Aboriginal Heritage Matters: An introduction to the Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2018

Aboriginal cultural heritage can be described as a place or with tangible or intangible values. Aboriginal cultural heritage can include archaeological sites, such as artefact scatters, scarred trees, middens, stone arrangements or Aboriginal ancestral remains (human remains), historical places such as missions and schools, or places with intangible values such as places of spiritual or ceremonial significance. All Aboriginal cultural heritage is of high significance to Aboriginal people as a connection to the landscape and to ancestors, however it is also important for Australians more generally as a reminder of our shared human history.

In Victoria, Aboriginal cultural heritage is protected by the Aboriginal Heritage Act 2006 (the Act). Among other things, the Act links the management and protection of Aboriginal cultural heritage with the planning system and establishes the Cultural Heritage Management Plan (CHMP), Cultural Heritage Permit (CHP) and Preliminary Aboriginal Heritage Test (PAHT) processes to manage activities which may impact upon Aboriginal places.

The preparation of a CHMP includes the assessment of a subject site (‘activity area’) to determine the presence and nature of any Aboriginal places within the activity area, and the preparation of a written report detailing the assessment, the nature of any Aboriginal places present, management conditions designed to meet the requirements of the Act and contingency plans. There are three levels of assessment:

• Desktop assessment (background review);
• Standard assessment (desktop assessment and field survey); and
• Complex Assessment (desktop or standard assessment and sub surface testing).

For projects where a CHMP is required, it must be approved by the relevant authority (either a Registered Aboriginal Party [RAP] or First Peoples – State Relations (FPSR) (part of the Department of Premier and Cabinet [DPC]) before any statutory authorisation can be issued.

The Act and the Aboriginal Heritage Regulations 2018 (the Regulations) specify when a CHMP is required. CHMPs are required for all developments (‘activities’) where the Regulations require a CHMP, where an Environmental Effects Statement (EES) is prepared, where the Minister requires a CHMP, or where an Impact Management Plan is required. CHMPs can also be prepared voluntarily as a risk management strategy. Under the Regulations, a CHMP is required when the proposed activity is a high impact activity, and where all or part of the activity area is an area of cultural heritage sensitivity. A variety of high impact activities are defined in the Regulations, including but not limited to:

• Buildings and works for specified uses, including but not limited to child care, education, retail, office, retirement village, warehouse, industry, car park (r.46); however note that if the land was lawfully used for that purpose prior to 28 May 2007 then it is no longer a high impact activity);
• Infrastructure such as roads, rail, walking tracks (size limits apply) (r.47);
• Construction of three or more dwellings on a lot or allotment (r.48) (but only where the lot is greater than 0.11 hectares in size, unless it is located within 200m of the coast or the Murray River in which case the size is irrelevant);
• Subdivision of land into two or more lots in an industrial zone or three or more lots in other zones (r.49); and
• Change of land use (r.58).

The Regulations define a number of areas of cultural heritage sensitivity. It is important to remember that these areas are simply triggers for the requirement of a CHMP, and may or may not constitute areas of actual Aboriginal archaeological potential. The areas of cultural heritage sensitivity which are of most relevance to the Greater Melbourne region include:

• Land within 50 metres of an Aboriginal place recorded on the Victorian Aboriginal Heritage Register (VAHR) (r.25);
• Land within 200 metres of a named waterway (r.26);
• Land within 200 metres of the high water mark of the coast (r.31);
• Land within 200 metres of the Koo Wee Rup Plain (r.34); and
• Sand sheets, including the Cranbourne sand (r.41).

It should be noted that new areas of cultural heritage sensitivity can be created as a result of archaeological investigations that identify Aboriginal places, and change periodically on the basis on State government map data. These areas cease to be areas of cultural heritage sensitivity if they have been subject to previous significant ground disturbance. Under the Regulations, this is defined as “disturbance of the topsoil or surface rock layer of the ground or a waterway by machinery in the course of grading, excavating, digging, dredging, or deep ripping, but does not include ploughing other than deep ripping”. This has been further defined through decisions made by the Victorian Civil and Administrative Tribunal (VCAT) which are reflected in the Practice Note produced by Aboriginal Victoria (now FPSR).

In instances where an applicant (‘Sponsor’) believes that significant ground disturbance has occurred (and that as a result no CHMP is required), the burden of proof rests on the Sponsor. There are four levels of inquiry:

• Common knowledge;
• Publically available records;
• Further information; and
• Expert advice or opinion.

In most cases a field inspection of an activity area by a Heritage Advisor (HA) is not sufficient to determine whether significant ground disturbance has occurred. The best evidence for significant ground disturbance generally comes from historical aerial photographs and geotechnical testing. A new mechanism now exists whereby an applicant can apply for certification of a Preliminary Aboriginal Heritage Test (PAHT) by FPSR to obtain State government sign off that there is no requirement for a CHMP on the basis of significant ground disturbance or other factors (e.g. if a proposed activity should not be considered to be high impact).

CHMPs must be prepared by a qualified and experienced HA, who may or may not also be an archaeologist. It is important to bear in mind that all archaeological excavations must be supervised by an archaeologist. Once a CHMP is prepared, it is considered to be approved once the evaluating authority (RAP or FPSR) has issued an approval notice, and the final CHMP, including the approval notice, has been lodged at AV. The evaluator has 30 calendar days to approve or refuse the CHMP, and the final approved CHMP must be lodged at FPSR within 14 days of approval.

Consultation with RAPs is crucial to the CHMP process. This usually takes the form of a series of at least two or more meetings, the presence and participation of RAP representatives in all field work, and consultation relating to significance of identified Aboriginal places and management conditions. In the absence of a RAP, consultation with any applicable RAP applicant group/s or other relevant Aboriginal group/s should occur.

In order to be approved, a CHMP must satisfactorily address Section 61 of the Act, and include conditions which are designed to avoid harm and/or minimise and/or mitigate harm to Aboriginal places. Attempts to avoid or minimise harm must be made in order to gain approval, and if harm cannot be avoided or minimised, it is the responsibility of the Sponsor to explain why. Generally speaking, it is unacceptable to say that a project will suffer financially if harm to heritage is avoided or minimised. Acceptable reasons for harming heritage may include limitations enforced by topography, native vegetation, or engineering requirements. When developing conditions, it is important to think outside the square: small changes can mean the difference between harming Aboriginal cultural heritage and preserving it. These changes can be as simple as changing the way in which revegetation will be carried out, the construction method used to build a path through open space, or engineering solutions such as boring rather than open trenching. If harm cannot be avoided or minimised, the CHMP must include conditions for the mitigation of harm to Aboriginal places, particularly to Aboriginal places of moderate or high scientific significance.

The requirements of the Act and Regulations can have significant time and cost impacts on projects, and whilst many proponents are well aware of this, others are not. As such, it is best to seek the advice of an Archaeologist/HA at the earliest stage possible to allow appropriate planning.