Client Update: Indigenous cultural heritage legislation under review
15 February 2010
In brief: In 2004, the Queensland Government introduced legislation that produced sweeping changes to the regulation of the protection of Indigenous cultural heritage in the State. That legislation is now under review. Partner Ben Zillmann (view CV) and Senior Associate Rochelle Carey examine some of the key changes being considered.
Background
The Aboriginal Cultural Heritage Act (Qld) (the ACHA) and the Torres Strait Islander Cultural Heritage Act (Qld) both commenced in April 2004. (The Acts are virtually identical and so, for ease of reference, only the ACHA will be referred to here.) That legislation introduced significant changes to the law regarding the protection of cultural heritage. Among other things, it introduced:
- a focus on the importance of cultural heritage to Aboriginal people in determining what is significant and therefore protected, as opposed to a focus on scientific, historical or archaeological significance;
- the concept of a 'duty of care' – to undertake activities in a way that minimises risk of harm to cultural heritage; and
- the concept of a Cultural Heritage Management Plan (CHMP) to be negotiated with relevant Aboriginal parties and which is mandatory for major projects.
The legislation promoted the protection of Aboriginal cultural heritage to levels that far exceeded the position before the legislation. For any major project, a CHMP is now one of the key approvals that will be required before the project can proceed.
Key Government recommendations
The Government's discussion paper on its review of the legislation contains a number of recommended amendments. Some of the potentially more significant changes under consideration are:
Multiple parties
A recommendation that, where there are multiple Aboriginal parties (eg an area of overlapping native title claims or a situation where there are no claims but multiple individuals who have a traditional connection to the area) that a cultural heritage agreement or a CHMP must be negotiated and agreed with all of the Aboriginal parties for the area. As the Act currently stands, a cultural heritage agreement is recognised as long as it is with any one Aboriginal party for an area, and the parties to a CHMP are determined through a notification and 'endorsement' process. The proposed change seems logical when dealing with the situation where the Aboriginal parties are readily identifiable due to the existence of native title claims or determinations. However, the proposed change is problematic in situations where there are no native title claimants or determinations, where it would most likely be impossible for a project proponent to be confident it has entered an agreement with 'all' Aboriginal parties for the area.
A code
It is recommended that a 'code' be developed that stipulates when project proponents must seek to make a cultural heritage agreement with Aboriginal parties. Under the current legislation, cultural heritage agreements are generally optional (as opposed to CHMPs, which for major projects will almost always be mandatory). The concept of a cultural heritage agreement was included in the original legislation to provide flexibility for project proponents and Aboriginal parties when dealing with cultural heritage for activities that were not part of a larger project covered by a CHMP. While such agreements are not mandatory, the attraction for proponents is that if they have an agreement with an Aboriginal party regarding cultural heritage, they are deemed to meet their duty of care. However, there is flexibility in that proponents can choose to meet their duty of care through taking other reasonable and practical measures where an agreement cannot be achieved (eg through a breakdown in negotiations or there is simply no readily identifiable Aboriginal party to contract with) – however, in those circumstances the proponent does not have the benefit of deemed compliance with the Act. There is a concern that if the legislation now introduces a code stipulating when agreements must be entered, the flexibility that was built into the current legislation will be lost and processes for dealing with cultural heritage for minor activities will be prolonged.
Effectively, the proposed recommendations introduce a mini-CHMP process that will apply to a whole range of activities that currently do not meet the threshold for a mandatory CHMP under the legislation.
Minimum standard
There are also recommendations to develop a 'minimum standard' for cultural heritage agreements as well as CHMPs but there is no detail as to what these minimum standards would be. This is a significant move away from the intent of the original legislation, which did not seek to regulate the content of cultural heritage agreements or CHMPs achieved through agreement. Rather, under the current legislation, as long as a cultural heritage agreement or a CHMP has been agreed to by the Aboriginal parties, it must be accepted by the Government and as long as a proponent acts in accordance with the agreement or agreed CHMP, it is deemed to have met its duty of care and complied with the legislation.
The current legislation also reflects a key principle underpinning the legislation – that is, that primary importance should be placed on the thoughts and wishes of Aboriginal people when dealing with their own cultural heritage, rather than this be 'prescribed' through legislation. A move to introduce 'minimum standards' erodes the primacy of the Aboriginal parties' views. From a procedural point of view, it also introduces a further hurdle for proponents, and, to a lesser extent, Aboriginal parties, as to give effect to this principle, any agreement or agreed CHMP would need to be submitted to the Government for scrutiny to ensure that the agreement or plan met the regulated 'minimum standards' before it could be relied upon.
Last standing party
A recommendation is included to recognise the 'last standing' failed native title claimants as the 'Aboriginal party' for cultural heritage purposes, where an area is not subject to any current registered claim. This has been a contentious issue under the current legislation, but as a matter of practice the Act has been administered such that where an area was not subject to a current registered native title claim, but rather a series of past claims that had failed, the last claimants standing (ie the last claim to have been dismissed) were recognised as the Aboriginal party for cultural heritage purposes, giving that group of past claimants significant procedural rights that other failed claimants did not enjoy. There has been a concern that this position was not properly captured in the legislation. The recommended amendments will address this issue by clarifying that this is the legal position. However, it will modify the rule from the way it is currently administered such that the last claim standing will only have 'Aboriginal party' status for a period of 12 months from when the claim failed. There is logic to this amendment, as it is right the question be asked that where there are several claims that have failed, why should one of those claims be recognised as the 'Aboriginal party' for cultural heritage purposes over the others simply because it was the last claim to be dismissed for being 'incorrect'. However, the discussion paper does not articulate what will be the position when the 12 months expire. Presumably, the position will revert to a situation where individuals who claim a traditional connection to the relevant area can step forward as individual Aboriginal parties. While the logic underpinning that position certainly seems fair, it does mean that the administration of the Act, and the ability of proponents to achieve agreements, will be significantly more complicated.
Relationship with Commonwealth legislation
Late last year, the Commonwealth flagged proposed changes to the Commonwealth legislation regulating Indigenous cultural heritage. One of the proposed amendments to the Commonwealth legislation would effectively provide for the Commonwealth to endorse state-based cultural heritage legislation where the Commonwealth considered it adequate to properly protect Indigenous cultural heritage. It is suggested that the Queensland cultural heritage legislation is comprehensive and it would be recognised under any amended Commonwealth legislation. However, as the Commonwealth amendments and the Queensland amendments are obviously yet to occur, this is an issue that needs to be monitored.
Submissions
The Queensland Government's discussion paper is open for submissions until 19 February 2010.
For further information, please contact:
- Ben ZillmannPartner,
Brisbane
Ph: +61 7 3334 3538
Ben.Zillmann@aar.com.au - Robyn GlindemannSpecial Counsel,
Perth
Ph: +61 8 9488 3712
Robyn.Glindemann@aar.com.au - Chris SchulzPartner,
Melbourne
Ph: +61 3 9613 8772
Chris.Schulz@aar.com.au
