Public land managers – are you aware of the new Aboriginal cultural heritage land management agreements?

The Aboriginal Heritage Amendment Act 2016 (Vic) (Act) introduces a new form of agreement to minimise the need for numerous permits where public land managers seek to conduct low to medium impact works on public land. These agreements, known as Aboriginal Cultural Heritage Land Management Agreements, can only be entered into by public land managers and registered Aboriginal parties and are aimed at ensuring that Aboriginal cultural heritage is properly managed and protected during land management activities on public land.

So, who can enter into these agreements? The following organisations are defined as public land managers under the Act – committees of management appointed under the Crown Land (Reserves) Act 1978 (Vic), the Secretary of DELWP, a municipal council, Parks Victoria, VicRoads, VicTrack or a water authority.

An agreement must be prepared in accordance with prescribed standards and must include the prescribed conditions (if any). Currently, there are no prescribed standards or conditions.  It is possible that the government will introduce prescribed standards or prescribed conditions in the future. We will update you on this if a prescribed standard or condition is introduced. Nonetheless, the explanatory memorandum for the Act provides some guidance on what the agreement will cover noting that:

“[a]greed conditions, such as payments, heritage management actions and registered Aboriginal party engagement are to be included in these agreements. It is envisaged that these agreements will obviate the need for public land managers to apply for individual cultural heritage permits each time they wish to undertake works of a low to medium impact which will or are likely to affect Aboriginal cultural heritage.”

This suggests that these agreements are aimed at reducing the administrative burden on public land managers and creating a more uniform standard for undertaking low to medium impact works on public land.

These agreements are different to cultural heritage management plans and must not deal with any activity for which a cultural heritage management plan is required.

The introduction of Aboriginal Cultural Heritage Land Management Agreements provides a unique opportunity for public land managers to seek to negotiate a standard form of agreement with each registered Aboriginal party that accurately balances the needs of public land managers with the need to protect aboriginal cultural heritage. We would be happy to assist you with negotiating and preparing a standard form of agreement with a registered Aboriginal party.

The Act also introduces other changes which may indirectly affect public land managers. These changes include:

• providing greater certainty as to when a cultural heritage management plan is required by introducing the Preliminary Aboriginal Heritage Test. This test allows a person to determine whether or not a proposed activity requires a cultural heritage management plan to be prepared
• establishing an Aboriginal Cultural Heritage Fund where all fees and charges collected by government under the Aboriginal Heritage Act will be deposited into the fund for use by the Office of Aboriginal Affairs Victoria in consultation with the Victorian Aboriginal Heritage Council
• allowing intangible heritage to be registered. Intangible heritage includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge which is not known to the public. Once registered, anyone wishing to use that intangible heritage for their own purposes will require a formal agreement with the relevant traditional owner organisation
• increasing the role and functions of Victorian Aboriginal Heritage Council
• introducing a number of new offences.

If you have any questions about the new Aboriginal Cultural Heritage Management Agreements or the Act generally, please contact our office.