Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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SUSAN SHEARING[*]
The protection of Australia’s natural and cultural heritage is one of the most challenging and controversial issues in current environmental debates. This is particularly the case in the context of indigenous cultural heritage[1] which has received the recent attention of legislators in Queensland, the Australian Capital Territory and Victoria.[2] The focus of cultural heritage legislation enacted or currently under consideration in Australian State and Territory jurisdictions has been twofold. First, the legislation aims to create a decision making framework within which indigenous people have a meaningful (and in some cases, determinative) role in conserving their heritage. Secondly, recent reforms have focussed on the need for effective integration of indigenous cultural heritage protection into resource management and land use planning practices.
This article outlines a number of reform initiatives contained in the first of this new generation of indigenous cultural heritage laws, focussing on the Aboriginal Cultural Heritage Act 2003 (Qld). Some comparisons will be drawn between the Queensland legislation, the Heritage Act 2004 (ACT) and the recently enacted Aboriginal Heritage Act 2006 (Vic).
Recent Australian indigenous cultural heritage laws are moving towards achieving significant improvements in the way such heritage is identified, managed and protected. However, the divergent approaches to indigenous heritage in Australian State and Territory legislation continue to leave the effective regulation of this important area in uncertainty for Aboriginal people and those parties who own or use areas that contain indigenous cultural heritage.
The relationships between indigenous peoples and their natural environment are intrinsically linked to the cultural, spiritual, social, economic and physical well being of such peoples. These relationships require the ability to continue to enjoy the natural resources of lands and waters and are based upon the integration of humanity and the environment.[3]
While the protection of natural and cultural heritage of ‘outstanding universal value’ is the focus of the Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (the ‘World Heritage Convention’)[4] there has been an increasing recognition of the need to incorporate into the nomination process the relationship between culture and nature so critical to many indigenous peoples. This recognition has been manifested in the concept of ‘cultural landscape’ as part of the nomination criteria for World Heritage Listing in the Operational Guidelines[5] developed by the World Heritage Committee. A ‘cultural landscape’ is defined as:
... cultural properties and represent the ‘combined works of nature and man’ designated in Article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal.[6]
Nonetheless, the World Heritage Convention has been widely criticised as failing to adequately deal with the protection of intangible cultural heritage[7] and the importance of a person’s freedom to actively participate in and enjoy the cultural life of his or her community has been recognised and protected through a number of international instruments, briefly outlined below.
Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’) provides that:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.[8]
The Draft Declaration of the Rights Indigenous Peoples is perhaps the strongest call for recognition of indigenous cultural heritage at the international level.[9] It states that indigenous peoples have a right to:
practise and revitalise cultural traditions and customs … [including] the right to maintain, protect and develop the past, present and future manifestations of their cultures … as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.[10]
The Draft Declaration asserts the rights of indigenous peoples to maintain, protect, and have access in privacy to their religious and cultural sites and to use and control ceremonial objects.[11]
The critical link between cultural heritage rights and indigenous peoples is also recognised in the United Nations Convention for the Safeguarding of Intangible Cultural Heritage 2003 (the ‘ICH Convention’). The ICH Convention, which came into operation on 20 April 2006[12] provides a framework for the protection of intangible cultural heritage which is defined to include ‘practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith’.[13]
In recognising the need to protect intangible cultural heritage, the ICH Convention seeks to address the deficiencies in the cultural heritage management and protection regime established in the World Heritage Convention discussed above.
The ICH Convention recognises that cultural heritage is something which is transmitted from generation to generation and is ‘constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’.[14]
The most recent international development in the protection of cultural heritage is the Convention on the Protection and Promotion of the Diversity of Cultural Expressions approved by the UNESCO General Conference on 20 October 2005.[15]
The objectives of this Convention include:
• To protect and promote the diversity of cultural expressions;
• To create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner;
• To promote respect for the diversity of cultural expressions and raise awareness of its value at local, national and international levels;
• To reaffirm the importance of the link between culture and development for all countries.[16]
Article 3 of the Convention states that:
The protection and promotion of the diversity of cultural expressions presuppose the recognition and equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples.
At the date of writing, Australia has not ratified either the ICH Convention or the Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005. Nonetheless, it is argued that the expanding concept of ‘heritage’ at the international level coupled with an increasing recognition that enjoyment of cultural heritage comprises a fundamental right of all peoples has contributed to the momentum for the recent reform of domestic indigenous cultural heritage protection legislation at State and Territory levels in Australia.
Cultural heritage legislation applies in Australia regardless of the existence of any native title over land. In each jurisdiction, such legislation operates to prevent or restrict activities which may damage or destroy indigenous cultural heritage. For this reason, parties wishing to develop land or conduct activities in other areas (including water) which have cultural heritage significance need to be aware of the scope of their obligations under applicable cultural heritage legislation. The difficulty for policymakers has been the need to weigh the protection of cultural heritage against economic imperatives which require an efficient regulatory framework that provides timely approvals for the conduct of activities which may adversely affect cultural heritage.
Possibly the most comprehensive review to date of the legal framework for protection of Aboriginal cultural heritage in Australia was undertaken by the Hon Dr Elizabeth Evatt in 1996.[17] That review, which focussed upon the Commonwealth Aboriginal and Torres Strait Island Heritage Protection Act 1984, identified numerous issues and failings common to State, Territory and Commonwealth indigenous cultural heritage legislation.
The Commonwealth legislation is intended to operate as a mechanism of last resort to protect indigenous cultural heritage where State and Territory legislation is ineffective or there has been an unwillingness to enforce such legislation.[18] The Evatt Report noted that the major threats to Aboriginal cultural heritage arise from land use practices, including development, mining, building, agriculture and grazing.[19] As such practices fall primarily within the legislative competence of States and Territories, the scope of protection afforded to Aboriginal cultural heritage at State and Territory levels is critical. However, as the Evatt Report noted, a different legislative regime applies in each Australian State and Territory with little consistency in approach. For this reason, the Report recommended the adoption of a national policy as the basis for laws and programs relating to Aboriginal cultural heritage at all levels of government.[20]
The Report also made recommendations for minimum standards as a basis for uniform model laws at State, Territory and Commonwealth levels. These recommendations included:
Ten years after the Evatt Report, it is clear that the recent suite of heritage legislation enacted or under consideration at State and Territory levels has, to some extent, responded to these recommendations. However, reform has been ad hoc and inconsistent in substance, a disappointing result given the emphasis in the Evatt Report upon the need for a nationally consistent approach to Aboriginal cultural heritage protection.[26]
The Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 replaced the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987. For the purpose of this article, the provisions of the Aboriginal Cultural Heritage Act 2003 (ACH Act) will be discussed.
The Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (CR Act) provided only for the management of the impact of activities upon those indigenous heritage sites which had been listed on a register, or where the relevant works were so substantial as to trigger the need to conduct an environmental impact statement under other legislation. The consequence of this legislative approach was that a large number of activities (such as landscaping) which could still have an impact upon cultural heritage sites were not regulated under the legislation.[27]
Indeed, under the CR Act it was ‘relatively common’[28] for exploration companies to undertake exploration activities which involved a degree of physical disturbance to land without having taken steps to ascertain whether any cultural heritage items were located in the exploration area. The reasons for such an approach may well have included the relatively low penalties imposed for breach of the CR Act,[29] a lack of public awareness concerning the existence of a cultural heritage protection regime separate to the native title legislative framework, and the absence of a positive legal obligation to undertake cultural heritage surveys to determine the existence of cultural heritage.[30]
By way of contrast, the ACH Act seeks ‘to provide effective recognition, protection and conservation of Aboriginal cultural heritage’.[31] The ‘principles’ which underlie this main purpose are set out in s 5 as follows:
These principles strongly articulate the need for Aboriginal people to control and manage their cultural heritage. Similar provisions have been incorporated into the Victorian Aboriginal Heritage Act 2006.[32]
Two issues raised by indigenous groups during consultation on the legislation were the ownership of Aboriginal cultural heritage and access to cultural heritage sites.
In relation to the ownership of cultural heritage, it was argued that:
Aboriginal cultural heritage is owned by Aboriginal people. Any legislation on Aboriginal cultural heritage must reflect this completely. Aboriginal people must have the right to own, control, protect, develop and enjoy their own heritage. Just as Aboriginal people never ceded their land, they have never ceded their heritage. The recognition, protection and conservation of Aboriginal cultural heritage are essential for cultural survival.[33]
The ACH Act provides for indigenous ownership of Aboriginal human remains and Aboriginal cultural heritage held in State collections or taken lawfully from an area by an Aboriginal party for that area. However, all other Aboriginal cultural heritage is owned by the State.[34] The provisions of the Act dealing with ownership, custodianship and possession of Aboriginal cultural heritage state that the basic intention underlying the applicable rules is the protection of such heritage and that indigenous ownership is a ‘supporting intent’ to apply ‘as far as practicable’.[35]
As regards access, the Act preserves the rights of landowners to continue to use land upon which cultural heritage is located, subject to a caveat that the person must not ‘unlawfully harm’ the Aboriginal cultural heritage.[36] However, there are no provisions enabling Aboriginal people to access sites located on privately held or Crown land for the purpose of practising and enjoying their cultural heritage.[37]
Notwithstanding these deficiencies, the ACH Act introduced a number of initiatives in relation to the identification, protection and conservation of indigenous cultural heritage and the integration of indigenous heritage protection into resource management and planning practices. The following discussion outlines four reform initiatives, namely:
1. An extension of the definition of Aboriginal cultural heritage;
2. The introduction of a ‘cultural heritage duty of care’ which places a positive obligation on persons carrying out activities to take all reasonable and practical measures to ensure that the activity does not harm indigenous cultural heritage;
3. Integration of cultural heritage protection with planning and land use legislation;
4. The introduction of a revised framework for the involvement of indigenous peoples in the assessment of heritage significance and conservation management practices.
Under the CR Act, the focus of the protective regime was archaeological evidence of human occupation of Queensland. Such an approach conformed to the traditional view of indigenous cultural heritage as consisting primarily of relics. Concepts of ownership and access to sites for cultural heritage purposes were restricted to ‘traditional’ owners engaged in the use of sites for ‘traditional’ purposes.[38] This Eurocentric view of cultural heritage fails to acknowledge that indigenous cultural heritage evolves over time. On this point, Watson and Black argue:
… 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.[39]
The definition of indigenous cultural heritage raises difficult issues concerning how decisions relating to heritage ‘significance’ are determined. It has been argued that most international and Australian law and public policy which seeks to protect the cultural heritage of indigenous peoples is based on a belief that the value of indigenous culture is fundamentally instrumental.[40]
Nigel Stobbs argues that:
a failure to acknowledge any fundamental intrinsic value of indigenous cultures is at the heart of the long running dispute between Indigenous people and various states over the extent of any rights to self determination and self-government.[41]
According to Stobbs, where the indigenous community itself determines how it is viewed and valued, the resulting concept of intrinsic value should inform law and policy making and provide a significant tool for empowering indigenous communities themselves.[42] That is, indigenous cultural value must be determined through a process of self evaluation and must not be designated as ‘valuable’ based on a connection to someone or something external to the indigenous community culture.
To what extent does the ACH Act address the concerns raised in the Evatt Report and by commentators such as Stobbs concerning the definition of the Aboriginal cultural heritage? The ACH Act extends the concept of indigenous heritage which prevailed under the CR Act. It defines ‘Aboriginal cultural heritage’ as including:
The definition of ‘area’ covers land, an expanse of water, an area of land under water or any combination of these.[44] By including a specific reference to Aboriginal cultural heritage in water, the ACH Act acknowledges that cultural heritage is not restricted to land and may include, for example, natural springs and water holes.[45]
The ACH Act provides that significance is determined on the basis of ‘particular significance to Aboriginal people’ because of one or both of the following considerations:
The inclusion of contemporary history in the determination of significance is important. It allows for the protection of sites and objects that have become significant because of the arrival of European settlers, for example, massacre sites. Further, this definition acknowledges that Aboriginal culture, heritage and traditions are constantly evolving and not to be viewed in a static pre-colonisation manner. A similar definition was adopted in the Heritage Act 2004 (ACT)[47] and the Aboriginal Heritage Act 2006 (Vic) defines ‘cultural heritage significance’ to include
(a) archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and
(b) significance in accordance with Aboriginal tradition.[48]
Under the ACH Act, where evidence of Aboriginal occupation is determined through an object or structure, s 11 provides that the area immediately surrounding the object or structure is also evidence of occupation ‘to the extent that the area cannot be separated from the object or structure without destroying or diminishing the object or structure’s significance’ as evidence of occupation.
Section 12 clarifies that the concept of cultural heritage under the ACH Act extends beyond the ‘stones and bones’ approach of earlier legislation. In particular, s 12(2) provides that for an area to be a significant Aboriginal area, ‘it is not necessary for the area to contain markings or other physical evidence indicating Aboriginal occupation or otherwise denoting the area’s significance’.[49] Examples referred to in the section include ceremonial and birthing places, a burial site or the site of a massacre.
This provision is important in connection with preservation of intangible cultural heritage as it signifies a growing understanding and recognition of the importance of cultural spaces for the protection of indigenous cultural heritage. As such, it is consistent with the objectives of the Convention for the Safeguarding of Intangible Cultural Heritage 2003.
The ACH ACT further provides that where significant Aboriginal objects exist in an area and the significance of those objects is intrinsically linked with their location in that area, the existence of those objects is enough to make the area itself a significant Aboriginal area. Further, if it is ‘reasonably appropriate’ under the Act, the immediate area and the objects in it may be taken collectively to be a significant Aboriginal area.[50]
These provisions represent an important shift in the legislative approach to indigenous heritage from a preoccupation with archaeological evidence of past occupation to recognition of the ongoing interconnected nature of the relationships between indigenous peoples and their cultural heritage.
For owners and users of areas containing Aboriginal cultural heritage, sections 11 and 12 highlight the importance of developing and obtaining approval of a cultural heritage management plan, even where such a plan may not be required under the ACH Act in order to avoid prosecution for breach of the statutory duty of care imposed by s 23 (discussed below).[51]
The potential scope for heritage protection under the ACH Act is clearly broader than that afforded under the CR Act. However, this legislation does not expressly deal with the protection of intangible cultural heritage. Furthermore, the effectiveness of the protective provisions depends largely upon the extent to which decisions concerning significance and heritage management are made by the relevant indigenous communities themselves. This issue is considered later in this article.
The CR Act protected cultural heritage through a system of permits. Under s 56(4) of that Act, it was a defence to any 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. If a place was not listed, it was not protected. The protection available under this Act, described by some commentators as ‘handkerchief’ in nature, did not include any general requirement for landowners to conduct cultural heritage studies prior to undertaking activities on the land.[52]
The ACH Act prohibits the harming, excavating, relocating, taking away or possession of any indigenous cultural heritage if the person knows or ought reasonably to know that it is cultural heritage.[53]
In addition to these provisions, s 23 of the ACH Act imposes an innovative statutory ‘cultural heritage duty of care’. It requires that a person who carries out an ‘activity’ must take all ‘reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage’. ‘Harm’ is defined to mean ‘damage or injury to, or desecration of’ ACH.[54] Indigenous cultural heritage is automatically protected if it falls within the s 8 definition of Aboriginal cultural heritage. Protection under the legislation does not depend upon whether the site has been assessed or recorded.
Contraventions of the ACH Act carry significant penalties – up to $75,000 for individuals and $750,000 for corporations, a tenfold increase to the penalty levels under the CR Act.[55] In addition, injunctions can be issued by the Queensland Land and Resources Tribunal and the Minister can issue ‘stop orders’ for activities which may harm cultural heritage.[56]
The provisions of s 23 conform with Recommendation 6.2 of the Evatt Report which called for State and Territory heritage protection legislation to provide automatic or blanket protection to areas and sites falling within the definition of cultural heritage through appropriate and effective criminal sanctions.[57]
The effect of the s 23 duty of care is that a breach of that duty is an offence under the ACH Act even if the defendant had no actual or constructive knowledge of the existence of cultural heritage on the land.[58]
The s 23 duty is one to avoid or minimise harm to cultural heritage rather than to act to comply with the duty. As Bates has noted, an advantage in using compliance with a statutory duty of care as a defence against proceedings alleging a breach is that:
positive measures for management or protection of the environment can be stipulated in other instruments under the authority of the legislation. This fosters a performance or outcomes based approach to environmental management and protection rather than a purely regulatory one.[59]
To date, Queensland is the only jurisdiction which has introduced a statutory cultural heritage duty of care, although the Environmental Protection Act 1994 (Qld) provides for a general environmental duty to avoid unlawful environmental harm.[60]
Bates has argued that, in the context of statutory duties of care generally, such measures will only be effective where the legislation itself is well enforced and strict penalties apply.[61] He notes that the introduction of a statutory duty of care must be accompanied by a clear statement of the circumstances in which that duty of care is intended to arise, how it may be breached, the defences available and any remedies provided under the statute.
Under the ACH Act, a number of provisions give guidance as to how the duty may be complied with. The factors which a court may take into account under s 23 in determining whether a person has complied with the statutory cultural heritage duty of care include:
Given the pivotal protective role of the cultural heritage duty of care under the ACH Act, the question of what may constitute ‘reasonable and practicable measures’ for the purposes of complying with s 23 is critical.
The ACH Act provides that a person who carries out an activity is taken to have complied with the cultural heritage duty of care if:
(a) an approved Cultural Heritage Management Plan
(b) a native title or other agreement with Aboriginal people which addresses cultural heritage,
(c) the DOC Guidelines
The Act does not define ‘other agreement’ for the purpose of s 23(3), although this will presumably cover any agreement that addresses the identification and management of cultural heritage in the relevant area.
Where a proponent is not acting in compliance with a cultural heritage management plan, an agreement covering cultural heritage, a native title agreement,[66] or compliance with the DOC Guidelines is deemed to satisfy the duty of care.
There is no penalty for failure to comply with the DOC Guidelines. However, in view of the significant penalties which apply for any contravention of the duty of care, it is important to consider the circumstances in which the DOC Guidelines suggest that a duty of care arises and the standards necessary to satisfy that duty.
The DOC Guidelines, which commenced operation on 16 April 2004,[67] expressly reinforce, and arguably extend, the principles set out in s 5 of the Act.[68] In particular, the DOC Guidelines expressly emphasise the need to adopt a precautionary approach, stating that:
The [ACH] Act requires that a person must exercise due diligence and reasonable precaution before undertaking an activity which may harm Aboriginal cultural heritage.[69]
Interestingly, references to diligence and reasonable precaution are not found in the ACH Act.
The DOC Guidelines establish a framework within which a range of activities may affect indigenous cultural heritage. There are five distinct categories of activities ranging from bushwalking to drilling and dredging. In relation to each category of activity, a strong emphasis is placed upon effective consultation directly between proponents of an activity and the relevant Aboriginal party. The framework is premised upon this consultation resulting in an agreement between the parties concerning the conduct of the activity. There are no minimum standards prescribed for consultation. The DOC Guidelines refer only to the Australian Heritage Commission publication, ‘Ask First – A guide to respecting Indigenous Heritage places and values’.[70]
The five categories of activity established by the DOC Guidelines are summarised below.
Category 1 Activities – activities involving No Surface Disturbance (defined to mean any disturbance of an area which causes a lasting impact to the land or waters during the activity or after the activity has ceased[71]). Examples of Category 1 activities include walking, driving along existing roads and tracks, aerial surveys, photography navigating through water, and cadastral, engineering, environmental or geological surveys using methods that do not cause ground disturbance.
The DOC Guidelines state that Category 1 activities are ‘unlikely to harm’ ACH and it is ‘reasonable and practicable for the activity to proceed without further cultural heritage assessment’.[72]
Nonetheless, cultural sensitivities will need to be taken into account in conducting such activities, and may result in a proponent voluntarily undertaking the development of a cultural heritage management plan. This occurred recently when the makers of a major feature film shoot chose to comply with the cultural heritage management plan provisions of the ACH Act in evaluating the indigenous cultural significance of locations used in the film.[73]
Category 2 Activities – activities causing no Additional Surface Disturbance (defined as surface disturbance not inconsistent with previous surface disturbance[74]). Category 2 activities are described as ‘generally unlikely to harm [ACH] or to cause additional harm’ to that which has already occurred. In these circumstances, the DOC Guidelines indicate that it is ‘reasonable and practicable’ for the activity to proceed without further cultural heritage assessment.
However, it would be prudent in these circumstances for a proponent to undertake a search of the Register and the Database to ensure that there are no registered Aboriginal sites or objects of cultural significance in the area before proceeding.
Examples of Category 2 activities include cultivation of an area which is currently subject to cultivation, grazing cattle on an area where cattle are currently grazed, using and maintaining existing roads, tracks and power lines, using, maintaining and protecting services and utilities where such services are currently being provided or are on an adjacent area, provided the activity does not involve additional surface disturbance, and tourism and visitation activities on an area where such activities are already taking place.
Category 3 Activities – activities proposed in a Developed Area – this is defined as an area which is
developed or maintained for a particular purpose such as use as a park, garden, railway, road or other access routes, navigation channel, municipal facility or infrastructure facility, such as power lines, telecommunication lines or electricity infrastructure.[75]
The DOC Guidelines provide that such an activity is ‘generally unlikely to harm’ ACH, and that it is reasonable and practicable that the activity proceeds without further cultural heritage assessment.
However, if the activity will excavate, relocate, remove or harm ACH entered on the Register or Database, it cannot proceed unless the proponent has obtained the agreement of the Aboriginal party for the area or undertaken a Cultural Heritage Management Plan pursuant to Part 7 of the ACH Act.
Accordingly, in order to comply with the Guidelines, it would be prudent for a proponent to search the Database and the Register prior to undertaking the activity.
Category 4 Activities – areas previously subject to Significant Ground Disturbance – ‘Significant Ground Disturbance’ is defined to mean disturbance by machinery of the top soil or surface rock layer of the ground (eg, by ploughing, drilling or dredging) or the removal of native vegetation by disturbing root systems and exposing underlying soil. The Guidelines provide that such an activity may proceed on the same basis as a Category 3 Activity.
Category 5 Activities – activities causing Additional Surface Disturbance – Category 5 activities are those which do not fall within Categories 1, 2, 3 or 4.
The Guidelines provide that where a Category 5 activity is proposed, there is ‘generally a high risk’ that it could harm Aboriginal cultural heritage. In these circumstances, the activity should not proceed without a cultural heritage assessment.[76] This involves consideration of those matters listed under s 23(2) of the Act.[77]
Accordingly, a proponent should search both the Database and the Register to ascertain the existence of any registered ACH in the area concerned and consult with the Aboriginal Party for the area.
A number of features are identified in the DOC Guidelines as being ‘highly likely’ to have cultural heritage significance for the purposes of s 23(2)(b) and as possibly constituting a ‘cultural heritage find’.
This term is defined as
a significant Aboriginal object or evidence of archaeological or historic significance of Aboriginal occupation of an area of Queensland, or Aboriginal human remains, found in the course of undertaking an activity covered by these guidelines.[78]
Such features include ceremonial places, scarred or carved trees, burial sites, rock art, fish traps and weirs, grinding grooves, contact sites and wells.[79] In addition, a number of landscape features are identified which may also have cultural heritage significance, including rock outcrops, caves, foreshores and coastal dunes, sand hills, water holes, natural springs, particular types of native vegetation, and some hill and mound formations.[80]
Where, during an activity, it becomes necessary to excavate, relocate, remove or harm a Cultural Heritage Find, the activity is to cease immediately and consultation with the relevant Aboriginal Party is to be undertaken and the advice and agreement of that party sought in relation to avoiding or minimising harm to the ACH.[81]
Where an agreement cannot be reached in these circumstances, the proponent remains subject to the s 23 duty of care to take all reasonable and practicable measures to ensure that the activity does not harm the ACH, including ‘where necessary’ through the development of a Part 7 Cultural Heritage Management Plan.[82] These provisions apply to all categories of activity except Category 1 activities.
While the ACH Act is clearly an improvement upon its predecessor in terms of the scope of protection afforded to indigenous cultural heritage, an issue arises as to whether the DOC Guidelines provide sufficient certainty as to the standards required in order to discharge the duty of care under s 23. This is particularly important because the judiciary may perceive an absence of appropriate standards as a reason for denial of a breach of a statutory duty of care.[83]
Of particular concern is the assessment of the risk of harm to the different categories of cultural heritage as stated in the DOC Guidelines. As outlined above, the DOC Guidelines state that the first four categories of activities are ‘generally unlikely to harm’ Aboriginal cultural heritage and that it is ‘reasonable and practicable’ that the activities proceed without further cultural heritage assessment. It is certainly conceivable that the proponent of such an activity might consider that such statements have the practical effect of exempting a range of activities from the requirements of the Act, irrespective of the actual risk of harm.
A further concern is that the DOC Guidelines do not, in assessing risk of harm, seem to reflect a precautionary approach in relation to compliance with the s 23 duty of care. For example, it might be expected that a minimum standard for any activity in Categories 2-5 would require a search of the Register and Database under the Act and appropriate consultation with the Aboriginal party for an area.
To date, there has been no judicial decision under the legislation dealing with scope of the duty of care or what might constitute ‘reasonable and practicable’ measures to avoid harm to Aboriginal cultural heritage. In practice, a proponent will need to undertake a cost-benefit analysis in deciding whether to adopt a cautious approach and negotiate a Cultural Heritage Management plan with the Aboriginal party for the area concerned, (thereby obtaining the deemed protection of s 23(3)) or proceed with more limited investigations as to the existence or otherwise of Aboriginal cultural heritage in the area of activity in the hope that damage to such heritage will not result from the activity.
It is noteworthy that a cultural heritage duty of care was not included in the Heritage Act 2004 (ACT) or the Aboriginal Heritage Act 2006 (Vic). However, in its submission on the 2005 Exposure Draft Aboriginal Heritage Bill (Vic), the Minerals Council of Australia, (Victorian Division) recommended the inclusion of a duty of care and a defence to an offence of harming Aboriginal cultural heritage where a person can demonstrate that the duty has been ‘discharged’:
By requiring a duty of care, people who cautiously and deliberately go about their business with sound procedures for attending to Aboriginal cultural heritage matters should be afforded a defence to a prosecution –as in the Aboriginal Cultural Heritage Act 2003 (Qld).[84]
As noted above, the Evatt Report called for the integration of Aboriginal cultural heritage issues with planning and development processes from the earliest stage to enable timely identification of Aboriginal cultural heritage and consideration of its protection in the development application process.[85] Recent indigenous cultural heritage legislation has addressed this recommendation to varying degrees.
Any land use activity which has the potential to harm Aboriginal cultural heritage will fall within the scope of the ACH Act which requires a cultural heritage management plan in relation to a wide range of projects, including mining and petroleum exploration activities and large commercial and residential projects.[86]
If a project requires a lease, licence, permit, approval or other authority to proceed and, under any Act, an environmental impact statement (‘EIS’) is required for that project, the approving authority cannot give the relevant approval unless:
Similarly, an approving authority may not grant a lease, licence, permit, approval or other authority required for a project under an Act unless there is an approved cultural heritage management plan where:
A cultural heritage management plan will also be required where, under the Integrated Planning Act 1997 (Qld), the Chief Executive of the Department of Natural Resources, Mines and Energy is a concurrent agency for a development application relating to the project. In these circumstances, the Chief Executive may require the development and approval of such a plan.[89]
Recommendation 6.5 of the Evatt Report is also reflected in the objects of the Heritage Act 2004 (ACT) which include:
to provide a system integrated with land planning and development to consider development applications having regard to the heritage significance of places and heritage guidelines.[90]
Statutory powers under the Heritage Act 2004 (ACT) must be exercised so as to preserve the heritage significance of places and objects and to achieve the ‘greatest sustainable benefit to the community from such places and objects consistent with the conservation of their heritage significance’.[91] Where the exercise of a function involves conduct which would adversely affect heritage significance, such conduct may only be engaged in if:
These provisions govern the ACT Heritage Council in the exercise of its functions under s 18 which include ‘working within the land planning and development system to achieve appropriate conservation of the ACT’s natural and cultural heritage, including Aboriginal places and objects’.[93]
Given the clear intention of the Act as reflected in its objects and the express directive concerning the manner of exercising functions under the Act, it is surprising that the provisions which deal specifically with the integration of planning and heritage concerns do not operate to confer greater protection on heritage significance.
The Land (Planning and Environment) Act 1991 (ACT) requires a planning authority to provide the Heritage Council with a copy of each development application that relates to a place or object registered or nominated for provisional registration under the Heritage Act 2004.[94] Under s 60 of the Heritage Act 2004, the Heritage Council may, if satisfied that a development would reasonably ‘affect’ the heritage significance of a registered (or nominated) place or object, give the planning and land authority written advice in accordance with s 61 concerning its decision. Such advice may include ‘advice about ways of avoiding or minimising the impact of the development on the heritage significance of the place or object’ and set out proposed conditions on development approval, including a requirement for compliance with a Conservation Management Plan approved by the Heritage Council.[95]
At a minimum, it may be argued that the ACT Heritage Council should be required to provide advice under s 60 if it is satisfied that heritage significance will be affected by the proposed development. While the advice of the Heritage Council must be considered by the planning and land authority in approving or refusing a development application,[96] such an authority is not bound by the Heritage Council’s decision, although the Heritage Council may apply to the Administrative Appeals Tribunal for review of the planning authority’s decision.[97]
The objectives of the Victorian Aboriginal Heritage Act 2006 also address the integration of indigenous cultural heritage and planning regimes and include:
The Victorian Act requires a proponent to prepare a cultural heritage management plan for a proposed activity in three situations:
1. where regulations under the cultural heritage legislation require a plan;[99]
2. where the Minister directs the preparation of a plan;[100]
3. where an Environmental Effects Statement is required under the Environmental Effects Act 1978 (Vic).[101]
The Act prohibits a decision maker from granting approval for an activity unless a cultural heritage management plan has been approved under the legislation in relation to three categories of statutory authorisation:
1. permits to use or develop land under the Planning and Environment Act 1987 (Vic);
2. approvals defined as ‘earth resource authorisations’[102] required under a number of Acts (defined as ‘earth resource laws’[103]) for a range of activities relating primarily to mining, pipeline construction and operation, petroleum exploration and production and geothermal energy exploration and extraction; and
approvals under any other Act or regulation relating to land development.[104]
Given the recent status of legislative reform, it is not yet possible to make an assessment as to the effectiveness of the various mechanisms adopted in the Queensland, ACT and Victorian legislation to integrate Aboriginal cultural heritage issues into planning and resource management.
The Evatt Report recommended that planning and development processes need to include an effective consultation/negotiation process for reaching agreement between developers and the Aboriginal community facilitated by a responsible Aboriginal heritage body.[105] This requirement is essential if indigenous peoples are to enjoy a meaningful role in the identification, conservation and management of their cultural heritage. It is also critical for land owners and users who seek certainty in the approvals procedure and a timely approach to decision making.
Under the ACH Act, the cultural heritage significance of a site or object is determined on the basis of its particular significance to ‘Aboriginal people’ because of Aboriginal tradition and/or the history, including contemporary history of any Aboriginal party for the area.
The ‘Aboriginal party’ for an area is defined in s 35 as:
These provisions go some way towards meeting the concerns of commentators such as Stobbs who argue that indigenous cultural heritage should be protected because of its value to indigenous peoples rather than by reference to any external value system.
The key mechanisms established under the ACH Act for identifying and managing cultural heritage are:
The ACH Act emphasises the importance of land owners and users negotiating an agreed consensus with the relevant Aboriginal party on the potential impact of activities on cultural heritage. In so doing, it has been argued that the legislation recognises the reality that in Australia, a significant number of negotiated agreements between indigenous peoples and other groups make provision for the protection of Aboriginal cultural heritage.[106]
As noted above, for some activities a cultural heritage management plan (‘CHMP’) developed under Part 7, is required.[107] However, a proponent may voluntarily negotiate such an agreement.[108]
A CHMP must receive the approval of the Chief Executive[109] and, in some circumstances, the Minister for Natural Resources, Mines and Water[110] under the Act. Guidelines have been gazetted under s 85 to ‘help people in choosing suitable methodologies for developing cultural heritage management plans’.[111] While a failure to comply with the CHMP Guidelines is not a ground for refusing to approve a CHMP,[112] it would be prudent for proponents to comply with the Guidelines given that where a CHMP is prepared and approved under the Act, compliance with that plan satisfies the requirements of the s 23 duty of care.
The CHMP Guidelines suggest that prior to initiating the development of a CHMP, a sponsor should undertake a search of the cultural heritage Register and Database to ascertain the existence of any cultural heritage in the area and provide the information to the Aboriginal party during consultation to develop the CHMP.[113]
The sponsor of a plan (which may be a developer, mining or exploration company, local government body or the Minister[114]) is required to give written notice of the proposed project to the Chief Executive, each owner or occupier of a part of the plan area, and the relevant Aboriginal party for the area.[115] This will be each Aboriginal cultural heritage body[116] for a part of the area or, if there is no such body, each native title party[117] for a part of the plan area. If there are no such parties, notice must be given to each entity that is a representative body (as defined in s 253 Native Title Act 1993 (Cth)) for that part of the area.[118]
An Aboriginal cultural heritage body is a corporation registered by the Minister under s 36 in respect of a particular area. A corporation may only be registered if the Minister is satisfied that the corporation is an appropriate body, and has the capacity to identify Aboriginal parties for the area. Further, registration of the corporation must be agreed to by native title parties for the area or, if there is no such party, there must be ‘substantial agreement amongst the Aboriginal parties for the area’ that the corporation should be registered.[119] To date, 7 cultural heritage bodies have been registered under the Act.[120]
An Aboriginal cultural heritage body has the important function of identifying the Aboriginal parties for an area or part thereof ‘for the benefit of a person who needs to know’ under the ACH Act. Financial or other assistance may be provided by the Minister to help an Aboriginal cultural heritage body carry out its function. [121]
An Aboriginal party given a notice under s 91 has 30 days (or such longer period as the sponsor may decide) to notify the sponsor that it wishes to take part in developing the CHMP.[122] By so doing, an Aboriginal party becomes an ‘endorsed party’ in the development of the plan.[123]
The CHMP Guidelines suggest that in developing a CHMP under Part 7, the Aboriginal party should be involved in the planning process as early as possible, and that an informal briefing on the proposed activity may be advisable prior to issuing a notice under s 91.[124]
Section 104 outlines those matters which may be included in consultation between the parties in developing a CHMP, such as the nature and extent of known Aboriginal cultural heritage in the area, reasonable requirements for carrying out a site survey of cultural heritage and reasonable travel and accommodation requirements for endorsed parties.
The ACH Act expressly calls upon the sponsor and each endorsed party to ‘negotiate, and make every reasonable effort to reach agreement’ about provisions of the CHMP.[125]
In particular, each party is to seek agreement about how the project is to be managed so as to avoid harm to Aboriginal cultural heritage and, to the extent that such harm cannot reasonably be avoided, to minimise such harm. Accordingly, s 105(2) indicates that a CHMP may make provision for such matters as when project activities are to take place and arrangements for access to land for carrying out activities. Importantly, the CHMP may also provide for identification of Aboriginal cultural heritage, the way it is to be assessed, whether it is to be damaged, relocated or taken away and how this is to be managed.
The CHMP Guidelines suggest a number of important additional matters which may be discussed or agreed under s 105. These include the identity and numbers of representatives who may attend meetings, the number and location of meetings, defining the scope of the project area to be subject to the CHMP, conducting a survey of the project area (including timing for a cultural heritage survey), the identity of a suitably qualified expert (such as an archaeologist), management of the sponsor’s land use activities in or around Aboriginal cultural heritage (including contingency planning for cultural heritage finds during implementation of the CHMP) and the costs of developing and implementing the CHMP.[126]
Where all parties endorse a CHMP, the Chief Executive must approve the plan.[127] Where there is no endorsed party, the Chief Executive must be satisfied that the CHMP makes provision for management of the project to avoid harm to ACH or to minimise harm to ACH if it cannot be reasonably avoided. If a CHMP is not made voluntarily, it must also include agreement for effective and alternate dispute resolution arrangements to deal with issues which may arise in its implementation.[128]
Given the focus of the ACH Act upon the parties reaching an agreement under Part 7, it is important to investigate the position where the parties fail to reach an agreement. In these circumstances, the DOC Guidelines state that the parties continue to have a cultural heritage duty of care and must take all reasonable and practical measures to protect cultural heritage.[129]
The ACH Act provides for mediation by the Queensland Land and Resources Tribunal (the ‘Tribunal’) if 28 days of the consultation period[130] have elapsed and a dispute has arisen between two or more parties to the plan and that dispute is substantially delaying the development of the plan. If mediation is unsuccessful, the mediator may authorise the sponsor to refer the CHMP to the Tribunal if the mediator has formed the view that the resolution of a dispute is unlikely to occur before the end of the consultation period.[131]
The sponsor may also refer the plan to the Tribunal if:
Where the parties have failed to agree and the sponsor refers the CHMP under s 113, the Tribunal is required to invite submissions from endorsed parties concerning the CHMP and the sponsor’s written submission in relation to the plan, and to take account of such submissions.[134] All parties have a right to be heard at the Tribunal hearing. However, the Tribunal is not required to hold a hearing of an objection or a referral.[135]
Following its hearing or consideration of the matter, the Tribunal must give its recommendation concerning the CHMP to the Minister. If the Tribunal recommends that the Minister approves the CHMP, the Tribunal must be satisfied that the CHMP makes adequate provision for avoiding damage to Aboriginal cultural heritage and, to the extent that such damage cannot be reasonably avoided, minimising damage to Aboriginal cultural heritage.[136] The Tribunal may recommend that the CHMP be approved, with or without amendment, or that approval be refused.[137]
In approving or refusing to approve a plan under s 120, the Minister must have regard to the Tribunal’s recommendation and those matters which the Chief Executive is required to consider before approving the CHMP.[138]
The mechanisms for consulting Aboriginal parties under the ACH Act clearly provide greater scope for indigenous involvement in identification, management and protection of their heritage than those afforded under the CR Act. As Davie argues:
There is a clear commercial imperative for mining and petroleum companies and other developers to have a pre-arranged method of dealing with Aboriginal cultural heritage issues which arise during the life of the projects concerned, from the commencement of exploration activities through to project development, construction, operation, maintenance and eventual decommissioning, demolition and site rehabilitation. By their very nature, items and places of Aboriginal cultural significance cannot always be known in advance.[139]
However, notwithstanding concerns which Aboriginal people may have concerning the impact of a proposed activity on their cultural heritage, ultimately decisions as to whether the provisions of a CHMP will operate to avoid or minimise harm to such heritage are made by the Chief Executive or the Minister. In view of the strong emphasis upon respect for and recognition of indigenous peoples in the protection and management of their cultural heritage in s 5 of the ACH Act, it is suggested that the legislation should expressly direct decision makers to have regard to those principles in exercising their powers under the Act.[140]
The ACH Act is, in this respect, comparable with the Aboriginal Heritage Act 2006 (Vic). The Exposure Draft Aboriginal Cultural Heritage Bill 2005 (Vic)[141] vested in Aboriginal people a decisive role in the approval process. Indeed, the Bill was described as seeking to create a system that is ‘not only unfair, inherently racist and anti-development, it will make building more expensive and much slower’.[142]
The Bill required the Secretary to refuse to accept a cultural heritage assessment if a registered Aboriginal party refused to endorse the assessment.[143] In responding to this provision, The Minerals Council of Australia (Victorian Division) argued that the Secretary should have an ‘unfettered right’ to approve an assessment even if the assessment is not endorsed by a Registered Aboriginal Party. The concern arose because the Exposure Bill permitted multiple registered Aboriginal Parties with an interest in the same area and prohibited the Secretary’s approval if only one such party refused its endorsement.[144] In this regard, indigenous groups also expressed concern, arguing that it was likely to cause conflict between different Aboriginal groups registered with respect to the same area.[145]
The Aboriginal Heritage Act 2006 (Vic) establishes a more rigorous and restrictive framework for indigenous approval of cultural heritage management plans to that contemplated in the Exposure Bill. As noted above, a proponent must conduct such a plan in relation to certain categories of activities.[146] Where an assessment is to be undertaken, the proponent must notify the Secretary to the Department of Victorian Communities, the owner or occupier of the relevant land and each registered Aboriginal Party[147] for the area concerned.[148]
Under the Victorian Act, a registered Aboriginal party must refuse to endorse a cultural heritage management plan if it has not been prepared in accordance with the standards to be prescribed under s 53. However, such a party may only refuse to approve the plan if that party is not satisfied that the plan adequately addresses the matters set out in s 61. This section covers important issues such as how the activity will be conducted to avoid or minimise harm to Aboriginal cultural heritage, access arrangements for inspectors, specific measures for management of Aboriginal cultural heritage likely to be affected by the activity and requirements relating to repatriation of Aboriginal cultural heritage removed during the course of the assessment.
The corresponding provision[149] in the Exposure Draft Aboriginal Cultural Heritage Bill 2005 (Vic) was criticised by Aboriginal groups as unduly restrictive on the basis that it did not allow an Aboriginal party to refuse to endorse the assessment because the proposed activity may affect the cultural heritage so significantly that it should not be permitted to proceed at all.[150] This possibility is not addressed in either the Queensland, ACT or Victorian legislation.
Section 23(2)(d) of the ACH Act states that one of the factors which a court may consider in determining whether a cultural heritage duty of care has been satisfied is whether the person who proposes to engage in an activity has carried out a study or survey of the affected area to find out the location and extent of Aboriginal cultural heritage.
The DOC Guidelines indicate that such a study should be carried out when it is necessary to identify and assess the cultural heritage values of an area. The provisions dealing with cultural heritage studies (‘CHS’) are set out in ss 52-79. While any person may be the sponsor for a CHS, s 53(2) states that Aboriginal parties are responsible for assessing the level of significance of areas and objects included in the study area that are or appear to be significant Aboriginal areas and significant Aboriginal objects. These provisions reinforce the objective of the legislation to ensure that Aboriginal people should be recognised as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage.
The findings of a CHS carried out in accordance with the requirements of Part 6 may be included in the s 46 Aboriginal Cultural Heritage Register (the ‘ACH Register’). The ACH Register provides a central repository of information contained in cultural heritage studies, whether areas have been subject to a CHMP, information about Aboriginal cultural heritage bodies and other information to help consideration of cultural heritage. The ACH Register is intended to be used as a depository for information which may be considered by land use and planning parties such as local government bodies and for regional planning strategies.[151]
A sponsor wishing to undertake a CHS is required to give notice to the relevant Aboriginal party for the area providing details as to the study area and other matters referred to in s 57.
An Aboriginal party may take part in a CHS by giving written notice to a sponsor that it wishes to do so.[152] Once endorsed,[153] a party has the role of:
A sponsor may give the CHS to the Chief Executive to record its findings in the ACH Register where the sponsor is satisfied that the study has been completed and the studies findings are in order for recording in the register. The Chief Executive may either record the findings or refuse to record the findings of the study in the register.[155]
In considering whether the findings should be registered, the Chief Executive must have regard to the results and nature of consultation between the sponsor and endorsed parties and may seek expert advice about the study from appropriate sources.[156]
In order to record the findings of a CHS, the Chief Executive must be satisfied as to the matters outlined in s 73, including the sponsor’s compliance with procedural requirements under the ACH Act for carrying out the CHS and that the CHS includes a summary statement about the existence of Aboriginal cultural heritage in the study area, documented evidence about whether recommendations included in the study for the future management of Aboriginal cultural heritage have been agreed with the affected land owners and occupiers, a description of assessment activities carried out for the study, signatures of each endorsed party for the study which supports the information and other matters included in the study, and the extent to which any endorsed party to the study does not agree to the recordings of the findings of the study.
Notification of the Chief Executive’s decision concerning recording or refusal to record the findings of a CHS must be given to the sponsor, each owner or occupier or a part of a study area, each local government whose local government area includes a part of a study area, each endorsed party for the study and each Aboriginal cultural heritage body for a part of the study area.[157]
The objection and appeal procedures for a CHS under the ACH Act are similar to those provided for a CHMP.[158]
A CHS may be an important first part in the development of a CHMP. However, the CHMP Guidelines clarify that a CHS undertaken for the purpose of developing or implementing a CHMP is not the same as a cultural heritage study initiated under Part 6 of the ACH Act for the purpose of recording the findings in the ACH Register.[159]
In Queensland Electricity Transmission Corporation Ltd (Trading as Powerlink Queensland) and Bonner & Ors, Re [2006] QLRT 8 the Tribunal confirmed the difference between the two forms of cultural heritage assessment. The Tribunal was considering a submission by the respondent Jagera People that they, and not the applicant, were entitled to select the heritage archaeologist consultant. The Respondents referred to s 68 of the ACH Act under which an Aboriginal party can request that a particular cultural heritage assessor be engaged for a cultural heritage study.
However, Koppenol P rejected the respondent’s argument that s 68 set a benchmark for Aboriginal involvement in choosing technical experts, stating that:
While I can understand the respondents’ concerns, the Act applies section 68 to cultural heritage studies only. There is no equivalent provision for cultural heritage management plans. That may be because of the inherent differences between a study (which comprehensively studies and officially records cultural heritage in an area) and a plan (which sets out how a project’s activities should be managed for their impact on Aboriginal cultural heritage).[160]
While this statement accurately identifies the different purposes underlying the two forms of cultural heritage assessment, the distinction does not seem warranted given the emphasis under the ACH Act upon the involvement of Aboriginal people in processes for managing the recognition, protection and conservation of Aboriginal cultural heritage. If the legislation is to confer meaningful Aboriginal involvement, it is suggested that Aboriginal parties should be entitled to select a heritage consultant for the purpose of developing and implementing a CHMP.
The ACH Act is an example of the integrated approach to indigenous cultural heritage being considered or implemented in a growing number of Australian jurisdictions. However, a number of important issues remain unresolved under this legislation and other examples of the new generation of indigenous cultural heritage laws discussed in this article, including:
Australian indigenous cultural heritage laws need to address these issues urgently and in a consistent manner before indigenous and non indigenous stakeholders can have confidence in this challenging area of law.
[*] Associate Lecturer, Macquarie University Centre for Environmental Law, Division of Law, Macquarie University. The research assistance of Sheree Sharma in preparing this article is gratefully acknowledged.
[1] For example, the controversy surrounding the proposed construction of a bridge between Hindmarsh Island and Goolwa in South Australia and resulting litigation discussed in A Taubman, ‘Protecting Aboriginal Sacred Sites: the Aftermath of the Hindmarsh Island Dispute’ (2002) 19 Environmental and Planning Law Journal 140.
[2] The Tasmanian Government is currently investigating arrangements for the protection of Aboriginal cultural heritage with a view to developing new legislation in this area – see Tasmanian Government, Terms of Reference for Aboriginal Heritage Legislation Project- http://www.tahl.tas.gov.au/ab_terms.html accessed 21/02/06.
[3] D A Posey (ed), Cultural and Spiritual Values of Biodiversity (1999) 3.
[4] Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (1972) 11 ILM 1358.
[5] Operational Guidelines for the Implementation of the World Heritage Convention 2 February 2005: http://whc.unesco.org/archive/opguide05-en.pdf.
[6] Ibid para 47.
[7] P Karuk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage’ 1(1) Macquarie Journal of International and Comparative Environmental Law 113.
[8] International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, GA Res 2200A (XXI), UN Doc A/6316 (1966), 99 UNTS171
[9] Draft Declaration on the Rights of Indigenous Peoples (working group on Indigenous Populations on its Eleventh Session, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities) http//www.usak.ca/ nativelaw/ddir.html.
[10] Ibid article 12.
[11] Ibid article 13.
[12] In accordance with article 34 of the Convention.
[13] Convention for the Safeguarding of the Intangible Cultural Heritage (2003) article 2.1, http://unesdoc.unesco.org/images/0013/001325/132540e.pdf.
[14] Ibid.
[15] Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 http://portal.unesco.org/la/convention_p.asp?language=E&KO=31038
.
[16] Ibid article 1.
[17] E Evatt, Review of the Aboriginal and Torres Strait Island Heritage Protection Act 1984, (1996).
[18] Ibid chapter 2, para 2.2.
[19] Ibid para 5.5.
[20] Ibid recommendation 5.1.
[21] Ibid recommendation 6.1.
[22] Ibid recommendation 6.2.
[23] Ibid recommendation 6.3.
[24] Ibid recommendation 6.4.
[25] Ibid recommendation 6.5.
[26] Ibid para 6.2.
[27] N Watson and R Black, ‘New Cultural Heritage Legislation One Small Step for Murris One Giant Leap Forward for the Queensland Government’ [2001] IndigLawB 78; (2001) 5(13) Indigenous Law Bulletin 8.
[28] Corrs Chambers Westgarth Lawyers, ‘Queensland Mining’ (2003) http://www.corrs.com.au/ corrs/website/web.nsf/Content/Pub_ER_291003_Explorers_beware_new_Queensland_aboriginal_cultural_heritage_regime (accessed 27/02/06).
[29] $75,000 for a corporation.
[30] Corrs Chambers Westgarth Lawyers, above note 28.
[31] Aboriginal Cultural Heritage Act 2003 (Qld) s 4.
[32] Aboriginal Heritage Act 2006 (Vic) s 3.
[33] Australians for Native Title and Reconciliation (Qld), Submission on the Draft Aboriginal Cultural Heritage Bill 2002, December 2002, 1
[34] Aboriginal Cultural Heritage Act 2003 (Qld) s 20(2).
[35] Aboriginal Cultural Heritage Act 2003 (Qld) s 14-20.
[36] Aboriginal Cultural Heritage Act 2003 (Qld) s 21(2).
[37] Aboriginal Cultural Heritage Act 2003) (Qld) s 2. It should be noted that the Cultural Heritage Management Plan Guidelines state that a cultural heritage management plan may make provision for Aboriginal parties to visit cultural heritage areas within a plan area and how this is to occur, although any such access is to be ‘subject to appropriate landholder consent if visitation of the area is unrelated to the activities of the sponsor’ – see Queensland Government Gazette No 81 22 April 2006, para 2.10.5.
[38] See for example, Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) s 32.
[39] Watson and Black, above n 27, 9.
[40] Nigel Stobbs, ‘What Can We Do You For? Naïve Conceptions of the Value of Indigenous Cultures and Communities’ [2005] IndigLawB 18; (2005) 6(10) Indigenous Law Bulletin 8.
[41] Ibid.
[42] Ibid.
[43] Aboriginal Cultural Heritage Act 2003 (Qld) s 8.
[44] Aboriginal Cultural Heritage Act 2003 (Qld) - Schedule 2 Dictionary.
[45] Contrast the definition of ‘place’ in s 8 of the Heritage Act 2004 (ACT) which is focused upon land based heritage.
[46] Aboriginal Cultural Heritage Act 2003 (Qld) ss 9 and 10.
[47] Definition of ‘Aboriginal place’ and ‘Aboriginal object’ in Heritage Act 2004 (ACT) s 9.
[48] Aboriginal Heritage Act 2006 (Vic) s 4, emphasis added.
[49] Aboriginal Cultural Heritage Act 2003 (Qld) s 12(2).
[50] Aboriginal Cultural Heritage Act 2003 (Qld) s 12(4).
[51] C Davie, ‘Aboriginal Cultural Heritage: Emerging from the Shadows of Native Title’ (2004) AMPLA Yearbook 508.
[52] Watson and Black, above note 27, 8.
[53] See Aboriginal Cultural Heritage Act 2003 (Qld) ss 24-26.
[54] Aboriginal Cultural Heritage Act 2003 (Qld) Schedule 2, Dictionary.
[55] Aboriginal Cultural Heritage Act 2003 (Qld)ss 24(1), 25(1), 26(1).
[56] Aboriginal Cultural Heritage Act 2003 (Qld) s 32.
[57] E Evatt, above note 17, Recommendation 6.2.
[58] Davie, above note 51, 506.
[59] G Bates, ‘A Duty of Care for the Protection of Biodiversity on Land’ (Consultancy Report, Report to the Productivity Commission, AusInfo, Canberra, 2001) 25.
[60] Environmental Protection Act 1994 (Qld) ss 436, 548.
[61] Bates, above note 59, 20.
[62] Established under ss 38 and 46 of the Aboriginal Cultural Heritage Act 2003 (Qld) respectively.
[63] Aboriginal Cultural Heritage Act 2003 (Qld) s 39(3).
[64] See also DOC Guidelines paragraph 8.3 which states that a proponent ‘should not rely solely on information contained within the [Register] or the [Database] in deciding whether or not to undertake a cultural heritage study or survey’.
[65] Aboriginal Cultural Heritage Act 2003 (Qld) s 23(3).
[66] Aboriginal Cultural Heritage Act 2003 (Qld) defined in Schedule 2, Dictionary definition.
[67] Duty of Care Guidelines, http://www.nrm.qld.gov.au/cultural_heritage/legislation/duty_of_
care.html (accessed 1/05/06)
[68] Ibid paragraph 1.2.
[69] Ibid paragraph 1.10.
[70] Australian Heritage Commission, Ask First – A guide to respecting Indigenous heritage places and values, http://www.ahc.gov.au/publications/indigenousheritage/index.html (accessed 27/02/06).
[71] Guidelines, above n 67, paragraph 3.2.
[72] Guidelines, above n 67, paragraph 4.1 and 4.2.
[73] Queensland Government Department of Natural Resources, Mines and Energy, ‘The Proposition – Managing Aboriginal Cultural Heritage on a Major Feature Film Shoot’ DVD.
[74] Guidelines, above n 67, paragraph 3.2 definition.
[75] Guidelines, above n 67, paragraph 3.2 definition.
[76] Guidelines, above n 67, paragraph 5.14.
[77] Also set out in paragraph 1.2 of the preamble to the Duty of Care Guidelines.
[78] Guidelines, above n 67, paragraph 3.2.
[79] Guidelines, above n 67, paragraph 6.1.
[80] Guidelines, above n 67, paragraph 6.2.
[81] Guidelines, above n 67, paragraphs 4.7 and 4.8.
[82] Guidelines, above n 67, paragraphs 4.9, 5.10, 5.19.
[83] Bates, above n 59, 28.
[84] Minerals Council of Australia Victorian Division, Submission: Aboriginal Heritage Bill – A Minerals Industry Perspective, 19 December, 2005.
[85] Evatt, above note 17, Recommendation 6.5.
[86] For example, in Queensland Electricity Transmission Corporation Ltd (Trading as Powerlink Queensland) and Bonner & Ors, Re [2006] QLRT 8 the Tribunal approved a plan dealing with the construction of transmission towers and access roads in relation to a proposed transmission line easement to supplement electricity supply to the south-east corner of Queensland. The area concerned is located in the respondent’s native title claim area near Ipswich.
[87] Aboriginal Cultural Heritage Act 2003 (Qld) s 87.
[88] Aboriginal Cultural Heritage Act 2003 (Qld) s 88.
[89] Aboriginal Cultural Heritage Act 2003 (Qld) s 89.
[90] Heritage Act 2004 (ACT) s 3(1)(e).
[91] Heritage Act 2004 (ACT) s 3(2).
[92] Heritage Act 2004 (ACT) s 3.
[93] Heritage Act 2004 (ACT) s 18(c).
[94] Land (Planning and Environment) Act 1991 (ACT) s 229.
[95] Heritage Act 2004 (ACT) s 61.
[96] Land (Planning and Environment) Act 1991 (ACT) s 231.
[97] Land (Planning and Environment) Act 1991 (ACT) s 275.
[98] Aboriginal Heritage Act 2006 (Vic) s 3(d) and (g).
[99] Aboriginal Heritage Act 2006 (Vic) s 46.
[100] Aboriginal Heritage Act 2006 (Vic) s 48.
[101] Aboriginal Heritage Act 2006 (Vic) s 49.
[102] Aboriginal Heritage Act 2006 (Vic) s 50.
[103] Aboriginal Heritage Act 2006 (Vic) s 50.
[104] Aboriginal Heritage Bill Circulation Print Explanatory Memorandum, Bill LA Circulation 6/04/2006, p 16 http://www.dms.dpc.vic.gov.au/(accessed 7/05/2006).
[105] Evatt, above note 17, Recommendation 6.5.
[106] Davie, above n 48, 510. Davie notes that as at June 2004 there were 179 agreements making provision for ACH protection in Australia of which 77 were Indigenous Land Use Agreements under the Native Title Act 1993 (Cth).
[107] See previous discussion concerning Aboriginal Cultural Heritage Act 2003 (Qld) ss 87-89.
[108] Aboriginal Cultural Heritage Act 2003 (Qld) s 83.
[109] Aboriginal Cultural Heritage Act 2003 (Qld) s 107.
[110] Aboriginal Cultural Heritage Act 2003 (Qld) s 120.
[111] Gazette, above n 37, para 234.
[112] Aboriginal Cultural Heritage Act 2003 (Qld) s 85(2).
[113] Guideline, above n 67, para 2.1.
[114] Aboriginal Cultural Heritage Act 2003 (Qld) s 82.
[115] Aboriginal Cultural Heritage Act 2003 (Qld) s 91.
[116] Aboriginal Cultural Heritage Act 2003 (Qld) s 34.
[117] Established under Aboriginal Cultural Heritage Act 2003 (Qld) s 36.
[118] Aboriginal Cultural Heritage Act 2003 (Qld) s 91.
[119] Aboriginal Cultural Heritage Act 2003 (Qld) s 36(4). Note that in deciding whether a corporation should be registered under s 36, the Minister may consult with the Aboriginal parties for the relevant area and advertise for submissions about the proposed registration of the corporation.
[120] http://www.nrm.qld.gov.au/cultural_heritage/legislation/cultural_heritage_bodies.html (accessed 2/8/06).
[121] Aboriginal Cultural Heritage Act 2003 (Qld) ss 37, 97.
[122] Aboriginal Cultural Heritage Act 2003 (Qld) s 94.
[123] Aboriginal Cultural Heritage Act 2003 (Qld) s 98.
[124] Guideline, above n 67, para 2.2.
[125] Aboriginal Cultural Heritage Act 2003 (Qld) ss 102-103.
[126] Gazette, above n 37, para 2.3.
[127] Aboriginal Cultural Heritage Act 2003 (Qld) s 107.
[128] Aboriginal Cultural Heritage Act 2003 (Qld) s 108.
[129] Guidelines, above n 67, para 5.19.
[130] Aboriginal Cultural Heritage Act 2003 (Qld) s 106 – note that the consultation period is defined as 84 days from the notice day – see Schedule 2 Dictionary.
[131] Aboriginal Cultural Heritage Act 2003 (Qld) s 112.
[132] Aboriginal Cultural Heritage Act 2003 (Qld) s 111.
[133] Aboriginal Cultural Heritage Act 2003 (Qld) s 113.
[134] Aboriginal Cultural Heritage Act 2003 (Qld) s 115(2) and (3).
[135] Aboriginal Cultural Heritage Act 2003 (Qld) s 116.
[136] Aboriginal Cultural Heritage Act 2003 (Qld) ss 117 – note in particular the matters concerning Aboriginal cultural heritage in respect of which the Tribunal must be satisfied under s 118.
[137] Aboriginal Cultural Heritage Act 2003 (Qld) s 117.
[138] See Aboriginal Cultural Heritage Act 2003 (Qld) s 108.
[139] Davie, above note 51, 510.
[140] See for example, Heritage Act 2004 (ACT) s 3.
[141] http://www1.dvc.vic.gov.au/aav/heritage_bill/index.htm (accessed 15/01/06).
[142] N Mitchell, ‘Progress falls in a hole’, Herald Sun (Sydney), 20 October 2005.
[143] Aboriginal Cultural Heritage Bill 2005 (Vic) Clause 57(4).
[144] Minerals Council of Australia Victorian Division, Submission: Aboriginal Heritage Bill – A Minerals Industry Perspective, 19 December, 2005, para 4.5 http://www.minerals.org.au/ victoria/public_submissions/latest_submissions (accessed 27 /2/06) Contrast s 113 Aboriginal Cultural Heritage Act 2003 (Qld) which permits the sponsor to refer the CHMP to the Tribunal for recommendation if there has not been agreement between all consultation parties.
[145] Australians for Native Title and Reconciliation, ‘Say NO to the Cultural Heritage Bill’ http://www.antarvictoria.org.au/culturalheritage/(accessed 27/02/06).
[146] Aboriginal Heritage Act 2006 (Vic) ss 46-49.
[147] Registered under Aboriginal Heritage Act 2006 (Vic) ss 151 and 152.
[148] Aboriginal Heritage Act 2006 (Vic) s 54.
[149] 2005 Exposure Draft Aboriginal Heritage Bill, Clause 53(2).
[150] Native Title Services Victoria Ltd, Submission on Aboriginal Heritage Bill 2005 (Vic) 19 December, 2005, para 8.13.
[151] Aboriginal Cultural Heritage Act 2003 (Qld) s 46.
[152] Aboriginal Cultural Heritage Act 2003 (Qld) ss 58 and 59.
[153] Aboriginal Cultural Heritage Act 2003 (Qld) s 56.
[154] Aboriginal Cultural Heritage Act 2003 (Qld) s 66.
[155] Aboriginal Cultural Heritage Act 2003 (Qld) s 71.
[156] Aboriginal Cultural Heritage Act 2003 (Qld) s 72.
[157] Aboriginal Cultural Heritage Act 2003 (Qld) s 74.
[158] In summary, an objection to the Chief Executive’s decision may be made by any of these parties under s 76 to the Tribunal. The Tribunal is required to make a recommendation to the Minister under s 78 that the Minister confirm, amend or refuse to record the findings of the CHS in the ACH Register. The Minister is required, in deciding what action to take following receipt of the Tribunal’s recommendation, to have regard to that recommendation and those matters to be considered by the Chief Executive before recording the findings of the study under s 72 of the Act.
[159] Gazette, above n 37, 1238, footnote 1.
[160] Queensland Electricity Transmission Corporation Ltd (Trading as Powerlink Queensland) and Bonner & Ors, Re [2006] QLRT 8, http://www.austlii.edu.au/cases/qld/QLRT/2006/8.html accessed 9/2/06.
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