UPDATE: Submissions close on Friday, 26 July 2019 for the Queensland Cultural Heritage Acts Consultation Paper. The paper identifies five key areas of review. 

By William Oxby, Partner, Amy Carseldine, Senior Associate and Louise Kruger, Senior Associate, Brisbane. 

DATSIP to undertake a review of the Queensland Cultural Heritage Acts
The Queensland Deputy Premier and Minister for Aboriginal and Torres Strait Islander Partnerships announced on 23 May 2019 that a review of the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) (the Cultural Heritage Acts) will be undertaken by the Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP).

Scope of review
A Consultation Paper has been released inviting submissions from the public in relation to five key areas, as set out in the table below. Submissions can be made to DATSIP by Friday 26 July 2019.

The following table sets out DATSIP’s questions relating to the key areas for review.

  Key areas of review DATSIP’s questions Our Comments
1 Ownership and defining cultural heritage Is there a need to revisit the definitions of cultural heritage – if yes, what definitions should be considered?

What additional assessment and management processes should be considered?

At present, the definition of cultural heritage is limited to significant Aboriginal or Torres Strait Islander areas or objects, or evidence of archaeological or historical significance of Aboriginal or Torres Strait Islander occupation.

The question is whether this definition needs to be broader to include intangible heritage, such as stories and festivals.

The Aboriginal Heritage Act 2006 (Vic) is an example of cultural heritage legislation that protects intangible heritage.

2 Identifying Aboriginal and Torres Strait Islander parties Is there a need to revisit the ‘last claim standing’ provision – if yes, what alternatives should be considered?

Is there a need to revisit the identification of Aboriginal and Torres Strait Islander parties – if yes, who should be involved and what roles, responsibilities and powers should they have?

Should there be a process for Aboriginal and Torres Strait Islander parties to apply to be a ‘Registered Cultural Heritage Body’ to replace the current native title reliant model?

The process for determining an Aboriginal or Torres Strait Islander party under the Cultural Heritage Acts relies heavily on the Native Title Act 1993 (Cth), particularly the claims registration process under that Act.

This can create uncertainty where claims have been withdrawn or dismissed or there has been a negative determination of native title.

3 Land user obligations Is there a need to bolster the oversight mechanisms for self-assessment and voluntary processes – if yes, what should this entail?

Is there a need for dispute resolution assistance for parties negotiating voluntary agreements – if yes, who should provide these services and what parameters should be put around the process?

Is there a need to reconsider the threshold for formal cultural heritage assessments – if yes, what assessment and management processes should be considered?

There are statutory dispute resolution provisions for parties developing a cultural heritage management plan. However, the process for meeting the requirements to commence dispute resolution can be quite onerous, particularly in relation to timeframes.

There is currently no statutory dispute resolution process for parties developing cultural heritage management agreements that are not cultural heritage management plans. The inclusion of a dispute resolution process for all voluntary agreements would likely assist all parties.

4 Compliance mechanisms Is there a need to bolster the compliance mechanisms designed to protect cultural heritage – if yes, what needs to be improved and what additional measures should be put in place? There has, to date, been only a small number of enforcement proceedings under the Cultural Heritage Acts. Understanding in greater detail whether the Cultural Heritage Acts are achieving their objectives, together with whether there are any structural hindrances to enforcement, will be an important part of the review.
5 Recording Cultural Heritage Is there a need to make improvements to the processes relating to the cultural heritage register and database – if yes, what needs to be improved and what changes should be considered? There is no requirement for cultural heritage to be recorded on the cultural heritage database. This means that the database has limited utility in identifying known Aboriginal cultural heritage.

 

William Oxby
William Oxby
Partner, Brisbane
+61 7 3258 6469
Amy Carseldine
Amy Carseldine
Senior Associate, Brisbane
+61 7 3258 6489
Louise Kruger
Louise Kruger
Senior Associate, Brisbane
+61 7 3258 6480