Aboriginal cultural heritage includes Aboriginal places, Aboriginal objects and Aboriginal human remains. Aboriginal places may be sites that are tangible, such as an archaeological site, or may be locations with intangible values, such as a place of spiritual significance where no archaeological remains survive. Aboriginal archaeological site types include surface and sub surface artefact scatters, scarred trees, quarries, mounds, rock art, middens, stone features and burials. In the Greater Melbourne area, artefact scatters (stone tool scatters) and scarred trees are the most commonly found archaeological site types. Aboriginal cultural heritage in Victoria are of significance to Victorian Aboriginal people because it provides a connection to the past, however it is also important for the wider Australian community as a reminder of our shared human history.
In Victoria, Aboriginal cultural heritage is managed and protected by the Aboriginal Heritage Act 2006. The Act establishes the Cultural Heritage Management Plan (CHMP) process and links the management and protection of Aboriginal cultural heritage with the planning system by preventing planning permits from being issued in instances where a CHMP is required but has not been prepared or approved. In order to avoid the mandatory refusal of a planning permit application by Council, it is crucial for developers to identify whether a CHMP is required for a particular project.
The Act and the Aboriginal Heritage Regulations 2007 specify when a CHMP is required. CHMPs are required for all developments (‘activities’) where an Environmental Effects Statement (EES) is required, where the Minister requires a CHMP, or where the Aboriginal Heritage Regulations 2007 require a CHMP. 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, however the ones most relevant to readers are:
- Buildings and works for specified uses, including but not limited to child care, education, retail, office, retirement village (r.43);
- Construction of three or more dwellings on a lot or allotment (r.45); and
- Subdivision of land into two or more lots (in an industrial zone) or into three or more lots (in all other zones) (r.46).
The Regulations define a number of areas of cultural heritage sensitivity. 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.22);
- Land within 200 metres of a named waterway (r.23);
- Land within 200 metres of the high water mark of the coast (r.28);
- The Koo Wee Rup Plain (r.31); and
- Sand sheets, including the Cranbourne sand (r.38).
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 a Practice Note produced by Aboriginal Affairs Victoria. It is important for readers to note that significant ground disturbance must be proven, and that proving this is the responsibility of the developer.
The preparation of a CHMP includes the assessment of the subject site (‘activity area’) to determine the absence or presence and nature, extent and significance of any Aboriginal cultural heritage within the activity area, as well as the preparation of a written report (the CHMP) detailing the assessment, the nature, extent and significance of any Aboriginal cultural heritage present, management recommendations and contingency plans. There are three levels of assessment:
- Desktop Assessment (background review);
- Standard Assessment (Desktop Assessment and archaeological field survey); and
- Complex Assessment (Desktop Assessment, Standard Assessment and archaeological excavation).
In the vast majority of instances (more than 95%), the minimum assessment required is a Standard Assessment. Furthermore, most of these projects (perhaps 70-80% or more) will require a Complex Assessment. As a result, many Cultural Heritage Advisors (CHAs) will now advise a Sponsor at the proposal stage that a Complex Assessment is likely to be required and will quote accordingly. This advice will be based on the CHAs knowledge and experience of the archaeology of a given geographic region.
A completed CHMP must be approved by the relevant authority (either a Registered Aboriginal Party [RAP] or the Department of Premier and Cabinet [DPC]) before any planning permit can be issued. A CHMP is considered to be approved once the evaluating authority has issued an approval notice, and the final CHMP, including the approval notice, has been lodged at the Office of Aboriginal Affairs Victoria (OAAV). The evaluating authority has 30 calendar days to approve or refuse the CHMP, and the final approved CHMP must be lodged at OAAV within 14 days of approval.
CHMPs must be prepared by a qualified and experienced CHA, who may or may not also be an archaeologist. When selecting a CHA to prepare a CHMP, Sponsors should be aware that all archaeological excavations must be supervised by a suitably qualified and experienced archaeologist. Contact details for appropriately qualified and experienced CHAs/archaeologists can be found on the OAAV website or the Australian Association of Consulting Archaeologists Inc. (AACAI) website.
Depending on the size of a project, the CHMP process can be a long and expensive exercise. It takes an absolute minimum of two months for a CHMP to be prepared and approved. In most instances the CHMP process will take between two and six months, however this can extend to twelve months or more for large or complex projects. Costs generally range from $2,000.00 to $5,000.00 for a Desktop CHMP, $5,000.00 to $20,000.00 plus for a Standard CHMP, and $10,000.00 to $100,000 plus for a Complex CHMP. Small developments (e.g. three dwellings on an existing residential allotment) generally incur costs of under $10,000.00 for a Complex CHMP.
In areas where a RAP has been appointed, appropriate consultation with the RAP is critical to the CHMP process. Consultation usually takes the form of a project inception meeting, the presence and participation of RAP representatives in all fieldwork, and one or two meetings to discuss the results of the fieldwork, the significance of any Aboriginal cultural heritage present, and the management recommendations contained in the CHMP. In the absence of a RAP, any applicable RAP applicant group or other relevant Aboriginal corporation should participate in consultation in the form of attendance at fieldwork. In addition, a draft copy of the CHMP should be forwarded to the relevant Aboriginal organisations with a request for comment prior for submission to DPC for evaluation. Consultation with Aboriginal organisations other than RAPs is not legally required but is strongly recommended to avoid refusal of the CHMP by DPC. In addition, certain aspects of the CHMP assessment (such as the establishment of Aboriginal place significance in accordance with Aboriginal tradition) will not be able to be satisfactorily completed if consultation with any relevant non-RAP Aboriginal organisations is not undertaken.
RAPs, RAP applicants and other relevant Aboriginal corporations will charge for their time and expenses incurred as part of consultation. Fees can vary widely between corporations. Generally, field representatives will be charged at approximately $1,000.00 per person per day, plus travel costs. Some RAPs require that two representatives be present each day for fieldwork. Attendance at meetings will be charged at approximately $200.00 to $400.00 per person per meeting, plus travel costs if applicable. RAPs will also charge the prescribed fee to evaluate a CHMP (between $1,000.00 and $4,000.00, depending on the size of the activity area and the level of assessment undertaken).
In order to be approved, a CHMP must satisfactorily address Section 61 of the Aboriginal Heritage Act 2006, and include recommendations which seek, in the first instance, to avoid harm to Aboriginal cultural heritage, and in the second instance, to minimise harm to Aboriginal cultural heritage. Attempts to avoid or minimise harm must be made, and if harm cannot be avoided or minimised, it is the Sponsor’s responsibility to explain why. Because Aboriginal cultural heritage is an invaluable and finite resource, it is generally unacceptable to say that a project will suffer financially if harm to heritage is avoided or minimised. One exception to this may be if the project would become totally unviable if harm were avoided (for example if the entire activity area comprises an Aboriginal place), although of course in this case there would still need to be some attempt to minimise harm.
Acceptable reasons for harming heritage may include limitations enforced by topography, native vegetation issues, traffic regulation requirements or engineering constraints. When developing recommendations, it is important to examine all options and be prepared to alter design plans or construction techniques in order to avoid or minimise harm to Aboriginal cultural heritage. Where harm cannot be avoided or minimised, the harm will most likely have to be mitigated by way of archaeological salvage activities. Recommendations for salvage are generally made for sites of moderate and high scientific significance. Any required salvage works must take place following the approval of the CHMP and before the construction phase of the activity starts. The results of the salvage must be reported to DPC, however salvage reports are not subject to an evaluation process.
While the CHMP process can appear to be confusing, in reality it is relatively straightforward. An appropriately qualified and experienced CHA/archaeologist can quickly advise developers if a CHMP is required for a particular project and provide advice regarding the potential for Aboriginal cultural heritage to be present. It is always worth making a quick telephone call or sending an email to Jem Archaeology or another heritage consultancy to find out how the Aboriginal Heritage Act 2006 may affect your next project.