Aboriginal cultural heritage protection
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 (AH Act ss 27, 28). 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 (CHMP)– 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 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. The names and details of Victoria’s registered Aboriginal parties are listed at www.aboriginalheritagecouncil.vic.gov. au/victorias-current-registered-aboriginal-parties.
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 (AH Act ss 46(1)(e), 49B).
A CHMP must be approved by relevant registered Aboriginal parties if they have been notified of an intention to evaluate the plan (AH Act ss 55, 62). If there are no registered Aboriginal parties, or none have notified an intention to evaluate, the DPC Secretary may approve the CHMP.
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 (AH Act ss 51, 52).
More information about whether a CHMP is required can be found at www.firstpeoplesrelations. vic.gov.au/cultural-heritage-management-plans.
Aboriginal cultural heritage protection
Chapter: 11.3: Environment and planning law
Contributor: Dr Dru Marsh, Senior Adjunct Lecturer, Public Service Research Group, School of Business, UNSW Canberra; Night Service contributor, Fitzroy Legal Service; Glenn Osboldstone, Senior Lawyer, DTP Legal; and Deborah Hollingworth, Manager, Aboriginal Strategy and Partnerships, Environment Protection Authority Victoria
Current as of: 1 September 2024
Law Handbook Page: 927
Next Section: Victorian Civil and Administrative Tribunal review
