Australia: Significant changes to Victoria's Aboriginal heritage legislation will commence soon – what you need to know

Earlier this year, the Aboriginal Heritage Amendment Act 2016 (Vic) (Amending Act) was passed by the Victorian State Parliament. The Amending Act introduces a number of significant changes to the way that Aboriginal heritage is managed in Victoria.

The amendments were informed by a root-and-branch review of the legislation, carried out by the Office of Aboriginal Affairs Victoria. This review took place after five years of operation of the Aboriginal Heritage Act 2006 (AH Act).

Since the AH Act came into effect, proponents have become familiar with the need for a cultural heritage management plan (CHMP) as part of a project approvals pathway.

These CHMP requirements will soon change in important ways, and project proponents should be aware of these changes. The Amending Act also makes some changes to offences and disclosure requirements under the AH Act which should be considered when developing a CHMP strategy.

The changes are relevant to proponents holding a current CHMP, as well as those undertaking or about to undertake a CHMP approval process. The key aspects of the Amending Act from a developer and landowner perspective are summarised below.

Aboriginal Heritage Amendment Act 2016 – key changes

1.    Determining whether a mandatory CHMP is required

Current position:
The need for a mandatory CHMP is generally identified either by the proponent, or by a statutory decision-maker exercising powers under different legislation (such as a local council determining a planning permit application). A difference of opinion as to whether a CHMP is required is generally resolved by taking the dispute to the Victorian Civil and Administrative Tribunal.

Revised position upon commencement of the Amending Act:
Proponents can seek a certificate from the Secretary of the Department of Premier and Cabinet (Secretary) confirming whether a mandatory CHMP is required. The certification process will take no more than 21 days.

Key considerations for proponents:
Proponents will have the ability to obtain a definitive answer as to whether a CHMP is required well before approaching a local council with a planning permit application. Proponents should consider whether to incorporate the certification process into the early stages of all or some approvals processes.

2.    Nature of a CHMP changes from guidance document to
       approval document

Current position:
CHMPs contain recommendations for measures to be taken to manage and protect Aboriginal cultural heritage and the recommendations are not enforceable, unless compliance is required under another instrument (for example, a planning permit).

Revised position upon commencement of the Amending Act:
CHMPs will contain conditions to be complied with to manage and protect Aboriginal cultural heritage.

It will be an offence for a sponsor of an approved CHMP to intentionally, recklessly or negligently fail to comply with these conditions.

Key considerations for proponents:
The nature of a CHMP will fundamentally change from a guidance document to an approval document. Compliance management systems should be updated to manage compliance requirements. It may also be appropriate to resist planning permit conditions incorporating aspects of a CHMP, because the CHMP should stand on its own.

3.    Involvement of traditional owners where there is no
       Registered Aboriginal Party (RAP)

Current position:
CHMP approval processes are carried out by the Secretary where there is no RAP for an activity area.

Revised position upon commencement of the Amending Act:
The Secretary will have the power to appoint an 'activity advisory group' for a proposed activity if there is no RAP for an activity area. The activity advisory group can comprise representatives of any relevant traditional owners.

The group will advise the Secretary in relation to the CHMP, and will be entitled to be involved in the CHMP preparation process.

Key considerations for proponents:
The process for engaging with traditional owners in the absence of a RAP, which currently occurs on an informal basis, will have legislative structure.

4.    Amendments to CHMPs

Current position:
Currently, an approved CHMP cannot be amended. If changes are required, a new CHMP must be prepared and approved in accordance with standard processes.

Revised position upon commencement of the Amending Act:
New provisions will allow a proponent to apply to the RAP or Secretary (as relevant) to amend an approved CHMP. If the amendment is minor, it may be approved within 14 days.

Key considerations for proponents:
This is a potentially useful avenue for proponents to fine tune CHMPs after they have been approved, for example to take into account minor changes to the proposed activities, management regime or potentially even activity area.

5.    Expanded liability for offences and civil penalty

Current position:
A person can be liable for undertaking an act which harms Aboriginal cultural heritage without a CHMP or permit. Liability is limited to circumstances where conduct is intentional, reckless or negligent. There is no executive officer liability for offences committed by corporation.

Revised position upon commencement of the Amending Act:
Liability for intentional, reckless and negligent harm to Aboriginal cultural heritage will be retained and expanded to include both acts and omissions. The drafting of the offence provisions has been improved to make it easier to prosecute for Aboriginal heritage offences.

A person can attract civil liability and penalties of up to 300 penalty units for harming Aboriginal cultural heritage, regardless of knowledge or state of mind.

In addition, an officer of a corporation that commits an offence will also commit an offence unless the officer exercised due diligence.

Key considerations for proponents:
After the Amending Act commences, the risk of inadvertently breaching the AH Act will increase. Liability will extend to situations where the person had no reason to know or suspect that their actions would harm Aboriginal heritage.

For some proponents this may strengthen the case for undertaking a voluntary CHMP process, because it is a way of removing the risk of civil and criminal penalties for accidentally harming Aboriginal heritage.

6.    Disclosure of Aboriginal heritage surveys

Current position:
Aboriginal heritage surveys undertaken outside a CHMP process are not the subject of regulation and can remain confidential.

Revised position upon commencement of the Amending Act:
A person intending to carry out a survey for Aboriginal cultural heritage must give written notice to the RAP, the Secretary and the owner or occupier of land. The RAP may elect to participate in the survey.

The person who carries out the survey must provide relevant documentation (such as site records, photographs, maps and plans) and a copy of the final report to the Secretary. The Secretary will record the final report on the Victorian Aboriginal Heritage Register.

Key considerations for proponents:
Proponent should be aware that it will no longer be possible to carry out a confidential Aboriginal heritage survey for land.

Proponents should regard Aboriginal heritage survey processes to be public processes, even when they are undertaken for due diligence purposes and not in connection with an approvals process.

This is by no means a comprehensive review of the Amending Act in its entirety, which is 120 pages long. Other changes that the Amending Act will bring in include:

  • expanding access to the Victorian Aboriginal Cultural Heritage Register;
  • establishing the ability for public land managers to enter into 'Aboriginal cultural heritage land management agreements' with RAPs as an alternative to CHMPs;
  • appointing Aboriginal heritage officers who will be empowered to issue 24 hour stop orders and improvement notices in specified circumstances; and
  • introducing controls in relation to the use of intangible Aboriginal heritage, including oral traditions, visual arts, rituals and social practices.

The changes will come into effect on 1 August 2016, unless they are proclaimed earlier.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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