Municipal Association of Victoria Response to the State

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					      Municipal Association of Victoria


  Response to the State Government’s
Exposure Draft Aboriginal Heritage Bill

                          December 2005
This submission has been prepared by the Municipal Association of Victoria (MAV) in
response to the invitation by the Minister for Aboriginal Affairs to comment on the
State Government’s Exposure Draft Aboriginal Heritage Bill.

The MAV is the statutory peak body for local government in Victoria, representing all
79 municipal councils within the state. This submission has been prepared by the
MAV following consultation with councils. Whilst this submission aims to broadly
reflect the views of local government in Victoria, it does not purport to reflect the
views of individual councils, which will also be making submissions to the Minister.

For further information about this submission contact:

Rosemary Hancock
Policy Officer
Municipal Association of Victoria
Tel:    9667 5555
Email: rhancock@mav.asn.au


December 2005




2                                       Proposed Aboriginal Heritage Bill – MAV Submission
Executive Summary
The Municipal Association of Victoria (MAV) welcomes the opportunity to comment
on the Exposure Draft Aboriginal Heritage Bill. Local Government is intimately
involved in the planning approval process for local developments, as a responsible
authority and also in the development of the local planning policy framework taking
into account community aspirations for economic and social development. Local
government has considerable interest in the effects the proposals will have on
planning processes and decisions.

The MAV approaches this submission from the policy perspective that preserving
Aboriginal heritage is important so that the rich history of the original inhabitants of
the land that is now known as the State of Victoria is there for generations to come.
Acknowledgement of the cultural heritage of today’s Aboriginal people is important in
promoting reconciliation between current generations of Indigenous and non-
Indigenous Australians. As a result, the Victorian community will be more united,
stronger and aware of its unique history dating back tens of thousands of years.

The proposed Aboriginal Heritage Bill is based on a number of assumptions that, if
they work as appears to be intended, should lead to a strengthening of the planning
system in relation to the preservation of Aboriginal heritage. If the assumptions
prove unrealistic however, or are not supported with adequate State Government
resources, there is considerable potential for the proposals to impede or hinder
development and add considerable complexity to a planning system already under
strain.

The assumptions of the Bill include:

    •    That the list of prescribed activities requiring an Aboriginal cultural heritage
         assessment is clear and will not be subject to legal complexity of
         interpretation at the ‘margins’.

    •    That the lack of constraint on the number of Registered Aboriginal Parties will
         not lead to delays in decision-making to grant or not grant Aboriginal cultural
         heritage assessments.

    •    That the lack of structure for Registered Aboriginal Parties to come together
         to agree or not to a Aboriginal cultural heritage assessment will not result in
         negative decisions, not because the cultural heritage is at risk, but due to the
         various politics of the parties involved.

    •    That the Aboriginal Heritage Council will have the resources to set the
         appropriate guidelines and requirements for Registered Aboriginal Parties to
         ensure their decision making is transparent and accountable.

    •    That there are adequate resources for training and on-going support for policy
         development at a local level.

For local government, clarity of the list of prescribed activities that will require an
Aboriginal cultural heritage assessment is critical and will determine whether its
exposure to legal liabilities will be greater than currently exist, and its ability to easily
administer the new requirements. Before local government can fully support the Bill,
the prescribed list of activities will need to be developed jointly so that it can more


Proposed Aboriginal Heritage Bill – MAV Submission                          3
easily assess the implications. This must be resolved prior to any further progress of
the Bill. Currently, there is too little detail available to make a judgement about this.

If the prescribed list of activities were to include planning scheme amendments such
as re-zoning proposals undertaken by local government in its capacity as planning
authority then the implications for local government are significant in terms of the
Aboriginal cultural heritage assessments that would be required before local planning
policy frameworks can be enacted.

For the provisions of the proposed Bill to work, the MAV suggests the following as
essential:

    •   State Government funding for community education campaign developing all
        Victorians understanding of Aboriginal cultural heritage to encourage whole of
        community support.

    •   Adequate resourcing and guidance for the Aboriginal Heritage Council and
        Registered Aboriginal Parties to ensure they can perform their new duties.

    •   Transparent structures for decision making processes of Registered
        Aboriginal Parties to ensure their decisions are soundly based and can be
        promoted in local communities.

Other recommended improvements which are listed through the submission include:

    •   Establish an Aboriginal Heritage Fund along the lines of the programs
        provided by Heritage Victoria, which provides funding for projects such as
        studies and technical support for managers of heritage places and assets,
        and loans to cover costs incurred for repairs and maintenance of heritage
        places. This could provide funding for necessary local strategic work and
        policy development.

    •   That it be a priority of the Aboriginal Heritage Council to develop a working
        relationship with local government, and that this be part of its terms of
        reference.

    •   That Registered Aboriginal Parties have a recognised connection to a local
        area via sound, peer-reviewed anthropological and genealogical evidence.

    •   That Registered Aboriginal Parties be required to undertake training about
        their responsibilities and involvement in the planning system.

    •   That there be a structure established for Registered Aboriginal Parties to
        develop their response for particular development applications, and
        demonstrate their decision making processes to ensure accountable decision
        making.

    •   That the Bill should allow for notification to councils of registration and de-
        registration of Aboriginal Parties.

    •   That the fees set by Registered Aboriginal Parties are subject to a threshold
        or other accepted criteria.




4                                          Proposed Aboriginal Heritage Bill – MAV Submission
    •    That the Aboriginal Heritage Council develop and provide standard templates
         to Registered Aboriginal Parties about the processes by which they make
         decisions about whether to grant an assessment or not.

    •    That VCAT has the capacity to respond, and that there are processes by
         which VCAT can independently assess the decisions made by Registered
         Aboriginal Parties.

    •    That s41 of the proposed Bill be deleted because not all applications requiring
         an Environmental Effects Statement will require an Aboriginal cultural heritage
         assessment.

    •    That further analysis be undertaken with local government and DSE Planning
         in relation to whether Aboriginal cultural heritage assessments should be
         considered as part of a “pre-lodgement authorisation ”, or whether they should
         be dealt with in the same way other matters requiring referral to another
         authority are dealt with, such as VicRoads and water authorities with clear
         timelines.

    •    Advice and proformas to be developed by the State Government for
         distribution to developers and other permit applicants and for distribution on-
         line and in council planning departments.

    •    That more information is required about the proposals for enforcement of
         requirements resulting from an Aboriginal cultural heritage assessment, and
         the role of local government or not in the enforcement provisions once permits
         have been granted and works commenced.

    •    The State Government to provide assistance, possibly through the
         Department of Sustainability and Environment which has responsibility for
         Crown land, for the development of local agreements.

    •    That the Bill be drafted to make it clear that multiple Aboriginal cultural
         heritage assessments do not need to be undertaken for the same area where
         over time there may be further works undertaken or change of property
         ownership.

    •    That Aboriginal cultural heritage assessments be made available to local
         government to assist local planning in the future.

    •    That s174(5)(b) be deleted, so that rate remittance can only occur with the
         agreement of the rating authority.

    •    That the period of review of the legislation be undertaken after three years,
         and that the review be high-level, including all parties with a report to Cabinet
         being required.




Proposed Aboriginal Heritage Bill – MAV Submission                       5
1.     Introduction

Local government in Victoria comprises 79 municipalities established by the Victorian
Parliament as a democratically elected tier of government to make decisions defined
under the Local Government Act 1989. The democratic processes underpinning the
structure of local government mean it is directly accountable to the communities it
represents for its decisions and priorities. This is a fundamental strength of local
government because its priorities and services reflect local communities needs and
priorities. When councils make decisions out-of-step with local communities, the
electoral process provides democratic opportunities for change. This can, however,
result in the setting of different priorities between councils across the state, which is
not always satisfactory from the point of view of state-wide agencies, such as the
State Government, which may seek a more uniform approach on particular policy
matters.

Understanding the nature of Victorian local government is important to understanding
the response by councils to the draft Aboriginal Heritage legislation being proposed
by the State Government.

Local government plays an integral role in setting local policies and priorities about
land use and development within a municipality within the overarching framework of
the Victorian Planning Provisions. Collectively Victorian local government processes
about 55,000 planning applications a year.

In relation to heritage, under the Planning and Environment Act 1987 councils have a
responsibility to use their planning schemes to conserve and enhance those places
of scientific, aesthetic, architectural, historical or cultural value. Councils also set
their own priorities for the preservation of the historical legacies of past generations
in their local planning policies and Municipal Strategic Statements.

In relation to Aboriginal cultural heritage, clause 15.11-2 of the State Planning Policy
Framework established by the Planning and Environment Act 1987 mandates that
responsible authorities must take into account the Archaeological and Aboriginal
Relics Preservation Act 1972 and Part IIA of the Commonwealth Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 in determining local development
applications.

While in theory all planning considerations need to take account of Aboriginal cultural
heritage, in practice local government processes to determine areas of likely
significance for Aboriginal cultural heritage prior to the issuing of planning and
building permits varies across the state, with some councils taking an active role to
identify Aboriginal cultural heritage before planning permits are issued, while others
facing resource and capacity constraints or lack of wider community support have
given limited priority to identifying local areas likely to have Aboriginal cultural
heritage significance.

It is useful to draw comparisons with the preservation of European heritage as it has
evolved over the past 30 years or so. Over this period there has been sustained and
significant support by the State Government (technical and financial) as well as
significant investment by local government to ensure the necessary analysis,
identification and protection through the use of Heritage Overlays in local planning
schemes. Heritage has not always enjoyed community support, particularly in its
infancy, and continues to require significant government promotion through the
Department of Sustainability and Environment (DSE) and Heritage Victoria. Councils

6                                         Proposed Aboriginal Heritage Bill – MAV Submission
vary significantly across the State in terms of their recognition and policy support for
heritage protection.

An outline of the evolution of general heritage protection in Victoria is provided in
Attachment 1. The current level of general heritage funds available to local
government by the State Government is identified in Attachment 2. Currently the
State Government provides funding for five Aboriginal cultural heritage officers, and
one-off funding for particular initiatives. It currently expects local government to
undertake assessment of Aboriginal heritage with little associated funding. The
consequence of this approach is that the necessary strategic work has not been
completed across municipalities, particularly where there are competing strategic
planning priorities, as is often the case.




Proposed Aboriginal Heritage Bill – MAV Submission                      7
2.     Proposed Aboriginal Heritage Bill – MAV Comments

The MAV approaches this submission from the policy perspective that preserving
Aboriginal heritage is important so that the rich history of the original inhabitants of
the land that is now known as the State of Victoria is there for generations to come.
Acknowledgement of the cultural heritage of today’s Aboriginal people is important in
promoting reconciliation between current generations of Indigenous and non-
Indigenous Australians. As a result, the Victorian community will be more united,
stronger and aware of its unique history dating back tens of thousands of years.

The MAV also considers that legislation relating to Aboriginal heritage needs to be
underpinned by the general principle that all tiers of government need to ensure their
legislation and policies provide a framework which strengthens positive relationships
between non-Indigenous and Indigenous people, not one which divides them. If the
preservation of Aboriginal cultural heritage is imposed without the general support of
non-Indigenous Victorians, there will be much greater potential for tensions to
emerge about priorities and effort given to recognition of Aboriginal rights and access
to land. Such tensions would lead to a weakening of relationships with adverse
results that would be most felt by Indigenous people.

In relation to specific proposals contained in the draft Aboriginal Heritage Bill, the
MAV has a number of comments, which are provided in the sections below.


2.1    Improving the System for Aboriginal Cultural Heritage

The existing framework for the preservation of Aboriginal cultural heritage is
unsatisfactory from the perspective of local government, and no doubt also Aboriginal
communities. Currently the State Planning Policy Framework and Victoria Planning
Provisions do not provide adequate guidance for local government regarding how or
when to effectively consider Aboriginal cultural heritage in its decision-making. Local
government across the state does not always have the staff resources or technical
capacity to undertake this work (rural and regional Victoria particularly experience a
critical shortage of planners) and/or lack of local community support.

The MAV notes that the proposed Bill brings together the two current pieces of
legislation relating to Aboriginal cultural heritage, the Victorian Archaeological and
Aboriginal Relics Preservation Act 1972 and Part IIA of the Commonwealth
Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which is a
sensible administrative reform.

The MAV welcomes the intent of the Bill that seeks to assessing Aboriginal heritage
needs prior to the approval of planning permits for new developments or once
building works and land disturbance has commenced. It would be preferable for this
to occur prior to lodgement (and design of a development application) so that the
cultural values inform the development application, although in comments provided in
2.6 of this submission further analysis is required. One of the major problems of the
existing legislation is that Aboriginal heritage is often identified after planning permits
have been issued and developments commenced. While this will continue to be the
case where development works uncover Aboriginal cultural heritage that was
previously unknown, the requirements for Aboriginal heritage assessment for


8                                          Proposed Aboriginal Heritage Bill – MAV Submission
prescribed activities should ensure that for significant developments the chances of
unexpected discovery of Aboriginal remains and sites of significance will be rarer.
This should bring greater certainty to developers and would be welcomed by local
communities.

Developers and land use managers should have a greater understanding, through
the close contacts that will be required to be developed with Aboriginal parties where
Aboriginal heritage assessments have been required, of how they need to protect
Aboriginal cultural heritage. This will hopefully add to the general promotion of
Aboriginal heritage within the community, and lead to stronger links between
Indigenous and non-Indigenous parties.

The MAV supports the proponent being responsible for ensuring the Aboriginal
cultural heritage assessment is undertaken.

Local government welcomes the inclusion of s129 in the Bill which will allow councils
access to the information contained in the Victorian Aboriginal Heritage Register.
Lack of easy access does make it difficult at times for local government to have an
understanding of where to begin, or what Aboriginal heritage is currently known to
exist.

The MAV questions the overall reliance on the planning system for the protection of
Aboriginal Cultural heritage and if this is to proceed would prefer to see clearer
delineation in terms of process, enforcement, risk and residual liability.

Without strong local government involvement in the development of the list of
prescribed uses the impact of the draft bill is unknown and the MAV is not in a
position to provide endorsement for the proposals at this stage.


2.2      State Government Resourcing and Promotion of Aboriginal Cultural
         Heritage

“Under-resourcing of a system that can halt development in its tracks, and poor
integration with existing processes can set up a nightmare for developers and
communities alike” 1 . These comments are endorsed by the MAV which strongly
urges the State Government to give full consideration to the implications of
preserving Aboriginal cultural heritage on economic and social development, and to
ensure that it is properly funded.

The MAV has identified two main areas of concern about funding and resource
implications of the proposed Bill. These are the cost of intervention that is required
where government policy is seeking to impose values not always desired by local
communities, and the additional costs that will be required to ensure the new
decision makers of Aboriginal cultural heritage, Registered Aboriginal Parties, have
the capacity and skills to meet the challenges imposed by their involvement in the
planning system.

The State Government currently provides considerable funding to promote the
preservation of European heritage (mainly the built environment). This has occurred

1
 Article by Bryn Davies, Context Pty Ltd “Aboriginal Cultural Heritage and Victoria’s Planning
System – lessons for planners”, in Planning News, Planning Institute of Australia, Vic Division,
Vol 31 No 10, November 2005



Proposed Aboriginal Heritage Bill – MAV Submission                           9
over time because the State Government wished to curb local planning decisions that
resulted in the destroying of many old buildings it considered should be preserved.
Funding for Aboriginal Cultural Heritage has not been provided by the State
Government to anywhere near the same extent. Although the MAV recognises that
pre and post –European heritage differs greatly, similar justifications could now be
used for the preservation of Aboriginal heritage and for the state government support
required. Currently the State Government expects local government to fund
Aboriginal heritage studies for local areas irrespective of whether this is a priority of
the local community.

The necessary policy work relating to European heritage has evolved and been
progressively implemented in local planning schemes over the past 30 years, such
that an increasing number of councils have introduced or undertaken heritage studies
and introduced heritage overlay controls. Out of the 79 councils in Victoria, 73 have
undertaken or are undertaking a conservation or heritage study with a view to
introducing heritage controls. There have, however, also been a number of councils
which at different times have undertaken heritage studies and tried to introduce
heritage controls, but faced strong opposition by local communities. In these
instances the some councils have abandoned their attempts until there is greater
community acceptance of the value of heritage.

The MAV Submission in 2005 to the Australian Government’s Productivity
Commissions Public inquiry into the Conservation of Historic Heritage places made
three key points:

•    The MAV believes that there is a strong case for government intervention to
     protect heritage places. Planning controls and heritage controls are not to stop
     development but to ensure that development is sympathetic to heritage values.
     The technical nature of heritage conservation issues requires access to
     technical advice and to design skills for private owners in particular of heritage
     places. Heritage Victoria has assisted a number of councils to employ, mainly
     part-time heritage or urban design officers which are in high demand.

•    There are strong social and economic benefits in protecting heritage places in
     terms of community connectedness and shared values. Economic benefits can
     accrue (for example in tourism) due to heritage precincts often being highly
     sought-after places to live.

•    There are costs associated with protecting heritage for local government who
     are the custodians of a number of public buildings and infrastructure assets and
     also for private owners and communities. A number of councils have introduced
     low interest loan schemes where a person can apply for seed funding to
     undertake restoration works of a heritage building or heritage place and provided
     grants at various points in time.

The resources required for heritage protection are increasing as more heritage
places are being protected under heritage controls reflecting community values and
as a result of a community process. For Aboriginal heritage to enjoy the same level
of community support and protection, an ongoing commitment to community
education and the provision of financial and technical resources is required.

The discussion above relates to the costs to government of ensuring preservation of
heritage, which is not always desired by the community. There will also be significant
resource implications for the way Aboriginal cultural heritage assessments are


10                                        Proposed Aboriginal Heritage Bill – MAV Submission
conducted with the new requirement for the involvement of Registered Aboriginal
Parties.

While many of these costs will be borne by developers, such as fees and costs to
undertake heritage assessments, there will be a requirement for additional funds than
that currently provided to ensure Registered Aboriginal Parties have the capacity to
participate in the planning system, with its tight deadlines and being subject to
external review. Currently local government is dealing with about 10,000 applications
a year for sub-divisions alone, many of which could potentially be included as
prescribed activities requiring an Aboriginal cultural heritage assessment. This is a
huge workload for local government, let alone Registered Aboriginal Parties not
previously experienced in dealing with planning applications.

Recommended improvement:

      •   State Government to undertake community education campaign to develop
          understanding of the importance and value of Victorian Aboriginal cultural
          heritage

      •   Establish an Aboriginal Heritage Fund along the lines of the programs
          provided by Heritage Victoria, which provides funding for projects such as
          studies and technical support for managers of heritage places and assets,
          and loans to cover costs incurred for repairs and maintenance of heritage
          places. This could provide funding for necessary local strategic work and
          policy development.

      •   State Government to ensure that Registered Aboriginal Parties have the
          capacity and training to make decisions where Aboriginal cultural heritage
          assessment decisions are required, including an understanding of planning
          processes.


2.3       Role of the Aboriginal Heritage Council

One of the downfalls of the existing legislative framework is that there are no
structures for dialogue between local government and Aboriginal communities. As
the State Government will be closely involved in the establishment, operation and
resourcing of the Aboriginal Council, the MAV considers that there would be much
better chances for the proposals in the Bill to be implemented if there was mutual
understanding between the Aboriginal Heritage Council and local government. This
will also apply for Registered Aboriginal Parties if they are to play the role envisaged
in the Bill. The Department for Victorian Communities and Aboriginal Affairs Victoria
also have key roles to play in liaising with local government.

Local government, via the MAV, is willing to partner in such a relationship, however
this suggestion will also require the Aboriginal Heritage Council to value and seek a
relationship with local government.




Proposed Aboriginal Heritage Bill – MAV Submission                      11
Recommended improvement:

      •   That it be a priority of the Aboriginal Heritage Council to develop a working
          relationship with local government, and that this be part of its terms of
          reference.


2.4       Registered Aboriginal Parties

Local government is concerned about the lack of any constraint on the number of
Registered Aboriginal Parties that could emerge. Currently there are five existing
Cultural Heritage Program Regions established under the Commonwealth Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 which are referral agencies
for Aboriginal cultural heritage decisions. While the MAV understands that this
framework has disenfranchised some Aboriginal communities not formally linked with
these organisations, to have no limits at all is moving to the other extreme.

Timely decisions will be important, and if there are a myriad of Registered Aboriginal
Parties dealing with the same development application, and which are divided in their
response, there is considerable potential for the system to become unwieldy and
ineffective. From discussions with Aboriginal Affairs Victoria, the MAV understands
that it is proposed that Registered Aboriginal Parties will charge fees for their
involvement in decision making. If there are no limits to the number of parties, then
there is also no certainty about the volume of fees that will be payable to Registered
Aboriginal Parties.

While it is not clear what volume or type of permit applications will be expected to
require assessment, due to the list of prescribed activities requiring an assessment
not yet being developed, the MAV notes that local government processes some
55,000 permit applications a year, of which about 20% are applications for sub-
divisions, a considerable number of which could fall under the proposed regulatory
process. Local government has concerns about the capacity of Registered
Aboriginal Parties to cope with this workload.

Local government is also concerned that anyone appears to be able to apply to be a
registered Aboriginal party for the purpose of assessing Aboriginal cultural heritage.
The MAV urges that for a Registered Aboriginal Party to be recognised under the
Aboriginal Heritage Act they need to show a recognised connection to a local area
via sound, peer reviewed anthropological and genealogical evidence.

As a result of hearing the experiences shared by councillors and council officers in
the MAV Local Government Indigenous Network, the MAV is aware that at times the
politics of local Indigenous communities can make it difficult for councils to know
which people they should be liaising with in their municipality in terms of coming to
agreements. Native title issues over the last 10 years have not assisted this, with
some groups within communities protective of their status relative to others in dealing
with government, including local government. The creation of Aboriginal Registered
Parties will create new organisations in some areas, and there will be a need at times
to know who from the Indigenous community is empowered to speak for a local area.

Fees by Registered Aboriginal Parties will need to be subject to a threshold or other
accepted criteria.




12                                          Proposed Aboriginal Heritage Bill – MAV Submission
Recommended improvement:

      •   That the Aboriginal Heritage Council develops transparent processes for
          determining which organisations can be a Registered Aboriginal Party.

      •   That a structure be established for Registered Aboriginal Parties to coordinate
          their response for particular development applications.

      •   That the Bill should allow for notification to councils of registration and de-
          registration of Aboriginal Parties.

      •   That Registered Aboriginal Parties have a recognised connection to a local
          area via sound, peer reviewed anthropological and genealogical evidence.

      •   That Registered Aboriginal Parties be required to undertake education and
          training about their responsibilities and involvement in the planning system.

      •   That the fees set by Registered Aboriginal Parties are subject to a threshold
          or other accepted criteria.


2.5       Defining Prescribed Activities Requiring Aboriginal Heritage
          Assessment

The list of prescribed developments which will require Aboriginal heritage
assessments will be very important for local government because its interpretation of
this list will decide whether or not an Aboriginal Cultural Heritage Assessment is
required prior to being able to issue a planning permit. As currently drafted the
provisions have the potential to cover a range of approvals (statutory and non-
statutory) particularly in relation to infrastructure works which may not require a
planning permit. Such works include road works, management of open space and
stream side reserves, exempted works by service authorities including emergency
works.

The list will need to be carefully drafted to ensure clarity so that local government can
assess which developments fall within requirements, and those which do not. Lack
of clarity will expose councils to significant legal liabilities if they mistakenly issue a
planning permit, or other permit, which is subsequently found to have required an
Aboriginal heritage assessment. The MAV also notes that there are significant
differences between what might be larger scale residential or industrial subdivisions
in larger metropolitan councils, versus rural and regional areas, and local government
input will be needed to ensure the list of prescribed developments is appropriate
across the state and properly reflects the great diversity of councils.

The proposal that applications requiring an Environmental Effects Statement (EES)
be one of the prescribed activities requiring an Aboriginal cultural heritage
assessment is not logical in practice. EES’ are required for particular purposes to
protect the natural environment, which may or may not bear relevance for Aboriginal
cultural heritage. For example, the Hazelwood power station EES was required to
assess the environmental impacts of continued operations, not development, and
therefore would not necessarily require an Aboriginal cultural heritage assessment.
The prescribed list of application types requiring an Aboriginal cultural heritage
assessment should be clear enough to capture relevant projects, irrespective of
whether an EES is required.



Proposed Aboriginal Heritage Bill – MAV Submission                          13
Recommended improvement:

     •   Local government to be formally included in the development of the list of
         prescribed activities that will be established in regulations, not just consulted
         after they have been drafted.

     •   That s41 of the proposed Bill be deleted because not all applications requiring
         an Environmental Effects Statement will require an Aboriginal cultural heritage
         assessment.


2.6 Planning Permit Processes & Aboriginal Cultural Heritage Assessments

The proposed Bill assumes that local government will notify developers if an
Aboriginal Cultural Heritage Assessment is required after a planning application has
been lodged. While supporting information suggests that councils will advise
applicants of the need to seek assessments for prescribed activities there is no
specific requirement to do so within the Bill. The Bill only requires that a decision not
be made before approval of an assessment. Councils must therefore presumably
still require, consistent with the time line limits within the Planning and Environment
Act related to requests for further information, to utilise the 'clock stopped'
provisions. Similar provisions apply for referral responses (some deemed to consent
after 28 days). A Planning Practice Note may provide greater clarity in the process
(including identifying whether an assessment is approved) unless other refinements
to the Planning and Environment Act are anticipated, as it is assumed that the State
Planning Policy Framework clause 15.11 will need to be amended as a consequence
of this Bill.

If this approach is taken there must be clarity and certainty regarding the time
available to the ‘referral’ authority. Generally 28 days is standard (for example,
VicRoads, Melbourne Water). Under the Coastal Management Act no response
within this period requires the Responsible Authority to refuse the permit application.
Whilst these timelines would not be appropriate for the undertaking of an Aboriginal
Cultural Heritage Assessment, they cannot be open-ended and must be prescribed.

Although the Aboriginal cultural heritage assessment is the responsibility of the
proponent, the way the Bill is currently drafted could result in the lack of a decision
about the Aboriginal Cultural Heritage Assessment within a reasonable period being
successfully appealed by developers to VCAT because councils had not made a
determination in relation to their planning application within the statutory period.

In light of these constraints of the existing planning system, some councils have
suggested that an Aboriginal cultural heritage assessment for prescribed activities
should be undertaken prior to lodgement of applications. A suggested model could
have regard to the pre-lodgement certification process such as that utilised by the
City of Glen Eira for planning permits, or the process utilised for approvals for
extractive industries. Other councils, however, do not support this view, preferring
that Aboriginal cultural heritage assessments be undertaken in the same way
referrals to other authorities take place.




14                                          Proposed Aboriginal Heritage Bill – MAV Submission
The MAV considers that further analysis needs to be undertaken with local
government and DSE planning to determine the appropriate place for Aboriginal
cultural heritage assessment decisions in the planning system.

Local government will be closely involved in determining what applications fall within
the prescribed developments. At whatever stage of the planning permit process this
occurs, it will be necessary for councils to provide information to developers. Unlike
European heritage sites or precincts, which are mapped and their values or level of
significance generally known, there are few ‘flags’ to highlight this to applicants other
than the prescribed uses. A spatial tool will be needed, and accessible information
to be available to all potential applicants regarding these requirements will need to be
provided.

There will be a need for transitional arrangements to apply for existing approved or
recently lodged assessments which may not have been subject to the view of new
Registered Aboriginal Parties.

It is implied, but not entirely clear from the Bill, that different authorisations (eg,
planning permits, Heritage Victoria permits, building permits and other authority
consents) can rely on the one approved assessment rather than requiring new and
separate assessments. The Bill needs to be clearer in this regard.

The MAV notes that the State Government, through the Department of Sustainability
and Environment, is also seeking to streamline planning permit approval processes
and reduce complexity associated with planning assessments. It is important that the
changes associated with the Aboriginal Heritage Bill are considered in the context of
the “Streamlining the Planning Permit System” project initiated by the Minister for
Planning.

Recommended improvement:

      •   That further analysis be undertaken with local government and DSE Planning
          in relation to whether Aboriginal cultural heritage assessments should be
          considered as part of a “pre-lodgement authorisation ”, or whether they should
          be dealt with in the same way other matters requiring referral to another
          authority are dealt with, such as VicRoads and water authorities with clear
          timelines.

      •   Advice and proformas to be developed by the State Government for
          distribution to developers and other permit applicants and for distribution on-
          line and in council planning departments.

      •   That more information is required about the proposals for enforcement of
          requirements resulting from an Aboriginal cultural heritage assessment, and
          the role of local government or not in the enforcement provisions once permits
          have been granted and works commenced.

2.7       Role of VCAT in Reviewing Aboriginal Heritage Assessments

The proposal to allow VCAT review of Aboriginal Heritage Assessment decisions by
Aboriginal Registered Parties is welcomed as a way of providing external review for
developers required to obtain Aboriginal heritage assessments. To enable this
system of review to work, however, there will be a need for clear processes for the
way in which Registered Aboriginal Parties come to their decisions and how these
will be reviewed and assessed by VCAT. It is not clear in the proposed Bill whether


Proposed Aboriginal Heritage Bill – MAV Submission                       15
there will be standard processes by which Aboriginal Registered Parties will be
expected to make their decisions.

The Bill also requires a mediation role for the Aboriginal Heritage Council to assist
where there are disputes between Registered Aboriginal Parties that are holding up
assessment approvals or where approval is not forthcoming prior to the involvement
of VCAT. Local government also suggests the Bill needs to be clearer so that appeal
rights to VCAT will apply if an assessment has not been considered within a specific
time-frame.

Recommended improvement:

      •   That the Aboriginal Heritage Council develop and provide standard templates
          to Registered Aboriginal Parties about the processes by which they make
          decisions about whether to grant an assessment or not.

      •   That VCAT has the capacity to respond, and that there are processes by
          which VCAT can independently assess the decisions made by Registered
          Aboriginal Parties.

2.8       Longevity of an Aboriginal heritage assessment

The MAV understands from discussions with Aboriginal Affairs Victoria (AAV) that
Aboriginal heritage assessments, when they are undertaken, will have longevity more
than a few years, and more than the life of a particular development. This is not clear
in the proposed Bill, however, and clarity should be included so that new
developments in an area already assessed by Aboriginal Registered Parties do not
require an additional Aboriginal Cultural heritage Assessment.

Recommended improvement:

      •   That the Bill be drafted to make it clear that multiple Aboriginal cultural
          heritage assessments do not need to be undertaken for the same area where
          over time there may be further works undertaken or change of property
          ownership.

      •   That Aboriginal cultural heritage assessments be made available to local
          government to assist local planning in the future.

2.9       Rate Remissions

The proposals allow for the remittance of rates payable in respect of the land only if
the rating authority and/or the Minister administering the legislation under the which
the rating authority is constituted agree. Local government does not agree that the
Minister for Local Government should have the power to agree to not requiring rate
payments due to a particular council without its agreement.

Recommended improvement:

      •   That s174(5)(b) be deleted, so that rate remittance can only occur with the
          agreement of the rating authority.




16                                         Proposed Aboriginal Heritage Bill – MAV Submission
2.10     Aboriginal Cultural Heritage Agreements

The proposal to encourage partnerships around Aboriginal cultural heritage
management under State legislation will offer potential for local government,
particularly for land overseen by local government committees of management, such
as Crown land. The MAV also notes that the Commonwealth and Native Title
Tribunal provide expertise and guidance for land use agreements developed by
Aboriginal communities and other parties, and it may be worth the State Government
considering similar supports for agreements made under the proposed State
legislation.

Recommended improvement:

     •   The State Government to provide assistance, possibly through the
         Department of Sustainability and Environment which has responsibility for
         Crown land, for the development of local agreements.

2.11     Legislative Review

The full implications of the proposed Bill will only become evident once the provisions
are operational. The MAV welcomes the fact that the Bill currently requires a review
of the operation of the Act to be undertaken, however it is concerned that the
proposed period of five years is too long. If the proposals are not enacted until end
2006, it could be 2011 before a review is undertaken. There will be numerous
planning applications requiring planning permits in this time. Given the considerable
potential for the proposed system to result in unintended consequences on the
planning system, the MAV urges the State Government to consider an earlier period
for review, such as three years after enactment.

The MAV also recommends that the review be high-level, including all parties with a
report to Cabinet being required.

Recommended improvement:

     •   That the period of review of the legislation be undertaken after three years,
         and that the review be high-level, including all parties with a report to Cabinet
         being required.



3.       Conclusion

Local Government, through its strong community links and local representation, is
ideally placed to provide leadership in strengthening relationships between non-
Indigenous and Indigenous Australians. Councils can also encourage greater unity,
knowledge and respect for the original occupants of the land by developing
partnership opportunities with Aboriginal and Torres Strait Islander communities.
Councils are working towards the achievement of this goal through their
commitment and support for the promotion of reconciliation, participation in important
Indigenous events and the development of Indigenous policies and Statements of
Commitment.

The MAV has provided the State Government with a number of recommendations
about how Aboriginal cultural heritage can be improved with greater cooperation and
partnership with local government, and urges it to give these full consideration.


Proposed Aboriginal Heritage Bill – MAV Submission                       17
Attachment 1: History of Heritage Protection in Victoria



1950s and 60s

•    The National Trust actively campaigning to conserve heritage
•    “Slum reclamation” programs in the inner city areas of Prahran, Carlton,
     Fitzroy/Collingwood, Flemington and South Melbourne, and significant ‘six-pack’
     flat development

1960s and 70s

•    Gentrification of the inner city suburbs, displacing traditional longer-term
     residents who were generally working class and migrant populations.
•    Rising property values, alterations to inner-city buildings and redevelopment.

1970s

•    Resident action groups fighting to preserve historic character of their inner
     suburbs.
•    Trade unions put green bans on historic sites marked for demolition and
     development.

Legislation in Victoria

•    Historic Buildings Preservation Act 1974
     Victoria was the first state to enact legislation to protect historic buildings. It
     established the Historic Buildings Preservation Council (HBPC), the Historic
     Buildings Register and the Government Buildings Register for government-
     owned buildings of historic importance.

•    Historic Buildings Act 1981
     This Act replaced the HBPC with the Historic Buildings Council.

•    Victorian Heritage Act 1995
     This Act replaced the Historic Buildings Council with the Heritage Council of
     Victoria.




18                                          Proposed Aboriginal Heritage Bill – MAV Submission
Attachment 2: Funding Available from the State Government
to Support Local Government Heritage Planning
CURRENT FUNDING:

The State Government provides funding for the operation of Heritage Victoria each year. In
addition it also allocated $12.5 million over four years for the Creating Better Places program.
This is a new grants program that supports Melbourne 2030 initiatives by funding both urban
improvement projects and heritage conservation projects in:
         (a) metropolitan Melbourne; and
         (b) networked regional cities and towns identified in Melbourne 2030.

The government has allocated an additional $1 million for the 2005-06 financial year, for
'Heritage Grants - Public Land' to provide further grants for the conservation of heritage
places located on public land throughout Victoria.

These grants provide opportunities for the State Government to work in partnership with
councils and communities to create more vital, attractive, sustainable and safe activity
centres, and to protect heritage assets across Victoria for future generations.

For further information, visit website: www.dse.vic.gov.au/planning/cbp

BETTER DECISIONS FASTER INITIATIVES (statewide)
$3.1m over 3 years to improve the planning system and reduce problems such as long
timeframes, poor quality applications and policy confusion that cause frustration and add to
development costs.

PREVIOUS FUNDING PROGRAMS:

PRIDE OF PLACE PROGRAM (Statewide)
Pride of Place was the State Government's urban design grants program, operating since
1999. Grants were available for:
•    Urban design frameworks
•    Urban design advice
•    Design development and capital works recommended in urban design frameworks
     (DDCW).

Pride of Place grants enable councils to plan strategically with their communities. The
program encourages excellence in urban design, builds on local character and heritage,
attracts more visitation and investment, and contributes to local pride.

$7.6 million funding was provided for the 2002-2004 program. This program followed $9.0
million for the period 1999-2002.

LOCAL GOVERNMENT ASSISTANCE FUND (metropolitan) 2003/4
A $5.6 million fund to provide Local Government with resources to implement Melbourne
2030 by providing grants for priority strategic planning work, generally around activity centres
comprising:

•     Base Grants ($3.1m) $100,000 over 3 years to all metropolitan local governments upon
      approval of a work program.
•     Targeted Grants ($2.5m) - recognise that certain councils will experience a higher
      workload and need more support to implement Melbourne 2030.




Proposed Aboriginal Heritage Bill – MAV Submission                            19

				
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