Step 1 – Pre-preparation

Sponsors

Determine if a CHMP is required for a project.

Self-assessment

In most cases, the decision about whether a CHMP is required is clear and is essentially made for Sponsors by the Regulations.

Note also that CHMPs are required when the Minister directs one be prepared (section 48), when an Environment Effects Statement is to be prepared (section 49), and when an impact management plan or comprehensive impact statement is required (section 49A)

As an initial step, consult the Mapping platform for strategic planning (the online mapping platform for Strategic Aboriginal Heritage Assessments [SAHAs]). This will alert Sponsors to important cultural heritage landscapes and values and indicate likely impacts.

Key Steps

1. Determine if your activity is an exempt activity. Look at the Regulations Part 2, Division 2. If your activity is described there, it is exempt and you do not need a CHMP.
2. If your activity is not described in Part 2, Division 2, determine if your activity is planned for an area which includes an area of cultural heritage sensitivity. This is defined in Part 2, Division 3 of the Regulations. Look at the mapping resources available on Aboriginal Cultural Heritage Register and Information System (ACHRIS) website. Zoom in or type your address and check. Double check with the list of areas in Division 3 of the Regulations. Remember the list in the Regulations is definitive, the mapping is indicative.
3. If your activity is in an area described in Part 2, Division 3 of the Regulations, determine if it is a listed high impact activity. Look at the list in Part 2, Division 5. If your activity is listed here, then it is a high impact activity.

If your activity is described in both Part 2, Divisions 3 and 5, then you must have a CHMP approved before your activity can commence.

If your activity is not described in either Divisions 3 or 5, or it is described in Part 2, Division 2, you do not need to do a CHMP.

Sponsors can ask the relevant RAP or RAPs at this stage for their advice – and some of the assessment processes will engage RAP expertise anyway. DPC may assist but is unable to provide a definitive answer outside the preliminary Aboriginal heritage test (PAHT) process.

Sponsors may also choose to do a CHMP voluntarily. Sponsors might do this to obtain certainty for projects when a CHMP is not required by the Regulations, but an area is known as being sensitive for Aboriginal intangible values. Sponsors may also choose to pursue a voluntary CHMP where their project has a very low risk tolerance, as part of building good relations with a RAP, or building a wider social licence to operate. Note, while doing a CHMP in these circumstances is voluntary, all CHMP conditions are mandatory.

Preliminary Aboriginal heritage test (PAHT)

If a Sponsor is still not sure whether an activity requires a CHMP, they can choose to submit a PAHT to obtain the Department’s certification as to whether the Sponsor’s assessment that a CHMP is either required or not required is correct. This framework is set out in Part 4, Division 2A of the Act.

PAHTs are essentially statutory due diligence tests. They may involve the same level of research normally undertaken for a due diligence assessment, but the PAHT comes with a statutory certainty not available for due diligence assessments.

PAHTs are certified by DPC, and are regulated, with set fees, steps and forms to complete and lodge. A decision period of 21 days applies.

A PAHT requires a Victorian Aboriginal Heritage Register (VAHR) search, which a Sponsor can only access for their land, but which a HA or a RAP can access more broadly for preparing such assessments. DPC advises engaging a HA (some RAPs also offer this service) to do a PAHT. While the Act allows a Sponsor to lodge a PAHT themselves, this is not generally advisable. Sponsors may also consult with the relevant RAP or RAPs to assist complete a PAHT. Sponsors can find out more about PAHT’s on the First Peoples State Relations website(opens in a new window).

Due diligence assessment

DPC does not recommend due diligence assessments not required by the Act.

Sponsors may engage a HA to conduct a due diligence assessment, however, due diligence assessments are simply advisory. Due diligence assessments carry no regulatory weight, do not follow any specified process, and only serve the purpose requested. They are essentially an informal approach to early heritage assessment. They may be useful as a scoping resource as part of an early environmental due diligence assessment, but may also entail legal risks.

There are no regulated fees or timelines associated with due diligence assessments, as they are not a process regulated by the Act. However, if a survey for Aboriginal cultural heritage is a component of a due diligence assessment, section 34A (which sets out requirements for Aboriginal heritage surveys) must be followed.

When engaging a HA to undertake a due diligence assessment, it is important to clearly define its scope, as additional obligations outside the CHMP process (such as section 34A compliance) may apply.

What should Sponsors do when they know they will be preparing a CHMP?

The bigger the proposal, the earlier Sponsors should engage with RAPs and a HA.

Large activities

Sponsors thinking about larger activities such as large-scale residential subdivision development, major infrastructure development, energy development or natural resource development should contact all the relevant RAPs in the area, and/or DPC if no RAP is appointed for the activity area, at the earliest stage of planning a proposal, to organise a pre-application meeting. For residential developers, infrastructure, energy and natural resource projects, this will be the conceptual and feasibility stages. Engagement is strongly recommended prior to the planning or other permit application and approval stage. While doing feasibility, site analysis, initial design and project pre-application meetings with local government, a pre-application meeting with the RAP is advisable. It may be desirable to engage a HA to assist – noting one may have already been engaged to assist with determining whether a CHMP is needed – but this is not mandatory.

You may also do a RAP pre-application meeting before you determine whether you will do a CHMP.

At the RAP pre-application meeting:

• Describe your intentions and concept
• Outline what you hope the proposal will do for the broader community and for the Aboriginal community in particular

Ask the RAP if there are any important cultural heritage landscapes, major concerns with the concept itself or the likely physical impact on the landscape or other impacts on cultural values

Refer to the Mapping platform for strategic planning (the online mapping platform for SAHAs) and discuss relevant information from any SAHA

• Ask the RAP whether they think the project is likely to require complicated heritage assessment
• Ask the RAP about their capacity to engage and respond, your expectations and wishes, and how you might assist
• Think about harm minimisation strategies now – before the CHMP process begins.

Small activities

For smaller projects, such as constructing three or more units on a single block or a single industrial development, Sponsors who know they are required to do a CHMP can engage the RAP later, but ideally prior to the planning permit application being submitted. You can also contract a HA to conduct this engagement for you.

What to expect during a CHMP?

Sponsors should expect regular contact with their HA and invitations to join RAP project meetings along the way. DPC encourages Sponsors to attend as many meetings with the RAP as possible. The steps outlined here and in Figure 2, should provide Sponsors an indication of what to expect and when.

RAPs

Often the first time a RAP will be aware of an impending project will be receipt of the Notice of Intent to prepare a CHMP under section 54 of the Act. This is often very late, particularly for larger projects, for the RAP to be effectively engaged and for complex heritage matters to be revealed. A Notice of Intent should ideally be submitted shortly after it becomes clear to a Sponsor that a CHMP will be required, given section 54(2) requires the Notice must be given prior to commencing a CHMP.

RAPs should form formal relationships with their relevant local governments and be ready to accept more questions about proposed developments from local planning authorities. New reforms to the Planning and Environment Act 1987 will alert RAPs to forthcoming development proposals. RAPs will need to use these to plan for potential engagement with Sponsors.

Engage with Sponsors if pre-application meetings are organised. This is the first and best opportunity for the RAP to outline concerns and broad cultural values and important cultural heritage landscapes to the Sponsor and the HA. Even if a CHMP is not eventually required, it will serve to inform the Sponsor about potential impacts.

HAs

HAs will likely not be aware of any proposed activities potentially engaging the Act until they are contacted by a Sponsor, RAP or local government with questions. HAs should advise Sponsors to attend pre-application meetings particularly if proposed projects are large or complex.