Editors --- "Aboriginal Heritage Act 2006 (Vic) - Digest" [2006] AUIndigLawRpr 53; (2006) 10(3) Australian Indigenous Law Reporter 59

ABORIGINAL HERITAGE ACT 2006 (VIC)

Act No 16 of 2006

Assented to 9 May 2006

Introduction

Prior to the enactment of this legislation, Indigenous cultural heritage in Victoria was protected by concurrent Commonwealth and State legislative schemes. The

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) preserves and protects places and objects of cultural significance to Indigenous people in accordance with traditional law and custom. The Aboriginal Heritage Act 2006 (Vic) repeals the previous State legislation, the Archeological and Aboriginal Relics Preservation Act 1972 (Vic), and in effect enables the Victorian Government to administer Aboriginal heritage protection directly through its own State legislation.

Designed by the Victorian Government to improve the protection of Aboriginal cultural heritage throughout Victoria, the Act has received criticism from Indigenous communities on the basis that the consultation and negotiation process was insufficient. Several significant changes to the legislative scheme include the establishment of a Victorian Aboriginal Heritage Council and the introduction of a new regime that requires Aboriginal groups to become Registered Aboriginal Parties (RAP) in order to make decisions in relation to the cultural heritage of the area. The Act introduces the significant requirement of Aboriginal Cultural Heritage Assessments in order to become a RAP.

Part 1—Preliminary

1 Purpose

The main purpose of this Act is to provide for the protection of Aboriginal cultural heritage in Victoria.

Part 9—Administration

Division 1—Aboriginal Heritage Council

130 Establishment of Council

(1) The Aboriginal Heritage Council is established.

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131 Membership

(1) The Council consists of not more than 11 members appointed by the Minister.

(2) The Minister must appoint one of the members of the Council as the first Chairperson of the Council.

(3) Each member of the council must be an Aboriginal person who—

(a) has, and can demonstrate, traditional or familial links to an area in Victoria; and

(b) is resident in Victoria; and

(c) in the opinion of the Minister, has relevant experience or knowledge of Aboriginal cultural heritage in Victoria.

(4) A member of the council holds office for the term (not exceeding 3 years) specified in the instrument of his or

her appointment, and is eligible for reappointment.

132 Functions of the Council

(1) The Council has the following functions—

(a) at the Minister’s request or on its own initiative, to advise the Minister in relation to the protection of Aboriginal cultural heritage in Victoria, including advising the Minister about—

i) the cultural heritage significance of any

Aboriginal human remains or Aboriginal place or object;

ii) measures for the effective protection and

management of Aboriginal cultural heritage in Victoria, including the management of Aboriginal culturally sensitive information relating to that heritage;

iii) measures to promote the role of Aboriginal people in the protection and management of Aboriginal cultural heritage and in the administration of this Act;

iv) the standards of knowledge, experience, conduct and practice required of persons engaged in research into Aboriginal cultural heritage;

v) the training and appointment of inspectors under this Act;

vi) any other matters referred to the Council by the Minister;

(b) at the Minister’s request, to advise and make recommendations to the Minister on the exercise of his or her powers under this Act, including advising the Minister about—

i) the application of interim or ongoing protection declarations’

ii) a proposal by the Minister to require a cultural heritage management plan to be prepared;

iii) whether a cultural heritage audit is necessary;

iv) whether the compulsory acquisition of land is appropriate in any particular case;

v) any other matter relating to the exercise of his or her powers under this Act that the Minister requests the Council to consider

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(2) The Council has the following additional functions—

a) to receive and determine applications for the registration of Aboriginal parties under Part 10;

b) to consider for approval proposed cultural heritage management plans for which the Secretary is the sponsor, in the circumstances set out in section 66;

c) to develop measures to promote public awareness and understanding of Aboriginal cultural heritage in Victoria;

d) to carry out any other functions conferred on the Council under this act.

(3) The Council has all the powers necessary to carry out its functions under this Act.

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Part 10—Registered Aboriginal Parties

Division 1—Functions of Registered Aboriginal Parties

148 Functions of a Registered Aboriginal Party

A registered Aboriginal Party has the following functions—

(a) to act as a primary source of advice and knowledge for the Minister, Secretary and Council on

matters relating to Aboriginal places located in or

Aboriginal objects originating from the area for which the party is registered;

(b) to advise the Minister regarding, and to negotiate, the repatriation of Aboriginal cultural heritage that relates to the area for which the party is registered;

(c) to consider and advise on applications for cultural heritage permits;

(d) to evaluate and approve or refuse to approve cultural heritage management plans that relate to the area for which the party is registered;

(e) to enter into cultural heritage agreements;

(f) to apply for interim and ongoing protection declarations;

(g) to carry out any other functions conferred on registered Aboriginal parties by or under this Act.

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Division 2—Application and Registration

150 Application for Registration

(1) an application for registration as a registered Aboriginal party must be made to the Council in the approved form and include the following—

(a) the party’s name, address and other contact details;

(b) a description of the area in respect of which the application is made, including details, in the form of a map or a written description, of the boundaries of that area;

(c) a statement from the applicant outlining the nature of—

(i) the relationship or links of the applicant to the area for which the application is made; or

(ii) the applicant’s historical or contemporary interest in Aboriginal cultural heritage relating to the area and expertise in managing and protecting Aboriginal cultural heritage in that area.

(2) An applicant for registration as a registered Aboriginal party must be a body corporate.

151 Determination of Application for Registration

(1) The Council must determine an application for registration as a registered Aboriginal party within 120

days after receiving the application.

(2) If an applicant for registration is a registered native title holder for an area in respect of which a determination that native title exists has been made

(a) the Council must register the applicant as the registered Aboriginal party for that area; and

(b) no other applicant can be registered in respect of that area.

(3) Subject to sub-section (2), in determining an application, the Council must take the following into account—

(a) whether the applicant is a native title party for the area to which the application relates;

(b) the terms of any native title agreement that the parties to that agreement agree to make available to the Council;

(c) whether the applicant is a body representing Aboriginal people with traditional or familial links to the area to which the application relates;

(d) whether the applicant is a body representing Aboriginal people that has—

i) a historical or contemporary interest in the Aboriginal cultural heritage relating to the area to which the application relates; and

ii) demonstrated expertise in managing and protecting Aboriginal cultural heritage in that area;

(e) the existence of any grant of land in fee simple made by the State or the Commonwealth to an Aboriginal body under a specific power in a State or Commonwealth Act.

(f) Whether the applicant has entered into an agreement with the State in relation to land and natural resource management in the area to which the application relates;

(g) Any other matter that the Council considers to be relevant.

(4) In determining an application, the Council must be satisfied that the applicant is a body corporate.

(5) In determining an application, the Council may—

a) request further information from the applicant; and b) obtain assistance form any person that the Council considers has relevant knowledge or expertise.

(6) The Council may ask the Secretary to assist the applicant to produce a map of the boundaries of the area to which the application relates.

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155 Variation of Registration

(1) The Council may vary the registration of a registered Aboriginal party with the consent of that party and, if there area other registered Aboriginal parties for that there area other registered Aboriginal parties for that area, with the consent of each of those parties

(2) A variation under this section may include a variation to the boundaries of the area for which the registered Aboriginal party is registered …

156 Suspension and Revocation of Registration

(1) Subject to section 157, the council may suspend or

(a) in relation to the consideration of or advice given applications for cultural heritage permits; or 158 Review of Decisions of the Council

(b) in relation to the evaluation of a cultural heritage management plan; (1) An Aboriginal party may apply to VCAT for review of

(c) in relation to the entering into or performance of a a determination of the council under section 156(1) to cultural heritage agreement; or suspend or revoke the registration of the party.

(d) in the discharge of any of its functions or the … exercise of any of its powers under this Act.

(2) The registration of a registered Aboriginal party is. revoked if—

(a) the party ceases to be a body corporate; or

(b) the party is placed under administration or goes into liquidation.

(3) The registration of a registered Aboriginal party in respect of an area or party of an area is revoked if—

(a) a registered native title holder is subsequently registered as a registered Aboriginal party for the area or that part of the area; and

(b) a determination has been made that native title exists in the area or that part of the area (as the case requires).

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157 Procedure for Suspension or Revocation of Registration

(1) If the Council proposes to suspend or revoke the registration of a registered Aboriginal party under section 156(1), the Council must give the registered Aboriginal party—

a) at least 28 days’ notice of the proposal; and

b) an opportunity to make oral and written submissions to the Council on the proposal.

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(3) A determination of the council under section 156(1) to suspend or revoke the registration of a registered Aboriginal party is not valid unless—

(a) at least two-thirds of the members for the time being of the Council are present at the meeting at which the decision is made; and

(b) the relevant motion is passed by a simple majority of those members.

158 Review of Decisions of the OCuncil

(1) An Aboriginal party may apply to VCAT for review of a determination of the council under section 156(1) to suspend or revoke the registration of the party.

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The full text of this legislation is available online at <http://www.dms.dpc.vic.gov.au/>