The cultural heritage duty of care

Cultural Heritage Duty of Care Guidelines update

In mid to late 2017, DATSIP undertook an analysis of all submissions and commenced the development of a Status Report to inform stakeholders of the issues affecting the development of the draft model. The Status Report was to be released in late 2017, however, due to the 2017 State Election and caretaker conventions the release did not occur.

In 2018, there have been a number of legal applications relating to the administration of the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 (Cultural Heritage Acts).

Of particular relevance has been the decision in Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321 (Nuga Nuga), which has affected the continued recognition of previously-registered native title claimants as ‘native title parties’ (as that term is used in section 34 of the Cultural Heritage Acts) for their former claim areas.

This decision has the potential to affect many ‘native title parties’ under the Cultural Heritage Acts and has generated significant policy and administrative implications for DATSIP. The decision has also created a degree of uncertainty for land users in determining who should be consulted to assist in managing the impacts on cultural heritage arising from their activities.

DATSIP is currently finalising its analysis of the implications of the Nuga Nuga decision and how it affects current operational procedures in defining native title parties. The decision also has implications for the continued registration of cultural heritage bodies and the approval of cultural heritage management plans executed with previously registered native title claim groups developed under Part 7 of the Cultural Heritage Acts.

Given the significance of the Nuga Nuga decision DATSIP is considering the implications of the decision prior to finalising the Guidelines Review.

Until these matters are complete the existing Guidelines remain in place as a means of complying with the cultural heritage duty of care established by the legislation and will continue to operate until such time as revised Guidelines are formulated for gazettal.

Related documents

The following documents were released at an earlier stage of the review process:

Duty of care guidelines

Guidelines have been developed to assist land users in assessing reasonable and practicable measures for meeting the cultural heritage duty of care.

Land users should consult the duty of care guidelines before undertaking a land-use activity.

The guidelines recognise that:

  • some activities are unlikely to harm Aboriginal or Torres Strait Islander cultural heritage
  • the nature and extent of past land uses in an area may mean that any further activity in the area is unlikely to harm Aboriginal or Torres Strait Islander cultural heritage.

However, land users should exercise greater caution before proceeding with an activity in circumstances where the nature and extent of the past land use of an area is not inconsistent with the continued presence of Aboriginal or Torres Strait Islander cultural heritage.

Contact us

For further information on cultural heritage duty of care, contact the Cultural Heritage Unit:

Phone: 1300 378 401