Developing and negotiating an Aboriginal Cultural Heritage Land Management Agreement

The purpose of this guide is to assist Registered Aboriginal Parties (RAPs) and Public Land Managers (PLMs) to prepare and negotiate an Aboriginal Cultural Heritage Land Management Agreement (ACHLMA) in accordance with the requirements of the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2018. The information in this Guide is not intended be prescriptive, rather provides general guidance in approaching discussions and negotiations for entering into an ACHLMA.

For further information and guidance, see also ‘Frequently Asked Questions’ and the ‘Companion Guide to Completing the ACHLMA Approved Form’ on the Aboriginal Victoria website.

Commencement of an ACHLMA

An ACHLMA comes into effect on the commencement date, which may be one of the following dates:

• on the execution of the ACHLMA (the date the ACHLMA is signed)
• on the happening of a specified event
• at a specified time

Item 2 and clause 2.1 of the Approved Form requires parties to specify the commencement date.

Examples:

Termination of an ACHLMA

ACHLMAs come to an end on the termination date, which may be one of the following:

• on the happening of a specified event
• at a specified time
• by agreement between the parties.
• if the registration of the RAP which is party to the ACHLMA is revoked by the VAHC under Part 10 of the Act, the ACHLMA is terminated on the date of the revocation

Clause 2.2 allows for staggered termination of an ACHLMA, where whole, part or for a particular part of the Agreement Area of the ACHLMA can be terminated at a given date or time.

Item 3 and clause 2.2 of the Approved Form requires parties to specify the termination date.

Examples:

Outstanding liability and obligations accrued at the date of termination of the ACHLMA survive that termination and must be carried out (clause 2.4 of the Approved Form).

Land management activities that are not going to be amended within the current Agreement Area can continue while the amendments are being drafted. Those land management activities under amendment should cease while the amendment negotiations are taking place.

Amendments to an ACHLMA may relate to:

• the boundaries of the Agreement Area
• restricted access and areas of exclusion within the Agreement Area
• the termination date of the ACHLMA
• the content of the Schedules, including changes to:
  • land management activities
  • cultural heritage management actions
  • planned consultation

To amend an ACHLMA:

• the RAP must submit a NOI to amend the ACHLMA
• the PLM must lodge the amended ACHLMA to the Secretary within 14 days of amending the ACHLMA.

Example:

Example:

They may help as a starting point for developing the permitted land management activities.

Appendix 1: Possible Aboriginal Cultural Heritage Land Management Agreement activities

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The process is based around open discussion and negotiation of what might be included in the ACHLMA. The successful preparation and completion of an ACHLMA is heavily reliant on a strong and genuine relationship between the RAP and the PLM.

When preparing to negotiate an ACHLMA, timeframes and budgeting should take into consideration the time, staffing and costs required for a meaningful engagement process with Traditional Owners. It is important that there is sufficient time and meaningful space to enable Traditional Owners to consider their Ancestors, themselves and their future generations in engagement and decision-making processes.

Three examples of how an ACHLMA could be framed:

1. Activity-based: covering specific management activities on land managed by the PLM.

Example: An ACHLMA for road and track maintenance works.

Roads and tracks need to be maintained regularly for safety and accessibility. Road maintenance may include grading, re-sheeting, and the installation of drainage infrastructure and signage. A PLM and RAP negotiate and enter into an ACHLMA that manages Aboriginal cultural heritage for activities relevant to a road and track maintenance program.

2. Location-based: covering land management activities undertaken within a particular park, reserve or area managed by the PLM.

Example: an ACHLMA supporting the management of a State Park.

The ACHLMA might identify the regular, ongoing management activities undertaken in that area – rabbit management, track maintenance and weed control, for example – the ACHLMA details methods for undertaking these actions with specified Aboriginal cultural heritage management actions.

3. Aboriginal place or landscape-based: covering activities occurring in relation to an Aboriginal place or cultural landscape.

Example: an ACHLMA promoting the conservation and protection of a registered Aboriginal place or landscape in accordance with the wishes of the RAP.

A schedule of maintenance works, such as fencing and revegetation, are negotiated to be undertaken in an Aboriginal place in order to protect and conserve it.

Timeline for developing an ACHLMA

The timing and cost of the preparation of each ACHLMA will depend on the nature of the negotiation process. The relationship between the RAP and PLM may also have a bearing on the timeframe for developing and negotiating the terms of an ACHLMA.

As ACHLMAs are legal agreements that facilitate long-term planning and relationship-building outcomes, they require well-thought out development and consideration, and should not be seen as a last-minute tool for Aboriginal cultural heritage management.

The ACHLMA process

Parties agree to enter into an ACHLMA.

RAP and PLM begin preliminary discussions.

Topics for discussion:

• agreement area
• land management activities
• Aboriginal cultural heritage in the agreement area
• party roles and responsibilities in negotiations

Other matters:

• any other relevant pre-existing agreements, plans, and/or authorisations
• expected start and finish date for agreement preparation

RAP submits Notice of Intention (NoI)

• email the completed NoI form to: vahr@dpc.vic.gov.au

Parties undertake Aboriginal cultural heritage assessment.

Parties negotiate and agree on permissible activities and cultural heritage management actions.

ACHLMA terms and schedules documented in the Approved form.

Appropriate authority for each party signs Approved form, executing the ACHLMA.

PLM lodges ACHLMA and relevant supporting documentation.

Documentation to be lodged by emailing vahr@dpc.vic.gov.au:

• Signed approved form with all schedules completed.
• Spatial data of agreement area.
• List and details of land management activities.
• Details of Aboriginal cultural heritage assessment and outcomes.
• Details of agreed payments, cultural heritage management actions, consultation schedule, etc.
• Map/s clearly identifying the agreement area.
• Any other agreed matters.

Aboriginal Victoria checks that all required documentation has been lodged and records ACHLMA on the VAHR.

Preliminary discussions

The decision to enter into an ACHLMA is jointly made between a RAP and a PLM. Either party may approach the other to discuss the potential for an ACHLMA.

For the Aboriginal cultural heritage assessment and negotiation processes to be efficient and effective, parties should understand the intended objectives of having an ACHLMA. Preliminary discussions might consider:

Examples of topics for preliminary discussions

Agreement Area

Extent and boundaries of the land to be included in the agreement.

Land management activities

Type, nature and methodology; whether the activities will be once-off or ongoing, the impact of the activities.

Aboriginal cultural heritage in the Agreement Area

Nature, extent and location of the known and recorded Aboriginal cultural heritage

Aboriginal cultural heritage assessment

Who will undertake the required research and documentation, and will it be a joint exercise?

What information is already known about the Aboriginal cultural heritage to inform the agreement, and should there be further investigation?

Would a standard or complex assessment, or any other assessment, be useful to obtain this information?

How might the Aboriginal cultural heritage be managed appropriately?

Other matters

Potential opportunities to expand on the application of the agreement e.g. inclusion of contemporary cultural practices, consultation schedules, fees for service, secondment opportunities, etc.

Existence of other agreements or understandings

See below.

Existence of other agreements, understandings or permits

Any other relevant agreements, memoranda of understandings or permits that cover all or part of the Agreement Area should be considered when entering into an ACHLMA (clause 19 of the Approved Form). Entering into an ACHLMA may not affect these existing arrangements. However, where the content and/or context of the two overlap, it is important that they are consistent. The content and intention of these agreements can be incorporated into the ACHLMA.

Land Use Activity Agreements (LUAAs)

An ACHLMA does not replace a Land Use Activity Agreement (LUAA) under the Traditional Owner Settlement Act 2010. ACHLMAs are designed to exist alongside LUAAs and other procedures and instruments of the Traditional Owner Settlement Act 2010; as these apply to different activities. Given the different subject matter, there should not be any clause or condition in an ACHLMA that contradicts one within a LUAA. An ACHLMA cannot be used to supersede or replace a LUAA.

Management plans

Where an overarching management plan for a park or reserve exists, an ACHLMA can be entered into for protecting and managing Aboriginal cultural heritage during required land management activities. The ACHLMA can form part of the cultural heritage management component of the management plan, as the statutory authority for conducting works where one is required (only where a cultural heritage management plan is not required).

Cultural Heritage Permits

An ACHLMA can incorporate an existing cultural heritage permit (under the Aboriginal Heritage Act 2006) in the following ways:

• honour the existing activities and conditions within the permit until its expiration
• include the activities and conditions of the permit in the ACHLMA so that all requirements are incorporated into a single document
• void the existing permit and include activities and conditions of the permit into the ACHLMA.

Examples of other matters

Contemporary cultural practices and Aboriginal Intangible Heritage

Contemporary cultural practices can be integrated into land management activities and other use of Aboriginal intangible heritage, including interaction facilitated by an Intangible Heritage Agreement.

Provision to engage RAP Natural Resource Management / Green Teams

Where one exists, parties can agree to contractually engage the RAP Natural Resource Management or Green Team to undertake or assist with particular land management activities.

Protecting and managing other values

Where natural or other conservation values are present within the Agreement Area, conditions can be written to avoid or minimise harm to these areas.

Interpretation and information (signage, advertising, internet)

Agreeing to information that can be published on signage and in other mediums, and how information will be presented.

Implementation of Reconciliation Action Plans and Aboriginal Inclusion Plans

Providing for Traditional Owner involvement and a joint approach to the long-term planning and implementing of land management activities and plans.

Whole of community approach and educational opportunities

ACHLMAs have the potential to provide educational opportunities to the wider community, especially where Aboriginal cultural heritage is present.

Example: Inviting Elders and community members out on site where Aboriginal cultural heritage is present, providing an opportunity for people to share knowledge on Country, as well as involving the broader community.

Community use of Agreement Area

Consider how the community use and experience the Agreement Area. Community consultation for use of areas of public land can be a practical way of obtaining feedback. For example, conducting a community meeting or opinion survey.

Other legislative requirements

Ensuring compliance with other legislation, including permits from other statutory authorities where required. For example, where work is being undertaken along waterways, a ‘Works on Waterway permit’ might be required from the Catchment Management Authority to undertake the activity.

Activity demonstration or showcase

ACHLMAs provide the opportunity for certain activities or actions to be showcased or demonstrated to other groups, including schools and the community.

Notice of Intention

Prior to entering into an ACHLMA, the RAP must submit a Notice of Intention (NOI) to the Secretary, Department of Premier and Cabinet (DPC). The NOI should be reflective of the preliminary discussions (see previous section). A form for the ACHLMA NOI is available on the Aboriginal Victoria website. There is no fee associated with submitting an NOI.

Notice of intention to enter into an Aboriginal Cultural Heritage Land Management Agreement

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Parties intending to negotiate an ACHLMA should also consider who else may need to be informed of the NOI.

The NOI can be submitted by email or post to the following address:

Director Heritage Services
Aboriginal Victoria
Department of Premier and Cabinet
GPO Box 4912
MELBOURNE VIC 3001

Email: vahr@dpc.vic.gov.au

A NOI must include:

• the date by which the agreement is to be prepared
• the parties to the agreement
• any assessment, especially cultural heritage assessment to be undertaken.

A NOI should also include:

• a map that clearly identifies the proposed Agreement Area and boundaries
• key contacts for both parties.

A NOI can be amended prior to the lodgement of the ACHLMA by emailing vahr@dpc.vic.gov.au and informing of the relevant changes.

Changes to the NOI might include:

• the date of preparation of agreement
• the proposed Agreement Area
• the cultural heritage assessment that will be undertaken.

Using maps for the planning and preparation of ACHLMA

Providing a map at the NOI stage will assist throughout the preparation of the ACHLMA by:

• locating the area and boundaries of the Agreement Area within the geographical context
• planning the cultural heritage assessment
• identifying the location and extent of known Aboriginal cultural heritage in the Agreement Area
• identifying the location of land management activities and management actions
• supporting applications for other permit requirements (e.g. vegetation clearance or roadside vegetation maintenance).

Aboriginal cultural heritage assessment

The Aboriginal cultural heritage assessment identifies the nature and extent of the Aboriginal cultural heritage present in the Agreement Area. There are three different ‘levels’ of assessment: desktop, standard and complex.

The level of assessment selected for an ACHLMA should consider the current knowledge and understanding of the Aboriginal cultural heritage in the activity area and how recently this information has been collected. Older records may no longer be sufficient to inform the management of the cultural heritage. The ACHLMA will be most effective if a sound cultural heritage assessment is undertaken during the development phase. This will ensure decisions about the protection and management of Aboriginal cultural heritage are well informed.

Further information on conducting Aboriginal cultural heritage assessments can be found on the Aboriginal Victoria website, Guidelines for conducting and reporting on Aboriginal cultural heritage investigations.

Guidelines for conducting and reporting on Aboriginal cultural heritage investigations (other than cultural heritage management plans)

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The aims of the Aboriginal cultural heritage assessment should include but are not limited to:

• updating existing Aboriginal place records on the Victorian Aboriginal Heritage Register (VAHR) and registering previously unrecorded Aboriginal places
• informing the approach to land management activities
• assisting the development of conditions to manage and protect Aboriginal cultural heritage
• contributing to strategic planning decisions that enable cultural heritage to be considered more readily, perhaps through cultural mapping.

Desktop assessment

A desktop assessment comprises research into the Aboriginal cultural heritage in the Agreement Area using existing information. A geographic region, encompassing the Agreement Area, needs to be identified and described. This region should be selected with the view for informing what Aboriginal cultural heritage may be found in the Agreement Area; select a geographic region that is representative of the landscape found within the Agreement Area. The assessment must include:

• a search of the VAHR for details of known Aboriginal cultural heritage within the Agreement Area and geographic region
• a review of reports and published works about Aboriginal cultural heritage within the geographic region
• a review of historical and ethno-historical accounts of Aboriginal occupation of the geographic region
• a review of the history of use of the Agreement Area
• a review of the landforms or geomorphology of the Agreement Area.

A desktop assessment may also include the collection of oral history or intangible values associated with the Agreement Area.

Community groups who work within the Agreement Area, such as Landcare or ‘Friends Groups’ may be able to provide historical and contemporary perspectives on previous uses and activities that may have occurred.

Standard assessment

A standard assessment comprises a visual assessment of all or part of the Agreement Area, this may be conducted as a pedestrian survey in a systematic manner in transects, or opportunistic survey – including examination of:

the ground surface of an area, noting the ground surface visibility (to provide context for how easy it is to spot cultural heritage on the ground surface)

any mature indigenous trees, caves, rock shelters or cave entrances in the area

An attempt should be made to relocate and assess any previously recorded Aboriginal places present within the Agreement Area, or some discussion as to why this could not occur.

Complex assessment

A complex assessment comprises the disturbance or excavation of an area to uncover or discover Aboriginal cultural heritage. Disturbance or excavation for a complex assessment must be:

supervised by a person appropriately qualified in archaeology

carried out in accordance with proper archaeological practice.

The Practice Note for Subsurface Testing on the Aboriginal Victoria website may provide some guidance for planning for the complex assessment.

Practice Note - Subsurface Testing

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Minimum Assessment Requirements

A desktop assessment is the minimum level assessment that must be undertaken for an ACHLMA. The desktop assessment may be undertaken by either or both parties.

Where further investigation is planned, the desktop assessment must be undertaken prior to a standard or complex investigation. Further investigation, including standard and complex assessment, may:

• target specific areas where certain land management activities will be carried out
• target areas that have not previously been surveyed.

Interpretation and analysis of the assessment

The results of the Aboriginal cultural heritage assessment should be sufficiently analysed and interpreted to inform the planning of land management activities and help determine the cultural heritage management actions.

Negotiation and documentation of Schedules

Aboriginal Victoria is available to provide support answering questions or concerns about entering into an ACHLMA, we can provide assistance with the facilitation of negotiations and at other stages during the process of preparing an ACHLMA.

The approach to negotiating the details of an ACHLMA can take many different forms and are based on the preference of the parties involved. Negotiations may be approached in any or all of the following ways:

• a series of meetings between parties
• site visits
• walk overs of the proposed Agreement Area.

Discussions will need to take into consideration the requirements of the Schedules of the Approved Form to include in the discussions, including the following areas:

• land management activities that will be allowed under the agreement
• Aboriginal cultural heritage in the Agreement Area and possible management actions
• payments
• consultation, processes for review and amendment

The regularity of reviews and ongoing consultation need to be specified at three points in the Approved Form:

• Item 4
• Clause 16
• Schedule 6 (schedule for consultation)

Further information for the Schedules of the Approved Form can be found in the Approved Form Companion Guide.

Signing and lodgement of an ACHLMA

An appropriate authority from both parties must sign the Approved Form. The appropriate authority can be determined as the person whom will be responsible for ensuring compliance with the Schedules of the agreement.

Approved Form - Aboriginal Cultural Heritage Land Management Agreement

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The ACHLMA should only be signed once finalised, with the signature a sign of endorsement by each party.

The PLM must lodge the signed ACHLMA and Schedules in the Approved Form, together with the relevant documentation to vahr@dpc.vic.gov.au.

The ACHLMA must be lodged within 14 days of its execution; the date of signing. The documentation to accompany the lodgement of an executed ACHLMA is available on AV website – Lodgement of relevant documentation - Aboriginal Cultural Heritage Land Management Agreement.