Expert Witness Statement of Jonathan Howell-Meurs

Engaged by Melbourne City Council

1 Name and Address

Jonathan Howell-Meurs

Executive Director

Andrew Long & Associates P/L

54-58 Smith Street

Collingwood VIC 3066

2 Qualifications and experience

(1994) B.A. Honours Degree in Archaeology and Classics at University of Melbourne.

(1997) M.A. Archaeology at University of Melbourne.

Professional archaeological and heritage consultant since 1999.

Recognised as a Cultural Heritage Advisor for the purposes of the Aboriginal Heritage Act 2006

3 Area of expertise

My area of expertise is cultural heritage management.

I have sufficient expertise to make this report as I have more than 10 years’ experience in

undertaking cultural heritage assessments within the State of Victoria and I am a qualified

Cultural Heritage Advisor for the purposes of the Aboriginal Heritage Act 2006.

4. Other contributors to this statement

The desktop component of this report has relied upon material prepared by Mr Paul

Pepdjonovic during the preparation of the draft Cultural Heritage Management Plan 14052. Mr

Pepdjonovic, of Andrew Long + Associates, is a listed Cultural Heritage Advisor for the

purposes of the Aboriginal Heritage Act 2006.

5. Instructions relied upon for the preparation of this report.

Under instruction from Ashurst Australia this report has been prepared to address the

following issues:

A brief discussion of the relevant Aboriginal history of the area (specifically, the fact

that there are Aboriginal remains buried at the Old Melbourne Cemetery, and the

Aboriginal items discovered at the Munro site).

A description of why Aboriginal cultural heritage is therefore an important

consideration for the development of the QVM precinct.

A high level description of the relevant legal/management framework, which should

include a discussion of the section 173 Agreement already in place, and the Aboriginal

registered place(s) (burial site, and the Munro site), and the impact of the relevant

buffers under the AH Act/Regs.

A description of the work that is currently being done in terms of the two CHMPs,

which should include discussion of any considerations which will need to be taken

into account in terms of exhumation of remains in the Old Melbourne Cemetery (on

the basis that there is a small risk that some could be Aboriginal).

Any other issues that you consider relevant to Amendment C245.

6. Persons undertaking tests or experiments upon which this report relies.

Not applicable.

Signed

Jonathan Howell-Meurs Date 27th April 2016

Aboriginal Cultural Heritage Expert Evidence – Redevelopment of the

Queen Victoria Market – City of Melbourne Planning Scheme Amendment

C245 and Implications for Development

Author: Jonathan Howell-Meurs

27th April 2016

Introduction

The following report presents Aboriginal Cultural Heritage expert evidence in relation to the

proposed City of Melbourne Planning Scheme Amendment C245 for the redevelopment of the

Queen Victoria Market. The report is broadly structured around the following sections:

1. A brief discussion of the relevant Aboriginal history of the area

2. The relevant legal/management framework.

3. The preparation of Cultural Heritage Management Plans (CHMPs) currently under way.

Registered Aboriginal Parties and Applicants

At the present time there is no Registered Aboriginal Party for the land which is subject to the

proposed C245 Planning Scheme Amendment (hereafter the ‘subject land’). Previously the

Wurundjeri Tribe Land and Compensation Cultural Heritage Council (WTLCCHC), the Bunurong

Land Council Aboriginal Corporation (BLCAC), Bunurong Land and Sea Association Incorporated

(BLSAI) and Boon Wurrung Foundation Ltd (BWF) had also submitted applications for RAP status

for the subject land, however these applications were declined. Nevertheless, the Aboriginal

Heritage Council has acknowledged that the BLCAC, BLSAI, BWF and the WTLCCHC represent

Traditional Owner Groups for the areas of their former applications and are to be consulted in

relation to cultural heritage matters until such time as a successful RAP application is received.

Aboriginal History of the Subject Land

The lives of Aboriginal people in the Melbourne area were severely disrupted by the

establishment and expansion of a European settlement. As a result, little information is available

regarding the pre-contact lifestyle of Aboriginal people in the area, especially the subject land.

The following section summarises major syntheses previously undertaken on Aboriginal

associations with the Melbourne area in general in the pre-contact and post-contact period (i.e.

Clark 1990; Clark & Heydon 1998; Presland 1994).

Pre-Contact Period

The subject land is located within the lands traditionally associated with the Woi wurrung

language group (Clark 1990: Figure 13). The closest documented clan to the study area were the

Wurrundjeri willam, a Woi wurrung clan who identified with land encompassing most of the

Yarra River valley (Clark 1990:365). Clan boundaries were defined by mountains, creeks and

rivers, and clans were familiar with the geography of their territory and the seasonal availability

of resources within it. Clark and Heydon (1998:15) note that the Wurundjeri willam consisted of

three smaller groups occupying specific areas of land within the broader Wurundjeri willam area.

A group known as ‘Billibillary’s mob’ occupied an area encompassing the Maribyrnong River,

Merri Creek, Lancefield and Mount William and is likely to have been the landowning group in

the study area at the time of European settlement. ‘Bebejan’s mob’ occupied land between

Merri Creek and the Yarra River, extending to Mt Baw Baw (Clark & Heydon 1998:17).

The majority of references to Wurundjeri willam describe Aboriginal associations with either the

Yarra River or Mount William, west of Kilmore (Presland 1994). The Wurundjeri willam had an

extensive network of political, economic and social relations with neighbouring clans, including

those from other language groups. Marriages were sought from the Bunjil moieties of the Bun

wurrung (spelling according to Clark 1990, 364) to the south, the Taungurong to the north and

a clan near Mount Macedon and Lancefield (Barwick 1984,104).

Very little is known about the pre-European contact occupation of the subject land by the

Wurrundjeri willam. Most references to Aboriginal people in the vicinity of Melbourne during

the early contact period describe Woi wurrung people without specifying clan affiliation, or

Aboriginal people from other language groups visiting the Melbourne area (Clark 1990).

Clans from the Woi wurrung and other language groups regularly met for social, ceremonial and

trade purposes, with Thomas, an Assistant Aboriginal Protector, in 1840 noting that:

By what I can learn, long ere the settlement was formed the spot where Melbourne now

stands and the flats on which we are now camped [on the south bank of the Yarra] was

the regular rendezvous for the tribes known as Warorangs, Boonurongs, Barrabools,

Nilunguons, Gouldburns twice a year or as often as circumstances and emergences

required to settle their grievances, revenge deaths… (Thomas in Presland 1994, 35).

Wurrundjeri willam people are likely to have taken part in large Aboriginal meetings, which

occurred in the vicinity of Melbourne in the 1840s (Clark & Heydon 1998:21).

Post-Contact Period

The development of the township of Melbourne from the mid-1830s resulted in the loss of

traditional lands and resources, the spread of disease, social breakdown and removal of both

groups and individuals to reserves and mission stations. Aboriginal people from other clans and

language groups were attracted to Melbourne for a variety of reasons, making it difficult to

identify and document the ethnohistory and post-contact history of specific Aboriginal clan

groups after the period of initial settlement.

Aboriginal people continued to camp in and around the township of Melbourne. Mostly it

appears they were people belonging to Woi wurrung and Bun wurrung clans, and their preferred

camping places were along the south bank of the Yarra River, opposite the settlement of

Melbourne and Government Paddocks (between Princess Bridge and Punt Road) (Clark & Heydon

1998:25).

A Government Mission was built in 1837 on an 895-acre site, south of the Yarra River (east of

Anderson St in Port Melbourne), with George Langhorne responsible for the running of the

mission. The objective of the mission was to ‘civilise’ Aboriginal people and those who decided

to live at the mission were provided with rations in exchange for agricultural endeavours.

Children were also provided with rations for attending school classes. Woi wurrung people were

mainly associated with the mission although members of other language groups were noted as

being affiliated with the mission in 1838 (Clark & Heydon 1998:27).

For a four-month period between 1838-9 the Native Police Corps was stationed in the Police

Magistrates Paddock on the north side of the Yarra River, east of the township of Melbourne

(Clark & Heydon 1998:27).

In 1839 George Robinson, the Government appointed Chief Protector of Aboriginal people,

arrived in Melbourne. His various bases in the proximity of Melbourne were important locations

for Aboriginal people and during this period they often visited him and occasionally camped

temporarily near his office (Clark & Heydon 1998:28). George Robinson’s bases are thought to

have been:

Police Magistrates Paddock July 1839;

Unknown office July 1839 – December 1839?;

Former Government Mission station December 1839 – July 1843;

A jury room within the Supreme Court building July 1843 – 1848;

A room in John Batman’s former residence 1848-1849;

A building in Queen Street 1849 (Clark 2000:8-9).

In 1839 a census requested by Robinson of Aboriginal people living in and around Melbourne

found that the probable Aboriginal population at this time consisted of 140 Woi wurrung, 50

Wathaurong and 12 Bun wurrung people (Lakic & Wrench 1994:110, 113). However, it is likely

that the numbers of Aboriginal people in Melbourne varied greatly throughout this period, and

was subject to the influx of various groups and individuals.

The south bank of the Yarra River continued to be a used as a camping place for Aboriginal

people during the Protectorate period. Woi wurrung and Bun wurrung people camped from the

falls (near Princes Bridge) for approximately 1 mile south east along the river. Robinson and

Thomas, an Assistant Protector, reportedly spent much time throughout the late 1830s to mid

1840s attempting to ‘break up’ Aboriginal camps by the Yarra River and discouraging Aboriginal

people from visiting the township itself (Clark & Heydon 1998:34-5, 40, 49).

Other locations in Melbourne were also commonly used as camping grounds for Aboriginal

people. Clans from other language groups camped in the vicinity of Melbourne (i.e.

Daungwurrung at Clifton Hill) from where they would make excursions into the township (Clark

& Heydon 1998).

Throughout the 1840s the confluence of the Merri Creek with the Yarra River was an important

location for Aboriginal people in Melbourne, initially, the location of an Assistant Protectors

station (Thomas) and later the location of the Merri Creek Aboriginal School. The population of

Woi wurrung people declined in the 1840s with an influenza epidemic in 1847 leading to deaths

and the dispersal of Aboriginal people from this location (Clark & Heydon 1998).

Through the influence of the Government, Missionary Societies and the new ‘landowners’, the

number of Aboriginal people in the area dwindled as a result of high mortality rates and forced

movement out of the township. People were either reduced to begging in Melbourne, or

removed to Mission Stations, Aboriginal reserves (e.g. Merri Creek / Mordialloc) or Government

depots (e.g. Coranderrk).

In the early 1900s the introduction of the Aboriginal People Act 1909 requiring all ‘half castes’

to leave Mission Stations, resulted in Aboriginal people moving back to Melbourne, attracted by

work opportunities (Rhodes et al.1999:88-89).

Aboriginal Burials at the Old Melbourne Cemetery

Please note: The following section contains the names of deceased Aboriginal individuals.

The Old Melbourne Cemetery (OMC), upon which part of the subject land is located,was

comprised of a number of denominational areas, which included an area known as the Aboriginal

burial ground (Figure 1). In 1841, two Aboriginal men, originally from Tasmania, were convicted

for the murder of two whalers in the Western Port area – and their consequent deaths in 1842,

marked the first hangings in Melbourne (Weidenhofer 1967:107-9; Land 2014:5). On 20 January,

Tunnerminnerwait (a.k.a Jack) and Maulboyheenner (a.k.a Bob) were judicially hanged near the

Old Melbourne Gaol (at the intersection of La Trobe and Bowen Streets), and buried in what had

been declared the Aboriginal burial ground just three days prior, marking the first burials in this

location at the Old Melbourne Cemetery (The Argus Thursday 27 December, 1877; Mullaly

2008:259; Land 2014:11). Their interments were situated outside of what was historically

considered as the public cemetery proper, which is presently demarcated by Shed F and the

remaining cemetery wall at Queen Victoria Market.

It is unclear exactly how many interments occurred within the Aboriginal section during the

operation of the Old Melbourne Cemetery, however historical accounts recognise that it was

largely dedicated to executed prisoners, including three [European] colonists/bushrangers and

two Aboriginal people, buried in 1842. A total of five interments of this kind, which may or may

not have included family members, had been chronicled by Garryowen between the years of

1842 and 18521, in an area that he referred to as the ‘condemned burial ground’ (Aboriginal burial

denomination) (Weidenhofer 1967:141). As an initiative to eliminate the burial of executed

prisoners at the Old Melbourne Cemetery, an Act to Regulate the Execution of Criminals (1855)

was introduced in Victoria, making it compulsory for executions and interments to be conducted

within the subject gaol (Lynne and Armstrong 1996:71; du Cros and Associates 1977:11).

Therefore, burials of this nature were deemed illegal from the introduction of the Act in 1855.

1 Garryowen’s: The Chronicles of Early Melbourne, chronicled the years between 1835 to 1852.

Figure 1: Plan of Old Melbourne Cemetery, Isaac Selby 1924. Plan showing area outside the public

cemetery proper (red) (Source: State Library of Victoria)

According to Garryowen, the existing burials within the Aboriginal burial denomination, inspired

ghost ‘yarns’, or stories involving the buried individuals. Allegedly, from June 1842, the five

individuals buried outside the graveyard, would appear on Tuesday and Friday nights and partake

in activities that he termed “a combination of corroboree and hornpipe (Weidenhofer 1967:141):

“The [Aboriginal] fellows in opossum rugs, and the whites in shrouds, romped

about in wild confusion, kicking and sparring at each other, prancing along by the

northern boundary, westward to where the cattle-yard was at the now

intersection of Elizabeth and Victoria Streets, and persons engaged here at

unreasonable hours declare that they witnessed such exhibitions”2.

The route recorded to have taken place begins at Shed F through to the Lower Market, to the

corner of Elizabeth and Victoria Streets.

2 Garryowen’s: The Chronicles of Early Melbourne in Weidenhofer (ed) 1967:141

Further to the above executions, two Aboriginal men known as Booby (a.k.a Bobby) and Ptolmie

(a.k.a Ptolmy), were arrested for the murder of settler Andrew Beveridge, in 1846 (Mullaly

2008:273-274; Land 2014:10). They were later executed at Melbourne Gaol, in April 1847. It is

unclear where their burials took place, however given the lack of a Victorian Act to control the

burial of executed prisoners prior to 1855, it is possible that the burials took place within the

Aboriginal section of the Old Melbourne Cemetery.

Historical records which detail any further burials in the Aboriginal plot are few, however some

light may be shed on the number of Aboriginal burials that were exhumed to the Melbourne

General Cemetery in 1877. The South Australian Register (Saturday 18 August, 1877) notes the

intention to transfer the remains of “no more than one Friend and two or three [Aboriginal

People]” to the Melbourne General Cemetery. However, according to undertaker Thomas

Jennings, a total of 69 exhumations from both the Society of Friends and the Aboriginal burial

sections were recorded in late 1877 and early 1878 (Smith 2014:33). Jennings estimated that 28

sets of remains were removed from the Aboriginal burial section (Smith 2014:33). Apart from

those exhumed to the Melbourne General Cemetery, the exact destination of all other

exhumations remains unclear.

Ground disturbing works associated with the installation of a fire hydrant in F Shed in November

1990 resulted in the uncovering of the partial skeletal remains of two individuals. Subsequent

macroscopic analysis of these remains resulted in their identification as Aboriginal. It was also

determined that at least one of the sets of remains had been previously disturbed. Following

analysis, the skeletal remains were reburied by the WTLCCHC at Bulla Cemetery. Subsequent to

the discovery of these two burials the Aboriginal burial ground was formally registered as an

Aboriginal cultural heritage place - 7822-0931 – Queen Victoria Market Burials (Bennett 1991).

Under the Aboriginal Heritage Regulations 2007 (Regulations)all registered cultural heritage

places have a 50 metre buffer area defined as an area of cultural heritage sensitivity around the

registered extent of the place. The implications of this area of sensitivity are dealt with in greater

detail below.

Other Aboriginal Cultural Heritage within the Subject Land

During the course of the preparation of one of two Aboriginal Cultural Heritage Management

Plans (CHMP addressed further below) for the proposed redevelopment of the Queen Victoria

Market a limited programme of sub-surface testing was undertaken within a brick paved yard at

the rear of 128-130 Franklin Street. Investigations comprised the excavation of 2x2m test pit.

Eighteen Aboriginal stone artefacts were identified in fill deposits at a depth of 150-240mm.The

presence of these artefacts in fill deposits may have arisen in one of two ways:

The artefacts may be evidence of an in situ Aboriginal place which was subsequently

subject to disturbance through the European development and occupation of the

locations; or

The artefacts may derive from an unknown provenance and were simply imported to

their current location in imported fill.

Regardless of provenance the artefacts are protected under the terms of the Aboriginal Heritage

Act 2006 (AH Act). Subsequent to the discovery of these items they have been formally

registered on the Victorian Aboriginal Heritage Register as place number VAHR 7822-3952 –

Queen Victoria Market Precinct 1. Due to the potential for additional artefacts to be present in

similar fill deposits underlying the remaining area of the yard the full extent of the yard was

registered. Similar to the burials discussed above, the registration of this place is accompanied

by a nominal 50 metre area of cultural heritage sensitivity around the extent of the place.

The relevant legal/management framework.

All Aboriginal sites in Victoria are protected by the State AH Act, and the responsibility rests with

the proponent of a development to demonstrate that due care and diligence have been taken

to identify and avoid impacts to archaeological sites through construction works. One of the

principal mechanisms for the management of Aboriginal cultural heritage under the AH Act is

the requirement for the preparation of a CHMP.

Section 46 of the AH Act sets out the three legislative pathways through which a mandatory CHMP can be required, as follows:

a) the regulations require the preparation of a CHMP (s.47);

b) the Minister directs the preparation of a CHMP (s.48); or

c) the CHMP is required if an Environment Effect Statement (or Comprehensive Impact Statement) must be prepared (s.49 and s.49A).

The most common mechanism for requiring a CHMP is where the Regulations require a CHMP

to be prepared.

Section 47 of the AH Act states:

s.47. Regulations may require plan

The regulations may specify the circumstances in which a cultural heritage management plan is required for an activity or class of activity.

Regulation 6 of the Regulations states:

r.6. When a cultural heritage management plan is required

A cultural heritage management plan is required for an activity if—

(a) all or part of the activity area for the activity is an area of cultural heritage sensitivity; and

(b) all or part of the activity is a high impact activity.

Is the subject land an area of cultural heritage sensitivity?

r.22 Registered cultural heritage places

(1) A registered cultural heritage place is an area of cultural heritage sensitivity.

(2) Subject to subregulation (3), land within 50 metres of a registered cultural heritage place is an area of cultural heritage sensitivity.

(3) If part of the land within 50 metres of a registered cultural heritage place has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.

The two following registered cultural heritage places referred to in this report are each an area

of cultural heritage sensitivity (Figure 2):

7822-0931 – Queen Victoria Market Burials; and

7822-3952 – Queen Victoria Market Precinct 1.

It should be noted that under r.22 of the Regulations if the land within 50 metres of the

registered extent of a place has been subject to significant ground disturbance that part is not

an area of cultural heritage sensitivity. The same, however, is not the case for the place itself.

Regardless of whether a registered place has been subject to significant ground disturbance it

remains a registered point or place extent.

For the purposes of the Regulations significant ground disturbance is defined in r.4 – Definitions

as:

significant ground disturbance means disturbance of -

a. the top soil or surface rock layer of the ground; or

b. a waterway –

by machinery in the course of grading, excavating, digging or dredging.

It is likely that those parts of the subject land covered by areas of cultural heritage sensitivity,

including the registered places, have been subject to significant ground disturbance given the

level of development which has occurred. However, demonstrating that to the satisfaction of a

statutory decision maker may not be feasible. Moreover, as noted above, such disturbance does

not eliminate the presence of a registered place and, as such, areas of cultural heritage

sensitivity will always be present within the subject land (if only restricted to the registered

extents of the registered cultural heritage places currently known). If in the future additional

cultural heritage places are identified, those areas will also constitute areas of cultural heritage

sensitivity.

Is the activity a high impact activity?

r.43 Buildings and works for specified uses

(1) The construction of a building or the construction or carrying out of works on land is a high impact activity if the construction of the building or the construction or carrying out of the works—

(a) would result in significant ground disturbance; and

(b) is for or associated with the use of the land for any one or more of the following purposes—

…

(xii) an industry;

…

(xvia) an office;

…

(xx) a retail premises;

Given the above definition, it is likely that at least part of the activities proposed by the

Melbourne City Council on the subject land are likely to be considered high impact activities that

trigger the requirement for a CHMP.

I note that the Melbourne City Council has undertaken to prepare two CHMPs as discussed

further below.

Other Controls

In addition to the current legislative framework relating to the management and protection of

Aboriginal cultural heritage a further level of control is also present in the form of a s.173

agreement under the Planning and Environment Act 1987 between Melbourne City Council and

the Wurundjeri Tribe Land Compensation and Cultural Heritage Council Incorporated

(WTLCCHC) in November 1996. The WTLCCHC were specified as the local Aboriginal community

group for the subject land under the terms of Part IIA of the now repealed Aboriginal and Torres

Strait Islander Heritage Protection Act 1984 (now replaced by the AH Act). Under the terms of

this agreement Melbourne City Council agreed, among other things, that for the duration of the

agreement, Council would:

comply with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 as it

applies to the Aboriginal Place (meaning the Aboriginal burial ground);

consult with the WTLCCHC in relation to works required on or around the place;

observe the needs and wishes of the WTLCCHC in respect of the preservation,

maintenance, exhibition, sale or use of the place.

The terms of this agreement are somewhat problematic in so far as the agreement gives

precedence to a particular group which currently does not have any legislatively supported

position in relation to the subject land. While it may emerge that the WTLCCHC are ultimately

appointed as a Registered Aboriginal Party (RAP) for the subject land it may also emerge that

another Traditional Owner Group is appointed as RAP. Moreover, purely in consideration of the

protection of the currently identified cultural heritage places, the agreement does not augment

the level of protection afforded the place under the AH Act and in effect potentially establishes

a conflict surrounding future decisions relating the management of that heritage between

different Aboriginal organisations whereby a RAP other than the WTLCCHC may have legal

responsibility to make decisions regarding management under the AH Act 2006, while the

WTLCCHC will continue to have a legal right to be consulted under the s.173 agreement.

The current preparation of CHMPs.

As noted above the Melbourne City Council has engaged a Cultural Heritage Advisor (Andrew

Long + Associates) to prepare two CHMPs for the subject land.

One of these CHMPs deals with all those areas of the Queen Victoria Market Precinct which are

located outside of the area of the former Old Melbourne Cemetery (CHMP 1). The second CHMP

deals strictly with the area of the former Old Melbourne Cemetery and areas immediately

adjacent to it, known to have been used for the purposes of burials (CHMP 2).

Under the current CHMP framework there is a requirement for contingencies to be included to

allow for the appropriate management of cultural heritage which may be discovered during the

course of any ground disturbing works which occur as a part of the proposed activity. This

includes mechanisms for managing the discovery of human remains. The standard text included

in the contingency section dealing with human remain reads as follows:

The Management of the Discovery of Human Remains The following steps must be taken if any suspected human remains are found in the activity area: 1. Discovery:

If suspected human remains are discovered, all activity in the vicinity must cease immediately to ensure minimal damage is caused to the remains; and,

The remains must be left in place, and protected from harm or damage.

2. Notification:

Once suspected human skeletal remains have been found, the Coroner’s Office and the Victoria Police must be notified immediately;

If there are reasonable grounds to believe that the remains could be Aboriginal, the State Control Centre, which coordinates the State government’s response to emergency matters, should be contacted on 1300 888 544; and

All details of the location and nature of the human remains must be provided to the relevant authorities.

If it is confirmed by these authorities that the discovered remains are Aboriginal skeletal remains, the person responsible for the activity must report the existence of the human remains to the Secretary, Department of Premier and Cabinet in accordance with s.17 of the Aboriginal Heritage Act 2006.

3. Impact Mitigation or Salvage:

The Secretary, after taking reasonable steps to consult with any Aboriginal person or body with an interest in the Aboriginal human remains, will determine the appropriate course of action as required by s.18(2)(b) of the Act.

An appropriate impact mitigation or salvage strategy as determined by the Secretary must be implemented (this will depend on the circumstances in which the remains were found, the number of burials found and the type of burials and the outcome of consultation with any Aboriginal person or body).

4. Curation and further analysis:

The treatment of salvaged Aboriginal human remains must be in accordance with the direction of the Secretary.

5. Reburial:

Any reburial site(s) must be fully documented by an experienced and qualified archaeologist, clearly marked and all details provided to AV;

Appropriate management measures must be implemented to ensure that the remains are not disturbed in the future.

Under this process there is a requirement to attempt to determine whether or not the remains

encountered are Aboriginal. There exist a variety of analyses which can be undertaken to

determine the Aboriginality of skeletal remains with varying levels of cost and destructiveness.

CHMP 1

CHMP 1 has been prepared as a draft and, as noted above, included subsurface testing at one

location in a brick paved yard at the rear of 128-130 Franklin Street. This testing resulted in the

identification of Aboriginal cultural heritage materials in fill deposits.

The location of the newly identified place at the rear of 128-130 Franklin Street will be heavily

impacted. The CHMP covering this part of the subject land will contain recommendations for

managing the disturbance of this place as well as contingencies dealing with the potential for

other Aboriginal cultural heritage to be encountered during the course of ground disturbing

works.

CHMP 2

CHMP 2 will apply to the footprint of the Old Melbourne Cemetery (OMC) only. CHMP 2 is only

in the desktop stage, as there is currently no mechanism under State law that can authorise the

Melbourne City Council to disturb, or exhume, human remains from the OMC, should that be

necessary as part of the redevelopment of the subject land. The Melbourne City Council is

currently in discussions with the State Government about the preparation of that enabling

legislation, and CHMP 2 will be advanced once the framework for the new legislative mechanism

is in place. As with CHMP 1, CHMP 2 will be developed in consultation with all relevant Aboriginal

community groups, as well as relevant Victorian government stakeholders. I am instructed that

Melbourne City Council will only disturb or exhume remains from the OMC as a "last resort",

and there are no plans to undertake ground disturbing works in the area of the registered place

7822-0931 Queen Victoria Market Burials.

Conclusions The proposed redevelopment of the Queen Victoria Market Precinct will likely have a minimal impact on Aboriginal cultural heritage values. The primary values within the subject land are represented by the registered place 7822-0931 Queen Victoria Market Burials and there are no proposed impacts to this part of the subject land. The second registered place, the recently recorded 7822-3952 Queen Victoria Market Precinct 1 will likely be impacted in its entirety, however, as noted the place exists in a highly modified context and is of limited scientific significance as a consequence. Notwithstanding the low scientific significance of this place the

CHMP process will allow for an appropriate management response which will allow for the retrieval of any remaining artefacts related to the place. The manner in which the exhumation of human remains will be handled if these are necessary within the broader footprint of the Old Melbourne Cemetery is currently unclear and will be dependent upon the content of any enabling legislation prepared for this purposes. While the content is unknown, this legislation, as noted will be developed in close consultation with Aboriginal stakeholders and other stakeholders to ensure that any remain disturbed are treated appropriately and respectfully. I have made all the inquiries that I believe are desirable and appropriate and no matters of significance which I regard as relevant have to my knowledge been withheld from the Panel.

Figure 2: Location of registered cultural heritage places.

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