Appendix 3: CHMP role demarcation

Participants in the CHMP process need to be mindful of their own powers, responsibilities, expertise and rights and those of others. RAPs have the power to approve or refuse CHMPs; HAs have the duty to provide Sponsors with their own best possible advice and information; and Sponsors are entitled to expect high quality work within reasonable costs and timelines but factor in the possibility that significant Aboriginal cultural heritage may affect delivery.

Background

DPC and these Guidelines promote active and good faith cooperation and collaboration between all parties in the CHMP system.

Section CHMP procedures of the Guidelines describes various points at which agreements between HAs and RAPs should be negotiated and mutually approved. The difference from current practice encouraged by these Guidelines is that such cooperation and agreement-making should be made explicit in the CHMP.

By outlining the different roles of each party DPC is not intending to discourage collaborative CHMP work. DPC is responding to current concerns and disagreements caused by confusion and misunderstanding about statutory and professional roles. We believe clarifying these roles will help avert such confusion and disagreements.

The Act intentionally demarcates powers and roles for RAPs and HAs in the CHMP system. In several cases, this is done to protect parties from the perception of, or actual, conflict influencing statutory decisions.

These Guidelines do not seek to reduce the role of RAPs in the CHMP process. They clarify existing roles as written in the Act.

It is critical to remember that section 58 of the Act provides the HA with the statutory role of assisting a Sponsor prepare a CHMP. This is intentional as it may give rise to conflict between the RAP’s role as decision maker and the RAP’s role as participant in the assessment.

Section 59 states the RAP must use reasonable efforts to cooperate with the Sponsor in the preparation of the CHMP. Section 60 states the RAP may consult with the Sponsor in relation to the CHMP assessment and conditions, and participate in the conduct of the assessment.

Section 148(d) provides RAPs the statutory function of evaluating CHMPs for approval or refusal.

Section 148(fa) provides RAPs the statutory function of providing general heritage advice.

The Act does not ascribe RAPs a role, other than co-operation, in preparing CHMPs. This is the role of the Sponsor with the assistance of the HA.

But it should be remembered the Act describes the minimum requirement. RAPs have agency in determining what advice they provide to guide the CHMP process, and in making final decisions, and Sponsors and HAs are free to ask RAPs to go beyond what the Act states as minimum.

RAPs have the right to be fully informed about the cultural heritage to be impacted and have the power to make decisions about if or how their heritage is to be impacted. RAPs, as the parties responsible for determining Aboriginal places, their significance and adequate CHMP conditions, have the role of informing the Sponsor, either directly or through the HA, about these matters.

HAs have the primary role of assisting the Sponsor to prepare the CHMP, usually providing expert advice to the Sponsor about appropriate CHMP research design and method, directing and conducting the fieldwork, and producing the CHMP report according to the Regulations. HAs, as part of their statutory role of assisting prepare a CHMP under section 58, are also able to engage with and advise the RAP about the cultural heritage in the activity area.

Good faith

Good faith is discussed in Appendix 9, principle 6.

Heritage Advisor conduct

DPC has separately published a Conduct for Heritage Advisors. HA members of the Australian Association of Consulting Archaeologists (AACAI) have both a Code of Ethics and a complaints procedure. Members of the Australian Archaeological Association (AAA) are also bound by a Code of Ethics.

Other relevant professionals who may be contracted by the Sponsor, such as anthropologists and historians, will be covered by their own professional codes of ethics.

Critical CHMP decision points and who is responsible

The Act and Regulations already prescribe minimum standards for CHMPs. These Guidelines also step out the CHMP process at Steps 1-12 and in Figure 1.

Here, Guidelines focus on assisting HAs and RAPs negotiate through the different decision points by describing who has the primary responsibility for making decisions.

Whether to advise the Sponsor to proceed from a desktop to a standard assessment
Whether to advise the Sponsor to proceed from a standard to complex assessment
The method to be used for each of the three types of assessment. Includes:
Salvage method, if salvage is a condition of a CHMP
Advice for the Sponsor throughout the CHMP process
Whether a dispute should be escalated for assistance / dispute resolution.
Determining and discussing with the RAP the CHMP research design at desktop, plan for undertaking a standard assessment and plan for undertaking a complex assessment stages
Preparing and discussing with the RAP the desktop assessment
Negotiating, preparing and discussing with the RAP any CHMP Conduct Agreements and Indigenous Data Agreements (which do not need to be documented in the CHMP) where these have not already been prepared
Preparing and discussing with the RAP the plan for undertaking a standard assessment
Determining if physical Aboriginal cultural heritage has the necessary diagnostic archaeological characteristics of Aboriginal cultural heritage
Determining and discussing with the RAP the method to be used to record and research the Aboriginal cultural heritage
Defining and discussing with the RAP the boundaries of Aboriginal places
Completing and submitting to the VAHR relevant records
Preparing and discussing with the RAP the plan for undertaking a complex assessment
Preparing and discussing with the RAP CHMP conditions
Ensuring statements of cultural significance are obtained and documented for each Aboriginal place in the activity area
Advising the Sponsor and discussing with the RAP the need or otherwise for post-CHMP salvage
Preparing and discussing with the RAP the salvage strategy
Preparing and submitting salvage reports
Consulting with the RAP as appropriate.

While the HA has the responsibility to advise on the final decision on items A-D, the RAP must be consulted about these decisions and availed the opportunity to provide advice.

DPC is available to discuss any disagreements about these decisions.

In preparation of the CHMP, RAPs are responsible for

The statement of sensitivity for the activity area to be submitted with the response to the NoI
Relevant cultural information to be shared and published in the CHMP (consistent with the Indigenous Data Agreement)
Relevant information from any CVA to be added to the CHMP
How Aboriginal intangible values relating to a place and cultural information is to be treated in the CHMP
The method and delivery of CHMP inductions
With the HA, CHMP Conduct Agreements, if required, at standard and complex assessment stages and for salvage. These do not need to be included in the CHMP.
Cultural heritage significance statements for each example of Aboriginal cultural heritage found in the activity area
How physical cultural material should be treated post collection in the plan for undertaking a standard assessment, post excavation in the plan for undertaking a complex assessment, and post salvage in the salvage strategy
What advice it needs to provide to the HA to assist the desktop, standard and complex assessment and any items listed at CHMP procedures, Steps 1-12.
Whether proposed CHMP conditions are adequate to its satisfaction [in accordance with section 63(4) of the Act]
Whether post-CHMP salvage is to be a condition of a CHMP, after considering HA advice
Whether a CHMP should be approved or refused
Whether a dispute should be escalated for assistance or dispute resolution.

Sponsors are responsible for:

Commencing a CHMP
Determining the activity area and activity description
Engaging directly with RAPs early
Contracting relevant HA expertise
Determining who needs to be inducted
Deciding whether to accept HA advice to proceed through the CHMP steps
Deciding whether to agree to CHMP conditions proposed by the HA
Complying with CHMP conditions
Deciding whether a dispute during the CHMP should be escalated for dispute resolution
Deciding whether to refer a CHMP refusal to VCAT.

DPC is responsible for:

Assisting everyone through the CHMP process
Maintaining the statutory system to ensure the objectives of the Act are met
Providing guidelines, practice notes and other guidance material
Maintaining the VAHR to ensure high quality information is available to HAs and RAPs
Providing dispute resolution assistance as indicated in these Guidelines
Being a model evaluator and decision maker in circumstances where a RAP is not the evaluator
Consulting and engaging with Traditional Owners, HAs and Sponsors about CHMPs when it is the decision maker
Maintaining the list of HAs.

Example scenario 1:

After conducting a standard assessment, no Aboriginal cultural heritage is found within an activity area. The HA recommends to the Sponsor that the CHMP does not need to go beyond the standard assessment level.

However, at the standard assessment meeting, the RAP notes that on similar landforms within a couple of kilometres of the activity area, subsurface and high density stratified cultural material has been commonly found when testing has occurred. It provides examples. It further notes the surface visibility was low during the survey. The RAP disagrees with the HA and suggests the HA advise the Sponsor that a complex assessment is needed involving targeted subsurface assessment governed by a robust predictive model.

The HA and Sponsor review the evidence presented by the RAP and agree. The advice the HA provides to the Sponsor is changed and preparation for a complex assessment begins.

Alternatively, the Sponsor disagrees and either a) notifies DPC, where the RAP evidence will be tested and considered and a way forward recommended; or b) proceeds to lodge the CHMP, despite the RAP’s opinion. The RAP refuses to approve the CHMP because it is not satisfied it can decide about whether section 61 matters are adequate. The Sponsor is then free to lodge a dispute at VCAT, where the RAP decision will be reviewed.

Example scenario 2:

However, at the standard assessment meeting, the RAP demands subsurface testing be done because it has a blanket policy of subsurface testing where no heritage is found on the surface, just in case something is found.

The HA presents evidence demonstrating that heritage is highly unlikely to be found given similar landforms within a couple of kilometres of the activity area which were tested and yielded no additional cultural material, and any unexpected finds can be appropriately dealt with by contingency conditions. Further, the HA points out the blanket policy is not appropriate in this case because it would require unnecessary and costly work.

The RAP accepts the evidence, and the HA recommends to the Sponsor the CHMP be lodged for evaluation at standard stage.

Alternatively, the RAP disagrees and either a) notifies DPC, where the HA evidence will be tested and considered and a way forward recommended; or b) the Sponsor lodges the CHMP despite RAP protest. The RAP refuses to approve the CHMP because it is not satisfied it can decide about whether section 61 matters are adequate. The Sponsor is free to lodge a dispute at VCAT, where the RAP decision will be reviewed.

Heritage Advisors and RAP Heritage Experts

Some RAPs employ qualified heritage professionals on staff to provide archaeological advice to the RAP, Sponsor and HA during a CHMP. These personnel are also governed by their relevant professional codes of ethics, and in most cases will also be governed by DPC’s Code. RAP heritage experts may be a useful resource both for HAs and RAPs to provide important advice about Aboriginal cultural heritage, research design and appropriate CHMP conditions. Ideally, all RAPs should either employ such experts directly or have access to them as needed. RAPs are also able to ask DPC heritage officers for assistance.

However, it is important to remember RAP heritage experts are the RAP, not the HA, for the purposes of the Act and these Guidelines. The above role demarcation therefore applies equally to RAP heritage experts – while they may participate in the conduct of assessments and advise Sponsors about the development of a CHMP, they have no statutory role, other than co-operation, in preparing or drafting a CHMP.

Updated 30 June 2026