Most developers and proponents have a pretty good grasp of what is required to obtain a Development Approval for their project. However, once the Development Approval has been obtained many proponents think they have a clear run. Some proceed to draw down on their finance and start the construction process going without giving a thought to other pitfalls which could cause their project to be at a standstill, while accruing hefty interest charges and with the added potential for fines and court costs to be awarded against them.
Just Us Lawyers is uniquely placed to offer a complete assessment of statutory compliance options for your project because we have the experience in dealing with cultural heritage and environmental objections under the relevant statutory framework in the Land Court (a different jurisdiction to the Land and Environment Court which deals with objections under the DA process). We can and will advise you on what to do to make sure that as far as is reasonably practical your project is not taken out by a left field event.
As an example of one area warranting your attention, we focus below on the Aboriginal Cultural Heritage Act (Qld).
Did you know?
- The Aboriginal Cultural Heritage Act 2003 (Qld) applies to all “activities” in
Queensland which are carried out by any “person” and could harm Aboriginal cultural
heritage. - Any activities that involve ground disturbance are captured by the Act.
- Aboriginal cultural heritage is defined broadly by the Act, taking in both objects and places.
- Penalties for offences are substantial ($ 1.1 million for corporations and $110,000 for individuals). There is also scope for Aboriginal Groups to seek injunctions and stop work orders.
- Cultural heritage compliance is complex, challenging and a specialised area of expertise.
- Considering whether and how to effect cultural heritage compliance is a critical risk management for all developers.
Case Study: Xstrata fined $80,000
In July 2010 Xstrata pleaded guilty to one charge brought by the Department of Environment and Resource Management (“DERM”) for failing to meet its duty of care under the A boriginal Cultural Heritage Act, 2003 (Qld).
Implications
The case is relevant to people proposing to carry out ground disturbing activities in the
following respects:
- It demonstrates that enforcement action in relation to alleged breaches can be brought even in circumstances where the extent of the ground disturbance is quite small and where there have been some, albeit inadequate in this case, attempts to take measures to avoid harm to cultural heritage. This underlines the importance for developers to identify all ground disturbing activities which a project will involve and to map out all of the areas where those activities will take place. The proponent then needs to consider an appropriate compliance option in respect of all of those areas.
- The case demonstrates that DERM will proceed with a prosecution on a complaint made by a registered Aboriginal Cultural Heritage Body even where that body subsequently requests that the prosecution be discontinued. The body in this case, Kalkdoon Community Pty Ltd (“KCPL”), was managed by a board of directors who, at the time of the complaint, comprised all registered native title claimants (the Applicant) for the Kalkadoon # 4 & 5 native title claims. The complaint was initially made by only one of the directors, in their capacity as Acting Chairperson, without a resolution of the board.
- The board subsequently resolved to remove that director and requested DERM to discontinue the prosecution having regard to the extent to which Xstrata usually undertakes compliance. In fact, members of the Board took DERM’s Associate DirectorGeneral, Operations and Environmental Regulation to view the site personally in an unsuccessful attempt to persuade it to discontinue. DERM proceeded with the prosecution nonetheless.
- Where a breach is alleged, the adequacy of a company’s internal cultural heritage processes will be investigated along with the circumstances of the alleged breach. The cultural heritage that was harmed had not been sufficiently identified at the time the relevant activities were undertaken by Xstrata. That impeded Xstrata’s capacity to avoid harm being caused, and therefore an offence being committed. DERM submitted that the requirement to take “ reasonable and practicable measures” to avoid harm meant that extra care should have been taken for activities in the immediate vicinity of a previously surveyed site where Aboriginal cultural heritage had been identified. In determining an appropriate penalty upon a guilty plea being entered, the Courts will take into account mitigating factors.
A fine of $80,000 was imposed by the Magistrate with no conviction recorded.
The following mitigating factors where considered by the Magistrate when imposing the
penalty handed down in this case:
- Xstrata, with the assistance of KCPL, had undertaken some previous measures to
identify and avoid harming cultural heritage. - The harmed cultural heritage consisted of a low density stone tool scatter (spear
tips and knife blades). - The area where harm occurred was already disturbed.
- The damage caused by Xstrata was relatively minor.
Compliance Options for Developers
Because the duty of care requires measures which ensure no harm occurs, an activity which unavoidably harms Aboriginal cultural heritage cannot gain protection using this approach.
There is no statutory test for determining what measures are reasonable and practical to discharge the duty of care in any particular case. The legislation only sets out factors which a Court may consider in deciding whether there has been a breach. They include:
- The nature of the activity and the likelihood of it causing harm.
- The nature of the Aboriginal cultural heritage likely to be harmed.
- The extent of consultation with Aboriginal Parties and the results.
- Whether a study or survey to find Aboriginal cultural heritage was carried out.
- The results of searches of the Aboriginal Cultural Heritage Register and Aboriginal Cultural Heritage Database.
- The extent of compliance with cultural heritage duty of care guidelines.
- The nature and extent of past uses in the area.
The compliance options are as follows:
- The developer is acting under authority of another provision of the Act.
- The developer is acting under an approved Cultural Heritage Management Plan.
- The developer is acting under a native title agreement (eg. a registered Indigenous
Land Use Agreement) with the right Aboriginal Party. - The developer is acting under another agreement with the right Aboriginal Party.
- The developer is acting in compliance with the “cultural heritage duty of care
guidelines”. - The developer is acting with the agreement of the owner of the Aboriginal cultural
heritage. - The developer causes the harm through an activity which is necessary because of an
emergency.
