When is a cultural heritage management plan required in Queensland?

When is a cultural heritage management plan required in Queensland?

A Cultural Heritage Management Plan (CHMP) is required in Queensland when a proposed activity involves a high risk of harm to Aboriginal cultural heritage and is not covered by a less formal agreement or duty of care assessment. The Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) sets out when a CHMP must be prepared and agreed with the relevant Aboriginal party.

A CHMP is not optional when the threshold is reached. It is a legal requirement.

The duty of care

The ACHA starts with a duty of care that applies to everyone carrying out activities in Queensland. Any person, company or government agency carrying out activities must take all reasonable and practicable measures to avoid harm to Aboriginal cultural heritage.

The duty applies regardless of whether a CHMP is required. It is the baseline obligation. Proponents who fail to discharge the duty of care can face significant penalties, including fines and orders requiring restoration of damaged heritage.

When a CHMP is required

The ACHA establishes a tiered approach to managing cultural heritage risks. A CHMP is required at the top of that tier, where the activity involves a high risk of harm to cultural heritage.

In practice, this threshold is reached for:

• major mining and resources projects that involve substantial ground disturbance in areas with known or potential cultural heritage significance
• large-scale infrastructure projects, including roads, pipelines and energy infrastructure
• development activities in areas with registered cultural heritage sites

The Queensland Government’s cultural heritage search and assessment process helps determine whether an area has registered heritage sites and whether a CHMP will be required. Proponents must complete this process before commencing high-risk activities.

The CHMP negotiation process

Once it is determined that a CHMP is required, the proponent must negotiate with the relevant Aboriginal party. The Aboriginal party is identified through the Queensland cultural heritage register. Where native title has been determined, the relevant PBC is typically the Aboriginal party. Where a claim is registered, the registered claimant group may have standing.

The negotiation covers how the proposed activity will be managed to protect cultural heritage. This can include:

• heritage surveys to identify and record sites
• exclusion zones around significant sites
• monitoring arrangements during ground-disturbing works
• protocols for what happens if heritage is discovered during construction
• reporting requirements

David Saylor advises Traditional Owner groups and PBCs in CHMP negotiations. The process gives Aboriginal parties real leverage to protect their cultural heritage and to obtain meaningful commitments from proponents. Legal advice before entering the process means the group understands its rights and is not pressured into an agreement that falls short of what the legislation entitles them to.

What happens if agreement cannot be reached

If the parties cannot agree on the terms of a CHMP within the negotiation period set by the ACHA, the matter can be referred to the Department for a decision, or parties can seek other remedies. In serious cases, where a significant heritage site faces imminent damage, Traditional Owners can seek an injunction.

The legislation does not give Traditional Owners an absolute right of veto. What it gives them is a meaningful role in managing how activities affecting their cultural heritage are conducted.

Getting advice

If you represent a Traditional Owner group or PBC that has been approached about a CHMP, or if you have received notice of a proposed activity in your determination area, legal advice before you engage with the proponent will put you in a stronger position.

Call (07) 4431 0074 or 0474 244 447, or email david@saylorlegal.com.au.