Victoria's Aboriginal heritage laws overhauled

Victoria's development industry will face new obligations as of today in relation to the management and protection of Aboriginal cultural heritage with the commencement of the Aboriginal Heritage Act 2006.

The Act replaces the existing legislative framework in Victoria (a process that was criticised as unclear and not providing adequate protection) with a process that is meant to:

• clearly identify the types of development activities that require an approval under the Act
• identify and involve registered Aboriginal groups in the approvals process
• resolve disputes regarding the protection of Aboriginal cultural heritage (which includes the right to apply to VCAT for a review of a decision to refuse a Cultural Heritage Management Plan)
• ensure compliance with the Act by way of enforcement mechanisms including cultural heritage audits and stop orders and protection declarations; and
• make it an offence to harm Aboriginal cultural heritage unless in accordance with an approval under the Act.

What are the key approvals under the new Act?

Depending on the type of development activity that is to be carried out, the following approvals may need to be obtained so as to manage and protect Aboriginal cultural heritage during the development of a site.

Cultural heritage management plan

A person must apply for a cultural heritage management plan in circumstances where:

• an Environment Effects Statement is to be prepared under the Environment Effects Act 1978;
• the Minister directs that it be prepared; or
• all or part of an activity area for an activity is an area of cultural heritage sensitivity and it is a high impact activity. However, it does not include an activity that is specified as being exempt.

The Aboriginal Heritage Regulations 2007 specify certain types of areas as areas of cultural heritage sensitivity, identify what constitutes a high impact activity and sets out the types of activities that are exempt.

Importantly, where a person must prepare a cultural heritage management plan all other statutory authorisations (for instance a planning permit under the Planning and Environment Act 1987) cannot be approved until the cultural heritage management plan is approved and considered by the relevant decision maker.

Cultural heritage permits

In circumstances where a person is not required to prepare a cultural heritage management plan, a person may apply for a permit to disturb or excavate land for the purpose of uncovering or discovering Aboriginal cultural heritage or carrying out an activity that will, or is likely to harm Aboriginal cultural heritage.

Voluntary cultural heritage management plan

The Act also prescribes that a person may voluntarily prepare a cultural heritage management plan in circumstances where a permit or mandatory cultural heritage management plan is not required.

Cultural heritage agreements

A cultural heritage agreement is a voluntary agreement between two or more persons for the management and protection of Aboriginal cultural heritage for a specific area. An agreement has no effect without the consent of registered Aboriginal parties and must be registered on title if the land is not Crown land and one of the parties is the owner of the land.

Preparation and approval of cultural heritage management plans

The preparation and approval of a cultural heritage management plan is to be carried out in consultation with the relevant registered aboriginal group (or groups) for that area and must comply with the prescribed standards under the Act. The site assessment, which forms part of the cultural heritage management plan, must be prepared by a cultural heritage adviser.

The application and approvals process (including time periods) is prescribed under the Act, but Aboriginal Affairs Victoria has indicated that it may take anywhere between 3-4 months to obtain an approval (which does not include the time it may take for any VCAT review of a decision not to approve a cultural heritage management plan).

Registered Aboriginal groups

At present only two Aboriginal groups have been formally registered under the Act, but it is expected that the majority of groups are to be registered over the coming months. The Victorian Aboriginal Heritage Register is to contain the details of all registered Aboriginal groups for an area and contact details will be available from Aboriginal Affairs Victoria.

Further information

Further updates in relation to the process to be followed under the Act are to be made available on the Aboriginal Affairs Victoria website over the coming weeks, including guidelines on the preparation of cultural heritage management plans.