Have your say in the review of Queenslands Cultural Heritage Duty of Care Guidelines

What you need to know

• The Queensland Department of Aboriginal and Torres Strait Islander Partnerships is conducting a review of the Cultural Heritage Duty of Care Guidelines.
• The Guidelines have been in place since the commencement of the Aboriginal Cultural Heritage Act 2003 (Qld) and have not been amended since that time.
• The Department is responding to feedback from a range of stakeholders that the Guidelines fail to provide clarity and certainty of how best to proceed with a land-use activity in some circumstances.
• Submissions for the review are due 16 September 2016.

What you need to do

• Companies who regularly rely on the Guidelines (or have done so) should take the opportunity to advise the Department about their experience with them – both what works well and what improvements could be made.
• Companies should advise the Department what ambiguities or gaps exist that could be remedied in the review and what aspects of the Guidelines need to remain unchanged in order to ensure certainty for all stakeholders.

What are the Cultural Heritage Duty of Care Guidelines?

The Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) commenced in 2004, and confers a duty on anyone who carries out a land-use activity in Queensland to take all reasonable and practicable measures to ensure the activity does not harm Aboriginal or Torres Strait Islander Cultural Heritage (Cultural Heritage Duty of Care).

The Cultural Heritage Duty of Care can be met in a number of ways, including under a Cultural Heritage Management Plan, a native title agreement, compliance with standard exploration native title protection conditions, or another agreement with the relevant Aboriginal party. The duty can also be met if the person or company complies with the Cultural Heritage Duty of Care Guidelines (Guidelines). The ACHA allows the Minister to develop Guidelines that identify reasonable and practicable measures to avoid or minimise potential harm to cultural heritage. Compliance with the Guidelines constitutes compliance with the Cultural Heritage Duty of Care, and a complete defence to offence provisions under the ACHA.

The Guidelines recognise that some land-use activities are unlikely to harm cultural heritage, and that past land use may mean that further activity in the area is unlikely to harm cultural heritage. The Guidelines offer a step by step process, depending upon the nature of the activity and its related surface disturbance, the features of the area and the nature and extent of past uses of the land in the affected area.

Many proponents have utilised the Guidelines to manage impacts on cultural heritage in circumstances where a formal agreement or cultural heritage management plan was not required or could not be agreed with a native title party.

Why is the Government reviewing the Guidelines?

According to the Department of Aboriginal and Torres Strait Islander Partnerships' Discussion Paper Cultural Heritage Duty of Care Guidelines Review, the Guidelines are being reviewed because there has not been any assessment of their effectiveness since they were first developed in 2004. The Department is also responding to feedback about the Guidelines from a range of stakeholders that the Guidelines and its categorisation of activities fail to provide clarity and certainty of how best to proceed with a land-use activity. There is also a concern that the Guidelines fail to capture residual cultural heritage values of an area (particularly developed areas), and fail to properly highlight the heightened risk of harm to cultural heritage in circumstances where a land-use activity is inconsistent with current or previous land use.

Scope of review

While the review relates to the performance and operation of the Guidelines generally, it will focus specifically on the following questions:

1. How can the Guidelines be improved to best achieve the purpose of the legislation?
2. How can the current categories of activities in the Guidelines be amended to better reflect the need to manage residual cultural heritage values in developed or previously disturbed areas?
3. How can the Guidelines enable greater synergy between the cultural heritage values of an area and the nature of the proposed activity?
4. Are there any other elements you think should be included in a revised version of the Guidelines?

Submissions

Submissions to the review are confidential and are to be made in writing to the Department by 16 September 2016.

What should companies do?

Since 2004, there has been a significant amount of activity in the field of cultural heritage management in Queensland. Project proponents and Aboriginal groups have many years of experience in working with the Guidelines, and the other agreement based methods for meeting the Cultural Heritage Duty of Care.

The decision of the Government to initiate a review of the Guidelines is timely, given the significant passage of time since the enactment of ACHA, and the fact that most major Queensland projects have now entered an operational phase.

Accordingly, we recommend that companies who regularly rely on the Guidelines (or have done so) take the opportunity to advise the Department about their experience with them – both what works well and what improvements could be made. In particular, companies should advise the Department what ambiguities or gaps exist that could be remedied in the review and what aspects of the Guidelines need to remain unchanged in order to ensure certainty for all stakeholders.