The Wadawurrung elder Uncle Albert Fagan hopes his great-grandchildren can one day show their kids the ancient scar trees that lie on the shores of Lake Burrumbeet, in central-western Victoria.
“I don’t want them to be destroyed and no longer there,” he said.
Fagan, who works for the Wadawurrung Traditional Owners Aboriginal Corporation, is fighting to preserve and rescue cultural heritage as Victoria embarks on an ambitious housing expansion. He finds himself on the frontline of a brewing debate over the state’s cultural heritage laws, after the opposition on Sunday announced it would dump its support for a treaty or treaties with First Nations peoples, citing issues with the legislation.
The Victorian opposition pointed to media reports in which property developers said legally required cultural heritage management plans (CHMPs) – which are approved by registered Aboriginal parties – were holding up building projects and imposing excessive costs on developments that were being passed on to consumers.
But planning permit data provided by the Victorian government showed last financial year less than 1% of developments required a CHMP.
Traditional owner groups argue boosted financial resourcing is needed to meet increased demand to deploy field workers to assess cultural heritage including stone artefacts, scar trees and fireplaces, and say timeframes for assessments and approvals could be reduced if developers could find options to preserve cultural heritage where it is discovered.
The red river gum scar trees date back to pre-colonisation but some were relocated to a property owned by the Wadawurrung corporation in 2021 after they were mistakenly cut down at Lake Burrumbeet – a delicate act of salvaging cultural heritage.
BJ O’Toole, a Wadawurrung man and heritage officer at the corporation who conducts field work, said salvaging heritage was always the “last resort”.
“It tears my heart apart seeing culture destroyed … we really want to try and be able to get the best outcome for the heritage because that’s what our old people would want,” he said.
Meeting the 30-day deadline
The Wadawurrung corporation said despite unprecedented growth in its area of 10,000 sq km on the western side Melbourne, which includes some of the nation’s fastest-growing areas such as Geelong and Melton, it performed all of its cultural heritage evaluations within the 30-day deadline.
The corporation acknowledged there were wait times for fieldworkers to be deployed to conduct assessments on site, due to the high demand for development and workforce shortages.
“It is broadly reflective of the kind of delays that are in any business allied to construction and relate to our ability to get labour and to cope with the growth,” said Matthew Smith, the chief executive of the corporation.
Under the state’s Aboriginal cultural heritage legislation, which came into effect in 2007, registered Aboriginal parties have a 30-day deadline to approve, reject or ask for further information about a CHMP that is submitted by a developer. A CHMP is required when high-impact development is planned in an area of “cultural heritage sensitivity”.
Developers also have the option to submit a CHMP to the Department of Premier and Cabinet if the Aboriginal party cannot provide an assessment within a month.
The assessment and approval of the CHMP typically involves traditional owner groups sending fieldworkers on site to evaluate what cultural heritage is present. If cultural heritage is discovered on site and a development will lead to it being damaged or destroyed, a traditional owner group will endeavour to salvage or rescue the artefacts and relocate them in an effort to preserve them, which can take months.
The Eastern Maar Aboriginal Corporation said it had not received any complaints in regards to time approving CHMPs, saying its average time to send workers on site was two weeks. The Barengi Gadjin Land Council Aboriginal Corporation said it had completed all its assessments within the statutory deadline.
Smith said the Wadawurrung corporation had doubled the number of employees in its fieldwork team over the past year to help meet increasing demand. It has an internal policy to hire only First Nations fieldworkers to ensure it is guided by traditional owners’ knowledge.
‘Be innovative’
An unnamed property expert was quoted in the Herald Sun saying developers faced 18-month waits to get representatives from registered Aboriginal parties to visit a site.
Smith said the wait time could vary from nine to 12 months for three months’ worth of fieldwork, to two to three months for a few days’ worth of work.
The corporation said this was partly due to cultural heritage needing to be salvaged or rescued and relocated when a developer declined to keep artefacts preserved on the site.
Smith stressed that if developers were more prepared to “be innovative” and consider development plans that allowed cultural heritage to remain intact on site and not requiring salvage then its wait times would reduce by a half to a third.
“For a lot of developers it will still be economically viable for them, given the cost of land, to remove that heritage and sell [the land],” he said.
If there is a dispute over a CHMP, the legislation permits developers to apply to the Victorian civil and administrative tribunal for a review of the decision.
Cath Evans, the Victorian executive director at the Property Council of Australia, said questions about salvaging or preserving heritage on site were “complex” and varied between sites.
“Each stakeholder will have a raft of issues to take into consideration when making that decision, including the cost of salvage, the amount of land involved and its position on the site,” she said.
The council, alongside the opposition, has called for a review of Victoria’s cultural heritage framework. It said this should prioritise “effective oversight of any process and delays”. Evans said adequate resourcing of registered Aboriginal parties could also be included in the scope of a review.
Evans said she was not aware of situations where the 30-day deadline had been missed.
At times, traditional owner groups reach what they deem successful outcomes with property developers.
Fagan says in one assessment fieldworkers discovered a burial on a site for a proposed development. They reburied it and managed to protect it by turning it into a garden and reaching an agreement with the developer that the soil could not be dug up or built within a 20-metre radius.
“Everyone’s happy,” he says. “Everyone walked away happy and we never stopped the development.”
The cost of salvaging cultural heritage
Property developers last week pointed to the cultural heritage obligations leading to unreasonable costs for building projects, with some being passed on to consumers.
The Herald Sun quoted the residential property developer Jake Munday, who said traditional owner groups were “exploiting the powers provided to them”.
It referenced figures of $514,800 “charged” to his construction company. Guardian Australia understands this amount was quoted by an external heritage adviser to the developer for salvaging and was not provided by the Wadawurrung corporation.
Munday declined to comment when contacted by Guardian Australia.
The corporation said to date it had charged $34,322 for the cultural heritage management plan that is under evaluation. Guardian Australia has viewed invoices totalling this figure.
The corporation confirmed that the plan required no salvaging as the parties reached an agreement for a park to be placed in the development that would allow the heritage discovered – stone tools – to remain at the site.
Funding and fieldworkers are needed
While the opposition has argued that the state’s treaty process should not start until issues with the cultural heritage framework are resolved, traditional owner groups have put forward several ideas to help them meet demand and improve fieldworker availability.
Eastern Maar Corporation called for the state government to consider a revised funding arrangement that aligned better with the “cyclical nature of cultural heritage work” and could be scaled up or down depending on demand for work.
Smith backed calls for boosted resourcing to help traditional owner groups to be able to recruit more fieldworkers and retain them, even during slower periods.
“The industry is being asked to move more towards a ‘we’re not going to accept any delays at all’ standpoint,” he said. “However, I would suggest that Aboriginal corporations are not resourced well enough to be underwriting the risk associated with that.”
A spokesperson for the Department of Premier and Cabinet said busy periods of construction and development in the state could create longer wait times for industry supplies and surveys, including assessments and approvals required for a proposed development site.
“We’ve undertaken a range of measures to ensure potential delays in the building industry are minimised, including working closely with industry and the Aboriginal Heritage Council to identify points of concern, delivering extra resources to Registered Aboriginal Parties for Cultural Heritage Management Plan assessments, and assessing some Cultural Heritage Management Plans within the department,” the spokesperson said.
The opposition’s spokesperson for Aboriginal affairs, Peter Walsh, and the Victorian Planning Authority declined to comment when contacted by Guardian Australia.
