You should try to resolve a dispute informally before using a formal dispute resolution process.
Disputes may occur during the:
- evaluation, and
- the implementation of a Cultural Heritage Management Plan (CHMP).
It is in the best interests of all parties to try and reach a resolution without resorting to the formal dispute resolution processes available within the Aboriginal Heritage Act 2006 (described below).
Disputes during the preparation of a CHMP
Disputes may arise between the Sponsor and a RAP during the preparation of a CHMP. The Sponsor or RAP (or both) may refer a dispute to the Chairperson of the Council for alternative dispute resolution.
Disputes over the evaluation of a CHMP
Disputes may occur over the evaluation between the Sponsor and a RAP, or where more than one RAP has cultural heritage decision-making responsibility for an area.
These disputes may be dealt with by meditation or another form of alternative dispute resolution. The Sponsor or RAP (or both) may refer a dispute to the Chairperson of the Council for alternative dispute resolution.
Formal dispute resolution processes
Alternative Dispute Resolution
The Alternative Dispute Resolution (ADR) process is where an independent person such as a mediator or other suitably qualified person helps parties in dispute to reach a resolution.
This can be assisting parties to understand their rights and obligations and facilitate open communication to resolve a dispute.
Within 30 days from a referral, the Chairperson of the Council may arrange for the dispute to be the subject of:
- mediation by a mediator, or
- another appropriate form of ADR by a suitably qualified person.
Mediation or other ADR must take place within 30 days after the date on which the dispute is referred to the Chairperson of the Council. The costs of ADR are to be paid by the parties in the proportions the parties agree among themselves, or if the parties cannot agree, in equal shares.
Victorian Civil and Administrative Tribunal (VCAT)
A Sponsor may apply to VCAT to hear and determine disputes about the approval of a Cultural Heritage Management Plan (CHMP).
An application to VCAT must be made within 28 days after the later of:
- the day the applicant is notified of the decision not to approve the CHMP,
- if the applicant has requested a statement of reasons for the decision from the RAP or the Secretary, the day on which the statement of reasons is given to the applicant or is informed a statement of reasons will not be given.
In the determination, VCAT must ‘step into the shoes of’ the RAP(s) and/or Secretary and consider the same issues considered by those decision makers.
It must be satisfied the CHMP makes sufficient provision for the activity to be managed:
- to avoid harm to Aboriginal cultural heritage in the activity area
- to minimise harm to Aboriginal cultural heritage when harm cannot be reasonably avoided.
VCAT has the power to:
- approve the CHMP
- approve the CHMP with amendments to its conditions
- refuse to approve the CHMP.
Where only the Secretary is evaluating the CHMP, there are other mechanisms to address disputes, such as audits.
Where the Council is evaluating the CHMP, there is no provision for a Sponsor to apply to VCAT to review a decision.
Disputes over the implementation of a CHMP
If disputes arise following the approval of a CHMP, the resolution procedure detailed in the contingency plan in a CHMP (s.61(d)) must be followed. This will vary across CHMPs.