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The recent prosecution of a company for failing to meet the cultural heritage duty of care under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACH Act) emphasises the need for strict compliance with the legislation. Cultural heritage specialists, Dominic McGann and Sarah McBratney summarise the case and consider the consequences of non-compliance.
On 24 November 2011, the Moranbah Magistrates Court imposed an $80,000 fine on a quarrying company for breaching their duty of care under the ACH Act.
In a Ministerial Media Statement released on 25 November 2011, the Honourable Rachel Nolan, Minister for Finance, Natural Resources and the Arts, emphasised the responsibility of all Queenslanders to protect Aboriginal Cultural Heritage.
The Minister’s statement reported that the company had disturbed between 30 and 35 artefacts of Aboriginal significance during the construction of a gravel track at the company’s quarry in August 2010.
The incident was reported and subsequently investigated by the local cultural heritage branch of the Department of Environment Resource Management (DERM). The Magistrate found that the company had ‘failed to take reasonable and practical measures to ensure that the activities did not cause harm to Aboriginal Cultural Heritage.’ This is a key reminder of the obligation under the ACH Act on every person undertaking activities in Queensland to:
- act with due diligence and reasonable precaution to protect Aboriginal and Torres Strait Islander cultural heritage, and
- the repercussions for failing to do so.
Duty of care
The ACH Act was introduced to provide ‘blanket protection’ for Aboriginal cultural heritage in Queensland. This was put into practice by the imposition of a cultural heritage duty of care, which requires all persons undertaking activities to take all reasonable and practical measures to prevent harm to Aboriginal cultural heritage.
The duty of care has been associated in particular with companies involved in extractive industries.
However, it is important to be aware that the duty of care applies to all persons and entities carrying out activities in Queensland. The duty to take reasonable care in carrying out activities to protect cultural heritage is imposed irrespective of the existence or extinguishment of native title in the area.
Protecting Aboriginal cultural heritage
Under the ACH Act, duty of care protects any area or object that is of significance to the Aboriginal tradition or history of the Aboriginal party in the area, as recognised by the Aboriginal party. The ACH Act also provides protection to remains, objects or archaeological sites which have particular physical characteristics. The imposition of the duty reflects the importance of protecting and conserving Aboriginal cultural heritage and recognises the role of Aboriginal people as the traditional custodians and holders of Aboriginal tradition and knowledge.
Penalties and enforcement
The maximum penalties for failing to meet the duty of care are:
- $100,000 for an individual, and
- $1,000,000 for a corporation.
The ACH Act also provides powers for the State to issue stop orders, to prevent actions which could harm Aboriginal cultural heritage. The penalty for failing to comply with a stop order is up to $1,700,000.
The recent penalty imposed on the company indicates that the State is willing to enforce breaches of the cultural heritage duty of care. The fine received is at the lower end of the possible quantum of fines.
Complying with duty of care
The objective of imposing the duty of care is to ensure that activities are undertaken in a manner which protects and provides for the conservation of Aboriginal cultural heritage. Prior to engaging in activities it is important to adopt a stringent and cautious approach. The Duty of Care Guidelines which reflect the ACH Act set out the reasonable measures which should be taken prior to undertaking activities. These include:
- consulting with the Aboriginal parties
- conducting a survey or study of the area to find out the extent of Aboriginal cultural heritage in the area, and
- conducting a search of the database and register for information of area affected by cultural heritage.
Compliance with the duty of care under the ACH Act may be met in a number of ways including:
- entering into a Cultural Heritage Management Plan (CHMP) approved under ACH Act by the Cultural Heritage Management Unit of DERM
- entering into a voluntary cultural heritage management agreement pursuant to the ACH Act
- entering into a native title agreement, or ancillary agreement, that deals with cultural heritage
- adhering to the cultural heritage duty of care guidelines
- entering into an Indigenous Land Use Agreement that addresses issues of cultural heritage, or
- where applicable, complying with the Native Title Protection Conditions.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.