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1
Aboriginal Cultural Heritage Bill 2003
ABORIGINAL CULTURAL HERITAGE
BILL 2003
EXPLANATORY NOTES
Short Title
The Act will be known as the Aboriginal Cultural Heritage Bill 2003
Policy Objectives of the Bill
The policy objectives of the Bill are:
· To recognise Aboriginal ownership of certain human remains;
secret and sacred material in State collections; and items of
cultural heritage removed from an area under the authority of the
legislation. In other circumstances the State retains a residual
ownership of cultural heritage generally to ensure effective
protection and regulation.
· To recognise the fundamental right of Aboriginal people to be
involved in the process of assessment and management of
activities that may harm their cultural heritage.
· To provide certainty of process and timeframes for the
assessment of cultural heritage and the management of possible
impacts upon it.
· To establish a duty of care for all persons to take reasonable and
practicable steps to prevent harming cultural heritage. The
legislation sets out key indicia as to how the duty of care may be
met. The duty of care is key to ensuring the legislation is flexible
and workable and not unduly prescriptive.
· To establish mandatory triggers, as well as set timeframes and
procedures, for the assessment of cultural heritage where high
impact activities are proposed (ie. those activities requiring an
Environmental Impact Statement or where a material change in
land use is proposed over an area entered on the Aboriginal
cultural heritage register).
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Aboriginal Cultural Heritage Bill 2003
· To create penalties intended to act as a deterrent and to reflect the
importance attached to safeguarding the cultural heritage values
of Queensland.
· To establish a register of Aboriginal cultural heritage.
Information may be placed on the register following a cultural
heritage study to assess the significance of an area, as well as
other information necessary to help the consideration of
Aboriginal cultural heritage - maximum penalties apply to
protect heritage entered on the register.
· To establish a database of Aboriginal cultural heritage. The
database will contain information about cultural heritage values
collated by the Environmental Protection Agency since the
1930s. Information may be added to the database without
undertaking a formal cultural heritage study. Information may be
provided from the database on an "as needs basis" to ensure the
sensitivity and integrity of the information is respected.
· To ensure that cultural heritage activities undertaken in
accordance with the terms of a native title agreement, or
otherwise pursuant to an agreement with the appropriate
Aboriginal parties, will remain valid under the new legislation.
Reasons for the Bill
On 24 December 1998, the Government announced a review of the
Cultural Record (Landscapes Queensland and Queensland Estate) Act
1987 to address inadequacies in the current legislative framework. The
Cultural Record (Landscapes Queensland and Queensland Estate) Act
1987 fails to provide adequate protection to Indigenous cultural heritage by
focusing on the protection of archaeological evidence of human occupation
of Queensland. It fails to protect areas of Queensland, significant solely
because of their significance under Aboriginal tradition or the history of
traditional owners of country. The Cultural Record (Landscapes
Queensland and Queensland Estate) Act 1987 also provides little guidance
about how proponents may address cultural heritage matters with certainty,
in a timely and cost efficient manner.
The Bill addresses these issues by providing proper protection for
significant Aboriginal cultural heritage and creating flexible and workable
processes for addressing land use impacts with certainty.
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Aboriginal Cultural Heritage Bill 2003
Achieving the Policy Objectives of the Legislation
Where there is a traditional or familial link, the legislation recognises
Aboriginal people's ownership of burial remains not otherwise lawfully
interred; ownership of secret and sacred material in State collections; and
items of cultural heritage removed from an area under the authority of the
legislation.
In other circumstances, the State will retain a residual ownership of
cultural heritage generally in order to ensure effective protection and
regulation and to maintain the integrity of the land tenure system (such as
where Aboriginal cultural heritage is in situ on freehold land). The
legislation makes it clear that the State does not claim title to the land upon
which the cultural heritage is located.
Importantly, the legislation recognises the fundamental right of
Aboriginal people to be involved in the process of assessment and
management of activities that may harm their cultural heritage. At the
same time, the legislation provides certainty of process and timeframes for
the assessment of cultural heritage and the management of possible
impacts upon it.
The legislation facilitates the identification of the Aboriginal people who
should be involved in the cultural heritage assessment and management
process. This is done by linking into the procedures under native title
legislation or, where no native title claim has been registered over an area,
by using a process of public notification. At present, disputes can arise
between traditional owner groups because, in the absence of any legislative
guidance, developers can favour one traditional owner group over another
in situations where there may be more than one registered native title claim
to an area. This practice may be contrary to the provisions of native title
legislation. It is also inappropriate for any registered native title claimant
group to be excluded from the consideration of cultural heritage issues
within the area of their claim. Each registered native title claimant group
has established a prima facie case in the Federal Court that they may hold
native title and, consequently, until the native title claims are resolved it is
appropriate that each set of registered claimants be involved in the process.
(Approximately 58% of the State of Queensland is currently subject to
registered native title claims.)
The creation of a duty of care underpins the legislation. The duty of care
will require persons to take all reasonable and practicable steps to prevent
harming cultural heritage. The legislation sets out key indicia as to how the
duty of care may be met. Factors relevant to whether the duty of care has
been met can relate to the nature of the proposed activity; the likelihood of
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Aboriginal Cultural Heritage Bill 2003
damage to Aboriginal cultural heritage; and the nature and extent of any
consultation with the traditional owners. Duty of care guidelines will be
gazetted under the legislation stating ways in which the duty of care can be
met.
Additionally, the legislation establishes certain mandatory triggers for
the assessment and management of cultural heritage where high impact
activities are proposed, ie., those requiring an Environmental Impact
Statement or a material change of use over a registered cultural heritage
area under the Integrated Planning Act 1997. Importantly, this trigger can
be extended by regulation to cover additional activities. Other mandatory
triggers for the cultural heritage management planning process occur
where it is proposed to excavate, relocate or remove cultural heritage or
where a material change of use is proposed over an area entered on the
register of cultural heritage.
To achieve certainty of timeframe and process, the legislation establishes
a four month period, which can be extended by agreement, to develop a
cultural heritage management plan about the assessment of cultural
heritage and the management of impacts upon it.
The cultural heritage management planning process established by the
legislation reflects existing best practice. The process requires notification
and consultation with Aboriginal parties. Consultation must relate to how
an activity may be managed in order to avoid or minimise harm to cultural
heritage.
Where agreement cannot be reached between the parties, the Land and
Resources Tribunal can assist with the provision of mediation or a
recommendation about the terms of the cultural heritage management plan.
Importantly, in light of the need to protect cultural heritage at both a State
and national level, the final decision on the terms of a cultural heritage
management plan rests with the State.
The legislation allows a cultural heritage management plan to be
developed voluntarily. This is an important feature of the legislation
intended to encourage industry to adopt best practice in circumstances
where the legislation does not automatically require a mandatory cultural
heritage management plan. The incentive for industry to do so is that any
activity undertaken in accordance with a cultural heritage management
plan approved under the legislation satisfies the duty of care under the
legislation.
The duty of care (coupled with the ability to initiate voluntary cultural
heritage management plans) is key to ensuring the legislation is flexible
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Aboriginal Cultural Heritage Bill 2003
and workable without being unduly prescriptive in relation to particular
activities unlikely to affect cultural heritage values. The duty of care
removes the need for an excessive number of mandatory triggers for certain
activities such as small mining, most mineral exploration and prospecting.
At the same time, the legislation enables guidelines for complying with
the duty of care to be gazetted. Guidelines will be gazetted following
appropriate consultation with relevant stakeholders and industry groups.
The legislation has been drafted to ensure that it dovetails into the
procedures and timeframes set up under native title legislation. The new
legislation will link into existing processes under State and federal native
title legislation to ensure that all proper authorities are obtained from native
title parties and that they are directly involved in the assessment and
management planning process.
Penalties under the legislation are intended to act as a deterrent and to
reflect the importance attached to safeguarding the cultural heritage values
of Queensland. To reflect this, the most serious offences have been made
indictable. Given that some offences may not come to light for some time,
this will also enable more serious offences to be brought before the court
more than twelve months after they have been committed.
The legislation will establish a register of Aboriginal cultural heritage.
Information may be placed on the register following a comprehensive
cultural heritage study to assess the significance of an area - maximum
penalties apply to protect heritage entered on the register. Responsibility
for assessing the levels of significance of cultural heritage is a matter for
the Aboriginal party for the area although such an assessment must be
consistent with authoritative anthropological, biogeographical, historical
and archaeological information. The legislation also establishes a cultural
heritage database. The database will contain information about the 14,000
or so places of cultural heritage value collated by the Environmental
Protection Agency since the 1930s. Information may be added to the
database without the necessity of undertaking a formal cultural heritage
study. Information may be provided from the database on an "as needs
basis" to ensure the sensitivity and integrity of the information is respected.
Transitional provisions ensure that activities undertaken in accordance
with the terms of a native title agreement, or otherwise pursuant to an
agreement with the appropriate Aboriginal parties or where, before the
legislation commences, arrangements have been put in place to address
cultural heritage as part of an Environmental Impact Statement approval
obtained after the commencement of the legislation will be valid under the
new legislation.
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Aboriginal Cultural Heritage Bill 2003
Alternative ways of achieving the objective
The Cultural Record (Landscapes Queensland and Queensland Estate)
Act 1987 is inadequate in both the protection it provides to Aboriginal
cultural heritage as well as the guidance it provides to proponents to assist
in addressing cultural heritage matters with certainty, in a timely and cost
efficient manner. In these circumstances, the Cultural Record (Landscapes
Queensland and Queensland Estate) Act 1987 must be repealed.
Administrative cost to government of implementation
The Government has allocated $3.5M over the next four years to
implement the legislation. Costs are associated with the establishment of
the Aboriginal Cultural Heritage Register, Aboriginal Cultural Heritage
Database, funding to assist Aboriginal Cultural Heritage Bodies meet their
responsibility under the legislation to identify traditional owners for
country and the placement of Regional Cultural Heritage Officers to assist
in effective implementation across the State.
Costs associated with legislative compliance will be accommodated by
existing functions and activities.
Compliance with fundamental legislative principles
The Bill has been drafted with due regard to the fundamental legislative
principles outlined in section 4 of the Legislative Standards Act 1992.
Aspects of the Bill that raise possible breaches of fundamental legislative
principles are outlined below.
Section 15 - Ownership of Aboriginal human remains
The Bill provides that Aboriginal people own Aboriginal human remains
to which they have a traditional or familial link (other than those lawfully
buried) regardless of who may have owned the human remains before the
commencement of the section. The Bill does not make it an offence to
possess the Aboriginal human remains but does make it an offence for a
person not to take all reasonable steps to ensure the human remains are
taken into the custody of the State as soon as practacatible. This will enable
repatriation to occur in a culturally appropriate manner in accordance with
Aboriginal tradition. Aboriginal cultural heritage legislation must strike a
balance between the rights of individuals to hold other cultural heritage
objects lawfully obtained before the commencement of the legislation with
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Aboriginal Cultural Heritage Bill 2003
the right of Aboriginal people to have their responsibilities in relation to
their human remains respected.
Section 32 - Stop Orders
The Bill enables the Minister to grant a stop order for an activity if there
are reasonable grounds for concluding that the activity will harm or have a
significant adverse impact on Aboriginal cultural heritage. A stop order
may be granted for an initial period of 30 days and renewed once for a
further period of 30 days. For legislation to be effective in protecting
significant Aboriginal cultural heritage values it is important that a balance
be struck between the rights of the individual and the need for the
community to be able to provide an effective deterrent to ensure land users
take proactive measures to meet their duty of care obligations to take all
reasonable and practicable measures not to harm Aboriginal cultural
heritage. Given the complexities of the issues relating to the protection and
management of Aboriginal cultural heritage, including remoteness, an
initial 30 day period, followed by a possible 30 day extension, is
appropriate to resolve issues relating to the likelihood of harm. The stop
order is a necessary power to ensure protection and is limited. At the end of
the period, and in the absence of any resolution, the State would need to
seek a permanent injunction in the Land and Resources Tribunal and/or
initiate a prosecution under the legislation.
Section 36 - Registration of an Aboriginal Cultural Heritage Body
The Bill enables the Minister to register an incorporated body as an
Aboriginal cultural heritage body providing it meets certain criteria under
the legislation. The sole function of an Aboriginal cultural heritage body is
to identify the right Aboriginal party for an area for a person, such as a land
user, who needs to know under the legislation. The Minister may cancel the
registration of an Aboriginal cultural heritage body if the Minister is
satisfied that the entity is no longer the appropriate body to identify the
right Aboriginal party for the area. The cancellation of the registration of
the Aboriginal cultural heritage body does not adversely affect the rights
and liberties of the individuals affected by the decision as under the
legislation, in the absence of an Aboriginal cultural heritage body, notices
must be sent directly to the Aboriginal parties for the area as defined in
sections 34 and 35.
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Aboriginal Cultural Heritage Bill 2003
Consultation
The following State agencies were consulted during the preparation of
the Bill:
· Department of Aboriginal and Torres Strait Islander Policy;
· Department of the Premier and Cabinet
· Department of Natural Resources and Mines;
· Department of Main Roads;
· Environmental Protection Agency;
· Department of Education;
· Arts Queensland;
· Treasury Department;
· Department of Local Government and Planning;
· Department of Primary Industries;
· Department of Justice; and
· Department of State Development.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 of the Bill sets out the short title of the proposed Act.
Clause 2 of the Bill provides for the commencement of the proposed Act
on a date to be fixed by proclamation.
Clause 3 of the Bill provides that the proposed Act will bind the State, as
well as the Commonwealth and other States to the extent the power of
Parliament permits, but makes it clear that the State will not be liable to be
prosecuted for an offence under the proposed Act.
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Aboriginal Cultural Heritage Bill 2003
Clause 4 of the Bill sets out the main purpose of the proposed Act as
being to provide effective recognition, protection and conservation of
Aboriginal cultural heritage.
Clause 5 of the Bill sets out the fundamental principles underlying the
main purpose of the proposed Act. The principles are aimed at
acknowledging the importance of Aboriginal people in assessing and
managing their cultural heritage and the need to establish timely and
efficient processes to enable this to occur. The intent of this clause is to
give fundamental guidance to people dealing with Aboriginal cultural
heritage.
Clause 6 of the Bill sets out how the main purpose of the proposed Act is
to be achieved. The intent of this clause is to set out the major features in
the proposed Act that seek to achieve the effective recognition, protection
and conservation of Aboriginal cultural heritage.
Clause 7 of the Bill refers to the dictionary in schedule 2 that defines
particular words used in the proposed Act.
Clause 8 of the Bill defines the meaning of "Aboriginal cultural
heritage".
Clause 9 of the Bill defines the meaning of "significant Aboriginal area".
Clause 10 of the Bill defines the meaning of "significant Aboriginal
object".
Clause 11 of the Bill includes as evidence of occupation, the area
immediately surrounding the object or structure, to the extent that the
surrounds cannot be separated. The intent in this clause, which is currently
in the Cultural Record (Landscapes Queensland and Queensland Estate)
Act 1987, is to recognise that often the area surrounding an object or
structure will need protection in order to effectively protect the object or
structure.
Clause 12 of the Bill provides that it is not necessary for an area to
contain markings or other physical evidence indicating Aboriginal
occupation for the area to be a significant Aboriginal area. The clause gives
examples including a ceremonial place, a burial place or the site of a
massacre.
Clause 13 of the Bill provides that the Act is not to be interpreted in a
way that would prejudice rights of ownership of Aboriginal people in their
cultural heritage held for traditional purposes or native title. The intent of
this clause is to continue the protection of customary rights provided under
the Cultural Record (Landscapes Queensland and Queensland Estate) Act
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Aboriginal Cultural Heritage Bill 2003
1987 and ensure that the Bill is consistent with the Native Title Act 1993
(Cth).
PART 2--OWNERSHIP, CUSTODIANSHIP AND
POSSESSION OF ABORIGINAL CULTURAL
HERITAGE
Clause 14 of the Bill sets out the object and intent of part 2.
Clause 15 of the Bill provides that Aboriginal human remains are owned
by the Aboriginal people who have a traditional or familial link with the
human remains. The intent of this clause is to confer legal ownership of
Aboriginal human remains in the appropriate Aboriginal people regardless
of who claims ownership before the Bill commences.
Clause 16 of the Bill deals with human remains in the custody of the
State. The clause makes provision for the owner of the human remains to
ask the State entity with custody of the remains to continue to be the
custodian of the remains or, alternatively the person can ask to have the
human remains returned. The intent of this clause is to enable Aboriginal
people to have a level of control in relation to the repatriation process for
human remains in the custody of the State.
Clause 17 of the Bill provides that a person who possesses Aboriginal
human remains but does not have a traditional or familial link with the
human remains must take all reasonable steps to ensure that the human
remains are taken into the custody of the chief executive. This section does
not apply to Aboriginal human remains in the custody of the State because
the chief executive is already aware of the existence of these Aboriginal
human remains. The intent of this clause is to promote the return of
Aboriginal human remains to their rightful owners in accordance with
Aboriginal tradition.
Clause 18 of the Bill provides that a person who knows of the existence
and location of Aboriginal human remains must advise the chief executive
as soon as it is practicable to do so. The intent of this clause is to promote
the reporting of locations of Aboriginal human remains so they may be
dealt with in accordance with Aboriginal tradition.
Clause 19 of the Bill provides that Aboriginal cultural heritage of a
secret or sacred nature in the custody of the State becomes owned by the
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Aboriginal Cultural Heritage Bill 2003
Aboriginal people who have a traditional or familial link with the object on
commencement of the legislation. The intent of this clause is to confer
legal ownership of secret and sacred cultural heritage in the custody of the
State on the appropriate Aboriginal people. The clause also makes
provision for the Aboriginal owner of the object to ask the State entity with
custody of the secret or sacred object to continue to be the custodian or to
have the object returned.
Clause 20 of the Bill provides that, except in certain circumstances, the
State retains a residual ownership of Aboriginal cultural heritage. The
clause clarifies that the State does not own the title to land where the
cultural heritage is located. This allows the State to best protect the
Aboriginal cultural heritage regardless of where is it found. The intent of
this clause is to ensure that Aboriginal people with a traditional or familial
link to certain Aboriginal cultural heritage, and not the State, own
Aboriginal cultural heritage that is human remains, or secret and sacred
material in the custody of the State or Aboriginal cultural heritage lawfully
taken away from an area. The clause confirms, and does not interfere with,
the rights of ownership in Aboriginal cultural heritage, not comprising
Aboriginal human remains, lawfully obtained by other people before the
proposed Act commences.
Clause 21 of the Bill provides that the owner or occupier is entitled to
continued use and enjoyment of land despite the existence of Aboriginal
cultural heritage to the extent that the use and enjoyment does not harm or
conceal the cultural heritage. The intent of this clause is to continue the
positions existing under the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987.
Clause 21 of the Bill provides that the owner or occupier is entitled to
continued use and enjoyment of land despite the existence of Aboriginal
cultural heritage to the extent that the use and enjoyment does not harm the
cultural heritage. The intent of this clause is to continue the positions
existing under the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987.
Clause 22 of the Bill makes provision for the Queensland Museum to act
in relation to Aboriginal cultural heritage.
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Aboriginal Cultural Heritage Bill 2003
PART 3--PROTECTION OF ABORIGINAL CULTURAL
HERITAGE
Clause 23 of the Bill sets out the cultural heritage duty of care. People
must take all reasonable and practicable measures to avoid harming
Aboriginal cultural heritage. This is a cornerstone of the protection
afforded under the proposed Act. The clause gives detailed guidance about
what the court is to consider when examining an alleged breach of the duty
of care. A person does not breach the duty of care if the person is acting
under the Act or in accordance with a native title agreement, or other
agreement, with the Aboriginal party or an approved cultural heritage
management plan, or in compliance with the duty of care or duty of care
guidelines, or in accordance with native title protection conditions; or the
person owns the cultural heritage or is acting with the owner's consent; or
the act is necessary because of an emergency. The intent in this clause is to
prevent harm to Aboriginal cultural heritage.
Clause 24 of the Bill makes it an offence to harm Aboriginal cultural
heritage if the person knows or ought reasonably to know it is Aboriginal
cultural heritage. An offence is not committed if the person is acting under
the Act or in accordance with a native title agreement, or other agreement,
with the Aboriginal party or an approved cultural heritage management
plan, or in compliance with the duty of care or duty of care guidelines, or in
accordance with native title protection conditions; the person owns the
cultural heritage or is acting with the owner's consent; or the act is
necessary because of an emergency. The intent of this clause is to prevent
harm to Aboriginal cultural heritage.
Clause 25 of the Bill makes it an offence to excavate, relocate or take
away Aboriginal cultural heritage. An offence is not committed if the
person is acting under the Act or in accordance with a native title
agreement, or other agreement, with the Aboriginal party or an approved
cultural heritage management plan, or in compliance with the duty of care
or duty of care guidelines, or in accordance with native title protection
conditions; or the person owns the cultural heritage or is acting with the
owner's consent; or the act is necessary because of an emergency. The
intent of this clause is to specifically target activities that affect Aboriginal
cultural heritage.
Clause 26 of the Bill makes it an offence to possess an object that is
Aboriginal cultural heritage if the person knows or ought reasonably to
know it is Aboriginal cultural heritage. An offence is not committed if the
person is acting under the Act or in accordance with a native title
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Aboriginal Cultural Heritage Bill 2003
agreement, or other agreement, with the Aboriginal party or an approved
cultural heritage management plan, or in compliance with the duty of care
or duty of care guidelines, or in accordance with native title protection
conditions; or the person owns the cultural heritage or is acting with the
owner's consent; or the act is necessary because of an emergency. The
intent of this clause is to encourage Aboriginal cultural heritage to be
appropriately dealt with.
Clause 27 of the Bill allows a court, where a person is convicted of an
offence involving harming or possessing Aboriginal cultural heritage, to
make orders about the cost of any repair or restoration of things that need
to be repaired because of the offence. The intent of this clause is to allow a
court to make provision for repairing damage to cultural heritage.
Clause 28 of the Bill allows the Minister to gazette guidelines about
complying with the cultural heritage duty of care. The intent of this clause
is to enable reasonable and practical guidelines to be drawn up, following
appropriate consultation, to assist people meet their cultural heritage duty
of care.
Clause 29 of the Bill makes it an offence in certain circumstances for a
person to include secret or sacred information in a report or other document
submitted to the chief executive or the Minister. The intent of this clause is
to give a level of protection to secret and sacred information.
Clause 30 of the Bill requires a person who puts an approved cultural
heritage management plan into effect to advise the chief executive about all
Aboriginal cultural heritage revealed because of activity carried out under
the plan. The intent of this clause is to enable Aboriginal cultural heritage
to be identified for future planning purposes.
Clause 31 allows a person carrying out an activity, other than an activity
under an approved cultural heritage management plan, to advise the chief
executive about Aboriginal cultural heritage revealed because of the
activity. The intent of this clause is to enable Aboriginal cultural heritage to
be identified for future planning purposes.
Clause 32 allows the Minister to give a stop order for an activity in
certain circumstances. The stop order continues in force for no more than
30 days. The Minister may give one further stop order for no more than 30
days. It is an offence to contravene a stop order given under this clause.
The intent of this clause is to enable the Minister to take appropriate steps
to protect cultural heritage from unlawful harm.
Clause 33 allows the Minister to acquire Aboriginal cultural heritage,
erect structures and do other things for the purpose of preservation.
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Aboriginal Cultural Heritage Bill 2003
PART 4--ABORIGINAL PARTIES AND ABORIGINAL
CULTURAL HERITAGE BODIES
Clause 34 defines the term "native title party" for an area as being the
registered native title claimants, or a person who was a registered native
title claimant for an area where their claim has failed and there is no other
registered native title party for the area, or where the registered native title
claimant has surrendered their native title or their native title has been
compulsorily or otherwise extinguished; or the registered native title
holder for an area, or a person who was a registered native title holder for
an area where their native title has been surrendered, compulsorily acquired
or otherwise extinguished. This clause takes advantage of the native title
claims process established under the Commonwealth Native Title Act 1993
and recognises that Aboriginal people who are the traditional owners of an
area, are the appropriate people to be involved in the assessment and
management of their cultural heritage whether or not their native title
continues to exist. The intent of this clause is to provide certainty to all
persons in the identification of the appropriate Aboriginal people to be
involved in the assessment and management of cultural heritage.
Clause 35 defines the term "Aboriginal party" for an area as being the
registered native title claimant or registered native title holder for the whole
area of their claim regardless of the extent to which native title was found
to exist in relation to the area unless someone else has been registered over
an area where their native title has been determined not to exist. This clause
also defines the term "Aboriginal party" where there is no registered native
title party.
Clause 36 allows the Minister to register a corporation as an Aboriginal
cultural heritage body for an area. The Minister must be satisfied that the
corporation is an appropriate body, has the capacity to represent Aboriginal
parties for the area and either that the native title parties agree to the
application or where there are no native title parties that there is substantial
agreement amongst the Aboriginal parties for the area that the corporation
should be registered. The clause also allows the Minister to cancel the
registration if the Minister is satisfied the corporation is no longer the
appropriate body to identify Aboriginal parties for the area. Aboriginal
parties for an area will continue to be notified under the legislation despite
the cancellation.
Clause 37 gives the function of an Aboriginal cultural heritage body for
an area as that of identifying Aboriginal parties for the area for the benefit
of a person who needs to know under the Act. The Minister may give an
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Aboriginal Cultural Heritage Bill 2003
Aboriginal cultural heritage body financial or other help the body needs to
carry out its function.
PART 5--COLLECTION AND MANAGEMENT OF
ABORIGINAL CULTURAL HERITAGE INFORMATION
Clause 38 requires the chief executive to establish and keep an
Aboriginal Cultural Heritage Database.
Clause 39 sets out the purpose of the database as a research and planning
tool for Aboriginal parties, researchers and others in their consideration of
the Aboriginal cultural heritage values of particular areas.
Clause 40 allows the chief executive to place information on the
database to the extent the chief executive considers appropriate.
Information may be added to the database without the necessity of
undertaking a formal cultural heritage study.
Clause 41 allows the chief executive to remove information from the
database where the chief executive is satisfied the information has been
recorded in error.
Clause 42 prevents access to the database generally. The intent of this
clause is that information may be provided from the database on an "as
needs basis" only as set out in clauses 43 to 45 to ensure the sensitivity and
integrity of the information is respected.
Clause 43 allows access to the database for Aboriginal parties.
Clause 44 allows access to the database for land users or their nominee.
Clause 45 allows access to the database for researchers.
Clause 46 requires the chief executive to establish and keep an
Aboriginal Cultural Heritage Register.
Clause 47 sets out the purpose of the register as a research and planning
tool for people in their consideration of the Aboriginal cultural heritage
values of particular areas.
Clause 48 sets out what the chief executive or Minister must record in
the register if registering a cultural heritage study conducted under part 6.
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Aboriginal Cultural Heritage Bill 2003
Clause 49 sets out what the chief executive must record in the register in
relation to cultural heritage management plans under the Act.
Clause 50 allows the Minister to keep the register up to date.
Clause 51 allows access to the register generally.
PART 6--CULTURAL HERITAGE STUDIES
Clause 52 describes the layout of part 6.
Clause 53 allows any person to sponsor a cultural heritage study
however Aboriginal parties are generally responsible for assessing the
Aboriginal cultural heritage significance of areas and objects covered by a
study.
Clause 54 allows the Minister to gazette guidelines to help people
choose suitable study methodologies for undertaking a cultural heritage
study.
Clause 55 provides that a reference to part of a cultural heritage study
area may be taken as a reference to the whole of the cultural heritage study
area.
Clause 56 requires the sponsor of a cultural heritage study to give a
written notice to certain people, including owners and occupiers within the
study area.
Clause 57 sets out what is required in the written notice required under
clause 55.
Clause 58 sets out additional requirements for the written notice where
the notice is given to a Aboriginal cultural heritage body.
Clause 59 sets out additional requirements for the written notice where
the notice is given to a Aboriginal party.
Clause 60 sets out additional requirements for the written notice where
the notice is given to a native title representative body.
Clause 61 sets out the procedure for giving a public notice where there is
no Aboriginal cultural heritage body or Aboriginal party that is a registered
native title claimant or registered native title body corporate.
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Aboriginal Cultural Heritage Bill 2003
Clause 62 details the obligation of the Aboriginal cultural heritage body
in responding to a written notice and the responsibility of the sponsor in
relation to any response.
Clause 63 details the obligation of the Aboriginal party in responding to
a written notice and the responsibility of the sponsor in relation to any
response.
Clause 64 details the obligation of the Aboriginal party in responding to
a public notice and the responsibility of the sponsor in relation to any
response.
Clause 65 provides that the sponsor of a study is not required to endorse
an Aboriginal party who has not responded to the notice within the time
required. The clause also allows the sponsor to endorse a party even
though the sponsor is not required to.
Clause 66 sets out the role of the endorsed party for the cultural heritage
study. This role may be performed by a nominee.
Clause 67 sets out the role of the sponsor for the cultural heritage study.
Clause 68 allows the sponsor to engage appropriate persons as cultural
heritage assessors for the study.
Clause 69 sets out the role of the cultural heritage assessor in the cultural
heritage study.
Clause 70 requires the sponsor and each endorsed party for a cultural
heritage study to take reasonable steps to consult with each other about the
study. The clause sets out subject areas that must be consulted about if one
of the parties asks for the consultation. The clause also requires the
sponsor to consult with the owner or occupier of land about obtaining
access if the access is required for carrying out the study.
Clause 71 allows the chief executive to record the findings of the study
in the register.
Clause 72 gives the chief executive guidance when deciding whether to
record the findings of the study.
Clause 73 sets out what the chief executive must be satisfied about
before recording a study in the register.
Clause 74 requires the chief executive to give a written notice of the
decision to record or refusal to record the findings of the cultural heritage
study in the register. The chief executive must give the reasons for refusing
to record the findings together with the written notice of the decision.
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Clause 75 sets out definitions for division 5.
Clause 76 allows a person to object to the Land and Resources Tribunal
about the chief executive's decision to record or refusal to record the
findings of the cultural heritage study.
Clause 77 sets out how the Land and Resources Tribunal must be
constituted for the hearing. The clause states that all parties to the
objection have the right to be heard at the hearing.
Clause 78 sets out what the Land and Resources Tribunal must
recommend to the Minister after hearing an objection.
Clause 79 requires the Minister to have regard to the Land and
Resources Tribunal's recommendation and the matters about which the
chief executive was required to be satisfied under clause 72.
PART 7--CULTURAL HERITAGE MANAGEMENT
PLANS
Clause 80 provides that division 2 sets out when a cultural heritage
management plan is or may be required to be developed for a project.
Clause 81 describes the layout of part 7.
Clause 82 provides that anyone can initiate, or be the sponsor for, a
cultural heritage management plan.
Clause 83 allows a person to develop and gain approval of a voluntary
cultural heritage management plan. This is an important feature of the
legislation intended to encourage industry to adopt best practice in
circumstances where the legislation does not automatically require a
mandatory cultural heritage management plan. The incentive for industry
to do so is that any activity undertaken in accordance with a cultural
heritage management plan approved under the legislation satisfies the duty
of care under the legislation.
Clause 84 recognises that in some circumstances a cultural heritage
management plan may contain no particular requirements for the
management of Aboriginal cultural heritage.
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Aboriginal Cultural Heritage Bill 2003
Clause 85 allows the Minister to gazette guidelines to help people in
choosing suitable methodologies for developing cultural heritage
management plans.
Clause 86 makes it clear that the sections that compulsorily require
cultural heritage management plans do not apply if a project is authorised
under an existing agreement or a native title agreement. A native title
agreement means an indigenous land use agreement; an agreement or
determination under part 2, division 3 subdivision P of the Commonwealth
Native Title Act 1993 or an agreement under the Native Title Mining
Provisions of the Mineral Resources Act 1989. This is designed to ensure
that the cultural heritage issues for a project will not be required to be dealt
with twice.
Clause 87 requires a cultural heritage management plan for a project
where an Environmental Impact Statement is also required for the project.
The intent in this clause is to catch the projects that are most likely to have
an impact on Aboriginal cultural heritage. This reflects existing best
practice.
Clause 88 allows the extension of the mandatory trigger for a cultural
heritage management plan to cover projects that require an environmental
assessment short of an EIS and that are prescribed under a regulation. A
project can only be prescribed under the clause if the Minister is satisfied
the project will have a significant impact on Aboriginal cultural heritage.
Clause 89 allows the chief executive to require the development of a
cultural heritage management plan under the processes in the Integrated
Planning Act 1997.
Clause 90 provides that a reference to part of a cultural heritage
management plan may be taken as a reference to the whole of the cultural
heritage management plan area.
Clause 91 requires the sponsor of a cultural heritage management plan to
give a written notice to the interested parties set out in the clause.
Clause 92 sets out the requirements for the written notice.
Clause 93 sets out additional requirements if the notice is to be given to a
Aboriginal cultural heritage body.
Clause 94 sets out additional requirements if the notice is to be given to
an Aboriginal party.
Clause 95 sets out additional requirements if the notice is to be given to a
representative body.
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Aboriginal Cultural Heritage Bill 2003
Clause 96 sets out the requirements where there is no Aboriginal cultural
heritage body and no Aboriginal party that is a registered native title
claimant or registered native title body corporate. In this case the sponsor
must place a public notice in a newspaper. The intent of this clause is to
ensure the appropriate Aboriginal people are identified for the cultural
heritage management plan process.
Clause 97 sets out the requirements for the cultural heritage body to
respond to a written notice from the sponsor of a cultural heritage
management plan and the responsibility of the sponsor in relation to any
response.
Clause 98 sets out the requirements for the Aboriginal party to respond
to a written notice from the sponsor of a cultural heritage management plan
and the responsibility of the sponsor in relation to any response.
Clause 99 sets out the requirements for the Aboriginal party to respond
to a public notice from the sponsor of a cultural heritage management plan
and the responsibility of the sponsor in relation to any response.
Clause 100 sets out the requirements for notifying an entity that
becomes an Aboriginal party before the notice period ends and the
responsibility of the sponsor in relation to any response.
Clause 101 provides that the sponsor is not required to endorse an
Aboriginal party who has failed to respond within the notice period. This
clause also allows the sponsor to endorse other Aboriginal parties even
though the sponsor is not required to.
Clause 102 sets out the role of an endorsed party and allows the role to
be performed by a nominee.
Clause 103 sets out the role of the sponsor for the cultural heritage
management plan.
Clause 104 requires the sponsor to consult with each endorsed party
about the development of the cultural heritage management plan. The
clause gives guidance on subjects for consultation and methods of
consulting.
Clause 105 requires the sponsor and each endorsed party to use every
reasonable effort to reach agreement about the cultural heritage
management plan. The clause also sets out matters the plan may contain.
Clause 106 allows a party to ask the Land and Resources Tribunal to
provide mediation of a dispute between parties that is substantially
delaying the plan.
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Aboriginal Cultural Heritage Bill 2003
Clause 107 allows a cultural heritage management plan to be submitted
to the chief executive for approval by the sponsor where all the consultation
parties are agreed. The chief executive must approve the cultural heritage
management plan where all the parties have agreed.
Clause 108 sets out what the chief executive must be satisfied about
before approving a cultural heritage management plan where no Aboriginal
party has become endorsed for the plan by responding to the sponsor's
written notice.
Clause 109 requires the chief executive to give written notice of the
decision about the cultural heritage management plan where no Aboriginal
party has become endorsed for the plan by responding to the sponsor's
written notice.
Clause 110 sets out definitions for the division.
Clause 111 allows the sponsor to object to the Land and Resources
Tribunal if no Aboriginal parties responded to the sponsors notice of
intention to develop the cultural heritage management plan and the chief
executive has refused to approve the cultural heritage management plan.
The sponsor must object within 30 days after receiving notice from the
chief executive.
Clause 112 allows the sponsor to refer a plan to the Land and Resources
Tribunal where, following meditation, the mediator believes that resolution
of the dispute is unlikely and has authorised the sponsor to refer the
cultural heritage management plan to the Land and Resources Tribunal for
consideration.
Clause 113 allows the sponsor to refer a plan to the Land and Resources
Tribunal asking for approval where the consultation parties are not in
agreement. The referral must happen within a reasonable time after the end
of the consultation period for the plan.
Clause 114 sets out the administrative steps involved in an objection or
referral.
Clause 115 requires the sponsor to file a document with the Land and
Resources Tribunal setting out the nature and extent of the consultation and
why the plan is sufficient in its proposed protection and management of
Aboriginal cultural heritage. The Land and Resources Tribunal must give
the other parties a copy and invite submissions from them.
Clause 116 gives the Land and Resources Tribunal the power to hold a
hearing of an objection or referral. All parties to the objection or referral
have the right to be heard.
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Aboriginal Cultural Heritage Bill 2003
Clause 117 requires the Land and Resources Tribunal to make a
recommendation to the Minister about the cultural heritage management
plan.
Clause 118 sets out what the Land and Resources Tribunal must be
satisfied about in making a recommendation to the Minister, in particular
about how the project is to managed to avoid or, to the extent to which
damage cannot reasonably be avoided, minimise harm to Aboriginal
cultural heritage.
Clause 119 requires the Land and Resources Tribunal to take all
reasonable and practicable steps to make a recommendation to the Minister
within 4 months or provide the Minister with written notice as to why a
recommendation has not been made within that time together with an
estimate of when one is likely to be made.
Clause 120 sets out the action the Minister may take upon receiving a
recommendation from the Land and Resources Tribunal.
PART 8--INVESTIGATION AND ENFORCEMENT
Clause 121 allows the appointment of public service employees as
authorised officers.
Clause 122 allows the setting of appointment conditions and powers of
authorised officers.
Clause 123 requires each authorised officer to be issued an identity card.
Clause 124 requires the authorised officer to produce and display the
identity card when exercising their powers.
Clause 125 sets out when an authorised officer ceases to hold office.
Clause 126 allows an authorised officer to resign from office.
Clause 127 requires a person who ceases to be an authorised officer to
return the identity card.
Clause 128 gives an authorised officer power to enter places with
consent or, where consent has not been given, with a warrant.
Clause 129 sets out the procedures to be followed where an authorised
officer enters a place with consent.
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Aboriginal Cultural Heritage Bill 2003
Clause 130 allows the authorised officer to apply for a warrant from a
magistrate.
Clause 131 sets out the ground for issuing a warrant and the
requirements of the warrant.
Clause 132 makes provision for a special warrant where necessary due
to urgent circumstances or other special circumstances.
Clause 133 sets out procedures to be followed in executing a warrant.
Clause 134 sets out the powers of an authorised officer upon entry under
a warrant.
Clause 135 makes it an offence not to comply with a request under
clause 134(3)(g).
Clause 136 makes it an offence not to comply with a request under
clause 134(3)(h).
Clause 137 gives an authorised officer power to seize evidence from a
public place.
Clause 138 gives an authorised officer power to seize an item that may
be evidence from another place when acting with consent of the occupier or
under a warrant.
Clause 139 gives an authorised officer the power to secure something
seized.
Clause 140 makes it an offence to tamper with something seized by an
authorised officer.
Clause 141 allows an authorised officer to require a person in control of
a thing to take action in order to enable a thing to be seized, and provides
an offence for failure to comply with the requirement.
Clause 142 provides for the issue of a receipt for anything seized by an
authorised officer.
Clause 143 requires an authorised officer to return seized things which
have not been forfeited within 6 months of seizure, or from the end of any
proceeding for an offence or appeal from the proceeding, or when the thing
is no longer required as evidence.
Clause 144 allows an owner to obtain access to a seized thing that has
not been forfeited or returned.
Clause 145 allows an authorised officer to require a person to state their
name and address in certain circumstances.
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Aboriginal Cultural Heritage Bill 2003
Clause 146 provides an offence for the failure by a person to provide an
authorised officer with the person's name and address.
Clause 147 requires an authorised officer to notify an owner whose
property has been damaged by the authorised officer in the exercise of the
authorised officer's powers.
Clause 148 allows a person to claim compensation from the State for
damage caused, or cost incurred, in the exercise or purported exercise of an
authorised officer's powers and it outlines the manner and extent to which
compensation may be sought.
Clause 149 makes it an offence to knowingly give false or misleading
information to an authorised officer.
Clause 150 makes it an offence to knowingly give a false or misleading
document to an authorised officer.
Clause 151 makes it an offence to obstruct an authorised officer in the
exercise of a power.
PART 9--MISCELLANEOUS PROVISIONS
Clause 152 allows the Minister to delegate the Minister's powers to
another Minister or an appropriately qualified public service officer. This
clause also allows the chief executive to delegate the chief executive's
powers to an appropriately qualified public service officer.
Clause 153 authorises a person who is already authorised to enter land to
perform an activity under another Act to also enter the land to perform
cultural heritage work. In any other circumstance, if no other authority
exists under another Act to enter the land, the consent of the owner or
occupier is required.
Clause 154 allows the Minister to establish advisory committees.
Clause 155 allows the Minister to acquire land by purchase or
compulsory acquisition where the Minister is satisfied that it is necessary to
manage, preserve or protect Aboriginal cultural heritage.
Clause 156 sets out the requirements for proceedings for an offence
against the proposed Act which may be taken summarily or on indictment.
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Aboriginal Cultural Heritage Bill 2003
Clause 157 requires the Minister to review the proposed Act within 5
years of commencement. The intent in this clause is to ensure the proposed
Act is examined in detail during its implementation.
Clause 158 allows the chief executive to approve forms for use under the
Act.
Clause 159 allows the Governor in Council to make regulations under
the proposed Act.
PART 10--REPEAL
Clause 160 repeals the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987.
PART 11--TRANSITIONAL PROVISIONS
Clause 161 is a transitional clause confirming that the proposed Act is
not generally intended to interfere with ownership of Aboriginal cultural
heritage as it existed before the commencement of the proposed Act.
Clause 162 is a transitional clause requiring the chief executive to place
information about Designated Landscape Areas, which have already been
identified under the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987, onto the new Aboriginal Cultural Heritage
Register. The intent of this clause is to transition information about
Designated Landscape areas to the new Aboriginal Cultural Heritage
Register.
Clause 163 is a transitional clause that requires the State to place all
information about Aboriginal cultural heritage accumulated by the State on
the database.
Clause 164 is a transitional clause that allows a person to carry out
activities in accordance with existing agreements. In these circumstances,
a person will be taken to comply with their duty of care. The intent of this
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Aboriginal Cultural Heritage Bill 2003
clause is to ensure people can operate with confidence on the basis of
existing agreements.
Clause 165 is a transitional clause that continues in force permits issued
under section 28 of the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987. The intent of this clause is to allow people
operating under existing permits to continue to operate under those
permits.
Clause 166 is a transitional clause that allows the holder of an authority
obtained before the commencement of the proposed Act to apply to the
Minister to have transitional measures approved to ensure the duty of care
is met under the proposed Act. This is important to enable compliance
under the proposed Act where Aboriginal cultural heritage has not
previously been addressed.
Clause 167 is a transitional clause ensuring where cultural heritage
arrangements were put in place in order to obtain an authority before the
commencement of the proposed Act that a person acting in accordance
with those arrangements does not commit an offence under the Act.
Clause 168 is a transitional clause to ensure that activities undertaken in
accordance with arrangements put in place before the commencement of
the proposed Act to address cultural heritage as part of an Environmental
Impact Statement approval obtained after the commencement of the
proposed Act do not offend against the Act.
169 is a transitional clause allowing a reference to the Cultural Record
(Landscapes Queensland and Queensland Estate) Act 1987 to be taken as a
reference to the proposed Act. This is standard drafting practice when an
Act is replaced with new legislation.
PART 12--AMENDMENT OF ACTS
Clause 170 provides that Schedule 1 makes consequential amendments
to the Acts in Schedule 1.
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Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1--AMENDMENT OF ACTS
Schedule 1 amends the following Acts:
COASTAL PROTECTION AND MANAGEMENT ACT
1995
Sections 61G, 61N, 61O, 61Y, 61ZB and 61ZJ of the Coastal Protection
and Management Act 1995 are amended to ensure that Aboriginal and
Torres Strait Islander cultural heritage matters are dealt with under the
Aboriginal Cultural Heritage Act 2003 or the Torres Strait Islander
Cultural Heritage Act 2003 rather than being dealt with separately under
the Coastal Protection and Management Act 1995.
FORESTRY ACT 1959
Section 5 of the Forestry Act 1959 defines forest products as including
Aboriginal remains and ownership of these remains is vested in the State.
Under the Aboriginal Cultural Heritage Act 2003 Aboriginal remains are
owned by the Aboriginal people with a traditional or familial link to the
remains and consequently the reference in the Forestry Act 1959 to state
ownership has been removed. Section 61A of the Forestry Act 1959 is
omitted because the reference to the Cultural Record (Landscapes
Queensland and Queensland Estates) Act 1987 is no longer relevant.
FREEDOM OF INFORMATION ACT 1992
The reference in Schedule 1 of the Freedom of Information Act 1992 to
the Cultural Record (Landscapes Queensland and Queensland Estates) Act
1987 is updated to the Aboriginal Cultural Heritage Act 2003 and the
Torres Strait Islander Cultural Heritage Act 2003. The effect of this
amendment is to continue the exemption under section 48 of the Freedom
of Information Act 1992 in relation to the disclosure of secret and sacred
information.
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Aboriginal Cultural Heritage Bill 2003
LAND AND RESOURCES TRIBUNAL ACT 1999
References in section 53 of the Land and Resources Tribunal Act 1999 to
the Cultural Record (Landscapes Queensland and Queensland Estates) Act
1987 are updated to reflect the provisions of the Aboriginal Cultural
Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act
2003. The effect of these amendments is to continue the exclusive
jurisdiction of the Land and Resources Tribunal for injunctions in relation
to cultural heritage.
NATURE CONSERVATION ACT 1992
Amendments are made to section 61 of the Nature Conservation Act
1992 which vests ownership of cultural resources in the State to ensure that
it is consistent with the ownership provisions of the Aboriginal Cultural
Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act
2003.
WHISTLEBLOWERS PROTECTION ACT 1994
The reference in Schedule 2 of the Whistleblowers Protection Act 1994
to the Cultural Record (Landscapes Queensland and Queensland Estates)
Act 1987 is updated to reflect the provisions of the Queensland Heritage
Act 1992, the Aboriginal Cultural Heritage Act 2003 and the Torres Strait
Islander Cultural Heritage Act 2003. The effect of this amendment is to
continue the ability of a person to make a public interest disclosure in
relation to certain offences involving cultural heritage where the
commission of the offence is or would be a substantial and specific danger
to the environment.
SCHEDULE 2--DICTIONARY
Schedule 2 contains the dictionary that defines words and phrases used
in the Bill.
© State of Queensland 2003