MqJICEL (2006) Vol 3 35

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1 MqJICEL (2006) Vol 3 35 ONE STEP FORWARD? RECENT DEVELOPMENTS IN AUSTRALIAN STATE AND TERRITORY INDIGENOUS CULTURAL HERITAGE LAWS SUSAN SHEARING * I INTRODUCTION The protection of Australia s natural and cultural heritage is one of the most challenging and controversial issues in current environmental debates. This is particularly the case in the context of indigenous cultural heritage 1 which has received the recent attention of legislators in Queensland, the Australian Capital Territory and Victoria. 2 The focus of cultural heritage legislation enacted or currently under consideration in Australian State and Territory jurisdictions has been twofold. First, the legislation aims to create a decision making framework within which indigenous people have a meaningful (and in some cases, determinative) role in conserving their heritage. Secondly, recent reforms have focussed on the need for effective integration of indigenous cultural heritage protection into resource management and land use planning practices. This article outlines a number of reform initiatives contained in the first of this new generation of indigenous cultural heritage laws, focussing on the Aboriginal Cultural Heritage Act 2003 (Qld). Some comparisons will be drawn between the Queensland legislation, the Heritage Act 2004 (ACT) and the recently enacted Aboriginal Heritage Act 2006 (Vic). Recent Australian indigenous cultural heritage laws are moving towards achieving significant improvements in the way such heritage is identified, managed and * 1 2 Associate Lecturer, Macquarie University Centre for Environmental Law, Division of Law, Macquarie University. The research assistance of Sheree Sharma in preparing this article is gratefully acknowledged. For example, the controversy surrounding the proposed construction of a bridge between Hindmarsh Island and Goolwa in South Australia and resulting litigation discussed in A Taubman, Protecting Aboriginal Sacred Sites: the Aftermath of the Hindmarsh Island Dispute (2002) 19 Environmental and Planning Law Journal 140. The Tasmanian Government is currently investigating arrangements for the protection of Aboriginal cultural heritage with a view to developing new legislation in this area see Tasmanian Government, Terms of Reference for Aboriginal Heritage Legislation Projecthttp:// accessed 21/02/06.

2 36 MqJICEL (2006) Vol 3 protected. However, the divergent approaches to indigenous heritage in Australian State and Territory legislation continue to leave the effective regulation of this important area in uncertainty for Aboriginal people and those parties who own or use areas that contain indigenous cultural heritage. II BACKGROUND A International Developments The relationships between indigenous peoples and their natural environment are intrinsically linked to the cultural, spiritual, social, economic and physical well being of such peoples. These relationships require the ability to continue to enjoy the natural resources of lands and waters and are based upon the integration of humanity and the environment. 3 While the protection of natural and cultural heritage of outstanding universal value is the focus of the Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (the World Heritage Convention ) 4 there has been an increasing recognition of the need to incorporate into the nomination process the relationship between culture and nature so critical to many indigenous peoples. This recognition has been manifested in the concept of cultural landscape as part of the nomination criteria for World Heritage Listing in the Operational Guidelines 5 developed by the World Heritage Committee. A cultural landscape is defined as:... cultural properties and represent the combined works of nature and man designated in Article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal. 6 Nonetheless, the World Heritage Convention has been widely criticised as failing to adequately deal with the protection of intangible cultural heritage 7 and the importance of a person s freedom to actively participate in and enjoy the cultural life of his or her community has been recognised and protected through a number of international instruments, briefly outlined below D A Posey (ed), Cultural and Spiritual Values of Biodiversity (1999) 3. Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (1972) 11 ILM Operational Guidelines for the Implementation of the World Heritage Convention 2 February 2005: Ibid para 47. P Karuk, Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage 1(1) Macquarie Journal of International and Comparative Environmental Law 113.

3 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 37 Article 27 of the International Covenant on Civil and Political Rights ( ICCPR ) provides that: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. 8 The Draft Declaration of the Rights Indigenous Peoples is perhaps the strongest call for recognition of indigenous cultural heritage at the international level. 9 It states that indigenous peoples have a right to: practise and revitalise cultural traditions and customs [including] the right to maintain, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs. 10 The Draft Declaration asserts the rights of indigenous peoples to maintain, protect, and have access in privacy to their religious and cultural sites and to use and control ceremonial objects. 11 The critical link between cultural heritage rights and indigenous peoples is also recognised in the United Nations Convention for the Safeguarding of Intangible Cultural Heritage 2003 (the ICH Convention ). The ICH Convention, which came into operation on 20 April provides a framework for the protection of intangible cultural heritage which is defined to include practices, representations, expressions, knowledge, skills as well as the instruments, objects, artefacts and cultural spaces associated therewith. 13 In recognising the need to protect intangible cultural heritage, the ICH Convention seeks to address the deficiencies in the cultural heritage management and protection regime established in the World Heritage Convention discussed above. The ICH Convention recognises that cultural heritage is something which is transmitted from generation to generation and is constantly recreated by International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, GA Res 2200A (XXI), UN Doc A/6316 (1966), 99 UNTS171 Draft Declaration on the Rights of Indigenous Peoples (working group on Indigenous Populations on its Eleventh Session, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities) http// nativelaw/ddir.html. Ibid article 12. Ibid article 13. In accordance with article 34 of the Convention. Convention for the Safeguarding of the Intangible Cultural Heritage (2003) article 2.1,

4 38 MqJICEL (2006) Vol 3 communities and groups in response to their environment, their interaction with nature and their history. 14 The most recent international development in the protection of cultural heritage is the Convention on the Protection and Promotion of the Diversity of Cultural Expressions approved by the UNESCO General Conference on 20 October The objectives of this Convention include: To protect and promote the diversity of cultural expressions; To create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner; To promote respect for the diversity of cultural expressions and raise awareness of its value at local, national and international levels; To reaffirm the importance of the link between culture and development for all countries. 16 Article 3 of the Convention states that: The protection and promotion of the diversity of cultural expressions presuppose the recognition and equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. At the date of writing, Australia has not ratified either the ICH Convention or the Convention on the Protection and Promotion of the Diversity of Cultural Expressions Nonetheless, it is argued that the expanding concept of heritage at the international level coupled with an increasing recognition that enjoyment of cultural heritage comprises a fundamental right of all peoples has contributed to the momentum for the recent reform of domestic indigenous cultural heritage protection legislation at State and Territory levels in Australia. B Australian Overview Cultural heritage legislation applies in Australia regardless of the existence of any native title over land. In each jurisdiction, such legislation operates to prevent or restrict activities which may damage or destroy indigenous cultural heritage. For this reason, parties wishing to develop land or conduct activities in other areas (including water) which have cultural heritage significance need to be aware of the scope of their obligations under applicable cultural heritage legislation. The difficulty for policymakers has been the need to weigh the protection of cultural Ibid. Convention on the Protection and Promotion of the Diversity of Cultural Expressions Ibid article 1.

5 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 39 heritage against economic imperatives which require an efficient regulatory framework that provides timely approvals for the conduct of activities which may adversely affect cultural heritage. Possibly the most comprehensive review to date of the legal framework for protection of Aboriginal cultural heritage in Australia was undertaken by the Hon Dr Elizabeth Evatt in That review, which focussed upon the Commonwealth Aboriginal and Torres Strait Island Heritage Protection Act 1984, identified numerous issues and failings common to State, Territory and Commonwealth indigenous cultural heritage legislation. The Commonwealth legislation is intended to operate as a mechanism of last resort to protect indigenous cultural heritage where State and Territory legislation is ineffective or there has been an unwillingness to enforce such legislation. 18 The Evatt Report noted that the major threats to Aboriginal cultural heritage arise from land use practices, including development, mining, building, agriculture and grazing. 19 As such practices fall primarily within the legislative competence of States and Territories, the scope of protection afforded to Aboriginal cultural heritage at State and Territory levels is critical. However, as the Evatt Report noted, a different legislative regime applies in each Australian State and Territory with little consistency in approach. For this reason, the Report recommended the adoption of a national policy as the basis for laws and programs relating to Aboriginal cultural heritage at all levels of government. 20 The Report also made recommendations for minimum standards as a basis for uniform model laws at State, Territory and Commonwealth levels. These recommendations included: A broadening of definitions of Aboriginal cultural heritage to extend to areas and objects of significance to Aboriginal people in accordance with tradition (including traditions which have evolved from past traditions), and historical and archaeological sites; 21 A protection regime based upon automatic protection for areas and sites falling within the definition of Aboriginal cultural heritage through effective criminal sanctions; 22 The establishment of Aboriginal cultural heritage bodies with responsibility for site evaluation and the administration of relevant legislation; E Evatt, Review of the Aboriginal and Torres Strait Island Heritage Protection Act 1984, (1996). Ibid chapter 2, para 2.2. Ibid para 5.5. Ibid recommendation 5.1. Ibid recommendation 6.1. Ibid recommendation 6.2.

6 40 MqJICEL (2006) Vol 3 The separation of assessments relating to the significance of sites and areas from decisions concerning land use the former to be dealt with by Aboriginal cultural heritage bodies and the latter to be dealt with by the executive; 24 The integration of Aboriginal cultural heritage issues with planning and development processes from the earliest stage. To this end, the Report recommended that planning and development processes include an effective consultation/negotiation process for reaching agreement between developers and the Aboriginal community facilitated by a responsible Aboriginal heritage body. 25 Ten years after the Evatt Report, it is clear that the recent suite of heritage legislation enacted or under consideration at State and Territory levels has, to some extent, responded to these recommendations. However, reform has been ad hoc and inconsistent in substance, a disappointing result given the emphasis in the Evatt Report upon the need for a nationally consistent approach to Aboriginal cultural heritage protection. 26 III QUEENSLAND CULTURAL HERITAGE LEGISLATION The Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 replaced the Cultural Record (Landscapes Queensland and Queensland Estate) Act For the purpose of this article, the provisions of the Aboriginal Cultural Heritage Act 2003 (ACH Act) will be discussed. The Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (CR Act) provided only for the management of the impact of activities upon those indigenous heritage sites which had been listed on a register, or where the relevant works were so substantial as to trigger the need to conduct an environmental impact statement under other legislation. The consequence of this legislative approach was that a large number of activities (such as landscaping) which could still have an impact upon cultural heritage sites were not regulated under the legislation. 27 Indeed, under the CR Act it was relatively common 28 for exploration companies to undertake exploration activities which involved a degree of physical disturbance to land without having taken steps to ascertain whether any cultural heritage items were located in the exploration area. The reasons for such an approach may well Ibid recommendation 6.3. Ibid recommendation 6.4. Ibid recommendation 6.5. Ibid para 6.2. N Watson and R Black, New Cultural Heritage Legislation One Small Step for Murris One Giant Leap Forward for the Queensland Government (2001) 5(13) Indigenous Law Bulletin 8. Corrs Chambers Westgarth Lawyers, Queensland Mining (2003) corrs/website/web.nsf/content/pub_er_291003_explorers_beware_new_queensland_aborigi nal_cultural_heritage_regime (accessed 27/02/06).

7 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 41 have included the relatively low penalties imposed for breach of the CR Act, 29 a lack of public awareness concerning the existence of a cultural heritage protection regime separate to the native title legislative framework, and the absence of a positive legal obligation to undertake cultural heritage surveys to determine the existence of cultural heritage. 30 By way of contrast, the ACH Act seeks to provide effective recognition, protection and conservation of Aboriginal cultural heritage. 31 The principles which underlie this main purpose are set out in s 5 as follows: the recognition, protection and conservation of Aboriginal cultural heritage as being based on respect for Aboriginal cultural and traditional practices; that Aboriginal people should be recognised as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage; the importance of respecting, preserving and maintaining knowledge innovations and practices of Aboriginal communities and promoting the understanding of Aboriginal cultural heritage; the importance of activities involved in recognition, protection and conservation of Aboriginal cultural heritage because such activities allow Aboriginal people to reaffirm their obligations to law and country ; and the need to establish timely and efficient processes for the management of activities that may harm Aboriginal cultural heritage. These principles strongly articulate the need for Aboriginal people to control and manage their cultural heritage. Similar provisions have been incorporated into the Victorian Aboriginal Heritage Act Two issues raised by indigenous groups during consultation on the legislation were the ownership of Aboriginal cultural heritage and access to cultural heritage sites. In relation to the ownership of cultural heritage, it was argued that: Aboriginal cultural heritage is owned by Aboriginal people. Any legislation on Aboriginal cultural heritage must reflect this completely. Aboriginal people must have the right to own, control, protect, develop and enjoy their own heritage. Just as Aboriginal people never ceded their land, they have never ceded their heritage. The $75,000 for a corporation. Corrs Chambers Westgarth Lawyers, above note 28. Aboriginal Cultural Heritage Act 2003 (Qld) s 4. Aboriginal Heritage Act 2006 (Vic) s 3.

8 42 MqJICEL (2006) Vol 3 recognition, protection and conservation of Aboriginal cultural heritage are essential for cultural survival. 33 The ACH Act provides for indigenous ownership of Aboriginal human remains and Aboriginal cultural heritage held in State collections or taken lawfully from an area by an Aboriginal party for that area. However, all other Aboriginal cultural heritage is owned by the State. 34 The provisions of the Act dealing with ownership, custodianship and possession of Aboriginal cultural heritage state that the basic intention underlying the applicable rules is the protection of such heritage and that indigenous ownership is a supporting intent to apply as far as practicable. 35 As regards access, the Act preserves the rights of landowners to continue to use land upon which cultural heritage is located, subject to a caveat that the person must not unlawfully harm the Aboriginal cultural heritage. 36 However, there are no provisions enabling Aboriginal people to access sites located on privately held or Crown land for the purpose of practising and enjoying their cultural heritage. 37 Notwithstanding these deficiencies, the ACH Act introduced a number of initiatives in relation to the identification, protection and conservation of indigenous cultural heritage and the integration of indigenous heritage protection into resource management and planning practices. The following discussion outlines four reform initiatives, namely: 1. An extension of the definition of Aboriginal cultural heritage; 2. The introduction of a cultural heritage duty of care which places a positive obligation on persons carrying out activities to take all reasonable and practical measures to ensure that the activity does not harm indigenous cultural heritage; 3. Integration of cultural heritage protection with planning and land use legislation; 4. The introduction of a revised framework for the involvement of indigenous peoples in the assessment of heritage significance and conservation management practices Australians for Native Title and Reconciliation (Qld), Submission on the Draft Aboriginal Cultural Heritage Bill 2002, December 2002, 1 Aboriginal Cultural Heritage Act 2003 (Qld) s 20(2). Aboriginal Cultural Heritage Act 2003 (Qld) s Aboriginal Cultural Heritage Act 2003 (Qld) s 21(2). Aboriginal Cultural Heritage Act 2003) (Qld) s 2. It should be noted that the Cultural Heritage Management Plan Guidelines state that a cultural heritage management plan may make provision for Aboriginal parties to visit cultural heritage areas within a plan area and how this is to occur, although any such access is to be subject to appropriate landholder consent if visitation of the area is unrelated to the activities of the sponsor see Queensland Government Gazette No April 2006, para

9 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 43 A The Concept of Indigenous Heritage Under the CR Act, the focus of the protective regime was archaeological evidence of human occupation of Queensland. Such an approach conformed to the traditional view of indigenous cultural heritage as consisting primarily of relics. Concepts of ownership and access to sites for cultural heritage purposes were restricted to traditional owners engaged in the use of sites for traditional purposes. 38 This Eurocentric view of cultural heritage fails to acknowledge that indigenous cultural heritage evolves over time. On this point, Watson and Black argue: The concept that only traditional Indigenous people have ownership rights in cultural heritage is offensive to those whose access to their cultural heritage has been severely impacted upon by farming and urbanisation. 39 The definition of indigenous cultural heritage raises difficult issues concerning how decisions relating to heritage significance are determined. It has been argued that most international and Australian law and public policy which seeks to protect the cultural heritage of indigenous peoples is based on a belief that the value of indigenous culture is fundamentally instrumental. 40 Nigel Stobbs argues that: a failure to acknowledge any fundamental intrinsic value of indigenous cultures is at the heart of the long running dispute between Indigenous people and various states over the extent of any rights to self determination and self-government. 41 According to Stobbs, where the indigenous community itself determines how it is viewed and valued, the resulting concept of intrinsic value should inform law and policy making and provide a significant tool for empowering indigenous communities themselves. 42 That is, indigenous cultural value must be determined through a process of self evaluation and must not be designated as valuable based on a connection to someone or something external to the indigenous community culture. To what extent does the ACH Act address the concerns raised in the Evatt Report and by commentators such as Stobbs concerning the definition of the Aboriginal cultural heritage? The ACH Act extends the concept of indigenous heritage which prevailed under the CR Act. It defines Aboriginal cultural heritage as including: a significant Aboriginal area in Queensland; See for example, Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) s 32. Watson and Black, above n 27, 9. Nigel Stobbs, What Can We Do You For? Naïve Conceptions of the Value of Indigenous Cultures and Communities (2005) 6(10) Indigenous Law Bulletin 8. Ibid. Ibid.

10 44 MqJICEL (2006) Vol 3 a significant Aboriginal object or; evidence, of archaeological or historical significance, of Aboriginal occupation of an area of Queensland. 43 The definition of area covers land, an expanse of water, an area of land under water or any combination of these. 44 By including a specific reference to Aboriginal cultural heritage in water, the ACH Act acknowledges that cultural heritage is not restricted to land and may include, for example, natural springs and water holes. 45 The ACH Act provides that significance is determined on the basis of particular significance to Aboriginal people because of one or both of the following considerations: Aboriginal tradition the history, including contemporary history of any Aboriginal party for the area. 46 The inclusion of contemporary history in the determination of significance is important. It allows for the protection of sites and objects that have become significant because of the arrival of European settlers, for example, massacre sites. Further, this definition acknowledges that Aboriginal culture, heritage and traditions are constantly evolving and not to be viewed in a static pre-colonisation manner. A similar definition was adopted in the Heritage Act 2004 (ACT) 47 and the Aboriginal Heritage Act 2006 (Vic) defines cultural heritage significance to include (a) archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and (b) significance in accordance with Aboriginal tradition. 48 Under the ACH Act, where evidence of Aboriginal occupation is determined through an object or structure, s 11 provides that the area immediately surrounding the object or structure is also evidence of occupation to the extent that the area cannot be separated from the object or structure without destroying or diminishing the object or structure s significance as evidence of occupation Aboriginal Cultural Heritage Act 2003 (Qld) s 8. Aboriginal Cultural Heritage Act 2003 (Qld) - Schedule 2 Dictionary. Contrast the definition of place in s 8 of the Heritage Act 2004 (ACT) which is focused upon land based heritage. Aboriginal Cultural Heritage Act 2003 (Qld) ss 9 and 10. Definition of Aboriginal place and Aboriginal object in Heritage Act 2004 (ACT) s 9. Aboriginal Heritage Act 2006 (Vic) s 4, emphasis added.

11 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 45 Section 12 clarifies that the concept of cultural heritage under the ACH Act extends beyond the stones and bones approach of earlier legislation. In particular, s 12(2) provides that for an area to be a significant Aboriginal area, it is not necessary for the area to contain markings or other physical evidence indicating Aboriginal occupation or otherwise denoting the area s significance. 49 Examples referred to in the section include ceremonial and birthing places, a burial site or the site of a massacre. This provision is important in connection with preservation of intangible cultural heritage as it signifies a growing understanding and recognition of the importance of cultural spaces for the protection of indigenous cultural heritage. As such, it is consistent with the objectives of the Convention for the Safeguarding of Intangible Cultural Heritage The ACH ACT further provides that where significant Aboriginal objects exist in an area and the significance of those objects is intrinsically linked with their location in that area, the existence of those objects is enough to make the area itself a significant Aboriginal area. Further, if it is reasonably appropriate under the Act, the immediate area and the objects in it may be taken collectively to be a significant Aboriginal area. 50 These provisions represent an important shift in the legislative approach to indigenous heritage from a preoccupation with archaeological evidence of past occupation to recognition of the ongoing interconnected nature of the relationships between indigenous peoples and their cultural heritage. For owners and users of areas containing Aboriginal cultural heritage, sections 11 and 12 highlight the importance of developing and obtaining approval of a cultural heritage management plan, even where such a plan may not be required under the ACH Act in order to avoid prosecution for breach of the statutory duty of care imposed by s 23 (discussed below). 51 The potential scope for heritage protection under the ACH Act is clearly broader than that afforded under the CR Act. However, this legislation does not expressly deal with the protection of intangible cultural heritage. Furthermore, the effectiveness of the protective provisions depends largely upon the extent to which decisions concerning significance and heritage management are made by the relevant indigenous communities themselves. This issue is considered later in this article Aboriginal Cultural Heritage Act 2003 (Qld) s 12(2). Aboriginal Cultural Heritage Act 2003 (Qld) s 12(4). C Davie, Aboriginal Cultural Heritage: Emerging from the Shadows of Native Title (2004) AMPLA Yearbook 508.

12 46 MqJICEL (2006) Vol 3 B A Cultural Heritage Duty of Care The CR Act protected cultural heritage through a system of permits. Under s 56(4) of that Act, it was a defence to any charge of an offence to prove that at the time of the alleged offence the defendant did not suspect and could not be reasonably expected to suspect that the thing to which the charge relates was an item of the Queensland Estate. If a place was not listed, it was not protected. The protection available under this Act, described by some commentators as handkerchief in nature, did not include any general requirement for landowners to conduct cultural heritage studies prior to undertaking activities on the land. 52 The ACH Act prohibits the harming, excavating, relocating, taking away or possession of any indigenous cultural heritage if the person knows or ought reasonably to know that it is cultural heritage. 53 In addition to these provisions, s 23 of the ACH Act imposes an innovative statutory cultural heritage duty of care. It requires that a person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage. Harm is defined to mean damage or injury to, or desecration of ACH. 54 Indigenous cultural heritage is automatically protected if it falls within the s 8 definition of Aboriginal cultural heritage. Protection under the legislation does not depend upon whether the site has been assessed or recorded. Contraventions of the ACH Act carry significant penalties up to $75,000 for individuals and $750,000 for corporations, a tenfold increase to the penalty levels under the CR Act. 55 In addition, injunctions can be issued by the Queensland Land and Resources Tribunal and the Minister can issue stop orders for activities which may harm cultural heritage. 56 The provisions of s 23 conform with Recommendation 6.2 of the Evatt Report which called for State and Territory heritage protection legislation to provide automatic or blanket protection to areas and sites falling within the definition of cultural heritage through appropriate and effective criminal sanctions. 57 The effect of the s 23 duty of care is that a breach of that duty is an offence under the ACH Act even if the defendant had no actual or constructive knowledge of the existence of cultural heritage on the land Watson and Black, above note 27, 8. See Aboriginal Cultural Heritage Act 2003 (Qld) ss Aboriginal Cultural Heritage Act 2003 (Qld) Schedule 2, Dictionary. Aboriginal Cultural Heritage Act 2003 (Qld)ss 24(1), 25(1), 26(1). Aboriginal Cultural Heritage Act 2003 (Qld) s 32. E Evatt, above note 17, Recommendation 6.2. Davie, above note 51, 506.

13 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 47 The s 23 duty is one to avoid or minimise harm to cultural heritage rather than to act to comply with the duty. As Bates has noted, an advantage in using compliance with a statutory duty of care as a defence against proceedings alleging a breach is that: positive measures for management or protection of the environment can be stipulated in other instruments under the authority of the legislation. This fosters a performance or outcomes based approach to environmental management and protection rather than a purely regulatory one. 59 To date, Queensland is the only jurisdiction which has introduced a statutory cultural heritage duty of care, although the Environmental Protection Act 1994 (Qld) provides for a general environmental duty to avoid unlawful environmental harm. 60 Bates has argued that, in the context of statutory duties of care generally, such measures will only be effective where the legislation itself is well enforced and strict penalties apply. 61 He notes that the introduction of a statutory duty of care must be accompanied by a clear statement of the circumstances in which that duty of care is intended to arise, how it may be breached, the defences available and any remedies provided under the statute. Under the ACH Act, a number of provisions give guidance as to how the duty may be complied with. The factors which a court may take into account under s 23 in determining whether a person has complied with the statutory cultural heritage duty of care include: the nature of the activity and the likelihood of it causing harm to Aboriginal cultural heritage; the nature of the Aboriginal cultural heritage likely to be harmed by the activity; the extent to which the person consulted with Aboriginal parties about the carrying out of the activity and the results of the consultation; whether the person carried out a study or survey of the area affected by the proposed activity to find out the location and extent of Aboriginal cultural heritage and extent of the study or survey; G Bates, A Duty of Care for the Protection of Biodiversity on Land (Consultancy Report, Report to the Productivity Commission, AusInfo, Canberra, 2001) 25. Environmental Protection Act 1994 (Qld) ss 436, 548. Bates, above note 59, 20.

14 48 MqJICEL (2006) Vol 3 whether the person searched the Aboriginal Cultural Heritage Database and the Aboriginal Cultural Heritage Register 62 for information about the area affected by the activity (although note that the placing of information on the Database is not intended to be conclusive about whether the information is up-to-date, comprehensive or otherwise accurate 63 and under s 44(3) a person does not necessarily comply with their cultural heritage duty of care only because the person has consulted the database ); 64 the extent to which the person has complied with Cultural Heritage Duty of Care Guidelines gazetted under s 28 of the ACH Act (the DOC Guidelines ); and the nature and extent of past uses in the area affected by the activity. Given the pivotal protective role of the cultural heritage duty of care under the ACH Act, the question of what may constitute reasonable and practicable measures for the purposes of complying with s 23 is critical. The ACH Act provides that a person who carries out an activity is taken to have complied with the cultural heritage duty of care if: the person acts in compliance with: (a) an approved Cultural Heritage Management Plan (b) a native title or other agreement with Aboriginal people which addresses cultural heritage, (c) the DOC Guidelines the person owns the Aboriginal cultural heritage or is acting with the agreement of the owners, or the activity is necessary because of an emergency (for example a bushfire or other natural disaster). 65 The Act does not define other agreement for the purpose of s 23(3), although this will presumably cover any agreement that addresses the identification and management of cultural heritage in the relevant area Established under ss 38 and 46 of the Aboriginal Cultural Heritage Act 2003 (Qld) respectively. Aboriginal Cultural Heritage Act 2003 (Qld) s 39(3). See also DOC Guidelines paragraph 8.3 which states that a proponent should not rely solely on information contained within the [Register] or the [Database] in deciding whether or not to undertake a cultural heritage study or survey. Aboriginal Cultural Heritage Act 2003 (Qld) s 23(3).

15 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 49 Where a proponent is not acting in compliance with a cultural heritage management plan, an agreement covering cultural heritage, a native title agreement, 66 or compliance with the DOC Guidelines is deemed to satisfy the duty of care. There is no penalty for failure to comply with the DOC Guidelines. However, in view of the significant penalties which apply for any contravention of the duty of care, it is important to consider the circumstances in which the DOC Guidelines suggest that a duty of care arises and the standards necessary to satisfy that duty. The DOC Guidelines, which commenced operation on 16 April 2004, 67 expressly reinforce, and arguably extend, the principles set out in s 5 of the Act. 68 In particular, the DOC Guidelines expressly emphasise the need to adopt a precautionary approach, stating that: The [ACH] Act requires that a person must exercise due diligence and reasonable precaution before undertaking an activity which may harm Aboriginal cultural heritage. 69 Interestingly, references to diligence and reasonable precaution are not found in the ACH Act. The DOC Guidelines establish a framework within which a range of activities may affect indigenous cultural heritage. There are five distinct categories of activities ranging from bushwalking to drilling and dredging. In relation to each category of activity, a strong emphasis is placed upon effective consultation directly between proponents of an activity and the relevant Aboriginal party. The framework is premised upon this consultation resulting in an agreement between the parties concerning the conduct of the activity. There are no minimum standards prescribed for consultation. The DOC Guidelines refer only to the Australian Heritage Commission publication, Ask First A guide to respecting Indigenous Heritage places and values. 70 The five categories of activity established by the DOC Guidelines are summarised below. Category 1 Activities activities involving No Surface Disturbance (defined to mean any disturbance of an area which causes a lasting impact to the land or waters during the activity or after the activity has ceased 71 ). Examples of Category Aboriginal Cultural Heritage Act 2003 (Qld) defined in Schedule 2, Dictionary definition. Duty of Care Guidelines, care.html (accessed 1/05/06) Ibid paragraph 1.2. Ibid paragraph Australian Heritage Commission, Ask First A guide to respecting Indigenous heritage places and values, (accessed 27/02/06). Guidelines, above n 67, paragraph 3.2.

16 50 MqJICEL (2006) Vol 3 activities include walking, driving along existing roads and tracks, aerial surveys, photography navigating through water, and cadastral, engineering, environmental or geological surveys using methods that do not cause ground disturbance. The DOC Guidelines state that Category 1 activities are unlikely to harm ACH and it is reasonable and practicable for the activity to proceed without further cultural heritage assessment. 72 Nonetheless, cultural sensitivities will need to be taken into account in conducting such activities, and may result in a proponent voluntarily undertaking the development of a cultural heritage management plan. This occurred recently when the makers of a major feature film shoot chose to comply with the cultural heritage management plan provisions of the ACH Act in evaluating the indigenous cultural significance of locations used in the film. 73 Category 2 Activities activities causing no Additional Surface Disturbance (defined as surface disturbance not inconsistent with previous surface disturbance 74 ). Category 2 activities are described as generally unlikely to harm [ACH] or to cause additional harm to that which has already occurred. In these circumstances, the DOC Guidelines indicate that it is reasonable and practicable for the activity to proceed without further cultural heritage assessment. However, it would be prudent in these circumstances for a proponent to undertake a search of the Register and the Database to ensure that there are no registered Aboriginal sites or objects of cultural significance in the area before proceeding. Examples of Category 2 activities include cultivation of an area which is currently subject to cultivation, grazing cattle on an area where cattle are currently grazed, using and maintaining existing roads, tracks and power lines, using, maintaining and protecting services and utilities where such services are currently being provided or are on an adjacent area, provided the activity does not involve additional surface disturbance, and tourism and visitation activities on an area where such activities are already taking place. Category 3 Activities activities proposed in a Developed Area this is defined as an area which is developed or maintained for a particular purpose such as use as a park, garden, railway, road or other access routes, navigation channel, municipal facility or infrastructure facility, such as power lines, telecommunication lines or electricity infrastructure Guidelines, above n 67, paragraph 4.1 and 4.2. Queensland Government Department of Natural Resources, Mines and Energy, The Proposition Managing Aboriginal Cultural Heritage on a Major Feature Film Shoot DVD. Guidelines, above n 67, paragraph 3.2 definition. Guidelines, above n 67, paragraph 3.2 definition.

17 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 51 The DOC Guidelines provide that such an activity is generally unlikely to harm ACH, and that it is reasonable and practicable that the activity proceeds without further cultural heritage assessment. However, if the activity will excavate, relocate, remove or harm ACH entered on the Register or Database, it cannot proceed unless the proponent has obtained the agreement of the Aboriginal party for the area or undertaken a Cultural Heritage Management Plan pursuant to Part 7 of the ACH Act. Accordingly, in order to comply with the Guidelines, it would be prudent for a proponent to search the Database and the Register prior to undertaking the activity. Category 4 Activities areas previously subject to Significant Ground Disturbance Significant Ground Disturbance is defined to mean disturbance by machinery of the top soil or surface rock layer of the ground (eg, by ploughing, drilling or dredging) or the removal of native vegetation by disturbing root systems and exposing underlying soil. The Guidelines provide that such an activity may proceed on the same basis as a Category 3 Activity. Category 5 Activities activities causing Additional Surface Disturbance Category 5 activities are those which do not fall within Categories 1, 2, 3 or 4. The Guidelines provide that where a Category 5 activity is proposed, there is generally a high risk that it could harm Aboriginal cultural heritage. In these circumstances, the activity should not proceed without a cultural heritage assessment. 76 This involves consideration of those matters listed under s 23(2) of the Act. 77 Accordingly, a proponent should search both the Database and the Register to ascertain the existence of any registered ACH in the area concerned and consult with the Aboriginal Party for the area. C Cultural Heritage Find A number of features are identified in the DOC Guidelines as being highly likely to have cultural heritage significance for the purposes of s 23(2)(b) and as possibly constituting a cultural heritage find. This term is defined as Guidelines, above n 67, paragraph Also set out in paragraph 1.2 of the preamble to the Duty of Care Guidelines.

18 52 MqJICEL (2006) Vol 3 a significant Aboriginal object or evidence of archaeological or historic significance of Aboriginal occupation of an area of Queensland, or Aboriginal human remains, found in the course of undertaking an activity covered by these guidelines. 78 Such features include ceremonial places, scarred or carved trees, burial sites, rock art, fish traps and weirs, grinding grooves, contact sites and wells. 79 In addition, a number of landscape features are identified which may also have cultural heritage significance, including rock outcrops, caves, foreshores and coastal dunes, sand hills, water holes, natural springs, particular types of native vegetation, and some hill and mound formations. 80 Where, during an activity, it becomes necessary to excavate, relocate, remove or harm a Cultural Heritage Find, the activity is to cease immediately and consultation with the relevant Aboriginal Party is to be undertaken and the advice and agreement of that party sought in relation to avoiding or minimising harm to the ACH. 81 Where an agreement cannot be reached in these circumstances, the proponent remains subject to the s 23 duty of care to take all reasonable and practicable measures to ensure that the activity does not harm the ACH, including where necessary through the development of a Part 7 Cultural Heritage Management Plan. 82 These provisions apply to all categories of activity except Category 1 activities. While the ACH Act is clearly an improvement upon its predecessor in terms of the scope of protection afforded to indigenous cultural heritage, an issue arises as to whether the DOC Guidelines provide sufficient certainty as to the standards required in order to discharge the duty of care under s 23. This is particularly important because the judiciary may perceive an absence of appropriate standards as a reason for denial of a breach of a statutory duty of care. 83 Of particular concern is the assessment of the risk of harm to the different categories of cultural heritage as stated in the DOC Guidelines. As outlined above, the DOC Guidelines state that the first four categories of activities are generally unlikely to harm Aboriginal cultural heritage and that it is reasonable and practicable that the activities proceed without further cultural heritage assessment. It is certainly conceivable that the proponent of such an activity might consider that such statements have the practical effect of exempting a range of activities from the requirements of the Act, irrespective of the actual risk of harm. A further concern is that the DOC Guidelines do not, in assessing risk of harm, seem to reflect a precautionary approach in relation to compliance with the s Guidelines, above n 67, paragraph 3.2. Guidelines, above n 67, paragraph 6.1. Guidelines, above n 67, paragraph 6.2. Guidelines, above n 67, paragraphs 4.7 and 4.8. Guidelines, above n 67, paragraphs 4.9, 5.10, Bates, above n 59, 28.

19 Developments in Australian State and Territory Indigenous Cultural Heritage Laws 53 duty of care. For example, it might be expected that a minimum standard for any activity in Categories 2-5 would require a search of the Register and Database under the Act and appropriate consultation with the Aboriginal party for an area. To date, there has been no judicial decision under the legislation dealing with scope of the duty of care or what might constitute reasonable and practicable measures to avoid harm to Aboriginal cultural heritage. In practice, a proponent will need to undertake a cost-benefit analysis in deciding whether to adopt a cautious approach and negotiate a Cultural Heritage Management plan with the Aboriginal party for the area concerned, (thereby obtaining the deemed protection of s 23(3)) or proceed with more limited investigations as to the existence or otherwise of Aboriginal cultural heritage in the area of activity in the hope that damage to such heritage will not result from the activity. It is noteworthy that a cultural heritage duty of care was not included in the Heritage Act 2004 (ACT) or the Aboriginal Heritage Act 2006 (Vic). However, in its submission on the 2005 Exposure Draft Aboriginal Heritage Bill (Vic), the Minerals Council of Australia, (Victorian Division) recommended the inclusion of a duty of care and a defence to an offence of harming Aboriginal cultural heritage where a person can demonstrate that the duty has been discharged : By requiring a duty of care, people who cautiously and deliberately go about their business with sound procedures for attending to Aboriginal cultural heritage matters should be afforded a defence to a prosecution as in the Aboriginal Cultural Heritage Act 2003 (Qld). 84 D Relationship with Planning and Land Use Legislation As noted above, the Evatt Report called for the integration of Aboriginal cultural heritage issues with planning and development processes from the earliest stage to enable timely identification of Aboriginal cultural heritage and consideration of its protection in the development application process. 85 Recent indigenous cultural heritage legislation has addressed this recommendation to varying degrees. Any land use activity which has the potential to harm Aboriginal cultural heritage will fall within the scope of the ACH Act which requires a cultural heritage management plan in relation to a wide range of projects, including mining and petroleum exploration activities and large commercial and residential projects Minerals Council of Australia Victorian Division, Submission: Aboriginal Heritage Bill A Minerals Industry Perspective, 19 December, Evatt, above note 17, Recommendation 6.5. For example, in Queensland Electricity Transmission Corporation Ltd (Trading as Powerlink Queensland) and Bonner & Ors, Re [2006] QLRT 8 the Tribunal approved a plan dealing with the construction of transmission towers and access roads in relation to a proposed transmission line easement to supplement electricity supply to the south-east corner of Queensland. The area concerned is located in the respondent s native title claim area near Ipswich.