Proposed developments must comply with obligations to protect Aboriginal cultural heritage under the Aboriginal Heritage Act 2006 (Vic) (‘AH Act’). A range of offences apply to any person who harms, or is likely to harm, Aboriginal cultural heritage (ss 27, 28 AH Act). A person who unlawfully damages Aboriginal cultural heritage may be ordered by a court to pay for its restoration. Also, it is an offence to possess an Aboriginal object unlawfully.
Harming Aboriginal cultural heritage is only permitted – with a cultural heritage permit or approved cultural heritage management plan – when it is necessary because of an emergency or in accordance with Aboriginal tradition.
The AH Act (ss 36, 46) and the Aboriginal Heritage Regulations 2018 (Vic) set out when a cultural heritage management plan (CHMP) or cultural heritage permit may be necessary, and what should be contained in these plans and permits.
CHMPs aim to protect and manage Aboriginal cultural heritage – with the involvement of registered Aboriginal parties – while allowing development to proceed. Registered Aboriginal parties are legally recognised parties, established under the AH Act, who are responsible for managing and protecting cultural heritage on Country. Registered Aboriginal parties are the primary source of advice and knowledge on matters relating to Aboriginal places and Aboriginal objects in their regions.
The core functions of registered Aboriginal parties include:
- evaluating cultural heritage management plans;
- assessing cultural heritage permit applications;
- making decisions about cultural heritage agreements;
- providing advice on applications for interim or ongoing protection declarations;
- entering into Aboriginal cultural heritage land management agreements with public land managers;
- nominating Aboriginal intangible heritage to the Victorian Aboriginal Heritage Register and managing intangible heritage agreements.
The names and details of Victoria’s registered Aboriginal parties are listed at https://www.aboriginalheritagecouncil.vic.gov.au/victorias-current-registered-aboriginal-parties.
A CHMP is an assessment of the potential impact of a proposed activity on Aboriginal cultural heritage. It outlines measures to be taken before, during and after an activity to manage and protect Aboriginal cultural heritage in the activity area (s 42 AH Act).
A person proposing an activity may also prepare a preliminary Aboriginal heritage test to determine if a CHMP will be required. Such tests must be certified by the Secretary of the Department of Premier and Cabinet (‘DPC Secretary’) within 21 days of receipt and can clarify if a CHMP needs to be prepared (ss 46(1)(e), 49B AH Act).
A CHMP must be approved by relevant registered Aboriginal parties if they have been notified of an intention to evaluate the plan (ss 55, 62 AH Act). If there are no registered Aboriginal parties, or none have notified an intention to evaluate, the DPC Secretary may approve the CHMP. If the DPC Secretary has sponsored a CHMP, the secretary may ask the Aboriginal Heritage Council to approve it. Once approved, a CHMP binds the person who sponsored its creation.
Decision-making authorities (e.g. state or local government agencies) cannot issue statutory approvals (e.g. licence or planning permits) for certain activities without first receiving an approved CHMP for that activity (ss 51, 52 AH Act).
More information about whether a CHMP is required can be found at www.aboriginalvictoria.vic.gov.au/cultural-heritage-management-plans.