Aboriginal Cultural Heritage Act 2006
The Aboriginal Heritage Act’s (AHA) 2006 (Vic) is the main piece of legislation governing cultural heritage in Victoria. Its stated purpose is:
…to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria’ and to do so in ‘ways that are based on respect for Aboriginal knowledge and cultural and traditional practices’.
In 2016, amendments were made to AHA to recognise Aboriginal intangible heritage and introduce the Aboriginal Cultural Heritage Register, a system used to record intangible heritage. It also became an offence to use registered intangible heritage for commercial use without the consent of the registered owner. This inclusion of intangible cultural heritage is significant, with Victoria currently the only jurisdiction in Australia with legislation providing for intangible cultural heritage protection. Nonetheless, gaps remain within these processes that allow land developments to continue destroying cultural heritage sites without significant penalties or adequate consultation.
The Aboriginal Heritage Act 2006 (Vic) defines Aboriginal intangible cultural heritage in section 79B(1) and (2) as:
- Any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.
- Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1).
One obvious limitation with the definition of intangible heritage in the AHA is that it is separated from the definition of cultural heritage. This is inconsistent with the worldview of First Nations peoples for whom all heritage is linked, not just to particular lands and waters, but to First Nations spirituality and identity.
Moreover, with the current working definition of intangible cultural heritage, Traditional Owners are constantly tasked with proving the intangible value of culturally significant sites to corporate bodies who value tangible outcomes such as money or land development. Since the amendments, there have been many projects, both State and private, that have caused damage and destruction to cultural heritage sites.
In many ways, the Act is used after the horse has bolted … If there was a suitable disincentive for damage, such as financial or effective prosecution measures, much damage would not occur.
Taungurung Elder and VAHC Chairperson Mick Harding
Traditional Owner Settlement Act 2010
The Traditional Owner Settlement Act 2010 (TOSA) provides for an out-of-court settlement of native title. The Act allows the government to recognise Traditional Owners and certain rights to Crown land through an alternate pathway outside the usually lengthy and costly court processes under the Native Title Act 1993 (Cth). In return for the settlement, Traditional Owners must withdraw any native title claim (under the Native Title Act) and not make any future claims through that process.
The settlement package can include:
- A Recognition and Settlement Agreement
- A Land Agreement
- A Land Use Activity Agreement
- A Funding Agreement
- A Natural Resource Agreement
Through TOSA, Traditional Owners can develop and enter into plans with Parks Victoria to appropriately manage parks and waters. The Act can also help empower the revitalisation and resurgence of cultural practices that enable Traditional Owners to directly care for Country, including fire management and ranger programs.
TOSA represents a small shift toward greater respect for First Nations self-determination, and an alternative to some of the limitations of native title to deliver justice and greater cultural heritage protection in Victoria. However, much more still has to be done to ensure First Nations people have the right to manage and control their cultural heritage. For example, the current overlap between the AHA and TOSA could cause confusion and administrative burdens on Traditional Owners.