Appendix 9: Explanation of principles

Principle 1: Self-determination and Free, Prior and Informed Consent

The principles of self-determination and free, prior and informed consent (FPIC) are already enshrined in Victoria’s Aboriginal heritage protection and management system.

These principles are widely accepted globally. They are embedded within the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) particularly in the context of development projects (see esp. Article 32.2). Australia is a signatory to the Declaration.

FPIC, in relation to land use and development, at its basic level says that Indigenous peoples have the right to be consulted with the objective of obtaining their consent about what impacts proposed development projects will have on their lands, territories and resources (see Article 32.2 of UNDRIP). They have the right to be consulted before development projects are approved, free of interference, coercion or influence. They have the right to make decisions fully informed by their own cultural knowledge and the best information about proposed projects available to proponents, governments and relevant experts. They have the right to make decisions and to be consulted as self-determined organised and structured groups, noting the right to self-determination is a collective, not an individual, right.

The CHMP system empowers RAPs to make decisions in their own way, according to their own cultural ethics and organisational requirements, free of government or other interference. Section 46 of the Act stipulates that not only consultation, but CHMP decisions must be made prior to development approvals being granted. The CHMP system is designed to empower RAPs to make informed decisions incorporating their cultural knowledge and the best available research and data from HAs. Early engagement with RAPs is also essential to this principle.

These Guidelines are intended to assist RAPs to make informed decisions, not to limit decisions. To be clear, as an example, Guidelines relating to LDADs still permit complex assessment should RAPs or HAs have good reason to proceed. The Guidelines do not limit RAP discretion to request complex assessment. The Guidelines do request reasons to be documented for either proceeding or not proceeding to complex assessment where only LDADs are found by standard assessment.

Article 32.3 of UNDRIP also requires governments to provide appropriate measures to mitigate adverse environmental, economic, social, cultural or spiritual impacts. The Victorian Government’s CHMP system aligns with this obligation under UNDRIP.

Principles of Indigenous data sovereignty should also be upheld throughout the CHMP process when dealing with Indigenous cultural information (See Appendix 1)

The Act elevates Indigenous rights consistent with UNDRIP, but Government also must consider the rights of others and legislate where rights may compete. Note that Article 46 of UNDRIP states Indigenous self-determination is not absolute – and is subject to the laws of the nation [Article 46(2) – “The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations.”]. This is also consistent with several articles of the UN Charter itself, which seeks to preserve the integrity and internal unity of sovereign states. It is the role of the State to legislate when different rights compete, such as the right for Aboriginal Victorians to enjoy their culture and maintain their relationship with the land; and the right of everyone to use their private property (see for example the Charter of Human Rights and Responsibilities Act 2006, sections 19 and 20). This is why the State legislates to protect Aboriginal cultural heritage – it is an area where Indigenous rights engage with other human rights – a complex interaction which requires laws to be managed effectively. The Act exists in this space to regulate interactions between people exercising legitimate, but sometimes competing, human rights.

Principle 2: Empowering RAPs to make decisions

This principle emphasises the position of RAPs in the CHMP process as decision makers on behalf of Traditional Owners.

With the Act’s passage in 2006, the Victorian Government determined that Aboriginal people should be empowered to make decisions about their heritage, and that Aboriginal Victorians, via the Victorian Aboriginal Heritage Council, should be decision-makers about which Aboriginal people are to be so empowered. This followed earlier Commonwealth legislation which also uniquely granted decision-making power to Victorian Aboriginal organisations from 1987. In 2016, this principle was further refined to emphasise Traditional Owners as primary decision makers.

The appointed RAPs, as representative Traditional Owners organisations, have the cultural obligation to protect Country. The CHMP system reinforces this obligation by empowering RAPs to approve or deny applications to cause harm to their heritage. Where harm is agreed to be necessary through the CHMP process, the CHMP system empowers RAPs to allow or minimise that harm.

This is a difficult obligation, as Traditional Owners are often required to consider allowing harm to occur for appropriate development to proceed. The primary purpose of the CHMP is to make the burden of this obligation as light as possible. This principle requires Sponsors and HAs to ensure their involvement and work is directed fully informing RAPs of all relevant information, gathered through best practice research and investigation, so RAPs can make fully informed decisions.

Principle 3: CHMPs will first, avoid harm

The Act prioritises avoiding harm to Aboriginal places in the first instance, and minimising harm second. This principle forms a basic principle for conducting CHMPs. It should be noted this is not only a principle, but a requirement for consideration under section 61 of the Act. CHMP conditions which are not adequate in avoiding harm to the satisfaction of the RAP are grounds for refusing to approve a CHMP under section 63(4).

This principle encourages participants and decision makers to emphasise finding solutions through the CHMP process to achieve this principle as the primary consideration. All CHMP conditions should be informed by this principle.

Principle 4: CHMPs support appropriate investment and development

The Victorian Government has priorities for housing, infrastructure, energy, agricultural and mineral development necessary for the future of the State and its people. Victoria is also committed to sustainable development, which is well-defined and generally understood to mean “development that meets the needs of current generations without compromising the ability of future generations to meet their needs.” Included in this is the concept of the precautionary principle: “lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage”. “Environment” in this context includes cultural heritage aspects of the environment – consistent with the definition of environment in section 528 of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) (EPBC Act).

Measures adopted to prevent or mitigate harm should also be cost-effective. These are accepted definitions not only in Victoria (see for example section 2A(2)(g) of the Mineral Resources (Sustainable Development) Act 1990); but nationally (see for example section 391(2) of the EPBC Act) and internationally (see for example the 2030 Agenda for Sustainable Development). Principle 4 should be read in this context.

Significant domestic court cases have determined the appropriate application of the precautionary principle to decision making in Australia in certain circumstances. DPC uses the term “appropriate” with this in mind as a principle to guide decision-making.

These cases have found the decision maker must consider the threat of harm, not the actual occurrence of harm. This harm must be serious or irreversible, and this assessment must be backed up by scientific evidence. Threats to be assessed “include direct, indirect, secondary, and long-term threats, as well as the incremental or cumulative impacts of multiple repeated Guidance or decisions”. Because of the varied nature of threats, a range of experts, stakeholders and rights holders must be consulted.

Decision makers must also understand that “uncertainty” applies to the nature and scope of the threats, and information about the many factors influencing threats must be considered.

Invoking the precautionary principle also does not require that full scientific certainty about threats be achieved before development can occur. There is a point at which a decision maker should be satisfied with the information gathered to adequately apply the precautionary principle and make an appropriate decision. This point does not require full certainty, but an educated and informed assessment. Further, measures (e.g. CHMP conditions imposed) to prevent or mitigate harm should not exceed what is appropriate and necessary to achieve the desired outcome.

In the Victorian CHMP context, this means that measures taken to prevent or minimise harm should be:

1. Proportional to the cultural heritage significance of the Aboriginal place; and
2. Proportional to the potential threat to that place from the activity.

Information provided to the decision maker by the HA needs to be sufficient to enable the decision maker to decide whether the conditions proposed are adequate to their satisfaction. Conditions proposed by the HA and RAP should not be onerous and should be based on their expert assessment of the known and likely threats, the significance of the heritage and a full examination and assessment of alternatives – including “no development” and “full development” options.

Principle 5: Heritage Advisor role and high quality CHMPs

HAs will approach their role with professionalism and use all available and appropriate expertise to produce high quality CHMPs. At minimum, this is necessary to fulfil Principles 1 and 2. At the same time, it is expected that HA advice regarding CHMP preparation methods will be respected and followed, unless there are sound methodological or specific cultural reasons not to do so. The Guidelines outline how this is achieved through explicit, iterative and staged discussion and agreement. HAs have the unique statutory role of assisting Sponsors to prepare CHMPs under section 58 of the Act. Other heritage experts, including those employed by a RAP, can also contribute to CHMP research design. These RAP experts can help the HA to develop appropriate CHMP methods to gather necessary information. But the system places the HA as ultimately responsible for their own advice about appropriate methods to assist the Sponsor prepare the CHMP (See Appendix 3).

There will at times be methodological disagreements between HAs and RAPs. Disagreements should be limited to disputes about the adequacy of a proposed research method proposed to help a RAP make an informed decision on section 61 matters. Where there are intractable disagreements about CHMP method, the matter should be referred to DPC in the first instance.

Principle 6: Good faith

The Act only explicitly requires RAPs to act in good faith (section 149), and where a RAP has been found not to have acted in good faith its registration may be suspended or revoked (section 156). The Act is explicit only about the good faith of RAPs because RAPs are statutory decision makers in the system; rather than just participants, applicants or experts; and RAP decisions carry greater consequence, obligation and therefore, requirements for accountability. However, other sections also impose duties on Sponsors related to good faith - e.g. section 59 regarding Sponsor efforts to consult with a RAP and section 62(4) regarding reaching agreement on section 61 matters.

The Act does not explicitly define “good faith”. Generally, it means dealing with other parties honestly, without “hidden agendas”. It means, for example, not intentionally undermining the benefits of an agreement for other parties.

DPC suggests the following interrelated concepts may be considered to comprise good faith in general terms:

1. Cooperation –All parties should do everything necessary so that other parties benefit – the RAP by retaining or enhancing heritage values either physically or through other means; the Sponsor by limiting expense and delay.
2. Reasonableness – when preparing and finalising a CHMP, due process must be followed including fairness and justice. The use (or abuse) of power imbalances is unfair and beyond “good faith”. The “informed” aspect of FPIC is closely related to “reasonableness” in that RAPs should have equal and full information when making decisions.
3. Proper purpose – Honesty. Deceptive acts are examples of “bad faith”. For a CHMP to achieve optimal outcomes, everyone must be honest in their dealings with each other.
4. Legitimate interest – consideration of the other party’s interests is critical. This means all parties acknowledge other parties have legitimate interests and are obliged to consider these interests when preparing a CHMP.

“Good faith” may sometimes be compromised by the nature of the CHMP system. CHMPs are not contracts or agreements in the generally understood sense, which is where the concept of “good faith” is generally applied. CHMPs are statutory approvals, which intentionally ascribe differential power to RAPs, because as Traditional Owner representative organisations, they have particular rights to make decisions about their cultural heritage. This is normal – all statutory approval systems ascribe greater power to decision-makers. However, this power differential places greater importance on RAPs (and DPC in non-RAP areas) acting with “reasonableness” and observing due process when making decisions. This is a responsibility of all decision-makers, including Government.

What sets the CHMP system apart from many other statutory approvals is that the decision makers themselves – the RAPs – are at risk of experiencing a direct, irretrievable and personal loss through their decision-making. That is, when they approve a CHMP, they risk losing irreplaceable elements of their cultural heritage. Many other types of statutory decisions made by other decision-makers, including governments, do not impact the inherent rights and interests, nor deeply held cultural values, of those individual decision-makers. This means it is especially critical for Sponsors to consider the “legitimate interests” and “cooperation” aspects of “good faith”.

Parties should seek their own independent legal advice on how to demonstrate good faith. It is expected that all parties, when confronted with a dispute, will use dispute resolution assistance or services either provided by DPC or independently before lodging formal legal action. This should occur in relation to disputes arising both during CHMP preparation and evaluation.

1. ^https://www.ohchr.org/sites/default/files/Documents/Issues/IPeoples/FreePriorandInformedConsent.pdf

   Note this means consultation must occur with the objective of obtaining consent. It does not mean consent must be obtained. Note that section 52 of the Act, however, goes further than Article 32.2, by requiring CHMPs to be approved for certain activities before they can proceed. See Article 19 for similar wording.

   For contrast, see wording of Article 29.2: “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.” Unlike Articles 32.2 and 19, article 29.2 requires consent to be obtained first. Article 10 is another example of this latter wording.

2. ^Aboriginal Heritage Act section 63
3. ^UN Brundtland Commission <https://www.un.org/en/academic-impact/sustainability&gt;
4. ^UN Global Compact Principle 7 <https://unglobalcompact.org/what-is-gc/mission/principles/principle-7&gt;
5. ^Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873
6. ^Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 (25 July 2022) <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2022/873.html?context=1;query=bob%20brown;mask_path=au/cases/cth/FCA> See paragraphs 19-24
7. ^Ibid paragraphs 27, 28
8. ^Thorpe v Head, Transport for Victoria & Ors [2021] VSC 750 (23 November 2021) para 84: “Understanding the significance of an Aboriginal place is important in devising its adequate protection.”