Indigenous Law Bulletin
by Nicole Watson and Russell Black
In December 1999 the Queensland Government released a draft model for new Indigenous cultural heritage legislation for public consultation. The proposed legislation will replace the archaic and ineffectual Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) (‘the CRA’). This paper discusses and compares the CRA and proposed legislation.
The CRA repealed and replaced the Aboriginal Relics Preservation Act 1967 (Qld) (‘the ARPA’). The ARPA had provided protection to Aboriginal sites and relics. Section 13 empowered the Governor in Council to declare an area to be an Aboriginal site where restricted entry was necessary for the preservation of a relic. The ARPA deemed unauthorised entry to Aboriginal sites and unauthorised interference with relics to be offences.
In contrast with the ARPA, the CRA applies without distinction to Indigenous and non-Indigenous heritage. The objective of providing a one-stop shop for the protection of all Queensland heritage can be gleaned from the Minister for Northern Development and Community Services’ second reading speech:
The Bill achieves the ultimate Queensland Government policy, the architects of which were two Ministers for Aboriginal Affairs, the late Jack Pizzey and Sir Joh Bejlke-Petersen, both of whom laid the foundations of a policy no less valid today: that we are one land, one people and one heritage.
The CRA applies to ‘Landscapes Queensland’ and the ‘Queensland Estate’. Landscapes Queensland are areas or features that have been altered or affected in some way by humans, such as parks or rock art sites. The Queensland Estate comprises things that are evidence of human occupation that are at least 30 years old, but does not include anything that is a facsimile or that is not of prehistoric or historic significance. These hopelessly vague definitions, aptly described as ‘gobbledegook’ during the parliamentary debates, have added to the unworkability of the CRA.
Under the CRA, the Minister with responsibility for cultural heritage may declare a designated landscape area and is empowered to regulate or restrict entry where it is necessary to protect a Landscapes Queensland or the Queensland Estate. The Minister may also appoint ‘protectors’ to prevent the entry of unauthorised persons into designated landscape areas. The CRA requires a permit for the exploration, research and survey of Landscapes Queensland or the Queensland Estate. Section 56 creates offences in relation to the unauthorised possession and destruction of items of the Queensland Estate. The defence of honest and reasonable mistake is open to defendants.
Community involvement in the protection and management of Landscapes Queensland and the Queensland Estate is to be achieved through the appointment of advisory committees. Also, prior to the issue of permits, consultation must take place with all persons who might be affected by the work to which the application relates.
A fundamental flaw of the CRA is that it provides handkerchief coverage rather than blanket protection from human impacts. Principally, there is no general requirement for landholders to arrange for cultural heritage surveys to be undertaken prior to any works on the property. That is there is no requirement to exercise a duty of care. There is only scope for management of impacts upon sites which have been listed on a ‘register’ (which has in fact never been kept), or where the works are so substantial as to trigger the need for an environmental impact statement under other legislation. Unfortunately, minor works by landholders, for example landscaping, can have as severe an impact on cultural sites as major developments. Consequently, an extremely high proportion of Indigenous cultural heritage is vulnerable to destruction through minor property works.
Subsection 56(4) of the CRA provides that ‘[i]t is a defence to a 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’. Arguably, since most of the Queensland population has not been trained in archaeology or anthropology, this provision enables landholders to destroy Indigenous cultural heritage in blissful ignorance. It is not surprising that there have never been any successful prosecutions in relation to the desecration of Indigenous cultural heritage in Queensland.
Pursuant to s 33(1) of the CRA all parts of the Queensland Estate that constitute evidence of occupation by Indigenous persons are the property of the State. This provision was inherited from the earlier legislation. Arguably, such provisions are offensive because there is no acknowledgment that the State’s ownership of cultural heritage is held on behalf of the traditional owners.
The clearest example of the CRA’s outdated ideology is s 32, which preserves the ownership and access rights of ‘traditional’ Indigenous groups to parts of the Queensland Estate that are used for traditional purposes. Interestingly, the CRA does not attempt to define the term ‘traditional group’. However, 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.
With the handing down of the Mabo decision in 1992, the axe fell on many of the outdated ideologies regarding Indigenous people contained in the CRA. The Native Title Act 1993 (Cth) provides statutory protection to traditional interests in land and obliges land-users to consult native title holders in relation to proposed works. In a sense such developments have taken the ownership of Indigenous culture away from the State and placed it back in the hands of Indigenous custodians. However, native title has proven to be ‘inherently weak and inferior, making it vulnerable to extinguishment’. Consequently, the CRA is still valuable, especially where native title has been extinguished.
The Government realised soon after the enactment of the CRA that it was flawed and virtually abandoned it. The Goss government indicated that it would move to make new Indigenous cultural heritage legislation. With the enactment of the Heritage Buildings Protection Act 1990 (Qld) and later the Queensland Heritage Act 1992 (Qld), it appeared that new legislation was just around the corner. However, with uncertainty surrounding the scope of the Native Title Act 1993 (Cth) the Queensland Government baulked at developing new Indigenous cultural heritage legislation until now.
The greatest indicator of a lack of support for the CRA by the Queensland Government is the absence of any regulations, despite s 66 outlining many matters about which regulations may be made. Further indicators include the failure to appoint protectors and advisory committees (with the exception of one short-lived Aboriginal Heritage Advisory Committee in the late 1980s). Similarly, no designated landscape areas have been declared under the CRA, and as discussed above no official register has ever been kept nor has there ever been a successful prosecution with respect to impacts on Indigenous heritage.
As noted above, the Queensland Government released a draft model for new Indigenous cultural heritage legislation in December 1999. The release of the draft model was followed by extensive consultations between the Queensland Government and the Queensland Indigenous Working Group (‘QIWG’). The draft model was rejected by the QIWG for numerous reasons, predominantly because of its failure to recognise Indigenous ownership of cultural heritage and the primacy of Indigenous decision-making in determining the significance of cultural heritage, and the absence of blanket protection. Indigenous concerns with the original model led to a statewide cultural heritage conference in April 2000, resulting in the presentation of a statement of principles (The Ithaca Statement) to the Premier. An amended model was released in April 2001. It is beyond the scope of this paper to provide a comparative analysis of the two models. However, the most recent draft model does go some way towards addressing the above issues raised by QIWG.
The stated purpose of the proposed legislation is the provision of ‘effective recognition, protection and conservation of areas and objects of Indigenous cultural heritage in Queensland.’ The new model aspires to overcome the drafting deficiencies of the CRA by dispensing with the nebulous concepts of Landscapes Queensland and the Queensland Estate. The model defines ‘Indigenous cultural heritage’ as ‘significant Indigenous areas’, ‘significant Indigenous objects’ and ‘...evidence of Indigenous occupation of Queensland of a cultural, historical or archaeological value...’. The definition expressly includes the surroundings of a structure or object ‘from which it cannot be separated without destroying or diminishing its value’.
One of the elements of the proposed model that distinguishes it from the current regime is the cultural heritage duty of care. All land-users—including state government agencies—who conduct activities that may occasion harm to Indigenous cultural heritage will be obliged to take all reasonable and practicable measures to avoid the harm.
This new ground of liability appears to be wider in application than the offences contained in the CRA. For example, a landowner who negligently omits to inform his/her employees of the existence of a bora ring which was damaged in the course of tree clearing would escape liability under the CRA. However, under the new model the hypothetical landowner may have been vicariously liable for a breach of the cultural heritage duty of care by negligently omitting to inform the employees of the existence of the bora ring.
The defence of honest and reasonable mistake appears not to be applicable to a complaint of a breach of duty of care, although it is still applicable to other offences, thus broadening the possibilities for prosecutions of culpable land-users. The proposed maximum penalties for a breach of duty of care are substantially higher than the penalties contained in the CRA. In the case of an individual the maximum penalty will be 1000 penalty units ($75,000), and 10,000 penalty units ($750,000) for corporations.
A land-user may fulfil his or her duty of care by undertaking activities in accordance with an approved cultural heritage management plan (‘CHMP’). Although the draft model omits to define the requisite elements of a CHMP, it is clear that they are intended to embody consensual arrangements between Indigenous parties and developers for the management of Indigenous cultural heritage. In some circumstances the development of a CHMP may be a mandatory requirement. For example if another act states that an environmental impact statement is a precondition for the approval of a project, the development of a CHMP will also be required. Parties may also negotiate a CHMP voluntarily.
As distinct from the current regime the proposed legislation will dispense with the bureaucratic permit system and compel developers to engage directly with Indigenous custodians. A person who wants to pursue a CHMP will have to notify landowners and occupiers, registered native title claimants and registered native title bodies corporate of the area, as well as the relevant Indigenous cultural heritage body, discussed below. In the absence of such entities, public notification in a regional newspaper and notification of the relevant native title representative body will be required. The Indigenous parties must respond within the notification period. The person undertaking the CHMP will then be obliged to consult with the interested Indigenous parties.
The proposed legislation will recognise Indigenous ownership of objects removed from land in accordance with a CHMP, where there is a traditional or familial link. In the absence of a CHMP the objects will remain the property of the State until the Indigenous owners are identified.
If the parties reach agreement in relation to the terms of the draft CHMP it may be submitted to the Minister for approval at anytime. In the event of an impasse the land-user may submit the draft CHMP to the Minister accompanied by reasons as to why the draft CHMP makes adequate provision for the management of Indigenous cultural heritage. The Minister must then refer the matter to the Queensland Land and Resources Tribunal for its recommendations. Upon receipt of the Tribunal’s recommendations the Minister must decide the terms of the CHMP.
Indigenous cultural heritage bodies (‘ICHBs’) are a new initiative of the model. The role of the proposed ICHBs will be to identify interested Indigenous parties for the purposes of the legislation. The model envisages that Indigenous corporations such as native title representative bodies will be able to apply to become registered as ICHBs. Additional obligations in the absence of new resources may fall outside the present capacity of Indigenous corporations. The possibility that Indigenous organisations that are already under-resourced may be expected to carry a disproportionate burden for the implementation of the new legislation was one of QIWG’s criticisms of the original model.
The CRA is seemingly well intentioned in proclaiming to ‘provide for the preservation and management of all components of Landscapes Queensland and the Queensland Estate’, yet it is so fundamentally flawed in its structure, outdated in its ideology and poorly supported in its administration that for Indigenous people it can only be seen as an embarrassing failure from a distant past era. The proposed new legislation may improve protection for Indigenous cultural heritage through the introduction of a cultural heritage duty of care, a cultural heritage management planning process and recognition of Indigenous ownership of cultural heritage. However, the true test for the Queensland Government will be its level of commitment to the implementation and enforcement of the new legislation. This we cannot predict.
Nicole Watson is a member of the Birri Gubba People of Central Queensland. Russell Black is a member of the Kombumerri People of South East Queensland and the President of the Kombumerri Aboriginal Corporation for Culture. They are employed by the Queensland Environmental Protection Agency.
 Department of the Premier and Cabinet, Native Title Services, Indigenous Cultural Heritage Review, www.premiers.qld.gov.au/about/nativetitle/newweb/pages/projects.htm. As a result of public consultations an amended model was released for public consultation in April 2001. This paper will discuss the draft model in its current form only.
 See Aboriginal Relics Preservation Act 1967 (Qld) s 3 for definitions of ‘Aboriginal site’ and ‘relic’.
 Ibid s 19.
 Ibid s 20.
 Queensland, Hansard, Legislative Assembly, 9 April 1987, 1668 (Honourable RC Katter, Minister for Northern Development and Community Services).
 Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) (‘CRA’) s 5.
 Queensland, Hansard, Legislative Assembly, 19 November 1987, 4653 (Mr Denver Beanland, Member for Toowong).
 CRA s 17(1).
 Ibid ss 9(1) & 21.
 Ibid s 27.
 Ibid s 56(4).
 Ibid s 12.
 Ibid s 27(4)(d).
 For example State Development and Public Works Organisation Act 1971 (Qld).
 Mabo v The State of Queensland (No 2)  HCA 23; (1992) 175 CLR 1.
 See Native Title Act 1993 (Cth) Part 2 Division 3.
 Human Rights and Equal Opportunity Commission, Native Title Report 2000, (2000) 6-7.
 H Fourmile, ‘The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld): Legislative Discrimination in the protection of Indigenous Cultural Heritage’ (1996) 1 Australian Indigenous Law Reporter 507.
 Foundation for Aboriginal and Islander Research Action, Land Rights Queensland (March 2000).
 Native Title Services, Department of the Premier and Cabinet, above n 1.
 Ibid, Key Elements. Note also that the draft model envisages separate legislation in relation to Aboriginal and Torres Strait Islander cultural heritage. However, the model refers to the proposed legislation collectively as ‘the Act’.
 Ibid 3.
 Ibid 5.
 CRA Part 6 Division 3.
 Native Title Services, Department of the Premier and Cabinet, above n 1, Key Elements, 5.
 Ibid 26.
 Ibid 23.
 Ibid 25.
 Ibid 26.
 Ibid 7.
 Ibid 14.
 Foundation for Aboriginal and Islander Research Action, above n 20.