Aboriginal and Torres Strait Islander Heritage Protection Amendment Regulations 2004 (No. 1) 2004 No. 176
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 176
Issued by the authority of the Minister for the Environment and Heritage
Aboriginal and Torres Strait Islander Heritage Protection Act 1984
Aboriginal and Torres Strait Islander Heritage Protection Amendment Regulations 2004 (No. 1)
Section 32 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Regulations have been made under the Act
Subsection 21A(1) of the Act defines a 'local Aboriginal community' as an organisation that is specified in the Schedule to the Act. This subsection also defines 'community area', in relation to a local Aboriginal community, as an area in Victoria declared by the regulations to be the area of that community for the purposes of Part IIA of the Act, which deals with Victorian Aboriginal cultural heritage. Part IIA is the main legislation dealing with the protection of significant Aboriginal areas and objects in Victoria. The provisions of Part IIA were enacted by the Commonwealth in 1987 at the request of the Victorian Government.
Section 21B provides for the delegation of powers under Part IIA to the State Minister (Victoria) and for day-to-day administration by Aboriginal Affairs Victoria.
The Regulations amend the Aboriginal and Torres Strait Islander Heritage Protection Regulations 1984 (the Principal Regulations) to vary the existing community area boundary descriptions in Schedule 4, Area 23 in the Principal Regulations. The variation would excise part of the community area of the Wurundjeri Tribe Land Compensation and Cultural Heritage Council Incorporated in the area to the south-east of Melbourne and south of the Princes Highway to Western Port Bay.
The Regulations promote the effective operation of Part IIA of the Act, by amending the boundary descriptions for the community area of the Wurundjeri. Aboriginal Affairs Victoria has advised that it considers the proposed boundary approximates the boundary of traditional Boonwurrung country. Aboriginal Affairs Victoria has also advised that it does not consider it appropriate to reassign the area to any specific Boonwurrung group at this time, because parties claiming Boonwurrung ancestry are in dispute over rights to make decisions relating to cultural heritage matters in the area. The Regulations clarify decision-making responsibility in the area to the south-east of Melbourne.
The effect of the Regulations is that when a person makes an application for consent to enter on, or interfere with, Aboriginal places or objects within the area that has been removed from the Wurundjeri, the application will be determined by the Victorian Minister for Aboriginal Affairs. In dealing with the application for consent, the Victorian Minister for Aboriginal Affairs must consider recommendations sought and received in compliance with subsection 21U(6) of the Act.
The Regulations clarify decision-making responsibility in the area and provide a level of certainty for industry and the community in development applications and processes. The Office of Regulation Review has advised that a Regulatory Impact Statement is not required, as the Regulation does not appear to have a direct or significant indirect impact on business.
The Act specifies no conditions that need to be met before the power to make the
proposed regulations may be exercised.
The Regulations commence on the date of their notification in the Gazette.
Overview
The Aboriginal and Torres Strait Islander Heritage Protection Amendment Regulations 2004 (No. 1) were enacted to amend the Aboriginal and Torres Strait Islander Heritage Protection Regulations 1984. These Regulations were introduced to address the need for a more precise delineation of the community area boundaries for local Aboriginal communities in Victoria, particularly for the Wurundjeri Tribe Land Compensation and Cultural Heritage Council Incorporated. The Regulations aim to provide clarity and certainty in decision-making regarding applications for consent to enter or interfere with Aboriginal places and objects within the amended area. They were issued by the Minister for the Environment and Heritage under the authority of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, with the objective of ensuring the effective operation of Part IIA of the Act, which governs the protection of significant Aboriginal areas and objects in Victoria.
Scope and Application
The Aboriginal and Torres Strait Islander Heritage Protection Amendment Regulations 2004 (No. 1) applies to the modification of community areas under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, specifically targeting the community area of the Wurundjeri Tribe Land Compensation and Cultural Heritage Council Incorporated. The Act pertains to the protection of Aboriginal cultural heritage in Victoria, and these Regulations are designed to amend the existing boundary descriptions to more accurately reflect traditional Aboriginal lands. By excluding a portion of the community area in the area south-east of Melbourne, the Regulations seek to resolve disputes over cultural heritage decision-making responsibilities among various groups claiming Boonwurrung ancestry. The Regulations specify that any applications for consent to enter or interfere with Aboriginal places or objects within the amended area will be managed by the Victorian Minister for Aboriginal Affairs, who must consider relevant recommendations in line with the Act. The Regulations are intended to provide clarity and certainty for industry and the community in relation to development applications and processes in these areas.
Key Provisions
The Aboriginal and Torres Strait Islander Heritage Protection Amendment Regulations 2004 (No. 1) primarily serve to amend the existing community area boundary descriptions for the Wurundjeri Tribe Land Compensation and Cultural Heritage Council Incorporated, specifically in Area 23 in Schedule 4 of the Aboriginal and Torres Strait Islander Heritage Protection Regulations 1984 (the Principal Regulations). This amendment involves excising part of the community area in the area to the south-east of Melbourne and south of the Princes Highway to Western Port Bay. These changes are intended to promote the effective operation of Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act), which governs the protection of significant Aboriginal areas and objects in Victoria.
The Act imposes certain obligations on the parties and entities it governs, particularly concerning the protection and management of Aboriginal heritage sites. Section 21A defines 'local Aboriginal community' and 'community area', specifying the areas of responsibility for these communities. Section 21B allows for the delegation of powers under Part IIA to the State Minister (Victoria) and for day-to-day administration by Aboriginal Affairs Victoria. The Regulations clarify the decision-making responsibility in the specified area, ensuring that applications for consent to enter on, or interfere with, Aboriginal places or objects within the amended community area are determined by the Victorian Minister for Aboriginal Affairs. This process must take into account recommendations received in compliance with subsection 21U(6) of the Act.
Failure to comply with the provisions of the Act and the Regulations can result in various offences and penalties. While the explanatory statement does not detail specific offences or penalties, breaches of the Act and Regulations can generally lead to civil or criminal consequences, depending on the nature and severity of the breach. These consequences could include fines or imprisonment, as stipulated in other sections of the Act. The maximum penalties for offences under the Act are not explicitly stated in the provided explanatory statement but are typically detailed elsewhere in the legislation.
Overall, the Regulations aim to provide clarity and certainty in decision-making processes concerning Aboriginal heritage in the specified area, ensuring that the responsibilities and rights of local Aboriginal communities are properly recognised and managed. The changes are designed to facilitate smoother interactions between industry, the community, and the relevant authorities in development applications and processes.