Statutory Requirements
Aboriginal Sites
The following is a summary of the Victorian Cultural Heritage Legislation as provided by Aboriginal Victoria.
Victoria has both State and Commonwealth legislation providing protection for Aboriginal cultural heritage. With the exception of human remains interred after the year 1843, the State Archaeological and Aboriginal Relics Preservation Act 1972 provides blanket protection for all material relating to the past Aboriginal occupation of Australia, both before and after European occupation. This includes individual artefacts, scatters of stone tools, rock art sites, ancient camp sites, human burials, trees with slabs of bark removed (for the manufacture of canoes, shelters) and ruins and archaeological deposits associated with Aboriginal missions or reserves. The Act also establishes administrative procedures for archaeological investigations and the mandatory reporting of the discovery of Aboriginal sites. Aboriginal Victoria administers the Archaeological and Aboriginal Relics Preservation Relics Act 1972.
In 1987, Part 11A of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was introduced by the Commonwealth Government to provide protection for Aboriginal cultural property in Victoria. Immediately after enactment, the Commonwealth delegated the powers and responsibilities set out in Part 11A to the Victorian Minister Responsible for Aboriginal Affairs. The legislation is administered on a day-to-day basis by Aboriginal Victoria.
Whereas the State Act provides legal protection for all the physical evidence of past Aboriginal occupation, the Commonwealth Act deals with Aboriginal cultural property in a wider sense. Such cultural property includes places, objects and folklore that "are of particular significance to Aboriginals in accordance with Aboriginal tradition". Again, there is no cut-off date and the Act may apply to contemporary Aboriginal cultural property as well as ancient sites. The Commonwealth Act takes precedence over State cultural heritage legislation where there is conflict. In most cases, Aboriginal archaeological sites registered under the State Act will also be Aboriginal places subject to the provisions of the Commonwealth Act.
The Commonwealth Act prohibits anyone from defacing, damaging, interfering with or endangering an Aboriginal place unless the prior consent of the local Aboriginal community has been obtained in writing. If no reply from an Aboriginal community is received to any permit application within 30 days, then an application for a permit may be made to the State Minister Responsible for Aboriginal Affairs. This is provided for under Section 21U(5-6) of the 1987 Act. The Schedule to the Act lists local Aboriginal communities and each community's area is defined in the Regulations so the whole of Victoria is covered.
Any applications to disturb, destroy, interfere with or endanger an Aboriginal place, object or archaeological site should be made to:
- The Administrator
Wurundjeri Tribe Land Compensation and Cultural Heritage Council Inc.
03 9416 2905
Information on general enquiries and applications to excavate or disturb an Aboriginal archaeological site for purposes of archaeological fieldwork can be found on Aboriginal Victoria's website.
Independent Review of Report
It should be noted that archaeological reports relating to Aboriginal archaeological sites, including the Heritage Services Branch, Aboriginal Victoria and the relevant Aboriginal communities, will independently review sites/places and the recommendations contained therein. Although the findings of a consultant's report will be taken into consideration, recommendations by an archaeological consultant for actions in relation to the management of a site should not be taken to imply automatic approval of those actions by Aboriginal Victoria or the relevant Aboriginal communities.
Native Title Issues
With the introduction of the Native Title Act 1993, the acknowledgement of indigenous ownership of land was legislated, and since this date native title claims on un-alienated Crown Land have been lodged initially with the National Native Title Tribunal, and more recently to the Federal Court. Under this Act, all freehold and Crown Lease land is exempt from any future claim (unless leasehold reverts to the Crown). Un-alienated Crown Land that potentially may be subject to claim includes all forms of water (to the low water mark) air above and subsoil below, and all land in which native title has not been extinguished under the Act. Establishing native title within any area requires many conditions to be met. Essentially, claimants must be able to show the area claimed has been continually occupied or in which direct links (physical, spiritual, traditional) have been maintained.
The consultant made a search of the National Native Title Tribunal for any claims that have been lodged that include the present study area. There were no current claims listed with the Shire of Monash and no determinations or Indigenous Land Use Agreements have been made.
It must be noted that if no entry of the study area exists on the register or Schedule, this does not indicate that native title does not exist in relation to the study area. Rather, it indicates only that as of the search date the Tribunal has not received any native title claims which cover the study area; and that no determinations of native title have been made that include a particular area. This search does not constitute a comprehensive assessment regarding the status of lodged claims. The proponent will require further research by appropriate specialists to clarify the implications of lodged and future native title claims.
In relation to cultural heritage matters, the State and Commonwealth Acts outline in 7.1 take precedence to native title claimant issues.