Aboriginal cultural heritage can be found anywhere, even in the Brisbane CBD – there are campsites located near Roma Street Station and Victoria Park. Outside of the CBD there are numerous recorded cultural heritage sites in the South East, particularly around green field development areas such as those around Ipswich. The obligation to comply with the requirements of the Aboriginal Cultural Heritage Act 2003 (Qld) applies to everyone and applies to any land in Queensland, including freehold.
It is critical that developers comply with cultural heritage obligations because the penalties for breaches of the Act are substantial – up to $117,800 for an individual and $1,178,000 for a corporation – and you may be forced to stop ground disturbing activities under injunctions and stop work orders.
The State has prosecuted companies for failure to strictly comply with the requirements of the Act even in circumstances where:
- the extent of the ground disturbance is small;
- the harmed cultural heritage consisted of low density stone tool scatter (spear tips);
- the contravention was relatively minor; and
- the company had previously engaged with the appropriate aboriginal party to avoid harm to cultural heritage.
In 2010, the Department of Environment and Resource Management (DERM) commenced a prosecution based on a complaint made by an individual director of a registered aboriginal cultural heritage body. The individual director did so without a resolution of the board and was subsequently removed from the board. Although the aboriginal cultural heritage body requested that the prosecution be discontinued, DERM refused to do so. Subsequently, the Magistrate found the company had breached the Act and imposed an $80,000 fine without any conviction being recorded. In addition to the fine, the company was exposed to significant legal costs and costs associated with delays in the development.
Cultural heritage compliance is a necessary adjunct to any development approval and, if dealt with properly, does not have to cost a fortune or derail your project.