Aboriginal and Torres Strait Islander cultural heritage legislation
The purpose of the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 (Cultural Heritage Acts) is to provide effective recognition, protection, and conservation of Aboriginal and Torres Strait Islander cultural heritage, defined as anything that is:
- a significant Aboriginal or Torres Strait Islander area or object in Queensland;
- or evidence of archaeological or historic significance of Aboriginal or Torres Strait Islander occupation of an area of Queensland.
A significant area or object is an area or object that is of particular significance to Aboriginal or Torres Strait Islander people 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.
The Cultural Heritage Acts:
- provide blanket protection of significant cultural heritage areas and objects
- recognise the role of Traditional Owners in cultural heritage matters
- establish timely and efficient processes for managing activities that may impact Aboriginal or Torres Strait Islander cultural heritage.
The Cultural heritage duty of care
The Cultural Heritage Acts require anyone who carries out a land-use activity to exercise a duty of care. This duty of care means land users must take all reasonable and practicable measures to ensure their activity does not harm Aboriginal or Torres Strait Islander cultural heritage.
The duty of care applies to any activity where Aboriginal or Torres Strait Islander cultural heritage is located, including on freehold land, regardless of whether it has been identified or recorded in a database.
Consultation with the Aboriginal or Torres Strait Islander party for an area may be necessary if there is a high risk that the activity may harm Aboriginal or Torres Strait Islander cultural heritage.
Penalties apply to individuals and corporations causing unlawful harm to Aboriginal and Torres Strait Islander cultural heritage or for breaching their duty of care.
Duty of care guidelines
Cultural heritage duty of care guidelines have been developed to help land users assess reasonable and practicable measures to meet their cultural heritage duty of care. Land users should consult the duty of care guidelines before undertaking a land-use activity.
The guidelines recognise that some activities are unlikely to harm Aboriginal or Torres Strait Islander cultural heritage, and the nature and extent of past land use in an area may mean that any further activity in the area is unlikely to harm Aboriginal or Torres Strait Islander cultural heritage.
However, land users should exercise greater caution before proceeding with an activity in circumstances where the nature and extent of the past land use of an area is inconsistent with the continued presence of Aboriginal or Torres Strait Islander cultural heritage.
