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Agreements, Treaties and Settlements - Australia
In effect from 18 December 2003
This landmark agreement was signed in Melbourne on 18 December 2003, between VicRoads and the Yorta Yorta people, formalising a partnership between the Indigenous group and Victoria’s road authority. The agreement was officially signed by VicRoads Chief Executive David Anderson, Yorta Yorta Nation Elder, Henry Atkinson, and Rumbalara Aboriginal Cooperative Chairperson, Alfred Turner.
‘The signing of this agreement between VicRoads and the Yorta Yorta Nation Aboriginal Corporation is the first of its kind to be developed by a Government agency in Victoria’, David Anderson said. The VicRoads-Yorta Yorta Nation General Area Agreement, which applies to an area of approximately 6,500 km², between Cohuna, Euroa and Corowa in northern Victoria, sets down guidelines to ensure that Yorta Yorta cultural heritage and the environment is protected during VicRoads construction projects.
It is hoped that the General Area Agreement will facilitate the input and involvement of the Yorta Yorta people in all VicRoads projects in their traditional country. Key features of the agreement include:
This agreement has been followed by Yorta Yorta Cooperative Management Agreement (May 2004), made with the Victorian Government. This agreement allows the traditional owners a voice and a vital role in decision making via an eight-member body (five Yorta Yorta people and three government representatives) which will directly advise the State Environment Minister.
VicRoads acknowledges the Yorta Yorta peoples’ right to protect Yorta Yorta Cultural Heritage, their affinity with and relationship to the land, and their interest in the Environment, and understands the inter-relationship between general Environmental issues and the Yorta Yorta peoples’ cultural heritage concerns.
This agreement is entered into in order to clarify, regulate and promote an effective working relationship between VicRoads and the Yorta Yorta Nation Aboriginal Corporation in relation to the Agreement Area (specified in Appendix A to this agreement). In particular the agreement seeks to outline general principles relating to consultation, and the protection of Yorta Yorta Cultural Heritage and the Environment. It also recognises that the Yorta Yorta people need support, in the form of resourcing and training initiatives, to be able to effectively and efficiently carry out their commitments under the agreement.
This agreement is intended to provide a general framework under which further Project-Specific Agreements can be developed in relation to individual VicRoads road construction projects within the Agreement Area.
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3.1 In this agreement
Agreement Area means the area described in Clause 5.2 and specified in Appendix A to this agreement.
Approval Authorities means those persons, groups or bodies that have authority to give final approval to Project-Specific Agreements. This means in respect of:
Dispute means a disagreement relevant to the obligations of a Party arising under this agreement that cannot be resolved within 21 days, of which one Party has provided written notification to the other Parties.
Environment means: (a) ecosystems and their constituent parts, including people and communities; (b) natural and physical resources; (c) the qualities and characteristics of locations, places (including Yorta Yorta Places) and areas; and (d) the social, economic and cultural aspects of anything mentioned in (a), (b) or (c).
Environmental means of and relating to the Environment.
Major Projects means those Projects, other than Planning Projects, managed by VicRoads’ Major Projects Division.
Monitoring means the act of one or more Monitors examining Works taking place, including disturbance of the soil and other site features, during the course of a Project, in accordance with the protocol set out in Clause 23.4.
Monitors means those persons referred to in Clause 23.4.1.1.
Party and Parties means those persons and organisations referred to in Clause 4.1.1.
Planning Projects means Projects in the planning phase that are being managed by VicRoads’ Planning Investigations department.
Project means any road planning, construction or maintenance project (except for maintenance that does not involve excavation, specific ground disturbance and/or tree removal) within the Agreement Area on a road that is managed by VicRoads. In this agreement the term Project includes Major Projects, Regional Projects and Planning Projects.
Project Area means any area relating to a particular Project.
Project-Specific Agreement means any agreement formed pursuant to the process outlined in Clause 17.
Regional Projects means those Projects, other than Planning Projects, managed by VicRoads’ Regional Services Division.
Roadside Management Plan means a plan developed by VicRoads to, amongst other things, assist with the ongoing management and protection of flora, fauna and cultural heritage in the road reservation pertaining to a particular road managed by VicRoads.
Works means any Works that are carried out in relation to any Project within the Agreement Area, and includes specific ground disturbing excavation, construction, installation, rehabilitation and revegetation activity proposed to be carried out by VicRoads. It does not include maintenance activities unless those activities involve excavation, specific ground disturbance and/or tree removal.
Works Area means the area in which any Works are taking place.
Works Program means a document giving an overview of proposed Works, including expected timeframes and summarised site plans showing the proposed location of Works.
Yorta Yorta Cultural Heritage means Yorta Yorta Places, Yorta Yorta Objects and Yorta Yorta Folklore (and the surrounding Environment that created those Yorta Yorta Places, Yorta Yorta Objects and Yorta Yorta Folklore) that are connected with the cultural life of the Yorta Yorta people and that are of particular significance to the Yorta Yorta people in accordance with their traditions and customs.
Note: This definition is not intended to extend the existing definition of Aboriginal Cultural Heritage in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). It is included for the purposes of clarification.
Yorta Yorta Folklore means traditions or oral histories that are connected with the cultural life of the Yorta Yorta people (including songs, rituals, ceremonies, dances, art, customs and spiritual beliefs).
Yorta Yorta Object means an object, artefact or ancestral remains that are of particular significance to the Yorta Yorta people in accordance with their traditions and customs.
Yorta Yorta Place means a site, place or area of land or of water that is of particular significance to the Yorta Yorta people in accordance with their traditions and customs.
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13.1 In the event of any Dispute arising under this agreement the Parties shall exercise best endeavours to resolve the matter by discussion and negotiation.
13.2 If the Dispute remains unresolved for at least 21 days, the Parties shall seek to agree upon the appointment of an independent mediator to assist in the resolution of the matter. In the absence of agreement as to a mediator, any Party may apply to the Victorian Chapter of the Institute of Arbitrators and Mediators or the Dispute Settlement Centre of Victoria to ask them to appoint a mediator.
13.3 If the matter remains unresolved after mediation the Parties shall seek to agree upon the appointment of an independent arbitrator to hear and resolve the matter. In the absence of agreement as to an arbitrator, arbitration shall be effected by an arbitrator nominated upon the application by any Party by the Victorian Chapter of the Institute of Arbitrators, or, failing such nomination within 28 days, appointed in accordance with the provisions of the Commercial Arbitration Act 1984 (Vic).
13.4 A reference to arbitration under this clause shall be deemed to be a reference to arbitration within the meaning of the laws relating to arbitration in force in the State of Victoria. The arbitrator shall have all the powers conferred by those laws.
13.5 The arbitrator’s decision shall be final, subject to any rights of appeal under the Commercial Arbitration Act 1984 (Vic).
13.6 The procedures concerning mediation and arbitration, including payment of costs, shall be agreed.
13.7 In order to facilitate the above procedure:
13.8 Without prejudice to any Party, and subject to Clause 13.9, all Projects and Works should continue in accordance with this agreement while matters in Dispute between the Parties are being negotiated in good faith. No Party shall be prejudiced as to final settlement by the continuance of a Project and/or Works in accordance with this procedure.
13.9 Where the Dispute relates to any of the following, any Projects and Works directly relating to the Dispute should cease until the Dispute is resolved:
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14.1 The following bodies must be parties to any Project-Specific Agreement developed pursuant to Clause 17:
14.2 By agreement of the bodies referred to in Clause 14.1, any other person or organisation may be a party to a Project-Specific Agreement.
A Project-Specific Agreement developed pursuant to Clause 17 can be about, but should not necessarily be limited to, any of the following matters in relation to a particular VicRoads Project or class of Projects:
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17.1 At any stage the Parties can agree to create a Project-Specific Agreement for a particular Project or class of Projects. Any such agreement should be in writing and signed by all relevant parties (see Clause 14).
17.2 Project-Specific Agreement negotiations will be conducted between all relevant parties at meetings to which each of those parties will send representatives. The conduct and coordination of all negotiations, including the timing and location of any meetings, shall be agreed between the relevant parties prior to the commencement of such negotiations, and can be varied at any time by agreement.
17.3 During the course of the negotiations the relevant parties may develop drafts of the proposed Project-Specific Agreement. These drafts can be developed and exchanged between the relevant parties outside of the negotiation meetings discussed in Clause 17.2.
17.4 When the representatives specified in Clause 17.2 agree on a final draft Project-Specific Agreement, that agreement shall be submitted by each relevant party to the appropriate Approval Authority for final approval.
17.5 If the draft Project-Specific Agreement is approved by all relevant Approval Authorities the agreement can then be signed and executed.
17.6 If the draft Project-Specific Agreement is not approved by all relevant Approval Authorities, negotiations shall continue between the relevant parties, taking into consideration any comments and feedback made.
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19.1 The Parties shall carry out their obligations under this agreement in good faith and in a timely manner in accordance with the provisions of this agreement.
19.2 Each Party shall at all times give full and proper consideration to the objectives of the other Parties in carrying out Projects and associated Works within the Agreement Area.
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22.1 General
22.1.1 VicRoads shall take all reasonable steps to consult with Yorta Yorta Nation Aboriginal Corporation regularly and from the earliest possible opportunity at all stages of the road planning and road construction process.
22.1.2 Unless otherwise agreed between the Parties, VicRoads shall meet with Yorta Yorta Nation Aboriginal Corporation in October and June each financial year, and at any other times agreed by the Parties, to discuss Projects and Works proposed for the upcoming financial year. During these meetings any issues relating to VicRoads’ activities and/or the operation of this agreement may be discussed, including the following:
22.2 Consultation during road planning
VicRoads shall consult with Yorta Yorta Nation Aboriginal Corporation regularly and from the earliest possible opportunity in relation to the progress of any Planning Projects being undertaken in the Agreement Area. The nature of and arrangements for any such consultation shall be agreed between the Parties, and may be undertaken in parallel or in conjunction with any consultation required under the Planning and Environment Act 1987 (Vic) or Environment Effects Act 1978 (Vic).
22.3 Consultation during road pre-construction
VicRoads shall consult with Yorta Yorta Nation Aboriginal Corporation regularly and from the earliest possible opportunity in developing all management recommendations in relation to Yorta Yorta Cultural Heritage and flora and fauna, and all rehabilitation and revegetation proposals relating to the Agreement Area.
22.4 Consultation during road construction and maintenance
22.4.1 VicRoads shall consult with Yorta Yorta Nation Aboriginal Corporation regularly and from the earliest possible opportunity in relation to the progress of any Works being undertaken in the Agreement Area that are nominated pursuant to Clause 22.1.2 as requiring their ongoing involvement and consultation. The nature of and arrangements for any such consultation shall be agreed between the Parties, and may be specified in a Project-Specific Agreement.
22.4.2 VicRoads shall consult with Yorta Yorta Nation Aboriginal Corporation regularly and from the earliest possible opportunity in developing all Roadside Management Plans relating to the Agreement Area.
23.1 General
23.1.1 VicRoads shall at all times respect Yorta Yorta Cultural Heritage in relation to the Agreement Area, and shall undertake all Projects in cooperation and partnership with Yorta Yorta Nation Aboriginal Corporation.
23.1.2 VicRoads shall comply with the provisions of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and any declarations of preservation that are made in relation to the Agreement Area.
23.1.3 VicRoads shall not undertake any activity likely to impair, damage or interfere with any Yorta Yorta Place or Yorta Yorta Object, except with the prior consent of Yorta Yorta Nation Aboriginal Corporation.
23.1.4 If any representative of VicRoads breaches Clause 23.1.3, whether deliberately or negligently, then VicRoads shall take reasonable action immediately to fully protect and restore the Yorta Yorta Place or Yorta Yorta Object in accordance with the directions of Yorta Yorta Nation Aboriginal Corporation.
23.1.5 Except in cases where a consent to disturb has been obtained (see Clause 25), VicRoads shall ensure that all Yorta Yorta Cultural Heritage identified during the planning, pre-construction and construction phases of any Projects within the Agreement Area is adequately protected from disturbance during construction activity. Protection measures may involve fencing off and notation on concept and construction plans.
23.2 Yorta Yorta Cultural Heritage protection during road planning – Cultural heritage investigations
23.2.1 VicRoads shall, as a part of the cultural heritage investigations carried out in relation to any Project within the Agreement Area, liaise with Yorta Yorta Nation Aboriginal Corporation to establish their views on the Project, the cultural heritage significance of any Yorta Yorta Cultural Heritage within the Project Area, and any cultural heritage management recommendations proposed in relation to Yorta Yorta Cultural Heritage.
23.2.2 VicRoads shall consult with Yorta Yorta Nation Aboriginal Corporation prior to making a decision on the appointment of any archaeological consultants in relation to any Project within the Agreement Area. VicRoads shall engage a representative of Yorta Yorta Nation Aboriginal Corporation to assist any such archaeological consultants to carry out fieldwork necessary for any cultural heritage investigations undertaken in respect to any Project.
23.2.3 As an outcome of these participation and liaison processes, Yorta Yorta Nation Aboriginal Corporation shall provide VicRoads with information on Yorta Yorta Cultural Heritage pertaining to cultural significance to append to any cultural heritage report prepared in relation to any cultural heritage investigations carried out for any Project within the Agreement Area. The method of conveying this information shall be agreed between the Parties, but may consist of the provision of a written statement of cultural significance, or of minutes (approved by Yorta Yorta Nation Aboriginal Corporation) of meetings where cultural significance issues are discussed between the Parties. By agreement between the Parties, Yorta Yorta Nation Aboriginal Corporation shall also take all reasonable steps to prepare and submit written planning panel submissions when requested by VicRoads, the Department of Sustainability & Environment and/or an independent planning panel.
23.3 Incorporation of management recommendations made in relation to Yorta Yorta Cultural Heritage into Roadside Management Plans
VicRoads shall include any ongoing management recommendations made in relation to Yorta Yorta Cultural Heritage, as agreed between it and Yorta Yorta Nation Aboriginal Corporation, in all Roadside Management Plans relating to the Agreement Area.
23.4 Yorta Yorta Cultural Heritage protection during road construction and maintenance – Monitoring protocol
23.4.1 Role, engagement and liaison
23.4.1.1 Unless otherwise agreed between the Parties, VicRoads shall engage a Monitor or Monitors nominated by Yorta Yorta Nation Aboriginal Corporation to assist in the identification and assessment of Yorta Yorta Cultural Heritage during Works of a type listed in Appendix C to this agreement in relation to any Project within the Agreement Area. Unless otherwise agreed between the Parties, no Monitors shall be required during Works of a type listed in Appendix D to this agreement in relation to any Project within the Agreement Area.
23.4.1.2 Unless otherwise agreed between the Parties, the following matters pertaining to Monitoring for a particular Project or class of Projects should be agreed between the Parties and included as part of a Project-Specific Agreement:
23.4.1.3 Yorta Yorta Nation Aboriginal Corporation shall ensure that all Monitors engaged on site have undertaken appropriate site identification training prior to commencing Monitoring work.
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23.4.2 Protocol to apply where Yorta Yorta Cultural Heritage is identified during Construction
In the event of any Yorta Yorta Cultural Heritage, including any Yorta Yorta Object or Yorta Yorta Place, being uncovered and/or identified during construction, the following procedure will apply:
(a) VicRoads shall treat any location in the Project Area in which any Yorta Yorta Cultural Heritage is identified during any Works as if no clearance had previously been given in relation to that location.
(b) VicRoads shall ensure the full protection of any such location, and it, Yorta Yorta Nation Aboriginal Corporation and the Monitors shall otherwise use best efforts to ensure minimum interference to the continuation of the Project.
(c) VicRoads will immediately notify any Monitor(s) on site and will inform Yorta Yorta Nation Aboriginal Corporation of the location of the Yorta Yorta Cultural Heritage. In the case of discovery of human remains VicRoads will also immediately notify the local office of Victoria Police or the State Coroner’s Office, and, upon confirmation that the remains are ancestral Aboriginal remains, will report the discovery to the Executive Director of Aboriginal Affairs Victoria.
(d) Any Monitor(s) on site, Yorta Yorta Aboriginal Corporation and VicRoads will then take immediate steps to evaluate and protect the Yorta Yorta Cultural Heritage. Where agreed between the Parties VicRoads will engage an archaeological consultant to assist in this evaluation.
(e) Any location in which any Yorta Yorta Cultural Heritage is uncovered or identified shall not be interfered with pending the evaluation and protection of the Yorta Yorta Cultural Heritage by the Monitor(s). Yorta Yorta Nation Aboriginal Corporation shall use their best endeavours to ensure that any such evaluation and protection is completed within a reasonable time.
(f) Works at the immediate location will be suspended until this evaluation is completed and an appropriate course of protective action determined. However, Works may recommence and continue 100 metres away from the area in which the Yorta Yorta Cultural Heritage was uncovered and/or identified, or less or more than 100 metres if so agreed by Yorta Yorta Nation Aboriginal Corporation in consultation with VicRoads’ representative.
(g) An appropriate course of protective action will be determined by agreement between Yorta Yorta Nation Aboriginal Corporation and VicRoads’ representative. This may consist of recording the site location, the removal of material or site protection measures as appropriate under the provisions of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) and/or Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Where there is no feasible and prudent course of protective action, or the Parties cannot agree on a feasible and prudent course of protective action, VicRoads shall be entitled to apply for consent to disturb the relevant Yorta Yorta Cultural Heritage pursuant to the process outlined in Clause 25.
(h) Where a course of protective action is agreed on, VicRoads shall be required to vary, alter or revise any relevant Works Program to the extent necessary to the satisfaction of Yorta Yorta Nation Aboriginal Corporation, to ensure the protection of the Yorta Yorta Cultural Heritage.
24.1 Where agreed between the Parties, Yorta Yorta Nation Aboriginal Corporation will conduct cultural awareness training for relevant VicRoads employees and contractors prior to the commencement of a Project within the Agreement Area to:
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25.1 VicRoads shall send any applications for consent to disturb Yorta Yorta Cultural Heritage within the Agreement Area to Yorta Yorta Nation Aboriginal Corporation and, in cases where Yorta Yorta Nation Aboriginal Corporation is not the relevant local Aboriginal community body as specified in the Regulations to Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) for the relevant area, also to Rumbalara Aboriginal Cooperative.
25.2 Rumbalara Aboriginal Cooperative agrees that, in relation to any Project in the Agreement Area, they will take the advice of Yorta Yorta Nation Aboriginal Corporation in relation to the granting of consents to disturb Yorta Yorta Cultural Heritage under s.21U(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the granting of authorisation to conduct sub-surface testing.
26.1 General
26.1.1 VicRoads shall at all times respect the Environment in relation to the Agreement Area. VicRoads shall comply with the provisions of the Environment Effects Act 1978 (Vic), the Environment Protection Act 1970 (Vic), the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Flora and Fauna Guarantee Act 1988 (Vic) and the Planning and Environment Act 1987 (Vic).
26.1.2 VicRoads shall, as far as is practicable, ensure that in carrying out all Projects within the Agreement Area it:
26.2 Environmental protection during road planning
26.2.1 VicRoads shall, as a part of the flora and fauna investigations carried out in relation to any Project within the Agreement Area, liaise with Yorta Yorta Nation Aboriginal Corporation to establish their views on the Environmental significance of the Project Area, and on any proposed flora and fauna management recommendations.
26.2.2 VicRoads shall consult with Yorta Yorta Nation Aboriginal Corporation regularly and from the earliest possible opportunity in developing all rehabilitation and revegetation proposals relating to the Agreement Area.
26.3 Environmental protection during road construction and maintenance
26.3.1 VicRoads shall include any ongoing Environmental management recommendations in all Roadside Management Plans relating to the Agreement Area.
26.3.2 Where agreed between the Parties, Monitor(s) may be on site Monitoring any Works involved in implementing any revegetation and rehabilitation plans.
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The boundary of the Agreement Area begins at the bridge where the Rutherglen-Wahgunyah Road crosses the Victoria – New South Wales border (ie. the southern bank of the Murray River) just south of Wahgunyah and continues progressively:
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2004/21.html