Cultural Heritage – obligations on Qld entities

Images of the world famous Notre Dame cathedral on fire clearly raised many emotional responses for Australians. The images no doubt causing many to lament so much history and culture being destroyed in an instant. Yet few appreciate the parallels between a tragedy in a European cathedral and the regular destruction of indigenous cultural heritage and the legal obligations and responsibilities imposed on everyone when it comes to protecting it. While the Aboriginal Cultural Heritage Act 2003 (ACHA) applies to both private and sector entities, this article focuses on a recent fine to a company for breaching the ACHA.

General principles

• What is cultural heritage? The Acts define Aboriginal or Torres Strait Islander cultural heritage as anything that is:

1. a significant Aboriginal or Torres Strait Islander area in Queensland; or
2. a significant Aboriginal or Torres Strait Islander object in Queensland; or
3. evidence of archaeological or historic significance, of Aboriginal or Torres Strait Islander occupation of an area of Queensland.

• Anyone (individuals and companies, private and public sectors) conducting any activity has a duty of care under the ACHA;
• A breach of the duty of care can attract significant penalties, which are increased for corporations;
• Companies can and have been prosecuted for breaching the ACHA, even if not intentional.

An example

A company entered into a licence agreement for quarrying activities with an owner of land that had been previously disturbed through clearing and grazing. The 2015 licence agreement between the owner and the company specified that the company had to undertake its own investigations and obtain all necessary approvals before commencing operations.

The land was part of an area of wider significant Aboriginal cultural heritage which was recorded on the DATSIP Aboriginal Cultural Heritage Database. The Karingbal People are the Aboriginal party of the area and site had a high level of cultural significance as a traditional camping and resource place as well as documented archaeological values. The company was advised that Aboriginal cultural heritage had previously been identified in the area, however did not consult with the Karingbal People or take any steps to comply with the cultural heritage duty of care before commencing operations. The quarrying activities resulted in the physical destruction of at least three Gumbi Gumbi trees and at least 50 but likely many more stone artefacts were damaged or displaced.

The company was prosecuted under the ACHA and on 2 November 2018 pleaded guilty to two offences in the Emerald Magistrates Court. In sentencing, the Magistrate accepted that there was no deliberate attempt to cause harm but noted that the company’s failure to address the duty of care that it owed amounted to gross negligence. The Court held that although there had been previous disturbance to the land, the harm caused by quarrying was far greater than any previous activities. Additionally, the Court held that there was harm beyond the physical harm to tangible heritage values and that the harm to cultural, historical, spiritual and social values of the Traditional Owners was significant.

In considering the request for an order for rehabilitation and restoration, the Magistrate stated that it was impossible to repair the site for scientific or archaeological purposes but noted that there was a need to repair the emotional and spiritual harm done to the Karingbal People. As a result, the company was ordered to pay $250,000 to DATSIP to be utilised specifically towards the cost of repairing or restoring cultural heritage at the site in consultation with the Traditional Owners. The company was also fined $188,000 for both charges, as well as legal costs of $2,519.

The outcomes in this case highlight the importance of complying with the cultural heritage duty of care and the harm to both tangible and intangible values which can be caused by the failure to do so.

Key takeaways

Quite often it is expected that a site that has previously heavily disturbed, will have little to no cultural heritage on it. The above matter illustrates that this is an assumption that ought not be made.

Non indigenous Australians will often not have a deep understanding of Aboriginal cultural heritage, and compared to European structures that have heritage value, Aboriginal cultural heritage is largely invisible to non-indigenous Australians.

All people have a duty of care under the ACHA not to damage Aboriginal cultural heritage, and as the above case demonstrates, a lack of intention to damage is not a defence.