Agenda of Arakwal Memorandum of Understanding Advisory Committee Meeting

Notice of Meeting

bsc_logo_150dpi_rgb

Arakwal Memorandum of Understanding Advisory Committee Meeting

An Arakwal Memorandum of Understanding Advisory Committee Meeting of Byron Shire Council will be held as follows:

Venue	Conference Room, Station Street, Mullumbimby
Date	Thursday, 1 November 2018
Time	9.30am

James Brickley

Acting Director Corporate and Community Services I2018/2023

Distributed 25/10/18

CONFLICT OF INTERESTS

What is a “Conflict of Interests” - A conflict of interests can be of two types:

Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in Section 448 of the Local Government Act.

Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).

Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:

§ The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or

§ The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

N.B. “Relative”, in relation to a person means any of the following:

(a) the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;

(b) the spouse or de facto partners of the person or of a person referred to in paragraph (a)

No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:

§ If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or

§ Just because the person is a member of, or is employed by, the Council.

§ Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.

Disclosure and participation in meetings

§ A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

§ The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:

(a) at any time during which the matter is being considered or discussed by the Council or Committee, or

(b) at any time during which the Council or Committee is voting on any question in relation to the matter.

No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

Participation in Meetings Despite Pecuniary Interest (S 452 Act)

A Councillor is not prevented from taking part in the consideration or discussion of, or from voting on, any of the matters/questions detailed in Section 452 of the Local Government Act.

Non-pecuniary Interests - Must be disclosed in meetings.

There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with. Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:

§ It may be appropriate that no action be taken where the potential for conflict is minimal. However, Councillors should consider providing an explanation of why they consider a conflict does not exist.

§ Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa). Care needs to be taken when exercising this option.

§ Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)

§ Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in S451 of the Local Government Act apply (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters

(1) In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:

(a) including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but

(b) not including the making of an order under Division 2A of Part 6 of that Act.

(2) The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.

(3) For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.

(4) Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.

(5) This section extends to a meeting that is closed to the public.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.1

Staff Reports - Corporate and Community Services

Report No. 4.1 Byron Aboriginal Services Coalition - Bagwa Bugalma - Update

Directorate: Corporate and Community Services

Report Author: Belle Arnold, Community Project Officer

File No: I2018/1910

Theme: Corporate Management

Community Development

Summary:

This report provides an update on the work of the Byron Shire Aboriginal Services Coalition – Bagwa Bugalma and presents the five year strategic plan to improve Aboriginal Service Delivery in the Byron Shire.

This report was listed on the Agenda for the meeting held on 13 September, but was not discussed.

RECOMMENDATION:

That the Arakwal Memorandum of Understanding Advisory Committee:

1. Note the progress of the work of the Aboriginal Services Coalition.

2. Provide feedback on the Bagwa Bugalma 5 Year Strategic plan (DRAFT) (E2018/72195).

Attachments:

1 Bagwa Bugalma Byron Shire Aboriginal Community Organisation Five Year Strategic Plan 2018-2023(2) PDF, E2018/85940 , page 7⇩

2 Bagwa Bugalma Promo Flyer 2018, E2018/72209 , page 9⇩

Report

The Arakwal MoU states:

5.2.2 Aboriginal social, economic and community development projects

Arakwal and Council to work in partnership on Aboriginal social, economic and community development projects that have positive outcomes for the wider community.

The Aboriginal Services Coalition has continued to meet at the Mullumbimby Neighbourhood Centre on a fortnightly basis.

The Aboriginal Project Worker at the Mullumbimby and District Neighbourhood Centre has developed a regular Men’s Group program. The group is part supported by a Tweed service funded by Prime Minister and Cabinet. The Men’s group is a social and support group which is attracting regular attendance of between 5 and 25 men.

Bullina Aboriginal Health Service have confirmed that they are funded to deliver health services in Byron Shire. The Bullina Chief Executive Officer has sited that high rents have been a barrier in providing services in the Byron Shire. Bullina have commenced weekly outreach including a General Practitioner of Health and nurses through a mobile van clinic and consultation rooms

Mondays 10am– 3pm at the Mullumbimby and District Neighbourhood Centre.

The Byron Shire Aboriginal Services Coalition has been requesting a name in local Bundjalung language for over 12 months. Dave Kapeen from Tweed Byron Community Transport has worked with Delta Kay and Uncle Roy Gordon to provide the name Bagwa Bugalma which means to heal and to do correctly. This name has been adopted for the work done by the Coalition.

The Bagwa Bugalma 5 Year Strategic plan (DRAFT) has been developed and is attached for the consideration of the Arakwal MoU Advisory Committee. Bagwa Bugalma seeks feedback from Arakwal on this document before finalising and releasing to the broader community (Attachment 1). In addition a promotional flyer was developed to inform the broader community of the objectives of this project. (Attachment 2).

On 24 July 2018 Bagwa Bugalma (Aboriginal Services Coalition) held a meeting about the dire need for culturally appropriate Service Delivery with funding providers including representatives from:

· Department of Family Services

· Department of Aboriginal Affairs Coffs Harbour and Sydney

· Department of Premier and Cabinet, Department of Prime Minister and Cabinet (Indigenous Affairs)

· Local Health District Health Executive

The outcome from this meeting was positive with all agencies committing to improving the delivery of services to the Byron Shire Aboriginal community. There will be a follow up meeting to confirm outcomes on 6 September and a verbal update can be provided at the 13 September Arakwal MoU Advisory Committee meeting.

Financial Implications

Nil from this report

Statutory and Policy Compliance Implications

Arakwal MoU 2013

Local Government Act 1993

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.2

Report No. 4.2 Byron Shire Aboriginal Cultural Heritage Steering Committee

Directorate: Corporate and Community Services

Report Author: Belle Arnold, Community Project Officer

File No: I2018/1911

Theme: Corporate Management

Community Development

Summary:

This report provides information to the Arakwal MoU Advisory Committee on the formation of a multi stakeholder Byron Shire Aboriginal Cultural Heritage Steering Committee, which will assist Council to meet the legal obligations required in protecting Aboriginal Cultural Heritage in the Byron Shire.

This report was listed on the Agenda for the meeting held on 13 September, but was not discussed.

RECOMMENDATION:

That the Arakwal MoU Advisory Committee note the formation of the Byron Shire Aboriginal Cultural Heritage Steering Committee as a multi stakeholder consultative group which brings together Aboriginal Stakeholders under the Land Rights Act and the Native Title Act.

Report

The Byron Shire Aboriginal Cultural Heritage Study (Stage One) addressed three priority projects of the Arakwal Memorandum of Understanding (MoU). The Arakwal MoU states:

1.2.4 Ongoing Cultural Heritage Management and Land Management Rights

The development and implementation of a process to ensure ongoing recognition/consultation with Arakwal once Native Title Claims are granted and resolved that ensure ongoing Cultural Heritage Management and Land Management Rights.

1.2.3 Access to monitor important Aboriginal sites on private land

The development of a process that allows the Arakwal some level of access to monitor important sites on private land. Arakwal have identified some legislative changes which make it an offence to knowingly damage or destroy Aboriginal sites.

2.2.2 Consultation processes for development applications and other matters in regards to public lands

· Development of clear processes in regard to consultation and engagement with Arakwal on development applications and other planning mechanisms in lands within the Byron Shire.

· Development of frameworks for ongoing consultation processes.

In 2017 Council undertook an Aboriginal Cultural Heritage Study with representation from Arakwal, Tweed Byron Local Aboriginal Land Council and Jali Local Aboriginal Land Council.

A recommendation from the Byron Shire Aboriginal Cultural Heritage Study (Stage One) was for the formation of a Byron Shire Aboriginal Cultural Heritage Steering Committee. This committee would provide streamlined, resourced and well documented multi stakeholder consultation process for cultural heritage matters.

The Byron Shire Aboriginal Cultural Heritage Steering Committee will:

· provide guidance and expertise on projects that have overlapping Aboriginal stakeholder groups with different legislative obligations

· assist Council in the development of key policies, projects and strategic plans

· build upon Council’s existing relationship with Aboriginal stakeholders

· seek to formalise relationships with a range of Aboriginal stakeholder groups.

· seek to further the Byron Shire Aboriginal Cultural Heritage Study through the development and implementation of a locally based action plan which responds to the rapidly changing legislative environment

The Aboriginal Cultural Heritage Steering Committee will invite membership as follows:

· Arakwal Representatives – x 3 (two paid board representatives)

· Tweed Byron Local Area Land Council members x 2 (one paid board representative)

· Jali Local Area Land Council members x 2 (one paid board representative)

· Ngulaingah Local Area Land Council members x 2 (one paid board representative)

· Local Arakwal Depot Aboriginal National Parks representatives x 2 (male and female representatives)

· Widjabal Claimants x 2 (two paid board representatives)

Council have now endorsed this committee and the requested resources to fund it. Council staff are in the process of developing a meeting schedule and membership invitation.

This Committee does not replace the Arakwal MoU Advisory Committee and Council will continue to work closely with the Arakwal Corporation as the primary native title group in the Byron Shire. The Byron Shire Aboriginal Cultural Heritage Steering Committee also seeks to meet Council’s obligation to consult with Land Councils in the Byron Shire.

Financial Implications

Nil from this report

Statutory and Policy Compliance Implications

Native Title Act 1993

Land Rights Act 1984

National Parks and Wildlife Act 1974

Local Government Act 1993

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.3

Report No. 4.3 Arakwal Memorandum of Understanding Review

Directorate: Corporate and Community Services

Report Author: Belle Arnold, Community Project Officer

File No: I2018/1974

Theme: Corporate Management

Community Development

Summary:

The Arakwal Memorandum of Understanding (MoU) was formally adopted in 2013. The MoU follows from the 1998 Heads of Agreement between Byron Shire Council and the Arakwal People. The timeframe for the MoU was five years and is now due for review.

Twenty of the twenty-three specific projects identified were actioned to varied stages of completion. Details are provided in Attachment1.

RECOMMENDATION:

That the Arakwal Memorandum of Understanding Advisory Committee consider the Draft Review of the Memorandum of Understanding 2018 (E2018/0084558) and make amendments where required.

Attachments:

1 Arakwal MoU review 2018 DRAFT PDF, E2018/85946 , page 9 ⇩

Report

The Arakwal Memorandum of Understanding (MoU) was formally adopted in 2013. The MOU follows from the 1998 Heads of Agreement between Byron Shire Council and the Arakwal People.

The MoU recognises the status of the Bundjalung of Byron Bay Arakwal people as traditional owners as established through the Native Title Act and processes. The purpose of this agreement is to establish a clear process and timetable for the delivery of priority projects identified in this MoU.

The discussions during the development of the Arakwal MoU considered Council’s business, Bundjalung of Byron Bay Arakwal People business, and how we do business together. Through this process we aim to identify the best way for the two organisations to work together for mutual benefit, and the benefit of the wider community.

The intention of this MoU is to ensure a successful strategic partnership between Byron Shire Council and the Bundjalung of Byron Bay Arakwal People.

Council formed the Arakwal MoU Advisory Committee to identify and implement the priority projects for each 12 month period.

The timeframe for the MoU was five years and is now due for review. All specific projects identified were actioned to varied stages of completion. Details are outlined in Attachment 1.

Increased Consultation Requirements

Consultation requirements have increased rapidly during the timeframe that Council have been delivering the MoU. An overview of work areas that now interface with Arakwal include:

Corporate and Community Services	Infrastructure Services	Sustainable Environment and Economies	General Manager’s Division
Convene Multi Stakeholder Committee	Open Spaces Planning and management	Enforcement/ Signage	Political Dignitary visits
Cultural Heritage Study	Water Infrastructure projects	Masterplans BBTCMP/ Bangalow, Mullumbimby	Employment
Manage Relationships	Bridge projects	Economic Development	Community Engagement
Cultural Restoration Work	Road projects	Tourism	Media
Native Title	Signage	Environment and Sustainability – e.g. Feral Pests, Flora and Fauna
Community Development	Major Infrastructure projects	Land Use Planning
Service Provision	Cemeteries	DAs
Leases and Licences	Recreation Grounds	Cultural Heritage Planning
Legal Team – Sites Protection	Beach Access	Rezoning
Events		CZMP
Cultural Appropriation
Community Strategic Plan
Procurement

Financial Implications

Nil from this report

Statutory and Policy Compliance Implications

Arakwal MoU 2013

Native Title Act 1993

Local Government Act 1993

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.4

Report No. 4.4 Update on Arakwal Cemetery Project

Directorate: Corporate and Community Services

Report Author: Belle Arnold, Community Project Officer

File No: I2018/1981

Theme: Corporate Management

Community Development

Summary:

Council and Arakwal have identified this as a priority project to allow for elders to remain on country after they pass away. This is of cultural significance to Arakwal people. This report discusses recent meetings to advance and realise this project.

RECOMMENDATION:

1. That Council when the project approval, funding and policies are in place, prioritise the installation of the concrete bench for the first row of headstones, at the area identified for the Arakwal area of the Byron Bay Cemetery.

2. That the Arakwal Memorandum of Understanding Committee discuss and make recommendations regarding the financial impactions of the project.

3. That staff work with Arakwal to create a policy document for the Arakwal area at the Byron Bay Cemetery to be presented to the Arakwal Board for endorsement then to Council for adoption.

Report

On 26 September 2018 Council’s Aboriginal Projects Officer met with Open Space Technical Officer, to discuss the Arakwal Cemetery project.

Council identified the following matters requiring resolution to move the project forward:

1. Style / materials for headstone requirements need to be finalised,

2. Orientation for graves to be finalised eg - there had been some discussion for tombs to be in a semi circle, it may be that they need to be in rows to maximise capacity, once this decision is finalised and cultural impactions are considered the first concrete bench can be laid for the first row of head stones

3. Cultural implications – such as direction to be faced

4. Clear policies and procedures for Council staff to follow in regards to who is able to be buried in the Arakwal section of the cemetery

5. Finalise issues around fees and charges – Arakwal have requested fees to be waivered by Council

On 18 October a meeting was held at the Arakwal depot with Sharon Sloane, CEO of the Arakwal Corporation and Delta Kay, Arakwal woman who initiated the project with Council, to discuss the Arakwal Cemetery project and the above items. Council policies and application forms for the Byron Bay cemetery were distributed.

Style / materials for headstone requirements

Arakwal would like to have materials in the Arakwal Cemetery area as natural as possible, using natural stone for headstones and planting of native plants. Council’s style guidelines were discussed and will be integrated in the development of a specific document for the Arakwal area in the cemetery.

Orientation for graves and Cultural Impactions

Arakwal confirmed that rows would be suitable to maximise the number of potential burials.

It was identified that traditionally Arakwal burials face east to the rising sun. The installation of the bench for headstones and graves would need to ensure that graves will face east. It was suggested that representatives of Arakwal meet with Council on site prior to the concrete bench being poured to ensure this is correct.

Policies

Access to burial in the Arakwal area of the cemetery will be available to direct descendants of Arakwal people, as outlined in Schedule Three of the Bundjalung of Byron Bay Arakwal People. A policy document will be created by Council staff in conjunction with Arakwal Corporation staff and presented to the Arakwal Board for endorsement then to Council for adoption.

Fees and charges

Arakwal requested that fees related to burial plots be waivered. It was discussed that the Ballina Shire Council provisions for Aboriginal burials at the Wardell Cemetery are that the fees are waivered and that tombs are dug and burials are supervised by Aboriginal community and family.

To celebrate this project and the intent behind it there was a suggestion there be a low key opening of the project signified by a planting with Arakwal people and key Council representatives.

Financial Implications

The fees and charges in Council’s ‘Application for Burial fees and charges 2018-19 Document

· Fees: $5084- New Burial - Dual Plot, Lawn Section - all plots - (includes Gravesite fee and Interment of body)

· $4,336 New Burial - Single Plot, Older/Denominational Sections - (includes Gravesite fee and Interment of body)

· $1,387 - Reopening of all existing burial plots - (includes interment of body only)

· $1,044 - Saturdays & Public Holidays - Additional Fee

· $360 - Weekday - After 2.30pm - Additional Fee

Arakwal have requested these fees be waivered by Council.

Progression of this item as recommended will have financial implications for Council that would not be currently budgeted.

Statutory and Policy Compliance Implications

Local Government Act 1993

Native Title Act 1993

Arakwal Memorandum of Understanding 2013