Untitled document
Aboriginal Heritage Amendment Regulations 2016
S.R. No. 94/2016
TABLE OF PROVISIONS
Regulation Page
1Objective
2Authorising provisions
3Principal Regulations
4Objectives—Principal Regulations
5Definitions
6Revocation of Part 1A—Exempt activities or operations
7New regulations 8A and 8B inserted
8Buildings and works for specified uses
9Constructing specified items of infrastructure
10Extraction or removal of stone
11Extraction or removal of sand or sandstone
12Searching for stone
13Reason for preparation of a cultural heritage management plan
14New regulation 64A inserted
15New Parts 4A and 4B inserted
16Definitions
17Fees payable under section 36(2) of the Act
18Substitution of regulation 70 and new regulation 70A inserted
19Fee payable under section 62(3) of the Act—only one relevant registered Aboriginal party
20Fee payable under section 62(3) of the Act—2 relevant registered Aboriginal parties
21Fee payable under section 62(3) of the Act—3 or more relevant registered Aboriginal parties
22New regulations 73A, 73B and 73C inserted
23Fee payable under section 147(2) of the Act
24Revocation of Part 6—Transitional
25Cultural heritage advisor
26Aboriginal cultural heritage
27New Schedules 3 to 9 inserted
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Endnotes
STATUTORY RULES 2016
S.R. No. 94/2016
Aboriginal Heritage Act 2006
Aboriginal Heritage Amendment Regulations 2016
The Governor in Council makes the following Regulations:
Dated: 2 August 2016
Responsible Minister:
NATALIE HUTCHINS
Minister for Aboriginal AffairsANDREW ROBINSON
Clerk of the Executive Council
1Objective
The objective of these Regulations is to amend the Aboriginal Heritage Regulations 2007—
(a)to make consequential and other related amendments following the commencement of the Aboriginal Heritage Amendment Act 2016; and
(b)to prescribe fees and forms for various matters; and
(c)to exempt 3 or more dwellings on a small lot and small subdivisions from the requirement to prepare a cultural heritage management plan.
2Authorising provisions
These Regulations are made under sections 47 and 194 of the Aboriginal Heritage Act 2006.
3Principal Regulations
In these Regulations, the Aboriginal Heritage Regulations 2007[1] are called the Principal Regulations.
4Objectives—Principal Regulations
(1)After regulation 1(b) of the Principal Regulations insert—
"(ba)prescribe the form for the preparation of preliminary Aboriginal heritage tests including the carrying out of assessments;".
(2)In regulation 1(d) of the Principal Regulations, after "evaluating" insert ", approving and amending".
(3)After regulation 1(f) of the Principal Regulations insert—
"(fa)prescribe fees for an application for certification of a preliminary Aboriginal heritage test;
(fb)prescribe fees for giving notice of intention to prepare a cultural heritage management plan;
(fc)prescribe fees for access to the Victorian Aboriginal Heritage Register;".
5Definitions
In regulation 4 of the Principal Regulations,
in the definition of rail infrastructure, for "Rail Corporations Act 1996" substitute "Rail Safety (Local Operations) Act 2006".
6Revocation of Part 1A—Exempt activities or operations
Part 1A of the Principal Regulations is revoked.
7New regulations 8A and 8B inserted
After regulation 8 of the Principal Regulations insert—
"8A Three or more dwellings on a small lot
The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is—
(a)not within 200 metres of the coastal waters of Victoria or the Murray River; and
(b)less than 0·11 hectares.
8B Small subdivisions
The subdivision of land is an exempt activity if—
(a)all of the land is not within 200 metres of the coastal waters of Victoria or the Murray River; and
(b)the total area of land to be subdivided is less than 0·11 hectares.".
8Buildings and works for specified uses
In regulation 43(3) of the Principal Regulations, for "a purpose" substitute "a purpose listed under subregulation (1)(b)".
9Constructing specified items of infrastructure
In regulation 44(1)(e) of the Principal Regulations, for "road" substitute "roadway".
10Extraction or removal of stone
In regulation 48A(1)(a)(ii) of the Principal Regulations, for "road" substitute "roadway".
11Extraction or removal of sand or sandstone
In regulation 49(2)(b) of the Principal Regulations, for "road" substitute "roadway".
12Searching for stone
(1)For the heading to regulation 50 of the Principal Regulations substitute "Stone exploration".
(2)In regulation 50(1) of the Principal Regulations, for "A search for stone" substitute "Stone exploration".
(3)In regulation 50(2) of the Principal Regulations, for "search for stone" substitute "stone exploration".
13Reason for preparation of a cultural heritage management plan
(1)In regulation 63(1)(d) of the Principal Regulations, for "the Act." substitute
"the Act; or".(2)After regulation 63(1)(d) of the Principal Regulations insert—
"(e)required under section 49A of the Act; or
(f)required under a certified preliminary Aboriginal heritage test.".
14New regulation 64A inserted
After regulation 64 of the Principal Regulations insert—
"64A Amendments to approved cultural heritage management plans
For the purposes of section 66A(4) of the Act, an application to amend an approved cultural heritage management plan is in the
prescribed form if it contains the information set out in Schedule 3.
Note
The amended plan must comply with section 53 of the Act.".
15New Parts 4A and 4B inserted
After Part 4 of the Principal Regulations insert—
"Part 4A—Standards for the preparation of an Aboriginal cultural heritage land management agreement
Division 1—Assessments
67APurpose
The purpose of this Division is to prescribe standards for conducting an assessment for the preparation of, and conditions to be included in, an Aboriginal cultural heritage land management agreement.
67BTypes of assessment
(1)An assessment must consist of a desktop assessment.
(2)An assessment may also consist of—
(a)a standard assessment; or
(b)a complex assessment; or
(c)a standard assessment and a complex assessment.
(3)For the purposes of section 74B of the Act, a desktop assessment of an agreement area must include research into information relating to Aboriginal cultural heritage in or associated with the agreement area, including the following—
(a)a search of the Register for information relating to the agreement area;
(b)an identification and determination of the geographic region of which the agreement area forms a part that is relevant to the Aboriginal cultural heritage that may be present in the agreement area;
(c)a review of reports and published works about Aboriginal cultural heritage in the geographic region referred to in paragraph (b);
(d)a review of historical and ethno‑historical accounts of Aboriginal occupation of the geographic region referred to in paragraph (b);
(e)a review of the landforms or geomorphology of the agreement
area;
(f)a review of the history of the use of the agreement area.
(4)A desktop, standard or complex assessment may include the collection and review of oral history relating to the agreement area.
(5)A standard assessment of an agreement area under this regulation is the same as a standard assessment of an activity area under regulation 59.
(6)A complex assessment of an agreement area under this regulation is the same as a complex assessment of an activity area under regulation 61.
67CContent of an Aboriginal cultural heritage land management agreement
For the purposes of section 74B of the Act, an Aboriginal cultural heritage land management agreement must—
(a)unless otherwise approved by the Secretary, be in the approved form;
and
(b)include the information set out in Schedule 4.
Part 4B—Prescribed forms
67DReporting and transfer of Aboriginal ancestral remains in custody of public entities and universities
For the purposes of section 14(1)(b) of the Act, a report to the Council is in the prescribed form if the report includes the information set out in Schedule 5.
67EApplication for certification of preliminary Aboriginal heritage test
For the purposes of section 49B(3) of the Act, an application is in the prescribed form if the application includes the information set out in Schedule 6.
67FRegistration of Aboriginal intangible heritage
For the purposes of section 79C(2) of the Act, an application for registration of Aboriginal intangible heritage is in the prescribed form if it includes the information set out in Schedule 7.
67GForm of Aboriginal intangible heritage agreement
For the purposes of section 79E of the Act, an Aboriginal intangible heritage agreement is in the prescribed form if it includes the information set out in Schedule 8.
67HApplication for registration
For the purposes of section 150(1) of the Act, an application for registration
as a registered Aboriginal party is in the prescribed form and includes the prescribed information if the application includes the information set out in Schedule 9.".
16Definitions
In regulation 68 of the Principal Regulations insert the following definition—
"relevant authority, in relation to an application for approval of a cultural heritage management plan, means—
(a)a relevant registered Aboriginal party to which an application is required to be made under section 62 of the Act; or
(b)if there is no relevant registered Aboriginal party—the Secretary; or
(c)if the applicant is a relevant registered Aboriginal party or the Secretary—the Council;".
17Fees payable under section 36(2) of the Act
(1)For regulation 69(1)(b) of the Principal Regulations substitute—
"(b)if the permit is to authorise the applicant to carry out research on an Aboriginal place (including the removal of an Aboriginal object from that place for the purposes of that research) or Aboriginal object (including the removal of an Aboriginal object from Victoria for the purposes of that research) (see section 36(1)(b) of the Act), a fee of 8 fee units;".
(2)In regulation 69(1)(d) of the Principal Regulations omit "buy or".
(3)For regulation 69(1)(e) of the Principal Regulations substitute—
"(e)if the permit is to authorise the applicant to remove an Aboriginal object from Victoria other than for the purposes of research referred to in paragraph (b) (see section 36(1)(e) of the Act), a fee of 13 fee units.".
(4)After regulation 69(2) of the Principal Regulations insert—
"(2A)The fee prescribed for a permit to rehabilitate land at an Aboriginal place, including land containing burial grounds for Aboriginal ancestral remains (see section 36(1)(f) of the Act) is nil.
(2B)The fee prescribed for a permit to inter Aboriginal ancestral remains at an Aboriginal place (see section 36(1)(g) of the Act) is nil.".
(5)For regulation 69(3) of the Principal Regulations substitute—
"(3)Despite subregulations (1) and (2), no fee is payable for an application for a permit in one of the following classes—
(a)Class 1, an application under section 36(1)(c) of the Act for a permit to carry out heritage protection works;
(b)Class 2, an application under section 36(1)(b) of the Act, by a student enrolled in an undergraduate course at a university;
(c)Class 3, an application under section 36(1)(a), (b), (c) or (d) of the Act that is the same or substantially similar to an application that was withdrawn no more than 6 months before the application is made;
(d)Class 4, an application that is the same or substantially similar to an application that was refused under section 40(3E) of the Act.".
(6)The example at the foot of regulation 69 of the Principal Regulations is revoked.
18Substitution of regulation 70 and new regulation 70A inserted
For regulation 70 of the Principal Regulations substitute—
"70 Fees payable under section 49B(3) of the Act
For the purposes of section 49B(3) of the Act, the following fees are prescribed for an application for certification of a preliminary Aboriginal heritage test—
(a)for a test that relates to a small activity, 40 fee units;
(b)for a test that relates to a medium-size activity, 80 fee units;
(c)for a test that relates to a large activity, 120 fee units.
70A Fee payable under section 54(3)(e) of the Act—notice of intention to prepare cultural heritage management plan
For the purposes of section 54(3)(e) of the Act, the prescribed fee is 8 fee units.".
19Fee payable under section 62(3) of the Act—only one relevant registered Aboriginal party
(1)For the heading to regulation 71 of the Principal Regulations substitute—
"Fees payable under sections 62(3) and 65(1A) of the Act—only one relevant authority".
(2)For regulation 71(1) of the Principal Regulations substitute—
"(1)This regulation applies if there is only one relevant authority.".
(3)In regulation 71(2), (3) and (4) of the Principal Regulations, for "section 62(3)" substitute "sections 62(3) and 65(1A)".
(4)After regulation 71(4) of the Principal Regulations insert—
"(5)Despite subregulations (1) to (4), no fee is payable for an application for approval of a plan that is the same or substantially similar to an application that was withdrawn no more than 6 months before the application is made.".
20
Fee payable under section 62(3) of the
Act—2 relevant registered Aboriginal parties
(1)For the heading to regulation 72 of the Principal Regulations substitute—
"Fees payable under sections 62(3) and 65(1A) of the Act—two relevant authorities".
(2)For regulation 72(1) of the Principal Regulations substitute—
"(1)This regulation applies if there are 2 relevant authorities.".
(3)In regulation 72(2), (3) and (4) of the Principal Regulations, for "section 62(3)" substitute "sections 62(3) and 65(1A)".
(4)After regulation 72(4) of the Principal Regulations insert—
"(5)Despite subregulations (1) to (4), no fee is payable for an application for approval of a plan that is the same or substantially similar to an application that was withdrawn no more than 6 months before the application is made.".
21Fee payable under section 62(3) of the Act—3 or more relevant registered Aboriginal parties
(1)For the heading to regulation 73 of the Principal Regulations substitute—
"Fees payable under sections 62(3) and 65(1A) of the Act—three or more relevant authorities".
(2)For regulation 73(1) of the Principal Regulations substitute—
"(1)This regulation applies if there are 3 or more relevant authorities.".
(3)In regulation 73(2), (3) and (4) of the Principal Regulations, for "section 62(3)" substitute "sections 62(3) and 65(1A)".
(4)After regulation 73(4) of the Principal Regulations insert—
"(5)Despite subregulations (1) to (4), no fee is payable for an application for approval of a plan that is the same or substantially similar to an application that was withdrawn no more than 6 months before the application is made.".
22New regulations 73A, 73B and 73C inserted
After regulation 73 of the Principal Regulations insert—
"73A No fee payable if section 65(1)(b)(iv) of the Act applies to application
Despite regulations 71 to 73, for the purposes of section 65(1A) of the Act,
no fee is payable for an application for approval of a cultural heritage management plan if—(a)subsection (1)(b)(iv) of that section applies to the application; and
(b)the application is the same or substantially similar to an application for approval under section 62 of the Act.
73BFee payable under section 66A(4) of the Act—applications for approval of amendment to approved cultural heritage management plan
For the purposes of section 66A(4) of the Act, the prescribed fee is 32 fee units.
73CFees payable under section 146(3) of the Act
(1)For the purposes of section 146(3) of the Act, the following fees are prescribed for an application to the Secretary for access to the Register—
(a)for an application for access under section 146(1)(c), a fee of 16 fee units;
(b)for an application for access under section 146(1)(g) by a heritage advisor appointed by a proposed developer, purchaser or user of land or by a person specified under section 146(1)(d), a fee of 16 fee units.
(2)For all other applications for access to the Register under section 146 of the Act the fee is nil.".
23Fee payable under section 147(2) of the Act
In regulation 74 of the Principal Regulations, for "3 fee units" substitute "6 fee units".
24Revocation of Part 6—Transitional
Part 6 of the Principal Regulations is revoked.
25Cultural heritage advisor
(1)In the heading to clause 3 of Schedule 2 to the Principal Regulations, for "Cultural heritage" substitute "Heritage".
(2)In clause 3(1) of Schedule 2 to the Principal Regulations, for "cultural heritage advisor" substitute "heritage advisor".
(3)In clause 3(2) of Schedule 2 to the Principal Regulations, for "cultural heritage advisor" substitute "heritage advisor".
(4)At the foot of clause 3 of Schedule 2 to the Principal Regulations insert—
"Note
Heritage advisor is defined in section 4(1) of the Act.".
26Aboriginal cultural heritage
In clause 11(1) of Schedule 2 to the Principal Regulations, for "including the registration number of that Aboriginal cultural heritage on the Register" substitute "consistent with the registration of that Aboriginal cultural heritage and including the registration number".
27New Schedules 3 to 9 inserted
After Schedule 2 to the Principal Regulations insert—
"Schedule 3—Applications to amend approved cultural heritage management plans
Regulation 64A
1Cultural heritage management plan to be amended
The title and registration number of the approved cultural heritage management plan to be amended.
2Sponsor
The name of the sponsor.
3Heritage advisor
(1)The name of the heritage advisor engaged by the sponsor.
(2)A brief description of the qualifications and experience of that heritage advisor.
4Registered Aboriginal parties
(1)The name of each relevant registered Aboriginal party for the activity area.
(2)Whether a registered Aboriginal party has elected to evaluate the amendment.
(3)If a registered Aboriginal party has elected to evaluate the amendment, the names of the representatives appointed by that party and the functions carried out by those representatives.
5Notices relating to amendment
(1)A copy of the notices given under section 54 of the Act.
(2)A copy of any notices given under section 55 of the Act.
6Details of proposed amendment
A detailed description of the proposed amendment to the approved cultural heritage management plan.
7Matters considered in preparation of amendment
A statement of how the matters referred to in section 61 of the Act were considered in preparing the application to amend the approved cultural heritage management plan.
Schedule 4—Aboriginal cultural heritage land management agreements
Regulation 67C(b)
1Parties to agreement
The name of the public land manager and registered Aboriginal party who are parties to the agreement.
2Agreement area
A description of the agreement area and the boundaries of that area, including a map, location of the agreement area in a regional context, and a list of prominent structures, natural features and infrastructure within the agreement area.
3Land management activities
A list of land management activities which are permissible under the agreement, including for each activity—
(a)a description of the activity; and
(b)a description of permissible ancillary works associated with the activity; and
(c)a description of the likely impact on the land of the activity and any associated ancillary works.
4Details of assessment
(1)The method by which the Aboriginal cultural heritage present in the agreement area was assessed.
(2)The names of the persons involved in the assessment.
(3)A summary of any information provided by a representative of a relevant registered Aboriginal party or other person about the Aboriginal cultural heritage in the agreement area.
(4)An accurate transcript of any oral information provided by a representative of a relevant registered Aboriginal party, or other person, about the Aboriginal cultural heritage in the agreement area, if the person who provided the information consents.
(5)Details of any obstacles encountered in completing the assessment.
5Details of subsurface testing and excavation
If the cultural heritage assessment included subsurface testing or excavation—
(a)the method used for subsurface testing or excavation; and
(b)the location of subsurface testing or excavation pits or transects, including transect start and end points; and
(c)the names of persons taking part in the subsurface testing or excavation; and
(d)the name of the person responsible for supervising the subsurface testing or excavation; and
(e)any physical or other obstacles to the carrying out of the subsurface testing or excavation; and
(f)the results of the subsurface testing or excavation including the results of radiometric dating.
6Aboriginal cultural heritage
(1)A detailed description of any Aboriginal cultural heritage found in the agreement area consistent with the registration of that Aboriginal cultural heritage and including the registration number.
(2)A statement of the cultural heritage significance of that Aboriginal cultural heritage.
(3)A concise map or maps of the agreement area which show the location of that Aboriginal cultural heritage.
7Payments
Details of any payments required to be made by the public land manager to a registered Aboriginal party.
8Cultural heritage management actions
Details of any cultural heritage management actions required to be undertaken by the public land manager or any other person.
9Consultation
Details of any consultation that must be undertaken by the public land manager or some other person with a registered Aboriginal party.
10Other matters
Details of any other matters agreed between the parties to the agreement.
Schedule 5—Report on Aboriginal ancestral remains
Regulation 67D
1Name of public entity or university
The name of the public entity or university making the report.
2Table of Aboriginal ancestral remains in possession of public entity or university
A table of Aboriginal ancestral remains in the possession of the public entity or university, including—
(a)a description of the remains; and
(b)the origin of the remains (if known); and
(c)the current location of the remains; and
(d)the minimum number of individuals; and
(e)any relevant accession number or catalogue entry; and
(f)any associated Aboriginal objects.
3Details of Aboriginal ancestral remains
(1)The dimensions, materials, and, if appropriate, photographic documentation, and the antiquity of Aboriginal ancestral remains or associated Aboriginal objects, if known.
(2)Information relating to the acquisition of the remains, including—
(a)the name of the person or organisation from which the remains were obtained (if known); and
(b)the date of acquisition of the remains (if known); and
(c)the means of acquisition of the remains (e.g. gift, excavation, purchase).
(3)Any consultation undertaken with traditional owners in compiling the report.
(4)A summary of the evidence, including the results of consultation, used to determine the origin of the remains and associated Aboriginal objects.
Schedule 6—Application for certification of preliminary Aboriginal heritage test
Regulation 67E
1Name of applicant
The name of the person proposing the activity.
2Who prepared the test
The names of the persons involved in the preparation of the test, including the ground inspection (if any).
3Proposed activity area
(1)A detailed description of the proposed activity area, including a map indicating the location of the proposed activity area.
(2)A statement detailing the previous land use of the proposed activity area.
4Background assessment
A background assessment of the proposed activity area, including—
(a)the results of the Register search, including a list of reports and cultural heritage management plans relevant to the proposed activity area; and
(b)the details of the geographic region, landforms and geomorphology of which the proposed activity area forms a part; and
(c)if a survey for Aboriginal cultural heritage is undertaken for the test, the results of that survey, and any details required under section 34A of the Aboriginal Heritage Act 2006.
5Ground inspection
A statement of the method and conduct of the ground inspection of the proposed activity area (if any).
6Aboriginal cultural heritage
A detailed description of any Aboriginal cultural heritage in the activity area consistent with the registration of that Aboriginal cultural heritage and including the registration number.
7Consultation
(1)Details of any consultation undertaken with a relevant registered Aboriginal party or traditional owner.
(2)A summary of any information provided by a relevant registered Aboriginal party or other person about the Aboriginal cultural heritage in the proposed activity area.
(3)Any oral information provided by a relevant registered Aboriginal party or other person about the Aboriginal cultural heritage in the proposed activity area, if the person who provided the information consents.
8Conclusions
(1)A statement of whether a cultural heritage management plan is required in relation to the proposed activity.
(2)A statement of whether there has been significant ground disturbance in the proposed activity area and, if so, the nature and extent of that disturbance.
(3)Details of any other action recommended to protect or preserve any Aboriginal cultural heritage in the proposed activity area.
(4)The details of any obstacles encountered in preparing the test.
Schedule 7—Application for registration of Aboriginal intangible heritage
Regulation 67F
1Name of applicant
The name of the registered Aboriginal party, registered native title holder or traditional owner group entity.
2Aboriginal intangible heritage
Details of the knowledge of, or expression of, Aboriginal tradition proposed to be registered as Aboriginal intangible heritage, including—
(a)the category of Aboriginal intangible heritage applicable to the application; and
(b)details of any additional evidence supporting the application, including the contact details of corroborative informants, associated Aboriginal cultural heritage and documentary evidence (if any).
3Consultation
Details of any consultation undertaken by the applicant with any relevant traditional owners.
Schedule 8—Aboriginal intangible heritage agreement
Regulation 67G
1Details of agreement
The details of the agreement, including—
(a)the registration number of the Aboriginal intangible heritage, if applicable; and
(b)the period for which the agreement applies; and
(c)a detailed description of the uses and activities permitted by the agreement; and
(d)details of remuneration, compensation or commercial arrangements to be enforced by the agreement; and
(e)dispute resolution procedures; and
(f)review and variation clauses.
Schedule 9—Application for registration as a registered Aboriginal party
Regulation 67H
1Name of applicant
The name of the applicant for registration
as a registered Aboriginal party, including details of registration under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 of the Commonwealth.
2Evidence of details of applicant
The details of the applicant, including—
(a)evidence of any native title determination made relating to the applicant and the application area; and
(b)evidence of any recognition and settlement agreement in relation to the application area; and
(c)evidence of the status of the applicant as a native title party (if applicable); and
(d)any terms of any native title agreement the applicant wishes to make available to the Council (if applicable); and
(e)evidence of any grant of land in fee simple made by the State or the Commonwealth to the applicant under a specific power in a State or Commonwealth Act (if applicable); and
(f)evidence of any agreement between the applicant and the State in relation to land and natural resource management in the application area (if applicable).
3Application area
A description of the area in respect of which the application is made, including details, in the form of an attached map, or a written description, of the boundaries of that area.
4Consultation
(1)Evidence of any consultation or agreement with other traditional owner group entities regarding the boundary of the application area.
(2)If the applicant is not a traditional owner group entity, the written consent of the traditional owner group entity to which the application relates that the applicant may apply to be a registered Aboriginal party for that area.
5Supporting documentation
(1)Attach a statement outlining the nature of, and evidence supporting—
(a)the relationship or links of the applicant to the area in respect of which the application is made or the applicant's historical or contemporary interest in Aboriginal cultural heritage relating to the area; and
(b)the demonstrated expertise in managing and protecting Aboriginal cultural heritage in that area.
(2)Attach a statement outlining how the applicant intends to consider the interests of any Aboriginal people for whom the area in respect of which the application is made has cultural heritage significance, but who are not the traditional owners of the area.
(3)If this is a repeat application, attach a statement outlining how the application addresses the reasons Council declined the previous application.".
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Endnotes
[1] Reg. 3: S.R. No. 41/2007 as amended by S.R. No. 50/2009.
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