Queensland's cultural heritage laws overhauled
by Ben Zillmann
The two Billsan expanded definition of what is 'Aboriginal cultural heritage', with a focus on items and sites which are significant in accordance with Aboriginal tradition;
The Bills in question are the Aboriginal Cultural Heritage Bill 2003 and the Torres Strait Islander Cultural Heritage Bill 2003. The Bills are basically identical in their content (and therefore for convenience we focus only on the Aboriginal Cultural Heritage Bill in this overview). Certainly, the statutory protection afforded to Aboriginal cultural heritage has been strengthened by the new legislation. In addition, whereas the current legislation is vague in providing detail as to cultural heritage processes, the new legislation is quite prescriptive in specifying processes for cultural heritage studies and development of Cultural Heritage Management Plans (CHMPs).
In our previous Focus: Native Title September 2002, we discussed in detail the major features of the consultation drafts of the Bills that were released at that time. The Bills that were introduced into Parliament yesterday are not materially different to the consultation drafts. Briefly, the highlights of the Bill are:
the introduction of a 'duty of care' provision which puts a positive obligation on any person carrying out an activity to take all reasonable and practical measures to ensure that the activity does not harm Aboriginal cultural heritage;
substantially increased penalties for breach of cultural heritage protection provisions;
the power for the Minister to issue 'stop orders' if the Minister has reasonable grounds for believing that a person is or is about to unlawfully harm Aboriginal cultural heritage;
somewhat of a merging of the distinct legal concepts of native title and cultural heritage, by generally identifying the appropriate Aboriginal parties to cultural heritage proceedings by reference to who are the legally recognised native title parties for an area;
the establishment of a detailed procedure for the conduct of cultural heritage studies which provides for mandatory notification to the Aboriginal parties and involvement of the Aboriginal parties in such studies should they wish to participate;
the establishment of a detailed regime for negotiating, or having determined, CHMPs, which in general will be mandatory for major projects (typically, those projects that require an Environmental Impact Statement);
recognition of existing cultural heritage and native title agreements, such that parties may continue to legally act under those agreements despite the introduction of the legislation; and
provision is made for review of the legislation after five years.
There have been few changes to the Bill since the September 2002 consultation draft, but the main changes to note are:
in determining whether a person has complied with their duty of care obligation, a court is now specifically directed to have regard to the nature and extent of past uses of the area affected by the activity;
a person will be deemed to have satisfied their duty of care obligation and not breached the cultural heritage protection provisions of the legislation if they are acting in accordance with the 'native title protection conditions' – that is, the conditions the Queensland Government intends to attach to exploration permits granted pursuant to the expedited procedure under the Commonwealth Native Title Act;
clarification that the maximum monetary penalty for breaching a stop order is $1,275,000 for individuals and corporations (down from $6,375,000 for corporations, in the September 2002 consultation draft);
recognition of 'unsuccessful' native title claimants as the appropriate Aboriginal parties for cultural heritage purposes in certain cases;
local governments are given a greater involvement in respect of cultural heritage studies;
clarification of how notices can be served on Aboriginal parties by using their nominated address for service in native title claims where appropriate;
a tentative attempt at addressing the number of Aboriginal parties to participate in a CHMP negotiation and implementation by stating that the number of Aboriginal parties that can reasonably be involved in a 'site survey' is a matter for consultation;
reducing the maximum time in which the Land and Resources Tribunal must endeavour to make a recommendation on a CHMP from six months to four months; and
introducing a further transitional provision which seeks to exempt projects which have already commenced an EIS process before the commencement of the legislation from the need to comply with the mandatory CHMP provisions.
Outstanding issues – guidelines
The Bill provides scope for the Minister to issue guidelines in relation to several aspects of the legislation, most notably in respect of duty of care obligations, cultural heritage studies and CHMPs. It is unfortunate that the guidelines have not been available for public consultation prior to the Bill being introduced into Parliament, as they will play an important role. For example, compliance with the duty of care guidelines will be deemed compliance with the duty of care obligation. Also, it is easy to imagine that the guidelines for cultural heritage studies and CHMPs may be perceived as benchmarks from which it may in turn be difficult to deviate.
It is expected that guidelines will be developed before the legislation commences its operation.
What does it all mean?
The provisions of the Bill are extensive, but some of the most important points to be aware of are as follows:
Companies need to be aware of their duty of care obligations and ensure that they have appropriate measures in place which allow them to demonstrate that they have taken all reasonable and practical measures to ensure their activities do not harm Aboriginal cultural heritage. In some cases, this obligation may be met by complying with the yet to be released guidelines, or by complying with a CHMP. Decisions will need to be made as to whether there is value in voluntarily negotiating CHMPs (ie even where it is not mandatory to do so) or seeking the Minister's approval of project-specific transitional guidelines, in order to provide certainty in respect of duty of care obligations.
Companies scheduling new major projects need to plan early for a CHMP negotiation process and factor this into their project timetables. CHMPs will be mandatory for most major projects in Queensland in the future and the process to achieve a finalised CHMP could conceivably take up to 10 months. The process is comparable to a 'right to negotiate' process in respect of native title.
It must be remembered that cultural heritage can be an issue even where native title has been extinguished. Therefore, cultural heritage will be a relevant consideration for every project.
It is expected that the Bills will be passed relatively quickly. However, the Minister has flagged that the legislation will not commence its operation until essential preparatory work is completed, including the establishment of a cultural heritage register and the finalisation of the duty of care guidelines. It is understood that the likely commencement date for the new legislation is early 2004.
We will continue to monitor the progress of the Bills and the release of the proposed guidelines under the legislation.