Aboriginal Cultural Heritage Act 2003: summary
Ownership
Under the Act, there is legislative recognition that:
- Aboriginal people are the primary guardians, keepers and knowledge holders of their cultural heritage.
- Existing rights of ownership of cultural heritage by Aboriginal people and native title are not affected.
- There is Aboriginal ownership of:
- human remains wherever held
- secret and sacred material currently held in state collections (such as the Queensland Museum)
- cultural heritage removed from land.
- Residual ownership (custodianship) of any other cultural heritage resides in the state (e.g. to ensure protection of heritage on freehold land).
Blanket protection
The legislation:
- recognises that a significant area does not necessarily have markings or other physical evidence indicating occupation or denoting its significance
- ensures protection of areas and objects of significance to Aboriginal people in accordance with their tradition or history
- ensures protection of areas in Queensland where there is culturally, historically, or archaeologically significant evidence of occupation.
Duty of care
The duty of care provisions:
- require those conducting activities in areas of significance to take all reasonable and practical measures to avoid harming cultural heritage
- are enforced by penalties for non-compliance
- are outlined in gazetted guidelines (PDF, 160K)* which set out measures for meeting them.
Register and database
A Cultural Heritage Register has been established. There is also controlled access to an existing database of approximately 18,000 sites. To search these please complete a Cultural Heritage Search Request form (PDF, 170K)*.
Aboriginal Party
In the legislation, an Aboriginal Party is defined as a Registered Native Title Holder or Claimant.
This includes cases where claim to native title fails or where native title is extinguished (unless someone else becomes registered as a Native Title Party).
In the absence of a Native Title Party, the Aboriginal Party is the Aboriginal person with particular knowledge about traditions, observances, customs or beliefs and who is recognised in accordance with Aboriginal tradition as having responsibility for the area or object.
Alternatively, if the Aboriginal parties agree, they can seek state recognition of an Aboriginal Cultural Heritage Body whose function is to identify the Aboriginal party for particular areas.
Registration of significance
Aboriginal cultural heritage significance:
- includes an area/object that is of particular significance to Aboriginal people because of Aboriginal traditions and/or the history including contemporary history of the Aboriginal party for the area.
- is assessed by the Aboriginal Party. (The results are registered by the state if they are consistent with anthropological, biogeographical, historical or archaeological information—this is a process registration and is not a re-assessment of significance).
- can be included on the Cultural Heritage Register by completing a Cultural Heritage Study approved under the Act-there is no time limit on completing such a study.
Objections to a registration decision are put to the Land and Resources Tribunal, which makes a recommendation to the Minister for Natural Resources and Water.
Management plans
Cultural heritage management plans:
- are required for certain high-level impact activities (e.g. where an environmental impact statement is required under legislation)
- may be initiated voluntarily (e.g. to ensure that duty of care is met)
- require a four-month notification and negotiation process to reach agreement on how they will ensure that harm to cultural heritage is avoided or minimised
- do not require that cultural heritage be registered as part of the planning process
- may be objected to via the Land and Resources Tribunal, which makes a recommendation to the Minister for Natural Resources and Water—the minister's decision is subject to judicial review.
Those preparing a Cultural Heritage Management Plan have access to culturally appropriate mediation by the Indigenous Issues Referee at the Land and Resources Tribunal.
Permits
Permits are no longer required—they have been replaced by duty of care provisions, the cultural heritage management plan process, and other agreement-based mechanisms.
Existing agreements
Transitional provisions ensure that existing (pre-Act) cultural heritage agreements comply with the new legislation.
Access
There are no new access provisions.
Where a person is authorised under legislation to enter an area to carry out particular activities (e.g. exploration), that person is also permitted to carry out activities under the cultural heritage legislation.
Authorised officers
These are appointed by the minister to investigate offences under the Act.
Stop work orders
These can be imposed for up to 60 days.
Binding
The Act binds the state.
Administration
The legislation is to be administered by the department.
It will be reviewed on a five-yearly basis.
Penalties
- Maximum for breach of duty of care or damage to Aboriginal cultural heritage:
- corporation—$750 000
- individual—$75 000
- Additional for breach of a Stop Order—$1.275M
- Damage to a registered site or object—up to two years imprisonment
- Order to make good damage
Prosecution
- Summary (within 12 months)
- On indictment (at any time in the future)
* Requires Acrobat Reader
Last updated: 16 March 2009