Are you changing land use activities on your property? Beware that the proposed changes to the Cultural Heritage Guidelines will require you to address Indigenous Cultural Heritage

Who should read this Alert?

This alert will be relevant to all landowners, developers and utility operators who carry out development in Queensland.

What is happening?

The Queensland Government recently released an Issues Paper (click here to view) proposing key changes to the existing Cultural Heritage Duty of Care Guidelines (click here to view) under the Aboriginal Cultural Heritage Act 2003 (Qld) (the Act). The Government is inviting submissions that must be made by 1 June 2017.

The proposed changes will increase compliance responsibilities and obligations when intensifying, changing or carrying out development on land in Queensland.

Our team is presenting a seminar on this topic on Wednesday 24 May. Click here for more details.

What do you need to know about the changes?

Currently the Guidelines dictate that in developed areas or where there has been significant ground disturbance in the past there is generally no need to carry out cultural heritage assessment when undertaking further development at that site.

Under the proposed Guidelines any change to the land use that is inconsistent with an earlier use such as an intensification of a land use or new development, will be subject to cultural heritage assessment.

On this basis, unless new development is replacing existing development of a consistent nature (e.g. replacing a five storey office building with a seven storey residential building) a detailed cultural heritage assessment will need to be undertaken.

Cultural heritage assessment is likely to require consultation with the relevant Aboriginal Party. This is because the Act recognises that Traditional Owners are the primary guardians of Aboriginal cultural heritage.

Some examples where cultural heritage assessment will be required include:

• developing farm land as a residential development;
• developing rural/residential for a higher density development;
• changing from residential to industrial land;
• increasing the footprint or gross floor area of established infrastructure even in built up areas;
• intensification of farming practices;
• change of farming practices for example, adding blade ploughing activities on a property that was previously only a cattle farm; or
• undertaking works in a waterway.

Under the proposed changes, developers and landowners will also be required to document in detail their approach to complying with their duty of care in cases where it is decided by the developer that further assessment is not necessary. It is likely the new guidelines will specify the extent and type of consultation that will be required to meet the duty of care obligations. This new obligation under the proposed guidelines is expected to be far more onerous than what is currently required.

How will these changes impact the development process?

Developers and landowners will need to address cultural heritage requirements early in the development approval process otherwise you risk potentially significant and costly delays to your project. As part of this, developers will need to factor in the additional cost of cultural heritage assessments.

Agribusiness will need to carefully consider the costs of changing farming practices especially to provide for new revenue streams.

Next Steps

For assistance with preparing a submission in response to the changes please contact Leanne O’Neill on (07) 3231 2571. We will issue a further legal update once the final amended Guidelines are published.