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Native Title expert queries Victorian Opposition claims on cultural heritage laws

Dechlan Brennan -

Criticism of the Victorian Opposition's withdrawal the state's Treaty process has continued, with a native title legal expert labelling Nationals leader Peter Walsh's commentary on the state's cultural heritage laws as "misleading."

Mr Walsh, who is also the opposition Aboriginal affairs spokesperson, argued on Monday Traditional Owner groups effectively had a monopoly under government legislation - with less accountability than other organisations. As result, he said the opposition didn't believe the legislation was "delivering for all Victorians".

These comments came after he told Sky News on Sunday the Opposition had " internal discussions" resulting in the decision to abandon the Treaty process until "issues" around cultural heritage and the Traditional Owner Settlement Act were resolved.

On Tuesday, Native title legal expert and former director of the Victorian Aboriginal Heritage Council Matthew Storey, said it was specious to label heritage laws a monopoly.

Matthew Storey has questioned some of Mr Walsh's claims

(Image: Storey and Ward)

"I presume what he's talking about is the statutory role of registered Aboriginal parties to consider and approve or not cultural heritage management plan," Mr Storey told National Indigenous Times.

"To say it's a monopoly, it is quite misleading because the whole process of registered Aboriginal parties is identification of the relevant traditional owners…So you can't have anyone else than the relevant traditional owners considering applications to damage their cultural heritage."

Mr Storey asked how there could be competition in that instance. "We're not talking about town planners, we're talking about the owners of the cultural heritage," he said.

Under Victorian law, Registered Aboriginal Parties (RAPs) are responsible for managing First Nations cultural heritage matters in their determined areas. Both developers and governments are required to consult them. There are currently 11 RAPSs covering approximately 75 per cent of Victoria.

First Peoples' of Victoria co-chair Reuben Berg told reporters on Monday that whilst anyone involved in the cultural heritage space knows it's "not a perfect system," Treaty would be an opportunity to address some of the issues.

"There are concerns that they [the Opposition] have raised, but there are concerns that Traditional Owners would also raise about the cultural heritage process… my view: it's through Treaty that we can have those conversations and make progress through that sort of cultural heritage concerns," he said.

Mr Walsh has said Cultural Heritage delays are impacting all Victorians (Image: Justin McManus/The Age

Mr Walsh has previously called for a parliamentary inquiry to review the Aboriginal Heritage Act, to "report on its effectiveness" and to assess its impact during the current housing crisis. He said this opportunity was met with silence by Labor.

"While it is important to protect Aboriginal cultural heritage, this must be done in a timely way that doesn't impose unreasonable time constraints or costs onto development in Victoria," he said in November last year.

Consternation has focused on supposed delays from land councils in approving developments. The Herald Sun reported last week property developers were frustrated; one industry figure labelled the complications related to cultural heritage a "wicked problem" with another stating: "The government has awarded the land councils unfettered power."

The Age reported the about-face from the Opposition gained momentum during the middle of 2023, after MPs began raising concerns about cost overruns and delays associated with cultural heritage practices.

Mr Storey said the concern from property developers was on the delays in the approval process, but argued the solution wasn't the elimination of the approval process altogether, but rather the delays were from "resource constraints' rather than the cultural heritage laws themselves, which he said had worked well in the time since they were legislated.

"So, in the context of cultural heritage, how do you speed up the process? If the delays are stemming from the fact that there's a high level of development applications, you should be putting more resources into those people necessary to approve the applications, and that body is the registered Aboriginal party," he said.

"The problem is whether the funding comes from the industry or from the government, there isn't enough resources going into RAPs to be able to process the applications in the desired time frame."

Mr Walsh cited the reported delays, as well as the placing of the Bunurong Land Council into administration in 2023, as reasons for Treaty bipartisanship to be ended, claiming anyone who spoke out was "immediately branded a racist."

"People are hesitant to speak out publicly because they know if they do that effectively limits the chance to get either a cultural heritage study done or to get a successful outcome out of one."

Mr Storey said he hadn't heard any evidence to back up Mr Walsh's claim. "In all seriousness… I don't know what he is saying."

"If a cultural heritage management plan is necessary, and I presume that's what it means by cultural heritage study, it's governed by a very strict - I'd say, too strict - legislative criteria," Mr Storey said.

"It's got to be in an area of cultural sensitivity, it's got to be an area where there hasn't been significant crowd disturbance and it's got to be a proposal that involves a significant impact. all of those are legislatively defined…I think most people would actually agree that there should be some protections around cultural heritage."

He has previously come under criticism from Indigenous groups in September when he authored an article criticising an agreement between the Barengi Gadjin Land Council and the state of Victoria under the Traditional Owner Settlement Act, labelling it a "stealth attack" and an "attack on the rights of all Victorians".

In response Mr Storey said at the time it was "fairly damning for a shadow Aboriginal affairs minister to get this wrong".

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