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Reshaping Queensland’s cultural heritage laws

Additional Information

  • Glossary of Terms

    Contents

    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:

    Number of Entities There could be one entity for Aboriginal cultural heritage, one entity for Torres Strait Islander cultural heritage, or one representing both (which can be flexibly and appropriately constituted depending on the type of cultural heritage). The entity would also need to be flexible to be appropriately constituted according to specific areas in Queensland.

    Legal status of entity

    Depending on the functions and powers of the entity, options for its legal status could include:

    • Statutory body (eg. council or board)
    • Advisory panel or advisory committee (created in legislation)
    • Non-statutory advisory body (created without legislation)
    Funding The Queensland Government would provide funding for the entity.
    Leadership The entity would be led by First Nations people with expertise, knowledge, connection to country, and skills relevant to protecting and managing cultural heritage.
    Functions of the entity

    The overall purpose of the entity could be to provide dispute resolution support, assistance, advice and/or decision-making for managing and protecting cultural heritage in Queensland. Specific functions could include:

    • Administer any proposed new legal frameworks of Cultural Heritage Acts
    • Assist local Aboriginal and Torres Strait Islander groups with decision making on matters such as applications for party status for an area where this is required (noting the entity would not override the status of native title holders and claimants), and determining whether to approve Cultural Heritage Management Plans and Cultural Heritage Studies
    • Manage and maintain the cultural heritage register and database
    • Manage compliance (employ compliance officers and conduct audits for investigations)
    • Assist with dispute resolution between proponents and Aboriginal and Torres Strait Islander people through mediations and conciliation
    • Provide recommendations and advice to the Minister and Land Court with input from local Aboriginal and Torres Strait Islander groups
    • Develop policy including co-designing policies and guidelines with local Aboriginal and Torres Strait Islander groups to support administration of the Cultural Heritage Acts; make recommendations for policy review (e.g. compliance and ‘party’ definitions)
    • Promote education and awareness – including promoting education and awareness about First Nations peoples’ enduring cultural heritage and appreciation of this heritage; and advising proponents about consultation
    Local Aboriginal and Torres Strait Islander groups Local Aboriginal and Torres Strait Islander panels or groups could be established by the entity to manage cultural heritage matters. The entity could determine membership and develop roles and responsibilities consistent with the principles of traditional ownership and rights in land.

    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

    The Proposed Cultural Heritage Assessment Framework would involve identification of two categories of activity – a prescribed activity (for example, an activity that causes disturbance that would result in a lasting impact to ground that has not previously been disturbed) and an excluded activity (for example, clearing along a fence line in a high-risk area). If an activity was a prescribed activity then consultation with a party is needed to determine if the activity will impact significant Aboriginal or Torres Strait Islander areas or objects. If an impact is identified then parties must reach agreement about how to address the impact. Dispute resolution processes would follow if parties cannot reach agreement. The same process would also be followed for non-prescribed activities in high-risk areas that are not excluded activities. If an activity was not a prescribed activity and not in a high-risk area then a party could proceed the activity but would need to consult and seek agreement with a party if cultural heritage was found. This process would also be the same for a non-prescribed activity in high-risk areas that are excluded activities.


    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

 

 

 

 

Cultural Acknowledgement

We pay our respects to the Aboriginal and Torres Strait Islander ancestors of this land, their spirits and their legacy. The foundations laid by these ancestors - our First Nations peoples - gives strength, inspiration and courage to current and future generations towards creating a better Queensland.

We walk together on our shared journey of reconciliation where all Queenslanders will be equal and the diversity of Aboriginal cultures and Torres Strait Islander cultures and communities across Queensland are fully recognised, respected and valued by all.