New cultural heritage duty of care in Queensland

By Karen Trainor.

Key Points:
The new laws make it increasingly important for individuals and corporations to focus on cultural heritage in the preliminary stages of project development and integrate the required legislative processes into the project development timeline.

New cultural heritage legislation in Queensland now requires project developers to observe a "cultural heritage duty of care" and imposes considerable penalties for failing to do so. The new legislation has made it increasingly important for individuals and corporations to focus on cultural heritage in the preliminary stages of project development and integrate the required legislative processes into the project development timeline to ensure that the project is not delayed because of cultural heritage issues. Whether you are a project developer or a person doing works on land, you need to be aware of the new laws.

The new regime is now in effect, with the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) commencing on 16 April 2004. The Acts replace the previous Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987. The object of the Acts is for effective recognition, protection and conservation of Aboriginal and Torres Strait Islander Cultural Heritage. There is now a register of Aboriginal/Torres Strait Islander cultural heritage and processes for addressing land use impacts.

What is Aboriginal cultural heritage?

The Act expands the definition of Aboriginal cultural heritage beyond objects to include significant Aboriginal or Torres Strait Islander areas, objects or evidence (of archaeological or historic significance) of their occupation of an area in Queensland, even though such physical items may have not yet been identified or registered.

What is the new duty of care?

The Act establishes a general duty of care which requires a person carrying out an activity to take all reasonable and practical measures to ensure the activity does not harm Aboriginal or Torres Strait cultural heritage ("the cultural heritage duty of care"). It is an offence under the Act not to comply with the cultural heritage duty of care. The Minister has released Cultural Heritage Duty of Care Guidelines that set out steps to ensure that reasonable steps are taken to minimise or avoid harm to Aboriginal cultural heritage. The Guidelines describe what is a reasonable level of survey and consultation, based on the extent of existing development and previous and intended ground disturbance.

In considering whether a person has complied with the cultural heritage duty of care, a court may consider the nature of the activity, the extent of any consultation, the nature of Aboriginal cultural heritage likely to be harmed and any survey or study that has been carried out.

A person is taken to have complied with the duty of care if the person is acting under an approved cultural heritage management plan, a native title agreement or another agreement with an Aboriginal party, if necessary because of an emergency, or if the person is acting in compliance with the cultural heritage duty of care guidelines.

Continued use of surface of land

Where a person is entitled to the use and enjoyment of the surface of land, the presence of Aboriginal or Torres Strait Islander cultural heritage will not affect that person's use and enjoyment of the land as long as that person does not unlawfully harm the cultural heritage.

Cultural heritage studies

The Act sets up a regime for undertaking cultural heritage studies. A cultural heritage study may be required by the Guidelines or as a risk management measure.

Significantly, the Act sets out who must be consulted in preparing a cultural heritage study and the role of various parties in carrying out the study. A cultural heritage study may be registered by the chief executive and recorded for the purposes of satisfying requirements of the Guidelines, however a cultural heritage survey may be sufficient.

Cultural heritage management plans

The Act makes a cultural heritage management plan ("CHMP"), approved by the chief executive, a mandatory requirement in certain situations, including where:

• an authority is required (eg. permit, lease or licence) for a project and an Environmental Impact Statement is required under legislation;
• an authority is required (eg. permit, lease or licence) for a project and another form of environmental assessment is required for the project (not being an Environmental Impact Statement) and regulations indicate that projects of that type require a plan; or
• a development application is made under the Integrated Planning Act and the Chief Executive requires a plan.

Projects that commenced an environmental impact statement process before the commencement of this Act will be exempt from the requirement to carry out a CHMP.

A CHMP provides for the management of a project to minimise its impact on Aboriginal cultural heritage. The Act sets out a clear framework of notification of an intention to develop a CHMP and the role of various parties throughout the process. Mediation assistance from the Land and Resources Tribunal may also be sought where disputes arise.

Depending on the circumstances, the CHMP may be approved by either the Minister or the chief executive. An approved CHMP will avoid liability for harm to Aboriginal cultural heritage, provided the CHMP is complied with. In addition, subject to all other approvals being obtained, where a CHMP is a mandatory requirement, approval of the CHMP will allow a project to proceed.

CHMPs may also be entered into voluntarily as a method of ensuring that the cultural heritage duty of care is met. Any activity undertaken in accordance with a CHMP, which has been approved under the Act, will satisfy the cultural heritage duty of care.

Transitional arrangements

Where, prior to the Act, parties have negotiated cultural heritage and native title agreements, these are recognised by the Act. Parties may continue to act legally under these agreements, despite the commencement of the Act.

What penalties can be imposed?

The new legislation provides for penalties to be imposed against individuals (as well as imprisonment) and corporations that fail to meet the requirements of the legislation. Examples of possible maximum penalties for corporate actions include:

• For a breach of the duty of care: $750,000.
• For knowingly and unlawfully harming Aboriginal or Torres Strait Islander cultural heritage, or where it ought reasonably to know that it was an item of cultural heritage: $750,000.
• For knowingly and unlawfully excavating, relocating or taking away Aboriginal or Torres Strait Islander cultural heritage, or where it knew or ought reasonably to have known that it was an item or place of cultural heritage: $750,000.
• For knowingly and unlawfully taking possession of an object of Aboriginal or Torres Strait Islander cultural heritage, or where it knew or ought reasonably to have known that it was an object of cultural heritage: $750,000.

In addition, the Minister has a power to impose a stop order on works if the Minister is satisfied that a person, is or will be harming Aboriginal cultural heritage or the activity is having or will have a significant adverse impact on the cultural heritage value of Aboriginal cultural heritage. The penalty for breaching a stop order is a fine of up to $1.275 million.

Implications for development projects

The new legislation represents an improvement for all stakeholders involved with cultural heritage as it provides increased certainty with respect to the parties that are required to be involved in the cultural heritage process, the procedures that are to be followed and the time line for when processes are to be completed. With this increased certainty comes increased individual and corporate responsibility to meet the requirements of the new cultural heritage legislation. This may involve either compliance with the Guidelines, development of a CHMP or due diligence before a project to assess the likelihood of a project causing damage to cultural heritage where an agreement is not already in place.

Cultural heritage needs to be considered at an early stage of project development. Some projects have a mandatory requirement for a CHMP, which may take a number of months to complete. Where native title issues are also involved, it may be worthwhile considering combining native title and cultural heritage issues where practical.

For further information, please contact Karen Trainor.