Queensland commences review of its cultural heritage legislation

What you need to know

• The Queensland Government released its Options Paper – Finalising the review of Queensland's Cultural Heritage Acts.
• The Options Paper builds on a review that commenced in 2019.  At this stage, the Government has not committed to any timeframes to finalise the review.

What you need to do

• Proponents operating in Queensland should keep a watching brief on the progress of the review

In December 2021, the Queensland Government released its "Options Paper – Finalising the review of Queensland's Cultural Heritage Acts".

The review of the Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Islander Cultural Heritage Act 2003 (Qld) originally began in 2019, but was paused in 2020 because of the COVID-19 pandemic.  The Government has announced that it is committed to finalising this review, and consultation on the proposals set out in the Options Paper is a key step in this process. 

The proposals in the paper focus on three key areas: 

1. Providing opportunities to improve cultural heritage protection through increased consultation with Aboriginal and Torres Strait Islander peoples, recognising intangible cultural heritage, and strengthening compliance mechanisms (see section 3 of the paper). The key proposals include: 
   
   a) replacing the Duty of Care Guidelines with a new framework requiring greater engagement with the relevant Aboriginal party; 
   
   b) integrating cultural heritage mapping into planning processes for State and local government;
   
   c) expressly recognising intangible elements of cultural heritage.
2. Reframing the definitions of "Aboriginal Party" and "Torres Strait Islander party" so that people who have a connection to an area under Aboriginal tradition or Ailan Kastom (Torres Strait Island Custom) have an opportunity to be involved in cultural heritage management and protection (see section 4 of the paper). The key proposal includes removing the "last claim standing" provisions, including for areas where there have been negative determinations of native title.
3. Promoting leadership by First Nations peoples in cultural heritage management and decision making (see section 5 of the paper).
   Importantly, the Options Paper also states that any legislative reforms will consider the transitional arrangements needed to ensure continuity for existing arrangements and agreements, including Cultural Heritage Management Plans. 

Next steps?

Submissions on the Options Paper were due to be provided to the Government by 31 March 2022. 

Beyond that, the Government has not committed to any timeframes to finalise the review and noted that preferred options would be subject to appropriate further government and budgetary considerations. 

Authors: Libby McKillop, Senior Associate and Tony Denholder, Partner