Cultural heritage duty of care guidelines review: issues paper
The purpose of this paper is to highlight key themes and issues for developing revised guidelines to define reasonable and practicable measures to avoid or minimise harm to Aboriginal cultural heritage. The themes and issues identified in this paper are based on the analysis of submissions which fall within the terms of reference for the review. They form the Department’s primary focus in considering the need to amend the Guidelines to achieve their legislative purpose. This paper is intended as the basis for further consultation with stakeholders over the coming months to develop and refine revised Guidelines for gazettal by the Minister. The development of Guidelines for the Torres Strait Islander Cultural Heritage Act 2003 will follow the completion of this review.
The Guidelines are underpinned by the key principles of the Aboriginal Cultural Heritage Act 2003 (the legislation). These principles are set out in section 5 of the legislation and paragraph 1.2 in the preamble to the current Guidelines. These principles include those outlined in Ask First – A guide to respecting Indigenous heritage places and values, released by the Australian Heritage Commission, which strongly emphasise consultation and negotiation with Indigenous stakeholders as the best means of addressing Indigenous heritage issues. The principles of the legislation also include the need to establish timely and efficient processes for managing activities that may harm Aboriginal cultural heritage.
Numerous submissions suggest the current Guidelines do not achieve the necessary balance between the need to consult with Traditional Owners and the need for timely and efficient management processes. Many submissions were critical of the current Guidelines for promoting an approach to risk assessment which reduces or avoids the need for land users to consult with Aboriginal parties in managing the cultural heritage impacts of their activities. Conversely, most land users emphasised the importance of the Guidelines for enabling self-assessment processes without the need to consult with Aboriginal parties in certain situations. This paper seeks to further explore and recalibrate the necessary balance between these divergent views.