In Queensland, a developer, mining proponent or other infrastructure provider planning to undertake substantial development activities likely to cause ground disturbance will usually negotiate a Cultural Heritage Management Agreement or Plan with the relevant Aboriginal or Torres Strait Islander Party. But what can you do if this has not happened? What if you find mining, earthworks or development occurring and you know that there is no cultural heritage plan in place?
What options do First Nations people have in Queensland to take urgent action to protect their cultural heritage?
The answer is that a mix of practical and legal steps can be urgently taken.
First and foremost it must be determined who is undertaking the work and they must be asked to stop immediately. You can make the request verbally but should confirm it in writing. If possible seek a written undertaking that they and their contractors will not recommence works until an agreement has been negotiated.
Under the terms of the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 (the Acts) the relevant Queensland Minister may make a “stop order” requiring a proponent to stop activities that are likely to cause harm to cultural heritage. First Nations people will need to urgently apply to the Minister to make a “stop order”.
In addition or as an alternative to a “stop order”, the Land Court of Queensland has the power to order a proponent to stop work. Disobeying an order of the Land Court is a serious matter and could amount to contempt of court.
Court proceedings have been brought in the past to stop a local council from undertaking road construction without a Cultural Heritage Management Agreement in place. The Court can consider matters such as whether:
- to make a declaration that the works are not undertaken in compliance with the cultural heritage duty of care under the Acts;
- to grant an injunction restraining the proponent from undertaking the proposed works to the extent those works will harm, excavate or relocate existing cultural heritage; and
- the developer should pay the indigenous party’s legal costs.
Lastly, First Nations people might wish to consider an Application to the relevant Commonwealth Minister for an order to protect cultural sites or objects. Be warned that the Commonwealth Minister intervenes only rarely. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) enables the Australian Government to respond to requests to protect important Indigenous areas and objects that are under threat, if it appears that state or territory laws have not provided effective protection.
In all such cases we recommend seeking urgent legal advice.
Published 2 September 2015.