The Aboriginal Cultural Heritage Bill and Torres Strait Islander Cultural Heritage Bill (which are virtually identical in their content) are intended to replace the existing Cultural Record (Landscape Queensland in Queensland Estate) Act 1987, which applies generally to cultural heritage in Queensland (whether indigenous or not).
Considering the proposed legislation overall, it looks to heighten the statutory protection of Aboriginal cultural heritage in Queensland and provides for a further regulatory hurdle that major projects will need to address in their approval phase. Under the proposed Bills, it is highly likely that proponents of major projects will need to negotiate with Aboriginal groups under a process similar to a native title 'right to negotiate procedure' prior to carrying out any works, regardless of whether or not native title has been extinguished over the project area. The specifics of the proposed legislation and major changes are summarised below (for simplicity, the focus is on the Aboriginal Cultural Heritage Bill, but the concepts are equally applicable to the proposed Torres Strait Islander legislation). What is 'Aboriginal cultural heritage'?
The Bill provides for the protection of areas and objects of particular significance to Aboriginal people because of Aboriginal traditional observances, customs and beliefs, or because of the history (including contemporary history) of Aboriginal people, as well as protecting evidence of any archaeological or historical significance of Aboriginal occupation of areas of Queensland. Under the Bill, it will predominantly be the role of Aboriginal people to determine the significance of areas or objects.
The scope of the Bill is arguably considerably wider than that of the current legislation, which focuses on items that are at least 30 years old and that are of 'historical significance' (a more objective and restricted category than proposed under the Bill).
The Bill expressly states that for an area to be significant, it is not necessary for that area to contain markings or physical evidence indicating occupation or otherwise denoting the area as significant.Strengthened protection of Aboriginal cultural heritage
The existing legislation is sometimes criticised for having relatively weak protection provisions. These essentially state that it is an offence for a person to damage or interfere with Aboriginal cultural heritage, but it is a defence if the defendant did not suspect, and could not reasonably have been expected to suspect, that the item was of cultural significance.
The Bill seeks to strengthen the protection provisions, primarily through the provision of a 'duty of care', which puts a positive obligation on any person who carries out an activity to take all reasonable and practical measures to ensure the activity does not harm Aboriginal cultural heritage. This is in addition to provisions that prohibit persons from damaging, relocating or possessing Aboriginal cultural heritage when the person knows, or ought reasonably to know, that the item or area in question is Aboriginal cultural heritage.Strengthened enforcement provisions
Not only are the protection provisions strengthened under the legislation, but the enforcement provisions are also elevated considerably. A breach of the duty of care provision or the unlawful interference or harming of cultural heritage can attract fines for corporations of up to $750,000 for an offence.
It is also proposed that the Minister will have the power to issue a 'stop order' preventing the commencement or continuation of an activity, if the Minister is satisfied that the activity will harm Aboriginal cultural heritage or have a significant adverse impact on the cultural heritage value of particular Aboriginal cultural heritage. The stop order can be for a period of up to 60 days in duration and, if breached, can attract a fine of up to $1,275,000 for individuals and $6,375,000 for companies. (Although it may only be an administrative oversight, the draft Bill does not impose separate maximum penalties for corporations and for individuals in relation to a breach of a stop order - as a result, a company can be liable for a fine of up to five times the stated amount).
The potential for a stop order issued by the Minister is in addition to the existing ability for a party to seek an injunction from the Land and Resources Tribunal to prevent a perceived breach of the cultural heritage legislation. However, the major difference is that a stop order is at the Minister's discretion and might be issued even if an injunction was not granted (but the decision to give a stop order would be subject to judicial review by the courts).Aboriginal parties
The Bill represents somewhat of a merging of the distinct legal concepts of native title and cultural heritage by generally prescribing the registered native title claimants and holders of areas as the appropriate 'Aboriginal parties' to be consulted and informed of cultural heritage matters under the Bill. This status is particularly important in respect of cultural heritage management plans (see below).
It is important to note that, even if native title has been extinguished over a particular area of land, the Bill will still have application to the land. Further, even if native title has been extinguished in respect of certain land, if it nevertheless falls within the outer boundaries of a native title claim or determination, then it will still be the registered native title claimants or holders for the encompassing area that will be the appropriate Aboriginal parties to deal with.
The Bill also provides for the establishment of 'Aboriginal Cultural Heritage Bodies' as the appropriate Aboriginal parties in some circumstances.Cultural Heritage Management Plans
The statutory recognition of Cultural Heritage Management Plans (CHMPs) is arguably the most significant aspect of the proposed legislation. For some time, CHMPs have been voluntarily or informally adopted (particularly in respect of mining projects) in Queensland, despite the fact that there was no specific statutory basis for them. The Bill proposes to introduce a rigorous regime for CHMPs.
Under the Bill, a CHMP will be mandatory for major mining and development projects (typically those that require the production of an environmental impact statement, but with a potential for wider application). Further, even if it is not mandatory under the Bill to have a CHMP for a particular project, the Bill allows for the parties to voluntarily establish a CHMP. The incentive for doing this is that the Bill provides that if a person performs an activity in compliance with a CHMP, then they are deemed to have complied with their 'duty of care' obligation - this may prove to be an important safeguard for project proponents.
The procedure for obtaining a CHMP is potentially quite lengthy and, in many ways, replicates the procedures that would need to be followed by a mining company to obtain a native title agreement or ruling under Queensland's 'Alternate State Provisions'. In essence, the proposed procedure is as follows:The project proponent must give written notice to the relevant Aboriginal parties and in some cases may be required to give public notice. The Aboriginal parties will then generally have a period of at least 30 days in which to notify the project proponent that they wish to be involved in the CHMP process. A consultation period of 84 days will then commence after the 30-day notice period, in which the project proponent and the Aboriginal parties are required to consult in an attempt to agree upon a CHMP. The clear preference for agreement under the Bill is borne out in the provisions placing positive obligations on the parties to negotiate and 'make every reasonable effort to reach agreement' in respect of the CHMP. If, after 28 days of the consultation period, there is a dispute as to the CHMP that may substantially delay the development of the CHMP, any party can ask the Land and Resources Tribunal to mediate the dispute (this does not affect the length of the consultation period). If at any time the parties agree on a CHMP (even if before the end of the consultation period), the project proponent may submit the proposed CHMP to the Chief Executive. However, even if the project proponent and the Aboriginal parties have agreed to the CHMP, the Chief Executive is not obliged to accept it if he does not believe it is adequate. If the Chief Executive refuses to approve an agreed CHMP, or the project proponent and the Aboriginal parties cannot agree on a CHMP by the end of the consultation period, then the project proponent may appeal or refer the matter to the Land and Resources Tribunal for determination. In the case of a referral of a non-agreed CHMP to the Tribunal, at the very least, each party will be given the opportunity to make written submissions to the Tribunal (and a period of at least 30 days will be allowed for this). The Tribunal is not required to hold a hearing in respect of an objection or a referral, but may do so if it wishes. If it does hold a hearing, all parties have a right to be heard. There is a general obligation on the Tribunal to take all reasonable steps to make a recommendation in respect of the CHMP to the Minister within six months of the objection or referral of the matter to it. The Tribunal would then make a recommendation to the Minister, who will make the ultimate decision as to whether the CHMP is approved or refused.
Where a CHMP is mandatory, a project will not be able to proceed without one. Further, given the potential for the CHMP process to take approximately 12 months to run its course, this will obviously be a new major project approval that needs to be taken into account at the outset of the project planning process.Cultural heritage studies
Two of the factors that the courts will consider in determining whether or not a person has complied with the cultural heritage duty of care are:whether the person has carried out a study or survey, of any type, of the area to find out the location and extent of Aboriginal cultural heritage; and whether the person has searched the Aboriginal Cultural Heritage Register for information about the area.
The Bill outlines the applicable procedures for conducting cultural heritage studies, and the establishment of the Aboriginal Cultural Heritage Register.
Any person, including the Minister, may sponsor a cultural heritage study. The sponsor must give written notice of its proposed study to the chief executive, any owner/occupier of the study area and any Aboriginal party for that area. If an Aboriginal party advises the sponsor within the required time frame that it wishes to take part in the study, the sponsor must give the Aboriginal party the roles of:assessing the level of significance of areas and objects in the study area that are, or appear to be, Aboriginal cultural heritage; and advising and consulting with the sponsor on the carrying out of the study.
Once the study has been completed, the sponsor may request that the chief executive record the findings in the publicly accessible Aboriginal Cultural Heritage Register. The chief executive may record the findings if, among other things, the sponsor has complied with the legislative procedures for carrying out the study, and the findings are consistent with authoritative anthropological, biogeographical, historical and archaeological information about the study area.
The Bill specifically states that the chief executive is not responsible for assessing the level of significance of the areas and objects included in the study area when deciding whether or not to record the findings. The chief executive therefore cannot challenge the Aboriginal party's decision on these matters.
If the chief executive does not register the details of the study, objections and appeals may be heard by the Land and Resources Tribunal. The Tribunal would then made a recommendation to the Minister about registration.Review of the legislation
The Bill provides that the Minister must review the efficiency and efficacy of the legislation within five years of its commencement.Transitional provisions
The transitional provisions for the proposed Bill will recognise any existing agreements and arrangements put in place in respect of cultural heritage. Further, there is provision for 'transitional guidelines' to give project proponents guidance as to the steps they need to take in respect of their project to comply with their duty of care obligation.No general provision authorising the removal or excavation on Aboriginal cultural heritage
Interestingly, apart from the CHMP provisions, there is no general provision in the legislation allowing for the relocation or collection of Aboriginal cultural heritage. The absence of such a provision could prove to be an obstacle for small scale or low impact activities that are not of a scale to justify the expense and resources that may need to be committed to the CHMP process.Comments on Bills
Copies of the consultation drafts are available from the Department of Natural Resources and Mines website at www.nrm.qld.gov.au
Any comments on the legislation are to be submitted by 15 November this year.