Reshaping Queensland’s cultural heritage laws

Contents

• Authorised officer role
• Category 5
• Excluded activity
• First Nations independent decision-making body
• First nations led entity - Posibile structure
• High-risk area
• Infringement notices
• Mapping system
• Penalties
• Prescribed activity
• Proposed Cultural Heritage Assessment Framework
• Recognising historical connection
• Register all agreements and consultations
• Significant Aboriginal or Torres Strait Islander area or object

Definitions

Authorised officer role: Expand an authorised officer role to include:

• Entry to premises despite refusal of consent by the land holder in circumstances where reasonable belief and immediate risk of harm to cultural heritage is occurring. A strict entry procedure would need to be developed and followed (e.g. an application may need to be made, and entry limited to a specified time period).
• Investigating complaints of harm and providing information relevant to stop order requests
• Conduct audits of mandatory reporting documents
• Issuing infringement notices
• Other matters requested by a First Nations body/Department/Minister
• Powers aligned with other Acts such as the Environment Protection Act 1994 (e.g. power to compel employees and contractors to provide statements and verbal evidence)

Category 5: When an activity is proposed under category 5 in the Duty of Care Guidelines there is generally a high risk that it could harm Aboriginal cultural heritage. In these circumstances, the activity should not proceed without cultural heritage assessment. (see Cultural heritage duty of care | Aboriginal and Torres Strait Islander peoples | Queensland Government)

Excluded activity: Clearing along a fence line or to maintain existing cleared areas around infrastructure or a subdivision of less than three lots.

First Nations independent decision-making body: Establish a First Nations-led entity with responsibilities for managing and protecting cultural heritage in Queensland. The entity could work with existing and future local Aboriginal and Torres Strait Islander groups who manage cultural heritage matters within their respective areas.

First Nations led entity - possible functions

This table outlines a broad structure and possible functions of a First Nations led entity:

High-risk area: A mapped area requiring a greater level of consideration to ensure protection from desecration, damage or destruction due to the area having known cultural significance to Aboriginal or Torres Strait Islander peoples because of, but not limited to:

• proximity to significant features such as landforms, coastal land, waterways, sand dunes, national parks, marine parks, previously recorded cultural heritage sites and any features or landscapes associated with those places
• other tangible significance such as movement, ceremony, meetings, hunting and gathering
• intangible significance such as historical connection (including contemporary history) and traditional and/or spiritual beliefs/knowledge.

Infringement notices: Issuing of infringement notices modelled on the Penalty Infringement Notice System in Queensland which could be issued for breach of current offences as well as introduce offences such as non-compliance with the proposed Cultural Heritage Assessment Framework.

Mapping system: A system where there is mapping of high-risk cultural heritage areas in Queensland involving engagement with Aboriginal or Torres Strait Islander parties to identify areas and assess cultural heritage to be protected.

Penalties: Introduce new types of orders that incorporate restorative justice principles allowing for rehabilitative and educations measures in parallel with pecuniary ones (e.g. educational orders, compulsory training).

Prescribed activity: an activity that causes disturbance that would result in a lasting impact to ground that has not previously been disturbed, or to the ground below the level of disturbance that currently exists.

Proposed Cultural Heritage Assessment Framework

Recognising historical connection: The First Nations independent decision-making entity, in partnership with Aboriginal and Torres Strait Islander peoples, explores the most culturally appropriate approaches for recognising historical connection to an area for the purposes of cultural heritage management. Key matters that may need to be considered include, but are not limited to:

• How to define historical connection
• Where historical connection might apply
• Who could assert historical connection (e.g. an individual or a corporation) and how would they participate in decisions affecting cultural heritage to which they have an historical connection.

Register all agreements and consultations: A prescribed requirement for land users to document and register all agreements and consultation under the Cultural Heritage Acts such as:

• Using reporting information for auditing purposes and to capture data about agreements and consultation undertaken
• Creating templates and forms to assist with reporting requirements
• Recording documents and information in a secure central system and holding these in compliance with privacy obligations and cultural protocols.

Significant Aboriginal or Torres Strait Islander area or object: Currently defined in the Cultural Heritage Acts as an area or object of particular significance to Aboriginal or Torres Strait Islander peoples because of either or both of the following:

• Aboriginal or Torres Strait Islander tradition
• The history, including contemporary history, of any Aboriginal or Torres Strait Islander party for the area