Heritage

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Working with Aboriginal intangible heritage

Aboriginal Traditional Owners in Victoria are recognised and respected as the custodians of their cultural knowledge, cultural expressions and cultural adaptations, including

  • stories
  • language
  • arts and craft techniques
  • environmental knowledge
  • ceremony
  • song
  • dance.

Smoking ceremony

Aboriginal people in Victoria regularly share their culture with others, as an opportunity to develop positive connections within their communities, celebrate the continuity of their cultures and educate younger generations. During this process, it is important that Traditional Owners' unique cultural rights are acknowledged.

The United Nations Declaration on the Rights of Indigenous Peoples enshrines these rights at an international level. Article 31 states that

...Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts.

They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

In conjunction with indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights.

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The new provisions for recognising and protecting Aboriginal intangible heritage in the Aboriginal Heritage Act 2006 represent one way in which the State of Victoria acknowledges and upholds these rights.

If you want to use Aboriginal intangible heritage, contact the relevant Traditional Owners to talk about it.

Agreement making

Aboriginal intangilble heritage agreement template Aboriginal Intangible Heritage Agreement templateDOC (173 KB)
Once intangible heritage is registered on the VAHR, anyone who wants to use that intangible heritage for commercial purposes has a legal responsibility to seek the permission of the representative group of the Traditional Owners, and may enter into an Aboriginal intangible heritage agreement.

An Aboriginal intangible heritage agreement can be made between the representative group of the Traditional Owners of the Aboriginal intangible heritage (a registered Aboriginal party, a registered native title holder, or a Traditional Owner group entity) and any other person or body.

They allow Traditional Owners to identify and/or negotiate the terms by which the Aboriginal intangible heritage may be used by others.

An Aboriginal intangible heritage agreement may include provisions relating to:

  • management, protection or conservation
  • research or publication
  • development or commercial use
  • rights of Traditional Owners to use and commercially exploit the Aboriginal intangible heritage, including anything produced from its research and development
  • compensation to be paid to Traditional Owners for the research, development and commercial use of Aboriginal intangible heritage

An Aboriginal intangible heritage agreement cannot deal with any activity for which a cultural heritage permit or cultural heritage management plan is required.

The agreement must be in the prescribed form (Aboriginal intangible heritage agreement template) and include

  • the parties
  • period of agreement
  • description of the Aboriginal intangible heritage
  • a detailed description of the uses and activities permitted
  • the details of remuneration, compensation or commercial arrangements to be enforced by the agreement
  • dispute resolution procedures
  • review and variation clauses.

The agreement must be lodged on the VAHR.

It's an offence under the Act to use registered Aboriginal intangible heritage for commercial purposes without the consent of the representative group of the Traditional Owners. It is also an offence under the Act to fail to comply with the conditions of an Aboriginal intangible heritage agreement.

For the purposes of the Act, Aboriginal intangible heritage does not include anything that is generic to, or known or practiced widely by, the broader population. Therefore an Aboriginal intangible heritage agreement cannot be prepared for these things.

How can I find out if intangible heritage is registered on the Victorian Aboriginal Heritage Register (VAHR)?

To find out whether Aboriginal intangible heritage is registered on the VAHR or not, you should contact the representative group of Traditional Owners in the first instance.

Alternatively, any person may apply for access to the VAHR for the purpose of determining whether an Aboriginal intangible heritage agreement is required.

Contact Heritage Registry on 03 8392 5388 or vahr@dpc.vic.gov.au

When do I need an Aboriginal intangible heritage agreement?

If you wish to use registered Aboriginal intangible heritage for commercial purposes, you need the consent of the relevant Traditional Owners. Aboriginal intangible heritage agreements are the main form of consent.

3 quick questions you can ask yourself to assess whether an Aboriginal intangible heritage agreement is required:

  1. Is the Aboriginal intangible heritage registered?
    Yes - go to step 2
    No - no agreement legally required. (We recommend contacting the Traditional Owners of the intangible heritage to seek their permission, input and advice regarding its use, whether that use is commercial or not.)
  2. Is the proposed use of the Aboriginal intangible heritage commercial in nature?
    Yes - go to step 3
    No - no agreement legally required. (We recommend contacting the Traditional Owners of the intangible heritage to seek their permission, input and advice regarding its use, whether that use is commercial or not.)

  3. Do the Traditional Owners want to enter into an Aboriginal intangible heritage agreement for the use of the Aboriginal intangible heritage?
    Yes - You will need an Aboriginal intangible heritage agreement to use that intangible heritage
    No - Traditional Owners must provide written consent.