required:

‘The timing of the significant ground disturbance is irrelevant;

If only part of the land has been subject to past significant ground disturbance, and the
remaining part is still in an area of cultural heritage sensitivity, a CHMP will still be
required for the whole development activity;

The burden of proving that the land has been the subject of significant ground
disturbance rests with the applicant.

In assessing whether significant ground disturbance has occurred, there are four levels
of inquiry that might commonly arise, and the assessment should be dealt with at the
lowest applicable level. These levels are (1) common knowledge, (2) publicly available
records, (3) further information from the applicant, and (4) expert advice or opinion;

If the decision maker is not persuaded by the applicant that there has been significant
ground disturbance, the ‘default’ position is that a CHMP is required.’
The Azzure Investment Group Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT
1600 (14 August 2009) decision reinforced that the decision maker still needs to be reasonably
satisfied, on the balance of probabilities based on the information in a given case, that
‘significant ground disturbance’ has occurred. The decision recommended regulatory
clarification to create greater certainty for permit applicants and responsible authorities for
matters arising under the Regulations in relation to ‘significant ground disturbance’.
3.5
Penalties and enforcement
Councils have no current role in the enforcement of CHMPs or permit conditions. This is
considered appropriate because local government does not have the knowledge or capacity to
adopt this role.
It appears, however, from feedback from stakeholders that are some deficiencies in both the
enforcement provisions of the Act and in the administration of existing provisions. The lack of
prosecution in the first five year period is evidence of this. The existing provisions relating to
inspectors, cultural heritage audits, stop orders and protection declarations while important,
are somewhat cumbersome and do not include penalty clauses. Without robust enforcement
provisions the CHMP processes lose their credibility.
The MAV suggests that the enforcement provisions should include penalties for:


3.6
Failure to prepare a CHMP if one is required
Failure to comply with an approved CHMP.
Maintaining the Victorian Aboriginal Heritage Register
Councils have welcomed the inclusion of section 191 of the Aboriginal Heritage Act 2006
which allows councils access to the information contained in the Victorian Aboriginal Heritage
Register. From the local government perspective there is no cause for change to this
provision.
10
It should however be noted that costs are at times borne by councils, such as for the
notifications required for the naming of a waterway in the Register, omitted from Victorian
Geographical Place names register.
3.7
Integrating cultural heritage management with other land use planning systems
The Aboriginal Heritage Act 2006 has been successful in ensuring the consideration of
Aboriginal heritage before planning decisions are made.
The Act falls down however in the strategic assessment of broader areas of land through
master planning and structure planning processes. It is during these exercises where
decisions are made about the appropriateness of land for development.
It is understood that the Growth Areas Authority in its precinct structure planning is
undertaking CHMPs for all structure plan areas and this approach is set out in their Precinct
Structure Plan Guidelines. This is not a legislative requirement but does remove the later need
for CHMPs on a site by site basis.
It is considered that there needs to be a more formal approach to the assessment of broad
areas of land. Bringing together the ‘big picture’ findings from the CHMPs prepared could
assist in predictive modelling of areas of sensitivity, refining maps and to avoid unnecessary
CHMPs. Such a practice should be initiated.
A further area relevant to the integration of the two systems raised by councils is the checking
of CHMPs against planning permit conditions and the requirement that no planning permit be
issued that is inconsistent with a CHMP. Procedures need to be developed to ensure that
there is consistency across local government in checking these matters.
The MAV recommends that:
3.8

Consideration be given to inclusion of a mechanism for the ‘strategic assessment’ of
broad areas that might subsequently reduce the need for CHMPs at an individual site
level.

Procedures be developed with the MAV and councils to check compliance between
CHMPs and planning permit conditions and to check for the existence of CHMPs.
Public awareness of Aboriginal cultural heritage
The level of public awareness of Aboriginal cultural heritage remains quite low. Councils report
that they are commonly the first to bring the issue to the attention of applicants.
In the Milestone Report provided in September 2008 the MAV advised Aboriginal Affairs
Victoria that a broader communication strategy and awareness raising activities were needed
by the State Government to increase awareness of public obligations regarding Aboriginal
cultural heritage. The necessity for undertaking this work is heightened because the legislation
relies heavily on ‘self-assessment’.
Additionally some analysis of the findings of the CHMPs prepared and the implications of all
documented sites would assist in this process.
The MAV recommends that:
11


3.9
Councils undertake collaborative promotional efforts with RAPs as they provide the
most common public interface with communities.
The State Government undertake a communication strategy and awareness raising
activities to increase public awareness.
Recognising, protecting and conserving Aboriginal cultural heritage
The MAV considers that the Aboriginal Heritage Act makes a substantial contribution to the
protection of Aboriginal heritage by providing a much stronger legislative framework with clear
responsibilities outlined. It could be further strengthened by improving the enforcement
provisions of the Act as outlined in section 3.5.
It is also understood that the outcomes for Aboriginal heritage have improved with over 70% of
developments avoiding or minimising impacts on Aboriginal cultural heritage.
4 Conclusion
The MAV considers that the Aboriginal Heritage Act makes a substantial contribution to the
protection of Aboriginal heritage by providing a much stronger legislative framework with clear
responsibilities and should continue to be supported.
The primary areas of concern for the MAV and councils, where improvements can be made
relate to:
 Ongoing confusion about the definition of ‘significant ground disturbance’ and the need
for a CHMP
 The resourcing and lack of structure around the administration of the CHMP function
by RAPs
 The enforcement provisions of the Act and need to include additional breaches and
penalty clauses
 Funding for strategic work and technical assistance.
The MAV has made a number of recommendations throughout this submission that if
supported would assist in strengthening the frameworks.
12