Should a dispute arise and the parties wish to engage in dispute resolution processes, parties should consider seeking their own independent legal advice.
There are essentially three broad contexts within which a dispute may arise in the CHMP process.
- During the preparation of the CHMP
- During the evaluation of a CHMP by a RAP
- After the refusal of a CHMP
Disputes occurring during the preparation of a CHMP, or at any of the steps outlined above can arise. There are a range of options Sponsors, RAPs and HAs can consider for assistance.
Where there are disagreements regarding what is required under DPC’s guidelines, practice notes and other guidance, any parties to such disagreement can seek assistance and clarification from DPC in the first instance. DPC regularly assists parties to resolve complex CHMP questions and problems, particularly when HAs or Sponsors question proposed methods or conditions, such as complex assessment intensity or salvage requirements.
Where disputes may be about the conduct of a HA, DPC’s Code of Conduct for Heritage Advisors (the Code) and its complementing complaints process may be able to assist. The online, opt-in Heritage Advisor List that DPC administers a list of all HAs who have opted to sign the Code and gives details HAs provide about their professional memberships. Note also many HAs are members of professional associations which have their own member complaint processes (including Australian Association of Consulting Archaeologists, Professional Historians Association and Australian Anthropological Society). Where there are serious concerns about the professional conduct of a HA who is a member of one of those associations, RAPs or Sponsors should pursue those complaint avenues.
Complaints about the conduct of a RAP may be referred to the Victorian Aboriginal Heritage Council (VAHC), which has its own complaints process.
Disputes relating to the evaluation of a CHMP by a RAP before the RAP has made its decision may fall under the alternative dispute resolution (ADR) provisions in subdivision 1, division 1, of Part 8 of the Act. This Part allows a Sponsor or RAP to refer a dispute relating to the evaluation of a CHMP for which approval is sought under section 62 of the Act to the Chair of the VAHC (note that section 111 of the Act provides that disputes arising in relation to evaluation of a plan for which approval is sought from the Council or Secretary under section 65 or 66 are NOT disputes for the purpose of the alternative dispute resolution section). The Chair can then arrange for mediation or another form of ADR, including preliminary assistance in the form of advice on rights and obligations. The Chair has 30 days to arrange this, but must not arrange it if they reasonably believe resolution by ADR is unlikely. All parties share the costs of ADR in proportions as agreed, or if they cannot agree, then in equal shares (see sections 113 and 114 of the Act).
Other dispute resolution options
Any of the previously mentioned types of disputes may also be referred directly to other services providing ADR. There is no requirement, for example, to use the provisions of the Act regarding disputes during evaluation by first referring them to the VAHC. Other avenues include:
- Dispute Settlement Centre of Victoria <https://www.disputes.vic.gov.au/> provides dispute assistance including mediation for a range of disputes
- Victorian Bar <https://www.vicbar.com.au/Web/Web/Contents/Alternative-Dispute-Resoluti…; provides access to processes involving negotiation, mediation, conciliation, and arbitration (see). Examples are:
- The Victorian Commercial Arbitration Scheme <https://www.vicbar.com.au/Web/Contents/Alternative-Dispute-Resolution/V…; may be appropriate for commercial disputes.
- Expert Determination <https://www.vicbar.com.au/Web/Contents/Alternative-Dispute-Resolution/E…;, whereby a dispute is referred to an independent expert in the field to provide a binding resolution on the parties. Note, a CHMP conduct agreement (see Appendix 11) may include a provision requiring disputes to be resolved in this manner. Otherwise, expert determination may be entered into by agreement after a dispute.
- Mediation <https://www.vicbar.com.au/Web/Contents/Alternative-Dispute-Resolution/M…; by barrister may also be an option for.
All parties are of course able to refer the disputes to the courts. Serious conduct matters should be reported to the police.
Disputes about a CHMP refusal may be pursued before VCAT, which has its own preliminary mediation and ADR process which usually occur before a dispute progresses to a full hearing. When VCAT hears a dispute in relation to the Act, Part 1A of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 requires the matter to be heard by a member with sound knowledge and experience in Aboriginal cultural heritage, or at least one such member if the Tribunal is made up of 2 people, or at least 2 such members if the Tribunal is made up of 3 or more members.
In hearings reviewing the refusal of a CHMP, VCAT may approve the CHMP, refuse the CHMP or approve the CHMP with its own conditions. VCAT essentially steps into the shoes of the decision-maker, with the authority to make a binding decision. However, a VCAT decision may be appealed to the courts.
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