No law is perfect, but when a law is required to carry the weight of an entire culture, it’s really going to show the strain.

Such is the case with Victoria’s Aboriginal Heritage Act (AHA), which is supposed to bridge the divide between Indigenous and settler interests when it comes to preserving Aboriginal culture in the state.  The act is under fire from the Aboriginal Heritage Council, from the state’s ombudsman and from Indigenous people who don’t feel represented by the system it sets up.

The Council is airing proposals that would give Indigenous Victorians stronger powers, including the right to enter private land to protect heritage, and to directly prosecute those who destroy heritage sites.

Until a treaty comes along, the AHA is the main legal instrument by which the State of Victoria deals with the original peoples of the land. It also happens to be part of the State’s road to a treaty, setting up the rules governing the Registered Aboriginal Parties (RAPs). The RAPs, in turn, have reserved seats on the First People’s Assembly of Victoria that is in treaty negotiations with the State.

Yet, according to the Aboriginal Heritage Council’s discussion paper Taking Control Of Our Heritage, the AHA is failing Indigenous people on a number of fronts. Extensive consultations last year returned a wish list of almost twenty improvements to the act.

Some are significant, such as a proposal to give the Council power to prosecute people who illegally destroy heritage artefacts and places. Such prosecutions are rare under the current system, which relies on Aboriginal Victoria and the Department of Public Prosecutions to investigate and prosecute. The discussion paper describes the current attitude to prosecution as ‘cautious,’ even though ‘RAPs often expend large amounts of time and resources on gathering evidence for potential offences.’

The Council also wants automatic right of entry to private property to investigate heritage threats for both state Authorised Officers and for heritage officers working for RAPs. The Council’s chair, Rodney Carter, said there was ‘anecdotal evidence’ of heritage fabric being destroyed before they could be assessed.

The discussion paper contains another major change: it suggests that ‘all building and construction related planning applications include Traditional Owner consultation.’ This change is aimed at closing a loophole under which a simple ‘due diligence’ report bypasses the need to notify RAPs of proposed work, but in theory applies to all such planning applications, public and private, statewide.

‘Council is concerned at reported problems arising from Local Government Authorities’ use of the ‘Due Diligence’ approach, as a means to assess the requirement for a Cultural Heritage (Management) Plan,’ Carter said. ‘The reported harm to Aboriginal Cultural Heritage caused by the resulting activity is an issue that RAPs are facing regularly and is something Council feels strongly about addressing.’

If the changes were all taken up, the Aboriginal Heritage Council would move from being an advisory body to one with real power. The ability to enter land to investigate and to bring its own prosecutions would take away its reliance on the State Government to defend Indigenous heritage interests. Local RAPs would have the right to sue developers for civil damages over heritage destruction. They could refuse to approve so-called Cultural Heritage Management Plans (CHMPs), effectively vetoing development. At present, RAPs cannot refuse a plan if it minimises damage, meaning that ‘the RAP’s position in the approval process is less about protecting Aboriginal Cultural Heritage and becomes something in the way of managing damage to Cultural Heritage,’ the paper says.

Carter says that ‘this salvage attitude means that most damage, including destruction and removal, is permitted.’

Victorian Ombudsman Deborah Glass has said that the Act’s tight focus on consultation with the RAPs contributed to the situation around the Western Highway upgrade near Ararat. The upgrade runs through Djab Wurrung land, and a protest camp known as the Djab Wurrung Heritage Protection Embassy has been on the proposed route for more than two years.

On October 6, contractors working for Major Roads Projects Victoria cut down one of the trees that the protestors were protecting, known as the Directions Tree. In response, Djab Wurrung woman Sissy Eileen Austin resigned her position on the state’s First People’s Assembly, which is the recognised body for negotiating a treaty with Victoria. Austin wrote in the Guardian: ‘Our hearts are broken, our trust in the ‘progressive’ Andrews government is broken.’ Senator Lidia Thorpe, who is also Djab Wurrung, tweeted that she was ‘absolutely gutted’ by the removal of the tree by ‘the very government who want to Treaty with us.’ She also told ABC radio that the current Aboriginal Heritage Act ‘sets us up to fight among ourselves.’

Glass’ report outlined a series of miscommunications and clashes between interests that she partly attributed to the authorities’ choice to work mainly with two local RAPs. Some Djab Wurrung people were not members of the RAPs, partly because colonial processes had driven them or their ancestors from the land, Glass found, so that the long negotiations between the Government and the Djab Wurrung community had ‘not satisfied all Djab Wurrung traditional custodians.’

Glass noted that the government was technically free to consult ‘more broadly with Aboriginal peoples.’  But, she wrote ‘the processes under the Aboriginal Heritage Act, while intended to empower traditional custodians … have the potential to exclude some voices.’

‘Ultimately,’ Glass wrote, ‘it may be for Parliament to consider whether the processes under the Aboriginal Heritage Act should be made more permissive of consultation
with individuals and bodies who have not been accorded Registered Aboriginal Party status; noting, at the same time, the need to respect the principles of Aboriginal self- determination underpinning this legislation.’

The Aboriginal Heritage Council rejected this suggestion; Carter said that ‘not recognising due process clouds the importance of the acknowledgement of recognised Traditional Owners and what they undertook to participate in these processes.’

‘The challenge for us all is to understand that the right thing has happened and that, through the process, the voice of First Peoples has been recognised.’

Of the two RAPs involved in the road negotiations, one is no longer registered. The other, Eastern Maar, said in a statement that it was ‘the single rightful vehicle for representing the collective group in the advancement of cultural protection, cultural learning, and actively pursuing economic and social aspirations.’ The statement pointed out that its 12-member board represented 12 family groups, with 60 per cent female membership.

Eastern Maar was ‘fully satisfied that we have exercised our power, to the extent that the legislation provides, in the protection of Aboriginal cultural heritage impacted by the Western Highway duplication,’ the statement said, adding that their efforts had resulted in extra protection for some heritage areas on the road route.

Zellanach Djab Mara, a Djab Wurrung man who has been at the Embassy since June 2018, dismisses the RAPs, making a joke about rap being something American singers do: ‘You don’t speak on behalf of country when you’re not on country … how can they be in negotiations (for a treaty) if half the fucking mob don’t know they’re in the negotiations?’

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While the Embassy occupiers continue to rely on the logic of sitting on country, and still hope to prevent the road going through sensitive sites, Glass’ report was unable to find any legal failings in the process. She did however, make it clear that the processes set up by the AHA hadn’t protected Djab Wurrung heritage – including birthing trees and a significant landscape – enough to satisfy all the Djab Wurrung.

A spokesperson for Victorian Minister for Aboriginal Affairs, Gabrielle Williams, offered no response to Glass’ recommendations, but said in a statement:

The project’s design has now been approved by both relevant Traditional Owner groups, an independent Environmental Effects Statement process, the Supreme Court and now the Victorian Ombudsman – it’s time to get on with this urgently needed safety upgrade … The Victorian Government will carefully consider [the Aboriginal Heritage] Council’s proposals and any future improvements to legislation and Victoria’s cultural heritage management system.

The State’s treaty process relies on a representative First People’s Assembly with which to negotiate. Alongside the RAP seats are generally elected members, and the Assembly is currently asking for ideas about how to include more traditional owners among its members.

About a quarter of Victoria is not covered by a Registered Aboriginal Party. The AHC discussion paper suggests that as more parties are set up and they grow in experience, they could take on managing other aspects of local Aboriginal affairs (some are already doing so). Local councils should be legally required to consult with the RAPs around a wider range Indigenous issues than simply ‘heritage’, the paper suggests.

‘There have been examples of Local Government Authorities not fully engaging with RAPs in respect of a range of matters that concern Aboriginal culture and identity,’ Carter said.

If the stronger powers in the discussion paper are given to the Council, they would be wielded by a significantly more independent body; the paper asks that five out of the eleven members of the Council be directly elected by RAPs, rather than, as now, appointed by the minister, with that number going up as the number of RAPs rises. It seeks to close other loopholes that the Council believes are allowing heritage to be destroyed without proper consultation, by removing wording that means that some areas that have already had their topsoil disturbed do not trigger protection, and deleting a requirement that watercourses be ‘named’ bodies of water in order to count as areas where heritage materials may exist.

Heritage protection should be extended beyond the ‘tangible’, the paper says. Although intangible heritage – oral traditions, performing arts and so on – is currently recognised, the paper says the law should be changed so that ‘both State and local government should be directed to consult with RAPs on matters of intangible heritage as well as tangible heritage.’

‘Council feels that (there is) an artificial distinction between tangible and intangible. Cultural heritage is best described holistically,’ Carter said.

Aboriginal Heritage Advisors, who the Councils says are mostly non-Indigenous, would lose their role as the only people who can create management plans; RAPs would be able to take on that role. Carter said that ‘Council has received a concerning number of reports of unacceptable CHMPs being submitted to RAPs for consideration.’

The proposed power for RAPs to refuse a CHMP would ‘accord with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that Indigenous Peoples have the right to maintain, control, protect and develop their Cultural Heritage,’ Carter said.

The discussion paper is open for public comment until the end of November. It will then be reviewed and sent to the minister.