Physical places and objects are critical for understanding the human past. However, it is the relationship between these places and Traditional Owners which make these places significant in the first place. Where known, and subject to Traditional Owner permissions, cultural heritage management plans should document, integrate and consider the cultural elements which make places significant and factor these into rationales for management conditions.
These Guidelines are issued consistent with sections 1(a) and (c); 3(a) and (k) of the Act.
Note: Separate Guidelines will be developed with RAPs relating to the gathering and use of Aboriginal intangible heritage (AIH) (as defined by section 79B of the Act), consistent with guidelines already issued relating to data collection, storage options, safety, best practices, free, prior and informed consent uses and data sovereignty for strategic Aboriginal heritage assessments and other heritage projects. Each RAP will likely have different needs. In the meantime, these Guidelines should be followed.
Background
The Aboriginal cultural heritage management and protection system in Victoria has prioritised protecting the physical remains of Aboriginal activity over intangible values for over 50 years. This is largely due the influence of archaeology on early legislation, the emphasis of early archaeology and cultural heritage management practice on portable objects, collecting, analysis and curation, and the more obvious damage done to physical Aboriginal places by development.
In recent years the emphasis on material culture in cultural heritage management has extended to more explicitly include the need to protect cultural values and knowledge – that is, intangible heritage values - associated with Aboriginal places and material culture. However, this extension is not reflected adequately in CHMP regulations as they stand, or in common practice.
As a result, and given intangible values are often a component of cultural heritage significance, CHMPs – particularly over large areas – are often failing to fully consider the cultural heritage significance of the Aboriginal places – particularly landscapes and entire activity areas – they seek to protect and manage. This is contrary to the intent of the Act and the CHMP system.
Why consider Aboriginal intangible values?
Cultural heritage significance is intrinsic to the definition of an Aboriginal place. Cultural heritage significance includes Aboriginal intangible values relating to a place, which can also be harmed by a physical activity – because the activity physically impacts the place associated with Aboriginal intangible values. Aboriginal intangible values associated with cultural landscapes are more readily identified and protected by the CHMP process (compared with language, art or unique cultural knowledge, for example) mainly because it deals with physical places and harm. An example of this is the destruction of Aboriginal places where rituals are known to have occurred. These places may not contain physical evidence of that use but may be known within relevant Traditional Owner groups as being ritual places. A proposed activity may destroy these places, causing physical harm.
However, activities may also cause intangible harm to Aboriginal intangible values relating to a place. The Aboriginal intangible values of an Aboriginal place which relies on water flows to maintain women’s wellbeing, for example, could be damaged by a proposed development for a dam. The dam may not physically harm Aboriginal cultural heritage, but the prevention of the action of water flowing may have a direct impact on the health of the people of that land because according to tradition, it is the flowing of the water itself which sustains women’s health. In this example, the harm caused would not be physical (to the landscape), but intangible.
It is critical for CHMPs to consider and mitigate the impact of activities on Aboriginal intangible values relating to a place, where these values are identified as a relevant matter. First, because understanding Aboriginal intangible values relating to a place is often necessary to fully understand the cultural heritage significance of a place and therefore to determine the adequacy of CHMP conditions associated with that place. Second, because failure to do so interferes with Aboriginal rights, and has and will continue to lead to costly and lengthy legal disputes and appeals for Commonwealth intervention.
Given cultural heritage significance is recognised as integral to determining the adequacy of CHMP conditions it is imperative Aboriginal intangible values relating to a place are documented in CHMPs where necessary and appropriate as justification for individual management conditions.
Cultural Values Assessments and CHMPs
Cultural Values Assessments (CVAs) have been introduced to capture considerations beyond the CHMP process conventional focus on physical heritage and discrete Aboriginal places. However, CVAs are voluntary, unregulated, often not aligned with the purpose of CHMPs, and rarely incorporated into associated CHMPs.
CVAs cannot be required by RAPs as a separate study where a CHMP is planned for an activity area. Where there are likely to be cultural values associated with an activity area, the assessment of cultural values normally undertaken within a CVA should form part of the CHMP, either as part of the desktop or standard assessment. Conversely, CVAs should be prepared with incorporation into future CHMPs in mind for Aboriginal intangible values relating to cultural landscapes and Aboriginal places.
The results of CVAs should be integrated into CHMPs where appropriate because CHMPs are supposed to interrogate the cultural heritage significance of Aboriginal places and activity areas – which includes Aboriginal intangible values relating to a place and those associated with cultural landscapes.
Aboriginal intangible values relating to a place, cultural landscapes and the Regulations
The Act recognises areas without physical Aboriginal cultural heritage, but with cultural heritage significance, as Aboriginal places (see section 5). These places are already required to be registered on the VAHR.
The definition of “cultural heritage significance” in section 4 of the Act – including “archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and significance in accordance with Aboriginal tradition” – is broad, and it is particularly important to ensure that the full extent of values is properly accounted for in understanding the Aboriginal cultural heritage of an activity area.
This means that CHMPs may be inadequate if they do not seek to understand the full cultural heritage significance of Aboriginal cultural heritage and explicitly include that understanding in devising their conditions.
CHMPs which fail to consider these values may be more likely to be the subject of legal disputes and Commonwealth intervention. It is notable that in recent years, all matters in Victoria which ended up in the courts, or were subject to Commonwealth applications, were related to intangible values and the failure of cultural heritage management decisions to adequately interrogate and consider Aboriginal intangible values relating to a place or to an activity area.
While the Regulations require the collection of information relating to the past use of the landscape, the collection and review of oral history is optional in the Regulations [see regulations 61(2); 63(2); and 65(2)]. HAs should discuss with RAPs and Traditional Owners if there are Aboriginal intangible values relating to a place present and whether oral history collection is necessary as part of the preparation of the CHMP. This collection and review may be done at any stage of the preparation of a CHMP, although as discussed, is more appropriate at the standard or complex assessment phases (Steps 6 and 9).
The intent of these Guidelines is consistent with the findings of the Supreme Court of Victoria, that a consideration of cultural heritage significance, in addition and separately to Aboriginal cultural heritage – is an integral part of considering the adequacy of CHMP conditions.
How to gather information about Aboriginal intangible values relating to a place
Traditional Owners and qualified anthropologists may be able to gather information about Aboriginal intangible values relating to a place from relevant and amenable traditional knowledge holders; however, such expertise may not be readily available.
Example 1: Aboriginal intangible values relating to an Aboriginal cultural landscape
In this example, a coastal area is to be physically impacted by pipeline development. No archaeological material exists in the area, however during the course of CHMP preparation it becomes evident that there are significant and enduring stories associated with Ancestral spiritual figures in the cultural tradition of the Traditional Owners attached to the landscape and features therein.
Schedule 2, item 11 of the Regulations currently requires CHMPs to include a “statement of the cultural heritage significance of that Aboriginal cultural heritage”. However, the lack of a mandatory requirement to obtain oral testimony, and the consequent lack of relevant expertise, means that important information about the cultural heritage significance of that Aboriginal cultural landscape may not be gathered. This will then be neglected when considering adequate management conditions.
The RAP will likely then refuse to approve the CHMP. If an appeal process ends up being heard in the Supreme Court, given precedent, this may impact the outcome of the appeal. This is because the findings in that case clarified that understanding cultural heritage significance – which includes Aboriginal intangible values relating to a place – is critical to forming adequate CHMP conditions
The RAP is also more likely to request Commonwealth intervention in such a case. This course of action remains available via the declaration provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Example 2: Aboriginal intangible values associated with an Aboriginal cultural landscape which is not to be physically harmed by an activity
In this example, the same Aboriginal cultural landscape is not going to be physically impacted by the construction of the pipeline.
However, the pipeline activity area includes a future exclusion zone which extends into the offshore component of the Aboriginal cultural landscape. This will limit the ability for Traditional Owners to observe cultural practices which ensure favourable fishing stock for Traditional Owners. In addition, the offshore section of the pipeline will bisect the culturally significant area, which extends offshore. This interrupts a songline running through the offshore area to a culturally important island, which disrupts the cultural and natural effect of the stories – also related to increasing fish stocks.
Again, the CHMP would be required to include a statement of the cultural heritage significance of the Aboriginal cultural landscape, but the same limitations outlined in Example 1 apply. Added to this is the fact the cultural landscape is not going to be physically impacted by the development (other than the sea bed under the seascape), meaning CHMP conditions will likely ignore the consequent impacts outlined above, instead focusing on the physical impact of the activity.
The likely result would be inadequate CHMP conditions, conflict between Traditional Owners and stakeholders reliant on the pipeline, refusal of the CHMP and potential court action and Commonwealth intervention.
The following steps may be followed when collecting information about Aboriginal intangible values relating to a place:
- Early engagement with RAPs
- Develop an Indigenous Data Agreement, if one has not already been developed, about gathering and treating cultural information consistent with internationally accepted principles relating to Indigenous cultural and intellectual property rights
- Determine who within the RAP or broader Traditional Owner group/s may hold relevant traditional knowledge
- Determine if a discussion about this knowledge is possible
- Determine who will conduct these discussions and record this knowledge, and how. This may be a member or members of the Traditional Owner group, the RAP or a suitably qualified professional anthropologist approved by the Traditional Owner group to conduct this work
- Meet with the informant/s
- Agree with the informant/s how the information will be gathered and treated
- Conduct interviews in accordance with the agreement
- Agree with the informant/s what elements of the information, if any, may be documented in the CHMP.
Secret and prohibited knowledge
It is up to a RAP to determine arrangements with relevant Traditional Owner knowledge holders it represents about if and how knowledge is to be transmitted or communicated outside the Traditional Owner group, including sensitive or prohibited knowledge about cultural heritage significance relating to Aboriginal places in CHMPs. This approach is consistent with section 151(3)(c) of the Act specifically and with the principle of Indigenous self-determination generally.
Some RAPs represent Traditional Owners who already have their own culturally appropriate procedures for gathering and imparting traditional knowledge outside the group. These should be respected and followed by HAs and Sponsors in the CHMP process.
Individual knowledge holders, or in their absence, RAPs, must be solely responsible for determining whether Aboriginal intangible values information, or extracts able to be publicly shared, can be documented in the CHMP.
DPC does not require culturally forbidden information to be shared outside culturally sanctioned individuals. However, if Traditional Owners wish for a particular cultural landscape or other Aboriginal intangible values relating to a place to be protected from development impacts, or harm minimised, a certain level of information will be required to be divulged – enough to at least properly inform CHMP conditions. This may include, for example, an extent plan and individual statements from traditional knowledge holders, or a statement from the RAP, that Aboriginal intangible values relating to a place of cultural heritage significance is known and is related to an area and will be impacted by the proposed activity.
Procedures adopted by RAPs, HAs and associated specialists should have as an objective to limit the amount of information Aboriginal people need to give about significant Aboriginal intangible values relating to a place to that which ensures its protection and avoids or minimises damage or desecration.
It is important to note secret or sensitive information does not need to be documented in the CHMP for it to be relevant to CHMP conditions. General statements may be documented in the CHMP with reasons kept within the Traditional Owner group.
For example: an area including a known ceremonial ground will be impacted by a proposed activity. The CHMP could note the extent of this Aboriginal place and that it is culturally sensitive before documenting appropriate conditions. The RAP would then be in a position to determine if those conditions are adequate to its satisfaction given both the knowledge it holds privately and the information documented in the CHMP. This protects sensitive or prohibited information from unauthorised use.
Traditional knowledge outside of RAP knowledge
DPC is cognisant It is not expected that CHMPs will consider Aboriginal intangible values relating to a place in this circumstance.
In other cases, traditional knowledge may be disputed among Traditional Owners or between Traditional Owners and RAPs. DPC is also aware that relevant traditional knowledge holders may not be affiliated officially with RAPs. In these circumstances, HAs should take all reasonable steps to ensure that relevant traditional knowledge is considered appropriately, including if this means consulting with such traditional knowledge holders. This is consistent with Australian Archaeological Association Code of Ethics clause 2.5, where “communities of concern” may include Traditional Owners who are not officially affiliated with a RAP. Note this does not impact the RAP’s statutory role of determining CHMPs, and it is also consistent with the Act’s purpose at section 1(b) and objective at section 3(b).
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