Development and Aboriginal Cultural Heritage obligations – two recent Queensland cases offer guidance

Two recent court decisions deal with Aboriginal Cultural Heritage under the Aboriginal Cultural Heritage Act 2003 (Qld). They confirm the importance of effectively and respectfully engaging with Aboriginal Cultural Heritage issues well before works start – even before decisions are made on development applications.

Dunn v Ostwald Construction Materials Pty Ltd

The first case was heard by the Emerald Magistrates Court. It is of interest not because it establishes new law but because it:

• provides a useful list of comparative cases;
• reminds us that 'harm' includes displacement of artefacts and not merely their destruction;
• prompts us that there may be significant ramifications if the Aboriginal Cultural Heritage is not respected – namely, penalties may well exceed $100 000 together with orders for rehabilitation (the cost of which might itself be considerable); and
• directs us to the obvious – namely, once the cultural heritage duty has not been complied with, a working relationship with the relevant aboriginal party may be difficult to salvage.

The charges

Ostwald Construction Materials Pty Ltd (Ostwald) was charged with two offences:

• failing to comply with its cultural heritage duty of care; and
• harming Aboriginal Cultural Heritage that it knew or ought reasonably to have known was Aboriginal Cultural Heritage.

The facts

Ostwald had been in the quarry business for many years. In 2013 it obtained its licence to carry out works at the site in question from Santos, the site owner.

Before any work commenced, Santos informed Ostwald that Aboriginal Cultural Heritage had been identified at the site. In addition, Ostwald had been given the results of a Cultural Heritage Survey which clearly identified that cultural artefacts had been found and identified at almost every random drilling hole made at the site.

Ostwald had a Safety Management Plan for the site which included a requirement that it: '…ensure that a request for cultural heritage clearance has been approved…'. Despite this plan and the information it had received from Santos, Ostwald did not carry out any relevant searches or enquiries or seek to consult with the Karingbal people before carrying out the work. It did not have a Cultural Heritage Plan.

The site had been cleared previously in or about 1977, and again in or about 1999. This had affected the integrity of the ground surface, but the more recent clearing covered a larger area and had a more significant impact.

There had been other surface disturbances in the past caused by vehicle tracks, but their impact on the movement of artefacts around the site was likely to have been minimal.

The site had not been subject to intense grazing and land clearing, and had not been used by pastoralists other than to move cattle through for watering or camping. The site was a camping reserve and not a part of any pastoral lease. Feral animals such as pigs were not present in large numbers.

It is difficult to glean the exact nature of the works carried out on site, but the key activities appear to have led to the destruction of probably three Gumbi Gumbi trees (medicinal and sacred trees) as well as the displacement of at least 22 identified artefacts, and likely many more which could not be quantified.

Ostwald's expert witness conceded that there were possibly hundreds of displaced artefacts, and that he had personally identified 50 artefacts by walking over each side and the top of the bund wall and not searching below the surface. Of the 50 artefacts, nine were broken or damaged.

The Court's decision

The Court found that the harm to the cultural, historical, spiritual, and social values of the traditional owners was significant.

Ostwald was fined $188,000 and ordered to pay $250,000 for rehabilitation of the Cultural heritage at the Bottletree Quarry site. The company agreed to pay costs of $2519.00.

No conviction was recorded, given the potential effect this might have on Ostwald's capacity to tender and win contracts in the future.

Takeaways

The case is helpful in that it discusses the definition of Cultural Heritage Significance. The Burra Charter defines Cultural significance as 'encompassing all forms of Spirituality, regardless of the culture from which it emanates. Similarly aesthetic value is not limited to a western perception of aesthetics.'

Clearly it is critical that assessments of cultural significance for Aboriginal Cultural Heritage places reflect the views and input of the relevant Indigenous knowledge-holders. There are two perspectives of how the significance of cultural heritage can be measured: scientific and archaeological significance, which is assessed by trained archaeologists and which is usually associated with the amount of information a site holds or potentially holds; and cultural significance applied by the people who have the traditional rights and responsibilities to that site or place.

Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd

This decision helpfully considers whether it is necessary to have an agreed cultural heritage management plan, in order for a person who harms Aboriginal Cultural Heritage not to have committed an offence under section 24(1) of the Aboriginal Cultural Heritage Act.

The case also outlines the steps in an application for an injunction to preserve the status quo, pending final resolution of the issues in dispute.

Background

Ms Faye Carr applied to the Land Court for an interlocutory injunction on behalf of the Yuggera Ugarapul People. She sought to restrain Frasers Deebing Heights Proprietary Limited (Frasers) from building a residential development in an area near Ipswich known as Deebing Creek.

The proposed development was to be staged. The injunction application concerned preliminary works – trunk sewer main works, construction of a temporary sales office, contamination remediation at two sites, construction of billboards at two sites, and ground preparation and cultivation works within an existing electrical easement.

The Land Court has jurisdiction to make an injunction only if, relevantly, sections 24 or 25 of the Aboriginal Cultural Heritage Act are breached. Section 24 prohibits a person from harming cultural heritage, and section 25 from excavating, relocating, or taking away cultural heritage.

Cultural heritage duty of care

Under section 23 of the Aboriginal Cultural Heritage Act 2003 (Qld), a cultural heritage duty of care is imposed on any person carrying out an 'activity'. The duty requires all reasonable and practicable measures be taken to ensure the activity does not harm matters of Aboriginal Cultural Heritage.

When deciding whether a person has complied with that duty of care, the Court may consider a number of matters set out in section 23(2). They include:

(a) the nature of the activity, and the likelihood of its causing harm to Aboriginal Cultural Heritage;

(b) the extent to which the person consulted with Aboriginal parties about the carrying out of the activity, and the results of the consultation;

(c) whether the person carried out a study or survey, of any type, of the area affected by the activity to find out the location and extent of Aboriginal Cultural Heritage, and the extent of the study or survey; and

(d) the extent to which the person has complied with cultural heritage duty of care guidelines.

A person who harms Aboriginal Cultural Heritage does not commit an offence under section 24(1) if they are acting under, or in compliance with, certain things, such as:

• an approved cultural heritage management plan that applies to the Aboriginal Cultural Heritage;
• another agreement with an Aboriginal party, or
• cultural heritage duty of care guidelines.

The Court's decision

The Court will consider two questions when deciding whether or not to grant an injunction:

• Has the applicant made out a prima facie case – is the applicant's case strong enough to justify preserving the status quo until final resolution of the disputed issues?
• Does the balance of convenience favour the grant of the injunction?

In considering the first question, the Court accepted that Deebing Creek was culturally significant. Both parties agreed there was evidence of archaeological and historical significance, and of Aboriginal occupation.

Frasers had engaged a suitably-qualified professional with extensive experience in cultural heritage matters to conduct cultural heritage surveys, and to advise on and oversee reasonable and practicable measures to ensure Frasers complied with its cultural heritage duty of care. The company's preference was to have a Cultural Heritage Management Plan agreed with the Yuggera Ugarapul People to cover the entire project, with terms of reference agreed for cultural heritage surveys, assessment, and then supervision and monitoring of the works.

However, negotiations between the parties broke down and so Frasers’ expert carried on without the involvement of the Yuggera Ugarapul People. The expert made certain recommendations including stopping work should any artefacts be found and, in those circumstances, recommended that Frasers consult a technical advisor.

Given these facts, the Court was not satisfied there was evidence that Frasers would breach sections 24 to 26 by undertaking activities on the land.

The Court then considered whether the balance of convenience favoured granting an injunction.

Frasers had sought the agreement of and the involvement of the Yuggera Ugarapul People, but the Yuggera Ugarapul People had ended their involvement when negotiations broke down.

The Court was satisfied that:

• no particular place or item of significance was in immediate peril;
• Frasers' expert would suitably prepare any Frasers employee or contractor who was undertaking the preliminary work, and would appropriately supervise the works;
• the preliminary works had already been delayed; and
• Ms Carr did not have the means to offer an undertaking as to damages.

Upon certain undertakings being made by Frasers, the Court refused the application for an interim injunction.

Takeaways

When dealing with Aboriginal Cultural Heritage matters, it is important to carry out proper due diligence and to keep appropriate records – including of training staff about Aboriginal Cultural Heritage matters. Although it is clearly preferable to involve traditional owners and to obtain an agreement of some sort between the parties, this is not always possible.

When there is an impasse, developers or local governments may lawfully progress with their works so long as they comply with their cultural heritage duty. As can be seen from this case, this can be done without an agreement with the relevant Aboriginal Party but if so compliance is likely to be more challenging, less transparent and less certain. In these circumstances an expert should be engaged and involved in monitoring and supervising works. It may also be prudent to brief lawyers.