Department releases Issues Paper in Cultural Heritage Duty of Care Guidelines Review

What you need to know

• The Queensland Department of Aboriginal and Torres Strait Islander Partnerships has released an Issues Paper in its review into the Cultural Heritage Duty of Care Guidelines, under the Aboriginal Cultural Heritage Act 2003 (Qld).
• The Issues Paper highlights the key themes and issues arising from stakeholder submissions and consultation about the performance and operation of the Guidelines.
• A number of changes are proposed in the Issues Paper, which will have a significant impact on current compliance practices utilised in major projects, as well as the imposition of new obligations on infrastructure and utility providers and residential developers.

• The Department is seeking further submissions on the proposals set out in the Issues Paper by 1 June 2017.

What you need to do

• Consider the impact on your business if the Guidelines are amended in the manner suggested in the Issues Paper – particularly the recategorisation of proposed activities into a consistency test and the need to document cultural heritage management decisions.
• Companies that regularly rely on the Guidelines (or have done so) should take the opportunity to respond to the Department about the impact of the proposed changes for their business.  

Review of Cultural Heritage Duty of Care Guidelines

The Aboriginal Cultural Heritage Act 2003 (Qld) places an obligation upon parties carrying out activities on land to ensure they do not harm Aboriginal and Torres Strait Islander Cultural Heritage. This obligation is known as the Cultural Heritage Duty of Care (Duty of Care).

Land users are deemed to have complied with the Duty of Care if they have followed the 2004 Duty of Care Guidelines (Guidelines). 

As set out in our 4 August 2016 Native Title Alert, Have your say in the review of Queensland's Cultural Heritage Duty of Care Guidelines, the Department of Aboriginal and Torres Strait Islander Partnerships released a discussion paper in August 2016, with a view to updating the Guidelines to ensure they remain an effective tool in protecting Aboriginal Cultural Heritage. 

Issues Paper proposes fundamental changes to compliance obligations

On 20 April 2017, the Department released an Issues Paper based upon 54 submissions made to it by various industry, government and native title stakeholders in response to the terms of reference set out above.

The Issues Paper sets out major recommendations for reform, which significantly change current compliance practices utilised in major projects and by infrastructure and utility providers and residential developers.

The Issues Paper covers 3 main themes that present fundamental changes to the existing Guidelines:

1. recategorising activities that require consultation with Aboriginal parties and assessment of cultural heritage values with a specific focus on whether the proposed use of land is consistent or inconsistent with the previous use of the land;
2. requiring land users to document their assessments, in order to make the process more transparent; and
3. introduction of a viable dispute resolution process to apply when land users and Aboriginal parties cannot agree on a suitable cultural heritage management process.

Recategorisation of activities – more cultural heritage assessments will be required

The current Guidelines contain five categories of land activities, which focus specifically on the physical impact of the activities on the land (rather than the impact on cultural heritage). Broadly, where the impact is of a similar nature to previous activities, no further assessment is required.

There has been a long held concern among some stakeholders that that Guidelines fail to capture residual cultural heritage values of previously disturbed or developed areas. 

The Department has proposed a "consistency test", which focuses on whether proposed activities are consistent with previous land use activities.

The table below summaries the changes to the categories and their impact on land users.

The biggest change caused by the proposed new categories is the requirement to undertake a cultural heritage assessment when carrying out activities on certain types of previously disturbed land. The removal of the existing Categories 3 and 4 is likely to have a significant impact on residential developers, infrastructure and utility providers who are currently not required to undertake a cultural heritage assessment for activities on developed and previously disturbed land.    

The Department is seeking specific feedback on the practical implications of these changes and whether definitions of consistent and inconsistent activities should be included by developing a list of examples (as per the existing Guidelines).

Documentation of assessments – a new procedural requirement

The Issues Paper notes stakeholder concern around the lack of transparency in land users' assessment of the potential impact of their activities on cultural heritage.  It proposes an additional obligation for land users to document their approach in complying with the Duty of Care in cases when no cultural heritage assessment is required.

Land users who have prepared formal internal cultural heritage guidelines or protocols are likely to already document their cultural heritage management decisions. 

Others will need to establish a more formal step in their self-assessment process to include this.

Ultimately, documentation of an appropriate cultural heritage management process that complies with the legislation and Guidelines can only serve to assist land users to prove their compliance with the Duty of Care.  

However, creating a procedural requirement of this kind will increase the administrative burden and the risk for the majority of land users.

The Department will also need to clarify how the documentation will fit within the cultural heritage management framework.  For example, it is likely that the Department will want access to the documentation to review a land user's compliance.  Will the documentation need to be provided to the Department as a matter of course or only upon request?  Further, will Aboriginal parties have a right to seek access to the documentation and what will happen if they are not satisfied with its content?

Proposal for a viable dispute resolution process – who will manage and fund it?

Under the current Guidelines, if Aboriginal parties and land users cannot agree on the best way to manage Aboriginal cultural heritage, it was uncertain how activities could proceed while still complying with the Duty of Care.

The Department believes a viable dispute resolution process is needed to provide certainty to all stakeholders.  A number of potential options are canvassed in the Issues Paper, including:

• the use of an independent expert;
• mediation service provided by the Department; or
• mediation through the Land Court.
• The Department is exploring these options in the coming months as part of its ongoing consultation process with stakeholders and government agencies. The key issue is clearly how to manage and fund such process.

What should companies do?

If introduced, the proposed reforms will have a significant impact on current compliance practices utilised in major projects and impose new obligations on infrastructure and utility providers and residential developers.

Accordingly, we recommend that companies who regularly rely on the Guidelines (or have done so) make further submissions to the Department explaining the practical consequences the changes will have on their future developments.

Authors: Gavin Scott, Partner; Leonie Flynn, Senior Expertise Lawyer; Hayden Dunnett, Paralegal