Fourmile, Henrietta --- "The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld): Re Koara People" [1996] AUIndigLawRpr 82; (1996) 1(4) Australian Indigenous Law Reporter 507

The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld):

Legislative Discrimination in the protection of Indigenous Cultural Heritage

I. Background

In 1987, the Aboriginal Relics Preservation Act 1967-1976 (Qld) was replaced by the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) ('the Cultural Record Act'), which extended legislative protection to include non-archaeological Indigenous sites as well as to non-Indigenous sites. This Act was administered by the Archaeology Branch of the Department of Community Services and Ethnic Affairs [2] until January 1989 after which the Archaeology Branch and the responsibility for the administration of the Act were transferred to the Department of Environment, Conservation and Tourism. [3] The legislation regards Queenslanders as one body of people rather than dividing society on racial or discriminatory grounds.

In 1990, the Heritage Buildings Protection Act 1990 (Qld) was passed as an interim measure 'to give immediate protection to our built heritage and finally end the era of 'midnight demolitions' for which Queensland and the National Party Government became famous' [4] and also 'to give temporary protection to a schedule of about a thousand places in Queensland while 'permanent' legislation was developed'. [5] The government of the day recognised that the Cultural Record Act 'has proved ineffective in practice and does not offer the necessary incentives and forms of protection which are required to successfully protect Queensland's important cultural heritage.' [6] After extensive community consultation via a Green Paper, [7] the Heritage Building Protection Act 1990 (Qld) was replaced by the Queensland Heritage Act 1992 (Qld) ('the Queensland Heritage Act') which establishes the Queensland Heritage Register to take the place of the schedule.

Both the Cultural Record Act and the Queensland Heritage Act are administered by the Department of Environment (formerly the Department of Environment and Heritage) under the cultural heritage sub-program of the Division of Conservation.

The Cultural Record Act was widely condemned by Indigenous and non-Indigenous groups alike. [8] The Bill for the Act was drafted with little community consultation, [9] and when the Bill itself was circulated for comment it received little support. [10] The following comment from the Queensland Association of Professional Anthropologists and Archaeologists (QAPAA) summarises much of the feeling expressed about the Bill:

... we find it somewhat surprising that such legislation has been tabled in the House without extensive consultation with persons representing the broadest possible range of interests and expertise in such matters. As a consequence the Cultural Record Bill reflects this general lack of consultation and, as it stands we feel it is a poor band-aid on an outmoded and inadequate [Aboriginal Relics Preservation Act 1967]. In our opinion, it is not a Bill that sets an Australian standard for excellence in Heritage legislation; rather, it lags well behind standards set by other States in Australia as well as those set overseas. In this connection the formulation of the Bill appears to have paid little attention to the Burra Charter or ICOMOS guidelines or to acts operating in other States, parts of which have much to commend them. As a consequence of this oversight we note serious inadequacies and omissions in the Bill. [11]

However, the Act was passed with very little amendment to the original Bill. [12] Needless to say, virtually none of the criticisms made in the submissions were addressed. Marrie, in his critique of the Act with regard to its capacity to protect Indigenous heritage, concluded:

The Cultural Record Act is a legislative blue print for the obliteration of much of the Aboriginal and Torres Strait Islander cultural heritage of Queensland. Under the authority of either an unsympathetic Minister, or a Governor-in-Council aggressively opposed to Aboriginal and Torres Strait Islander interests, this Act can be used to wreak the utmost havoc on the Aboriginal and Torres Strait Islander heritage with no avenues of recourse save the federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984-1987. [13]

And Sinnamon, with respect to non-Indigenous heritage, commented that:

... the legislation left many things poorly defined but their interpretation and consequent actions were in the hands of the minister. That is a bad principle in law in which the words are supposed to be paramount and clear and objective and there is no room for interpretation and personality. But it didn't happen that way of course in Queensland where the legislation followed the good old Queensland tradition of giving the minister a rather non-specific framework in which he would get away with a lot before being legally challenged. ... The words, you will remember, were supposed to preclude any expenditure of public funds at all and to leave undisturbed the sacred principle of protection only by consent of the owner. Those restrictions, it always seemed to me, would make the law a nothing - simply empty words .... [14]

At the Heritage Futures for Queensland seminar in March 1990, [15] when the Minister for Environment and Heritage indicated the Government's intention to introduce new Queensland heritage protection legislation, he also indicated the Government's intention to introduce new legislation to cover Indigenous cultural heritage, promising that:

We will look at all the options for control of Aboriginal artefacts and Aboriginal burial sites in heritage legislation. We will if necessary take some decisions which will not be easy to take and which will not always be popular. It means that there is going to be a long consultation process. ... It will not be easy for government and what I'm saying is that I think there will be a longer consultation process for Aboriginal heritage legislation. [16]

Later in the year, the Green Paper Proposals for a Heritage Act for Queensland contained a Ministerial statement to the effect that: '[a] future Green Paper will address needs to properly conserve and protect Queensland Aboriginal and Torres Strait Islander cultural heritage'. [17] While early steps were taken to initiate the review preparatory to formulating the Green Paper, the review was never completed. [18] In response to an apparent lack of activity in fulfilment of this promise the Queensland Legislation Review Committee, more than a year later, in November 1991, recommended: 'That there be an immediate review... with a view to amending the Act in a manner consistent with Aboriginal and Torres Strait Islander interests'. [19] The Department in its 1991-1992 Annual Report again recognised the need for a review 'in the long-term' and expressed its intention to initiate a review. [20]

Despite the promises and intentions expressed in the preceding two years, the Department has neither undertaken a review or issued a green paper for proposed Aboriginal and Torres Strait Islander cultural heritage legislation. While mainstream society had the Queensland Heritage Act proclaimed to give effective protection to its heritage, Queensland's Indigenous communities remain encumbered by the Cultural Record Act. The Queensland Heritage Act does not apply to places whose cultural heritage significance derives solely from their association with Aboriginal tradition [21] or Torres Strait Islander custom unless on Indigenous land in situations in which such places are also of European or other cultural significance. In such cases the Act will only apply with the consent of the trustees of the land (s. 61).

Legislation designed to protect Indigenous heritage is generally inferior to that available for the protection of non-Indigenous heritage in all Australian states with the situation in Queensland presenting as a particularly bad example. [22] However, as QAPAA noted, the Queensland Government failed to take note of standards set by other Australian States. For example, some valuable precedents with regard to Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 (Cth) and the debate leading up to the Aboriginal Heritage Act 1988 (SA) could have been incorporated into the Cultural Record Act. Above all their clarity of language - an extremely important factor with regard to Aboriginal people - could well have been adopted for the Queensland Act. In this regard the Cultural Record Act fails miserably in its ability to meet the fundamental legislative principle laid out in the Legislative Standards Act 1992 (Qld) with regards to the rights and liberties of individuals because the Act is not 'unambiguous and drafted in a sufficiently clear and precise way' (subs. 4(3)(k)).

The Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 (Cth) makes provision for the preservation of Aboriginal cultural heritage in Victoria. In terms of the recognition of the cultural rights of Aboriginal people, the preamble is particularly useful. In the preamble to this Act the Government of Victoria acknowledges the following:

Other valuable precedents include:

(a) clear definitions of 'Aboriginal cultural property', 'Aboriginal folklore', 'Aboriginal object', and 'Aboriginal place', and the use of 'plain English' generally throughout the Act;

(b) provisions for arbitration in instances where a Ministerial declaration is disputed with regard to a temporary or permanent declaration for the preservation of an Aboriginal place or Aboriginal object. A local Aboriginal community may request the Minister to appoint an arbitrator, a request with which the Minister must comply (s. 21D and s. 21E);

(c) the provision for Aboriginal Cultural Heritage Agreements to be drawn up between a local Aboriginal community and a person owning or possessing Aboriginal cultural property in Victoria (s. 21K). The agreement can cover such things as the preservation, maintenance, exhibition, sale or use of the property and the rights needs and wishes of both parties;

(d) compulsory acquisition of cultural property by the Minister, to be vested in the local Aboriginal community on trust, or in the Minister on trust for Aborigines in Victoria (s. 21L);

(e) the right of local Aboriginal communities to negotiate with museums and universities for the return of Aboriginal remains (s. 21X); and

(f) local Aboriginal communities may appoint honorary keepers or wardens to record and maintain Aboriginal cultural property (s. 21T).

While the South Australian Aboriginal Heritage Act 1988 did not come into force until 1988, community consultations based on a Bill for the Act were being conducted during most of 1987 and would have been available to those responsible for drafting the Cultural Record Act. The aim of the Aboriginal Heritage Act 1988 (SA) is to provide effective protection of Aboriginal heritage in South Australia. In doing so it vastly increases the degree of Aboriginal control over Aboriginal heritage and input into decision-making than was previously available under the Aboriginal and Historic Relics Preservation Act 1965 (SA), particularly with regard to the rights of traditional owners. The Act also contains a fundamental guarantee that it will not be used to over-rule Aboriginal tradition in terms of Aboriginal people's actions in relation to sites, objects and remains. Pursuant to subs. 6(2), for example, the Minister must, at the request of the traditional owners of a site or object, delegate his powers under ss. 21, 23, 29 and 35 to the traditional owners of that site or object. [23] Its other noteworthy features are that it:

(a) establishes an Aboriginal Heritage Committee composed entirely of Aboriginal people. The functions of the State Committee are to advise the Minister on various aspects of the administration of the Act (s. 7);

(b) the definition of Aboriginal tradition does not attempt to restrict recognition to pre-European tradition - it allows for the continuing development of Aboriginal culture (s. 3); [24]

(c) while the Minister must establish a central archives - the Register of Aboriginal Sites and Objects -

it also enables the Minister to assist local Aboriginal organisations to keep local archives (s. 9) and assures the confidentiality for both the central and local archives of information contained in the archives and in the register of sites and objects with access subject to the approval of traditional owners, the Aboriginal Heritage Committee or of a local committee as circumstances dictate (s. 10);

(d) establishes the South Australian Aboriginal Heritage Fund to be administered by the Minister to acquire land or objects, make grants or loans for research and for other purposes (s. 19);

(e) ensures that the Minister must consult Aboriginal people before making any determination, authorisation, declaration or exclusion under the Act (s. 13);

(f) the Minister must accept the views of traditional owners as to whether the land or object is of significance according to Aboriginal tradition (subs. 13(2));

(g) the traditional owners may object to an inspector exercising powers under the Act in relation to a site or object (subs. 15(3));

(h) the Minister may acquire land or objects for the purpose of protecting them, and place these acquisitions in the custody of an Aboriginal person or Organisation (subs. 34(a)); and

(I) ignorance cannot be used as a defence to a charge under the Act.

The South Australian Government emphasised at the time the Act was passed that it intended that the day-to-day administration of the Act will as far as practicable be delegated to traditional owners or local Aboriginal organisations, [25] and the provisions of the Act reflect this commitment.

Those drafting the Cultural Record Act should also have been aware of the debate taking place in NSW since 1986 regarding proposed Aboriginal heritage protection legislation in that State. The Aboriginal Heritage Council Working Party established a platform which included the recognition of Aboriginal ownership of Aboriginal cultural heritage; the establishment of an Aboriginal heritage fund and the establishment of a state-wide Aboriginal Heritage Council with wide-ranging functions and responsibilities. [26]

Both the Aboriginal and Torres Strait Islander Heritage Protection Amendment Act l987 (Cth), the Aboriginal Heritage Act 1988 (SA) and the debate taking place in NSW serve to highlight the deficiencies of the Cultural Record Act.

II. The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 compared

It is not the intention in this paper to dwell on the criticisms of the Cultural Record Act as they affect Aboriginal and Torres Strait Islander people and their cultural heritage, [27] but to examine the differences in statutory provisions which now exist for the protection of non-Indigenous and Indigenous heritage. Before the Heritage Building Protection Act 1990, and more particularly the Queensland Heritage Act, came into force a non-discriminatory situation in terms of the legislation itself with regard to the Cultural Record Act existed. [28] It is now contended that, with the advent of the Queensland Heritage Act, a discriminatory situation in law clearly exists. In order to support this contention a comparison is made between the Queensland Heritage Act and the Cultural Record Act with regard to their objects, definitions, Ministerial powers, administration, ownership rights, enforcement and appeal processes as they affect the heritage of the non-Indigenous and Indigenous communities respectively.

A. Objects

The objects of the Queensland Heritage Act are stated as follows:

With regard to Cultural Record Act there are no stated objects, however, its full title indicates something of its purpose, namely:

... to provide for the preservation and management of all components of Landscapes Queensland and the Queensland Estate; to foster dissemination of knowledge of Landscapes Queensland and the Queensland Estate; to promote understanding of the historic continuum evidenced within Queensland and for related purposes.

B. Definitions

The Queensland Heritage Act is primarily concerned with the conservation of Queensland's cultural heritage defined primarily in terms of places and objects (which includes submerged relics) of significance (s. 3). Under s. 4

'cultural heritage significance' of a place or an object means its aesthetic, historic, scientific or social significance, or other special value, to the present community and future generations;

The Cultural Record Act identifies two aspects of Queensland heritage, namely, 'Landscapes Queensland' and 'Queensland Estate'. Pursuant to s. 5:

'Queensland Estate' means evidence of man's occupation of the areas comprising Queensland at any time that is at least 30 years in the past but does not include any thing -

(a) made or constructed as a facsimile;

(b) made or constructed at or after the commencement of this Act for the purpose of sale; or

(c) that is not of pre-historic or historic significance;

These definitions in the Cultural Record Act are so broad and imprecise as to be worthless. [29] Definitions should, by nature, establish boundaries between exclusivity and inclusivity, and the Act contains no criteria to serve as a guide in order to establish pre-historic and historic significance. Since the Act was designed originally to provide protection to both Indigenous and non-Indigenous cultural heritage, as a matter of consistency and clarity, it would have been appropriate to use the definitions employed in the Australian Heritage Commission Act 1975 (Cth) under subs. 3(1) and the criteria to determine significance established in subs. 4(1A).

C. Ministerial Powers

Besides the usual powers of delegation (s. 7), the Minister, under the Queensland Heritage Act, exercises the following discretionary powers to:

(1) make nominations to the Governor in Council for appointments to the 12 member Queensland Heritage Council (subs. 10(4)); [30]

(2) appoint a panel of at least 10 assessors from expressions of interest sought through public advertisement (subs. 27(3) and (4));

(3) give consent to interfere with, damage, dispose of or remove protected relics (s. 47);

(4) grant permits to authorise operations which may destroy, damage, excavate or disturb areas of archaeological interest (s. 52);

(5) appoint authorised persons and issue their identity cards to carry out duties in accordance with the Act (s. 54);

(6) give written instructions to an authorised person to enter or inspect a place for the purposes of determining or recording its heritage significance (s. 56);

(7) make a 'stop order' requiring a person to stop any work or activity that may interfere with the cultural heritage significance of a place (subs. 58(1));

(8) authorise a person to take proceedings for an offence against the Act (s. 64);

(9) in the case where a court has ordered a person convicted of an offence against the Act to make good any damage caused through the commission of the offence to the satisfaction of the Minister, and, where the Minister is not satisfied, the Minister may cause such work to be carried out and recover the costs, as debt, from the person in default (s. 65); and

(10) may issue a non-development order against the owner of a registered place convicted of an offence against the Act for up to a period of 10 years (s. 66).

Under the Cultural Record Act the Minister enjoys wide ranging discretionary powers, namely the power to:

(1) appoint Landscapes Queensland Advisers (s. 10);

(2) establish Regional Landscapes Queensland Committees (s. 14);

(3) appoint such advisory committees 'as he thinks fit' (s. 12);

(4) delegate his functions, duties, powers and authorities (s. 16);

(5) issue (s. 28), renew (s. 29) or revoke (s. 30) a permit to explore Landscapes Queensland and Queensland Estate; [31]

(6) require or authorise exploration (ie, by survey, excavation, examination or research) of Queensland Estate (s. 27);

(7) authorise removal of items of the Queensland Estate to the Queensland Museum (subs. 22(1); subs. 27(1)(b); subs. 37(2));

(8) determine whether an item of the Queensland Estate is the property of the Crown and decide on its retention by the Crown or its disposal (subs. 37(1));

(9) take particular steps to preserve Queensland Estate (s. 38);

(10) decide on the sufficiency of traditional and familial links of Indigenous people to burial remains and the sufficiency of consultation involved to establish such links (s. 34); [32]

(11) issue certificates authorising the Crown to take or acquire private land by purchase for the purpose of preservation of Landscapes Queensland and Queensland Estate (s. 26);

(12) receive nominations by 'any person or association of persons' regarding items for entry into the Register of the Queensland Estate and, if satisfied, submit the nomination and his recommendation for approval by the Governor in Council (s. 42) and after each 6-yearly review of the Register, or where the owner of an item requests it, recommend to the Governor in Council for the removal of an item from the Register (s. 43).

In the exercise of Ministerial powers, the Minister is only required in two instances to seek the advice of others, namely, where, upon the recommendation of an advisory committee, the Minister may permit the loan of an item of the Queensland Estate (s. 39), and in regard to s. 44 with regard to a proposal of the owner of an item in the Register of the Queensland Estate who wishes to do something which might cause the item to lose its historical significance to Queensland the Minister must refer any such proposal to the 'relevant advisory committee'. However, it should be remembered that, firstly, it is up to the Minister to initially decide as to whether he establishes any advisory committee, and secondly, the Minister chooses the membership of any advisory committee he cares to establish with the only stipulation that such an advisory committee should be comprised 'of persons having, in the Minister's opinion, such expertise as he considers appropriate'

(s. 12). Thus the Minister, particularly in controversial circumstances, is in a position to appoint members who might be expected to give the 'right' decision, that is, one which favours the Minister's (or Government's) position. In all other instances listed above the Minister is not required by the Act to seek the advice of any other person or advisory committee - although he may well do so.

D. Administration

The Queensland Heritage Act establishes the Queensland Heritage Council (s. 8) with its 12 members being appointed by the Governor in Council on the nomination of the Minister (s. 10). There is statutory representation on the Council of the National Trust of Queensland, the Local Government Association of Queensland, the Trades and Labor Council of Queensland, and from organisations representing property owners and managers and rural industries in Queensland. The Minister also nominates 7 other persons representative of other organisations 'with appropriate knowledge, expertise and interest in heritage conservation' (subs. 10(4)). Pursuant to s. 9 the Council has the following functions:

(a) to advise the Minister on matters relating to Queensland's cultural heritage and in particular on the measures necessary to conserve Queensland's cultural heritage for the benefit of the present community and future generations; and

(b) to administer the Heritage Register in accordance with this Act; and

(c) to encourage public interest in, and understanding of, issues relevant to the conservation of Queensland's cultural heritage; and

(d) to encourage and assist the proper management of places of cultural heritage significance; and

(e) to keep proper records, and encourage others to keep proper records, of places and objects of cultural significance; and

(f) to cooperate and collaborate with federal, State and local authorities in the conservation of places and objects of cultural heritage significance; and

(g) to undertake any other functions assigned to the Council by this Act for the Minister.

The Council, therefore, enjoys considerable responsibility under the Act. The Council may delegate powers to the Chairperson or other members of Council or to committees which the Council establishes (ss. 15 and 16). [33] The Council may not, however, delegate its powers to enter or remove a place from the Heritage Register (subs. 15(2)).

In terms of its power and responsibility, the most important function of the Council is its virtually exclusive administration of the Heritage Register. The Council is solely responsible for making entries in and removals from the Heritage Register in response to its own initiatives or on the application of others (ss. 24 and 25). The Council receives objections regarding entries on a permanent basis and removals (s. 26), and selects an assessor (s. 28) from a panel of at least 10 appointed by the Minister to 'inquire into, and report on, objections to the entry of places in, or the removal of places from, the Heritage Register' ( s. 27). The Council considers reports by assessors to objections and acts accordingly (s. 30). The Council, on application, may issue a certificate of immunity from registration in respect of a place for 5 years if the place does not satisfy the criteria for entry in the Heritage Register (s. 32) and any development of a registered place, except where it is in relation to a church or to be carried out by the Crown, must require the approval of the Council (s. 33). The Council receives and determines applications for development. If an applicant wishes a decision of a local authority or the Council regarding an application for development to be reviewed, then either the Council or a review committee established by the Council must convene a conference with the applicant (s. 36). If the Crown proposes to carry out a development in relation to a registered place, a report of the proposed development must be given to the Council (subs. 37(1)). After a period of public notice and consideration of objections, the Council must make a recommendation to the relevant Minister regarding the proposed development (subs. 37(3)) which the Minister must consider before deciding whether to accept or reject it (subs. 37(5)). Importantly:

If the effect of carrying out a proposed development would be to destroy or substantially reduce the cultural heritage significance of a registered place, the Council may only recommend that the development should be carried out if there is no prudent and feasible alternative to carrying out the development (subs. 37(4)).

In deciding whether there is a prudent and feasible alternative the Council must take into account safety, health and economic considerations as well as any other relevant considerations (s. 38). The Council may also reasonably require of a local authority information or assistance for the purposes of the Act - a request with which the local authority must comply (s. 60).

In terms of the administration of the Cultural Record Act the contrasts could hardly be greater. There are no bodies equivalent to the Queensland Heritage Council established by the Act. However, the Minister may establish two types of committees: advisory committees and Regional Landscapes Queensland Committees. With regard to advisory committees, the Minister

To assist him in the administration of this Act ... may establish and maintain such advisory committees as he thinks fit comprised of persons having, in the Minister's opinion, such expertise as he considers appropriate to the preservation of Landscapes Queensland and the Queensland Estate (subs. 12(l)).

Members serve in an honorary capacity and hold office 'at the pleasure of the Minister' (subs. 12(2)). An advisory committee may determine when and where it can meet (subs. 12(3)). The functions of an advisory committee are to:

(a) to tender advice and recommendations to the Minister upon matters pertinent to the preservation of Landscapes Queensland or the Queensland Estate, being matters within the expertise of the Committee, that:

(i) are referred to the committee by the Minister; or

(ii) are, in the committee's opinion, matters that require attention for the preservation of

Landscapes Queensland or the Queensland Estate, and

(b) to inform the Minister of its view with respect to the ownership of any item of the Queensland Estate that may be in dispute if it is a matter within the expertise of the committee (s. 13).

A local government authority for its Area or '[a]ny person or association of persons' may apply to the Minister to establish a Regional Landscapes Queensland Committee (s. 14(1)), however, again it is up to the Minister's discretion as to whether such a committee be established. Upon the receipt of an application

... the Minister may cause to be established and maintained a Regional Landscapes Queensland Advisory Committee if he is satisfied that there is a sufficient number of persons resident in the Area or described area to which the application relates to ensure the proper functioning of the Committee (subs. 14(2)).

Again the Minister exercises 'his pleasure' concerning the appointment of office bearers (subs. 14(3)) and, unlike the advisory committees he appoints, he (or his delegate) determines meeting arrangements (subs. 14(4)). The functions of a Regional Landscapes Queensland Committee are to tender advice and recommendations to the Minister or to any advisory committees established under s. 12 with respect to:

(a) the desirability of declaring an area within the committee's Area to be a Designated Landscapes Area;

(b) the management and use of Designated Landscapes Areas within the committee's Area for cultural, development, education or tourist purposes;

(c) the inclusion in the Register of nominated items of the Queensland Estate within the Committee's Area;

(d) such other matters pertinent to this Act, and relevant to the committee's Area as are referred to it by the Minister.

Thus it is possible for the Minister to administer this Act without any committees if he so chooses not to appoint any, although an advisory committee is required by s. 39 if the Minister wishes to permit the loan of an item of the Queensland Estate, and subs. 44(1) in relation to a proposal by the owner for a development which might entail the destruction of an item in the Register of the Queensland Estate.

During the early years of the operation of the Act, the Minister for Community Services did establish an Aboriginal Heritage Advisory Committee. Upon transfer of responsibility to the then Department of Environment, Conservation and Tourism the Committee after a while lapsed. More recently a Regional Aboriginal Heritage Advisory Committee was established for the Great Sandy Management Area 'on a trial basis.' [34]

In addition to any committees the Minister may appoint, the Governor in Council may appoint

... such officers as he considers necessary for the purposes of this Act and may appoint such officers in respect of the whole State or in respect of any part of the State, as he considers desirable (s. 81).

Such appointments may include that of Landscape Queensland Protectors to act in an honorary capacity (s. 9). The function of a protector is to protect any Designated Landscape Area which is assigned to him by the Minister by preventing the entry of unauthorised persons into the area and by protecting all items of the Queensland Estate contained in the area (s. 21).

The Minister may also 'authorise any person to assume the role of Landscapes Queensland Adviser'

(s. 10), likewise, in an honorary capacity. The role of Landscapes Queensland Adviser is:

(a) to assist in the manner specified in his certificate of authority officers appointed for the purposes of this Act;

(b) to recommend to officers appointed for the purposes of this Act concerning matters affecting Landscapes Queensland;

(c) to establish and maintain within the area assigned to him by his certificate of authority liaison between officers appointed for the purposes of this Act and Local Authorities, persons and associations concerned with matters affecting Landscapes Queensland (subs. 10(4)).

The Minister may also recognise the particular skills of a person with regard to the preservation or appreciation of the Queensland Estate through the conferring of a Queensland Estate Award and may provide assistance to that person to further their work in relation to the Queensland Estate (s. 53). [35]

E. Ownership of Cultural Heritage

The Queensland Heritage Act, in addition to those places and objects which are owned by the Crown or a local authority, enables privately owned places and objects of cultural heritage significance, which are entered in the Heritage Register, to remain under private ownership. In accordance with s. 4, an 'owner', in relation to land, can be the proprietor of an estate in fee simple or the lessee or licensee of leasehold land.³⁶ In relation to an object, the 'owner' is the person legally entitled to the possession of the object.

With regard to the Cultural Record Act, s. 33, on the matter of ownership of Queensland Estate generally, states that:

(1) All parts of the Queensland Estate:

(a) that constitute evidence of occupation of any part of Queensland by indigenous persons; or

(b) in respect of which there is no identifiable legal owner, are and shall be deemed to have always been the property of the Crown. [37]

(2) Subsection (1) applies in respect of all evidence of occupation by indigenous persons notwithstanding that it was found or is to be found in, on or under private land.

However, in accordance with s. 32, Indigenous rights are said to be unaffected by the Act:

No provision of this Act shall be construed to prejudice:

(a) rights of ownership had by a traditional group of indigenous people or by a member of such a group in a part of the Queensland Estate that is used or held for traditional purposes; or

(b) free access to and enjoyment of a part of the Queensland Estate, where such access, enjoyment or use is sanctioned by traditional custom relating to that part, by a person who usually lives subject to the traditional custom of a group of indigenous people.

Thus the relationship between s. 32 ('rights of ownership had by a traditional group of indigenous people' unaffected by the Act) in particular would appear to contradict s. 33 (ownership by the Crown of the Queensland Estate generally) and the rights of owners/occupiers of private land with regard to access (s. 24), the entry of places or items on the register (s. 18; subs. 42(3)(c)), the issuing of permits to explore (subs. 28(3)(b)(ii)) and to destroy heritage in the cause of development (s. 44). Similarly, burial remains which are clearly 'evidence of occupation' - and thus have always been the property of the Crown (s. 33) would appear to be at the same time 'the property of the traditional group or the person or persons.' (subs. 34(2-4)). It is also not clear to what extent s. 32 may be able to override s. 33 and prevent items becoming the property of the Crown. If s. 32 recognises 'ownership' outside the scope of 'identifiable legal ownership' it is not clear what the nature of this ownership will be. The Act provides no mechanism by which the claims of Aborigines or Torres Strait Islanders to traditional ownership can be tested save that, pursuant to s. 37, when items are submitted to the Minister for examination or classification, the Minister determines whether they are the property of the Crown.

A further consideration is that the Minister, pursuant to subs. 22(1), subs. 27(l)(b) and subs. 37(2), has the authority to remove items of the Queensland Estate to the Queensland Museum. Once in the Queensland Museum the item is in the possession of the Board of Trustees of the Museum, who may exercise the powers conferred on it by the Queensland Museums Act 1970-1985 (Qld) and therefore s. 32 of the Cultural Record Act regarding Indigenous rights of ownership had by a traditional group will be rendered inoperative (s. 65). The Queensland Museums Act 1970-1985 (Qld) makes no specific provisions for dealing with items which may be of significance to the living culture of Aboriginal or Torres Strait Islander people. [38] For example, it does not require that Aboriginal and Torres Strait Islander people be represented on its Board or the establishment of any form of Indigenous body to provide advice or assistance in the management of its collections of Indigenous cultural property. Nor does it require consultation with Indigenous people in respect of the performance of any of its functions. This is so despite the relationship between the Cultural Record Act and the Queensland Museum Act 1970-1985 (Qld) which has substantially increased the number of items of Indigenous heritage held in the Museum. Section 12(2)(b) of the Queensland Museum Act 1970-1985 (Qld) is of particular concern to Aborigines and Torres Strait Islanders as it grants the Board the power to 'sell, exchange or otherwise dispose of any objects ... under the care and control of the Board' without consultation with or consent from the relevant Indigenous people where this concerns objects of Aboriginal or Torres Strait Islander origin. The Cultural Record Act only affects these powers to the extent that subs. 63(3) of that Act prevents the Museum Board from destroying an item placed in its possession pursuant to the Cultural Record Act without the consent of the Minister.

F. Rights Enjoyed by Owners and Occupiers of Private Lands

By far the best way to protect the property.... The virtue of Heritage Agreements is that they are totally flexible. Their content, their terms and the way in which they affect a property are matters for discussion and agreement between the parties concerned with a particular place. [39]

To induce heritage listed property owners to enter into agreements with the Minister a number of incentives are available under the Act. The Government's approach to such incentives is further noted:

Any State Government incentives should be made available only on the basis that the property owner is prepared to enter into a Heritage Agreement which will bind the owner to the maintenance of the property in an agreed manner either in perpetuity or for an agreed period. [40]

Pursuant to subs. 40(2)(e), a heritage agreement may 'provide for financial, technical, or other professional advice or assistance to the owner with respect to the maintenance or conservation of the registered place'. The types of incentives that the Government had in mind include revaluation of the property to include additional uses for the property other than those otherwise permitted by law; rate relief; deferred payment of local government taxes and rates; grants and loans; Government lease of space in registered buildings; purchase and lease back in limited cases where the owner 'may be short of cash'; and direct financial assistance, particularly where the owner has suffered 'quantifiable loss' as a result of some restriction or order which is placed on the building. [41]

Pursuant to the Cultural Record Act, owners and occupiers of private lands enjoy the following rights:

(1) Their consent is required before the Governor-in-Council can declare an area of private land a Designated Landscape Area (s. 18). Similarly, the owner/occupier can request termination, and if the Minister approves, the site/area can cease to be protected (s. 22). This means that landowners/occupiers can ultimately determine whether sites can be declared and, along with their associated objects, thus given protection. In essence this defeats the purposes of the Act, that is, presumably - because the Act contains no clear statement of its purpose, compared with s. 3 of the Queensland Heritage Act to protect and conserve heritage (the 'cultural record') because the Government does not have effective power to declare an area without the consent of the private owner;

(2) A land owner/occupier can be one of the 'authorised persons' whose permission is required before a person can enter a Designated Landscape Area which is on private land (s. 24);

(3) the permission of the both the occupier and owner (where these are not the same) of private land is required before a permit to explore Landscapes Queensland or Queensland Estate is issued by the Minister (subs. 28(3)(b)(ii));

(4) With respect to a nomination for the Register of Queensland Estate the Minister must have, where the owner/occupier of the item is other than the Crown, the consent of the owner/occupier in writing (subs. 42(3)(c)); and

(5) Owners may submit proposals (eg, for development) to the Minister which might entail the destruction of an item which is entered in the Register of the Queensland Estate (s. 44). While the Minister must then refer any such proposal to the 'relevant advisory committee for its recommendations thereon', upon the receipt of such recommendations, the Minister then refers the proposal to the Governor in Council. The Act then states:

If in the opinion of the Governor in Council the act proposed to be done is likely to result in:

(a) destruction of the item; or

(b) interference with the item to such an extent that it would lose its historical significance to Queensland's history,

(c) the governor in Council shall approve its removal from the Register (subs. 44(2)).

The Governor in Council also has the option, under subs. 44(3), of retaining the item on the Register, in which case the Minister, on the recommendation of the advisory committee, may put in place standards and guidelines to protect the item while the owner might proceed with the proposal. Likewise subs. 56(2)(a)(ii) appears to give an owner of an item of the Queensland Estate, but which is not entered in the Register, the freedom to destroy that item if they so choose. [42]

Because the rights of private land owners are powerfully enshrined in the Cultural Record Act the sentiments expressed in 1992, for example, by Don McDonald, as Queensland state president of the National Party, need to be taken very seriously. McDonald, along with other National Party members who felt threatened by the Labor Government's approach to nature and heritage conservation, is on record as saying that:

If they [that is, property owners] find caves with Aboriginal paintings they're likely to take to them with a can of Dulux (a brand of paint]. That's not in anyone's interest but it will happen because of the way the government has gone about this. [43]

Such is the state of insecurity under which many Indigenous sites exist in Queensland that their destruction can take place with impunity. [44]

In comparing the rights of private owners had under the two heritage laws, in terms of the Queensland Heritage Act, the rights of private owners of heritage listed properties are subordinated to the conservation requirements attaching to such properties in order to protect and maintain their cultural heritage values. Relief for any inconvenience caused may be sought through the terms of a heritage agreement. With respect to the Cultural Record Act, where places or objects of cultural significance are found on privately owned or leased land, measures for their protection and conservation and their access are subordinated to the rights of private property owners.

G. Enforcement

(1) carrying out development of a registered place without the approval of the Queensland Heritage Council: Maximum penalty - 17,000 penalty units [45] (currently equivalent to $1,020,000) (s. 33);

(2) contravention of a restriction or prohibition regarding a restricted zone declared in relation to Queensland's territorial waters or an area of land in which a protected relic is situated: Maximum penalty - 500 penalty units (or $30,000) (subs. 46(3));

(3) damage, destroy, interfere with, dispose of or remove a protected relic without Minister's written consent: Maximum penalty - 1,000 penalty units (or $60,000) (s. 47);

(4) failure to report the discovery of the 'remains of a ship, or some other object, that may be of cultural heritage significance' found in Queensland territorial waters, to the Minister: Maximum penalty - 50 penalty units (or $3,000) (s. 48);

(5) destroy, damage, excavate or disturb a protected area without a permit: Maximum penalty - 1,000 penalty units (or $60,000) (s. 51);

(6) contravention of a condition of a permit: Maximum penalty - 1,000 penalty units (or $60,000)

(subs. 52(5));

(7) failure to return an identity card once a person ceases to be an authorised officer: Maximum penalty - 10 penalty units (or $600) (subs. 54(3));

(8) for the obstruction of an authorised person in the exercise of a power under this Act: Maximum

penalty - 50 units (currently equivalent to $3,000) (s. 57);

(9) contravention of a 'stop order': Maximum penalty - 17,000 penalty units (or ($1,020,000) (s. 59);

(10 ) making false or misleading statements to a person concerned with the administration of this Act: Maximum penalty - 50 penalty units (or $3,000) (s. 62).

(11) failure to comply with a restoration order: Maximum penalty - 17,000 penalty units (or $1,020,000) (subs. 65(2)); and

(12) failure to comply with a non-development order made by the Minister: Maximum penalty - 17,000 penalty units (or $1,020,000) (subs. 66(5)).

The penalty regime established by the Cultural Record Act is as follows:

(1) unauthorised destruction, damage, removal or interference with any notice structure or boundary mark associated with a Designated Landscape Area: Penalty - 40 penalty units (or $2,400) (subs. 23(1));

(2) trespassing on a Designated Landscape Area: Penalty - 20 penalty units (or ($1,200) (subs. 24(1));

(3) unauthorised possession of an item of the Queensland Estate which is the property of the Crown; unauthorised interference, etc., with an item of the Queensland Estate or the commission of an act in a Designated Landscape Area likely to endanger an item of the Queensland Estate: Penalty - 100 penalty units (or $6,000) (subs. 56(5));

(4) assault of Landscapes Queensland Protector or other officer discharging their duty in pursuance of the Act: Penalty: 40 penalty units (or $2,400) or imprisonment for six months or both (subs. 59(1));

(5) failure to comply with a requisition, give false or misleading information or obstruct or hinder a-protector or officer in the discharge of duty: Penalty - 10 penalty units (or $600) or imprisonment for three months or both (subs. 59(2));

(6) contravention of or failure to comply with a provision of the Act for which no other penalty is prescribed: Penalty - 20 penalty units (or $1,200) (s. 60); and

(7) where a body corporate commits an offence against the Act it is liable to a penalty of 1,000 penalty units (or $60,000) in lieu of the penalty prescribed for that offence by any other provision of the Act

(s. 62).

The first thing to notice is that offences which attract penalties under the two Acts do not readily match. The Queensland Heritage Act clearly sets out a penalty regime for offences which involve some form of interference with places listed on the Heritage Register (that is, development without approval, contravention of a 'stop order') and which attract a maximum penalty of 17,000 penalty units. There is no such corresponding offence clearly defined by the Cultural Record Act. If someone were to destroy an Aboriginal site (a rock painting perhaps, or an ancient camp site), presumably, under s. 60, 'since no other penalty is prescribed', such an offence would only attract a maximum penalty of 20 penalty units. Secondly, where offences are similar under the two penalty regimes, significantly lower penalties apply in relation to offences committed under the Cultural Record Act. For example, obstructing an authorised person in the case of the Queensland Heritage Act attracts a maximum penalty of 50 penalty units (s. 57) while the same offence under the Cultural Record Act only attracts a maximum penalty of 10 penalty units (or three months imprisonment or both) (subs. 59(2)). Similarly, contravention of a condition of a permit pursuant to subs. 52(5) of the Queensland Heritage Act attracts a maximum penalty of 1,000 penalty units (or $60,000), a similar offence under s.24 [46] of the Cultural Record Act only attracts a penalty of 20 penalty units (or $1,200).

Curiously, an offence to interfere with Designated Landscape Areas relates to the destruction, removal, etc., of a 'notice, structure [47] or boundary mark in or on the boundary of a Designated Landscape Area' and not to anything of cultural heritage significance which is situated within the Area.

H. Appeal Processes

Under the Queensland Heritage Act an appeal against a decision made under the Act may be made to the Planning and Environment Court⁴⁸ in the following circumstances:

(1) the owner of a place, after objections have been heard, may appeal a decision of the Queensland Heritage Council to enter the place in the Heritage Register on a permanent basis, to remove it from the Register or not to proceed with a proposal for entry or removal of the place from the Register (subs. 30(5));

(2) an applicant who applies to the Council or a local authority regarding a proposed development of a place which is in the Heritage Register, if the applicant is dissatisfied with the decision on review (subs. 36(6)); and

(3) an applicant for a permit to the Minister under s. 52 with regard to some activity in regard to areas of archaeological interest, if the Minister refuses the application, may appeal the Minister's decision (s. 53).

Also a party to a heritage agreement entered into pursuant to s. 39 of the Act may apply to the Planning and Environment Court for an order where there has been a failure to comply with the agreement or where 'there is reason to apprehend that a party to the agreement may fail to comply with the agreement' (s. 43);

The Cultural Record Act does not provide for any appeal processes against decisions of the Minister or the Governor in Council. The Act therefore offers no relief from the arbitrariness of the decision making processes available to the Minister or the Governor in Council in the exercise of their discretionary powers. This is contrary to subs. 4(3)(a) of the Legislative Standards Act 1992 (Qld) relating to the fundamental legislative principle with respect to having sufficient regard to the rights and liberties of individuals which states that;

Whether legislation has sufficient regard to the rights and liberties of individuals depends on whether, for example, the legislation:

(a) makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review;

Clearly the Cultural Record Act neither sufficiently defines administrative power nor enables it to be the subject of an appropriate process of review in a way which the Queensland Heritage Act does.

I. Other considerations

Under the Cultural Record Act ignorance may be used as a defence against the Act. Subsection 35(2) states:

A person who or whose employee uncovers any indigenous burial remains shall forthwith notify the Minister or a protector of the occurrence. It is a defence to a charge of a failure to comply with this subsection to show that the person charged did not know and could not be reasonably expected to know that the objects uncovered were such burial remains.

And subs. 56(4), in relation to offences concerning Queensland Estate in relation to illegal possession, interference with or endangerment:

It is a defence to a charge of an offence defined in subsection (1), (2) or (3) to prove that at the time of the alleged offence the defendant did not suspect and could not be reasonably expected to suspect that the thing to which the charge relates was an item of the Queensland Estate.

With the publicity given to Indigenous affairs, particularly in relation to the native title debate, and the proliferation of Indigenous organisations, Commonwealth, State and community based, most of whom are listed in the telephone directory, ignorance can no longer be offered as a justifiable excuse for the destruction of Indigenous cultural heritage to the extent that it can remain in a statute.

J. Acts Binding the Crown

The Queensland Heritage Act binds the Crown in the following manner:

[5] (1) This Act binds the Crown not only in right of Queensland but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted for an offence.

The Cultural Record Act contains no statement to the effect that the Crown is bound by the Act.

III. Establishing a Case of Racial Discrimination

It is submitted that the legislative regime instituted for the protection of the cultural heritage of Queensland, and primarily involving the Queensland Heritage Act and the Cultural Record Act, discriminates against the Aboriginal and Torres Strait Islander community in so far as the Cultural Record Act provides a lesser mechanism for the protection of Indigenous cultural heritage than that which is available to non-indigenous Queenslanders under the Queensland Heritage Act. This legislative regime discriminates against the Aboriginal and Torres Strait Islander peoples of Queensland in the following ways:

(1) The Cultural Record Act lacks the clarity of expression of the Queensland Heritage Act and is not presented in a way which can be easily understood by anyone, but particularly Aboriginal and Torres Strait Islander people - the group which is supposed to benefit from the legislation and to whom the legislation is of the most consequence;

(2) The Cultural Record Act does not provide statutory responsibility for Aboriginal and Torres Strait Islander people in Queensland to manage their cultural heritage in the same way or to the same degree as that which is available to non-Indigenous people in Queensland under the Queensland Heritage Act through the establishment of the Queensland Heritage Council and with it, the Council's responsibility for the Heritage Register - the principle mechanism by which protection is given to places and objects of cultural heritage significance. Instead, Aboriginal and Torres Strait Islander people must rely on the Minister to establish such advisory committees 'as he thinks fit' to work according to such terms and conditions which the Minister determines;

(3) The Cultural Record Act enables the Minister to exercise a wider range of discretionary powers of critical importance to the access, enjoyment and management of Aboriginal and Torres Strait Islander cultural heritage by Aboriginal and Torres Strait Islander people themselves without statutory requirements to take advice or consult with any person that is available to the Minister under the Queensland Heritage Act;

(4) Unlike the Queensland Heritage Act 1992, the Cultural Record Act does not provide for a process whereby Aboriginal and Torres Strait Islander people may appeal decisions which affect their cultural heritage made under the Act;

(5) The Cultural Record Act provides for a penalty regime for offences committed under the Act which is vastly inferior to that which is in place, often for similar offences, under the Queensland Heritage Act;

(6) Unlike the Queensland Heritage Act ignorance can be a defence against a charge made under the Cultural Record Act;

(7) Whereas the Queensland Heritage Act is binding on the Crown, the same provision does not apply to the Cultural Record Act;

(8) Unlike the Queensland Heritage Act, the Cultural Record Act contains no similar provision to enable Aboriginal or Torres Strait Islander people to enter into Heritage Agreements with property owners or lessees on whose property sites and objects of cultural significance to Aboriginal or Torres Strait Islander people are situated;

(9) The Cultural Record Act protects the interests of private land owners and lessees on whose properties sites and objects of cultural significance to Aboriginal or Torres Strait Islander people are situated over the interests of Aboriginal and Torres Strait Islander people in a way which the Queensland Heritage Act

does not.

The disparities in the two Acts enable a discriminatory situation to exist (and to have existed since

27 March 1992) [49] whereby both the level of protection afforded to places and objects of Indigenous cultural significance and the means by which such protection might be instituted are less than those afforded to non-Indigenous cultural heritage. This is in breach of the Racial Discrimination Act 1975 (Cth) with regard to

subs. 10(l), which guarantees equality before the law:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

It is also in defiance of Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) which states that:

in this convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Australia has lodged a declaration with the United Nations accepting the optional complaint procedures under Article 14(l) of the Convention recognising the competence of the Committee on the Elimination of Racial Discrimination (CERD) to receive and consider communications from individuals or groups of individuals within the jurisdiction of Australia who claim to have had their rights as set out in the Convention violated. The way is now open for Indigenous people in Queensland, once all domestic remedies have been exhausted and subject to the necessary complaint procedures, to address a communication to CERD. [50] The discriminatory situation outlined above would appear to violate the following rights as specified in Article 5 of the Convention with regard to the 'right of everyone, without distinction as to race, colour, or national or ethnic origin to equality before the law' in respect of the following:

' the 'right to equal treatment before the tribunals and all other organs administering justice' (Article 5(a)); [51]

' political rights, in particular 'to take part in Government as well as in the conduct of public affairs at any level and to have equal access to public service' (Article 5(c)); [52]

' the 'right to freedom of thought, conscience and religion' (Article 5(d)(vii)); [53] and

' the 'right to equal participation in cultural activities' (Article 5(e)(vi)). [54]

IV. Concluding comments

This analysis has highlighted the major discrepancies which exist in the two statutes which provide protection for Indigenous and non-Indigenous heritage in Queensland. Similar discrepancies also occur to a greater or lesser degree in other Australian jurisdictions with regard to their respective heritage statutes enabling a situation to exist which discriminates against Aboriginal and Torres Strait Islander peoples in their ability to enjoy, protect and develop their cultural heritage on an equal footing with non-indigenous Australians. It is hoped that this analysis may assist in further exposing these racially discriminating situations which exist in the other states.

* Henritta Fourmile is the Director of Bukal Consultancies Services Pty Ltd and is a member of numerous international and national committees on Indigenous rights in relation to bio-diversity and intellectual property.

[1] For a commentary on this Act see D. S Trigger, 'Aborigines, Anthropologists and the Aboriginal Relics Issue in Queensland', Occasional Papers in Anthropology, Anthropology Museum, University of Queensland, St Lucia (1980).

[2] The Department at the time responsible for the administration of Aboriginal and Torres Strait Islander Affairs.

[3] Queensland Department of Community Services, Annual Report 1988-89, p. 44

[4] Ministerial Statement, Green Paper Proposals for a Heritage Act for Queensland: A Discussion Paper, Queensland Department of Environment and Heritage, Brisbane, (October 1990), p. 1.

[5] P. Marquis-Kyle (ed.), Heritage Futures for Queensland: Papers from a Seminar about Heritage Legislation, Australia ICOMOS and Institute of Cultural Policy Studies, Brisbane, (1991), p. 2.

[6] Queensland Department of Environment and Heritage, Green Paper Proposals for a Heritage Act for Queensland: A Discussion Paper, Brisbane, (October 1990) p. 5.

[7] Queensland Department of Environment and Heritage, Annual Report 1991-92, p. 7.

[8] The Aboriginal Co-Ordinating Council, established by the Community Services (Aborigines) Act 1984 (Qld) and Queensland's only statutory Aboriginal body, recorded by resolution at a meeting in Cairns on July 14, 1987 their 'dissatisfaction that there was no consultation with Aboriginal people before the Bill was tabled in Parliament', P. Braddy, MLA, Letter to R.C. Katter, MLA, Minister for Northern Development and Community Services, August 4, 1987. Similar statements of dissatisfaction were recorded at meetings attended by Aboriginal people in Brisbane July 3 and August 2, the latter organised by Paul Braddy, MLA. Notes of meetings provided by the Foundation for Aboriginal and Islander Research Action (FAIRA), Brisbane.

[9] This contrasts with the consultation processes engaged in with respect to the Queensland Heritage Act 1992 (Qld), whereby not only was a heritage legislation seminar gathering heritage experts and interest groups from around the country, and addressed by the Minister, but following the seminar a green paper was issued for public consultation detailing the kinds of things the proposed new heritage legislation might contain.

[10] See, for example, submissions to the Minister by the Australian Institute of Aboriginal Studies (July 1987); Dr Athol Chase (July 13, 1987); Professor Bruce Rigsby (July 9, 1987); Frank Brennan (June 1987); Queensland Association of Professional Anthropologists and Archaeologists (QAPAA) (June 22, 1987); and Adrian Jeffreys on behalf of the Queensland Conservation Council (n.d.).

[11] Ibid, QAPAA p. 1.

[12] The amendments primarily entailed the addition of a paragraph into subs. 31(1) protecting the confidentiality of sacred or secret material by requiring that it not be disclosed in a progress report to the Minister, yet enabling it to be published under subs. 31(3); the removal of s. 40 Reporting of Queensland Estate and s. 43 Arrangement of Register (involving a two tiered structure); the addition of s. 44 Owners initiative regarding items in Register; the rewording of s. 57 Interference with Queensland Estate to become s. 56 Offences concerning Queensland Estate and the reversal of subsections 1 and 2 and more detailed wording of this section; and an increase in the number of matters for which the Governor in Council could make Regulations (s. 66).

[13] A. Marrie, The Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987: A Critique, Consultant's Report to FAIRA, Brisbane, (March, 1990), p. 4.

[14] I. Sinnamon, supra n. 5, p. 58.

[15] Ibid, for the report of this seminar.

[16] Ibid, p. 9.

[17] Supra n 4, p. 1.

[18] In December 1990 invitations were sent out to a number of Indigenous organisations by the Director-General of the Department of Environment and Heritage to attend a meeting in Townsville in January 1991 to form an interim committee which would report to the Minister on the setting up of a Legislative Advisory Committee on cultural heritage and conservation. The committee's functions would relate to the preparation of recommendations to the Minister regarding development of an achievable model for new cultural heritage legislation which would take into account government policy, available resources, social justice objectives and the requirements of Aboriginal and Torres Strait Islander community organisations. The stalling of this review might be explained, but not excused, by the fact that the Queensland Government began to draft its Aboriginal and Torres Strait Islander lands rights legislation. The Aboriginal Land Act 1991(Qld) and the Torres Strait Islander Land Act 1991 (Qld) were assented to in June 1991 after absolutely minimal consultation with the Indigenous communities (3 weeks were allowed) and without the benefit of a green paper.

[19] Queensland Legislation Review Committee, Inquiry into the Legislation relating to the Management of Aboriginal and Torres Strait Islander, Brisbane, (November 1991), p. 41.

[20] Supra n. 7, p 16.

[21] In the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) the Queensland Government adopted definitions for Aboriginal tradition and Island custom which were subsequently applied to later legislation which in some way involved Indigenous interests. Section 2.03 of the Aboriginal Land Act 1991 (Qld) defines Aboriginal tradition to mean 'the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships'. The meaning of Island custom is similarly worded.

[22] For an overview of such legislation, see H. L Fourmile, 'Aboriginal Heritage Legislation and Self-Determination', (1989) 7(1-2) Australian-Canadian Studies 45. For critiques of particular states legislation see, for example, R. Goldflam, 'Between a Rock and a Hard Place: The Failure of Commonwealth Sacred Sites Protection Legislation', [1995] AboriginalLawB 39; (1995) 3(74) Aboriginal Law Bulletin 13; N. Hancock, 'How To Keep A Secret: Building Bridges Between Two 'Laws''[1995] AboriginalLawB 50; , (1995) 3(77) Aboriginal Law Bulletin 4; D. Saylor, 'Aboriginal Cultural Heritage Protection in Western Australia: The Urgent Need for Protection', (1995) 3(76) Aboriginal Law Bulletin, 9; and M. Organ , 'A Conspiracy of Silence: The NSW National Parks and Wildlife Service and Aboriginal Cultural Heritage Sites' [1994] AboriginalLawB 12; (1994) 3(67) Aboriginal Law Bulletin 4.

[23] Section 21 regarding the excavation of sites, objects or remains; s. 23 regarding damage or interference with sites, objects or remains; s. 29 regarding control of sale of and other dealings with objects; and s. 35 regarding the disclosure of information contrary to Aboriginal tradition.

[24] In s. 3, 'Aboriginal tradition' means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation.

[25] Second Reading Speech, SA Hansard. 11/4/87.

[26] Aboriginal Heritage Newsletter, Special Edition of the NSW Aboriginal Land Council Newsletter, Woomera, (May 1987).

[27] Briefly summarised these criticisms concern:

1.The assimilationist intent of the legislation because of its failure to recognise Aborigines and Torres Strait Islanders as culturally distinct groups with their own particular cultural requirements which need to be recognised in order for heritage protection legislation to be effective;

2. Lack of a clear statement of objectives;

3. Lack of definitional clarity and some necessary definitions lacking, eg., 'cultural record';

4. No explicit protection for Indigenous sites of significance;

5. Unnecessarily wordy and tautologous clauses;

6. Virtual total responsibility for the administration of the state's Indigenous cultural heritage vested with the Minister and with little Ministerial accountability;

7. While the potential exists for Indigenous involvement, no absolute requirement in the Act that this will occur;

8. Lack of an appeal process against decisions made under the Act;

9. Some clauses are contradictory, particularly those relating to ownership;

10. No requirement for relevant interest groups or expertise to be represented on advisory committees;

11. Uncertainty as regards respective responsibilities of advisory committees, Regional Landscapes Queensland Committees, Landscapes Queensland Protectors and Landscapes Queensland Advisers;

12. Lack of protection for the confidentiality of research undertaken amongst Indigenous communities with respect to such matters as sacred sites, ceremonial knowledge, etc.;

13. Unnecessarily complex processes for registration of sites and objects on the respective registers;

14. Places rights of private owners above the duty to protect culturally significant heritage for all Queenslanders and which essentially defeats the purpose of the Act (which is unclear anyway);

15. Indigenous people themselves have no power to control access to an area or item. Consent from the relevant Indigenous people is not required, for example, with regard to the issue of a permit by the Minister to carry out archaeological work in a particular area; and

16. etc., ad infinitum.

[28] This, of course, is not to disregard the arguments about the assimilatory intentions behind the Act with respect to the Indigenous community and the racism inherent in such intentions. However, with the passage of the Queensland Heritage Act 1992 (Qld) these arguments are no longer material to this paper as the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) now only applies to Indigenous cultural heritage.

[29] Supra, n.10, Athol Chase

[30] However, the exercise of this discretionary power is subject to certain requirements as at least five groups are required to be represented on the Council and the Minister must nominate one person from a panel of at least 3 names submitted by each Organisation representing these interest group (subs. 10(4)).

[31] Recently an archaeologist and heritage consultant from the University of Southern Queensland drew attention to the arbitrary imposition of a restriction on professional access by the Department of the Environment to the heritage site file database. Consultation with the database is an essential requirement in the conduct of Environmental Impact Studies regarding any proposed development. He also claims that the Department is refusing to process permits for EIS work to be carried out and as a consequence 'archaeological research in Queensland has come to a standstill'. In his view it appears that either the new minister is 'all at sea with his portfolio' or 'the State Government as a whole has pulled the shutters down over anything which may be used by Aboriginal groups to pursue land claims.' B. Barker 'Blocking Access to Heritage Site Data', Letter to the editor, The Australian, 4 June 1996, p. 14.

[32] The Minister's exercise of discretionary powers with regard to determining who might be considered 'traditional' or not can not be considered lightly. Government officials earlier in the 1980s frequently asserted that 'there are no traditional Aborigines left in Queensland', Chase, supra n. 7.

[33] The QHC has established 3 sub-committees - the Heritage Register Advisory Committee, the Development Applications Committee and the Review Committee to consider applications for reappraisal of development applications which are refused by the Heritage Council or the Development Applications Committee. The Review Committee was not required to meet in 1994-1995. Queensland Department of Environment and Heritage, Annual Report 1994-95, p.50.

[34] Queensland Department of Family Services and Aboriginal and Torres Strait Islander Affairs, Budget Statement 1994-1995, p. 77. The Great Sandy Region of Queensland embraces Fraser Island, the Cooloola area, and Noosa North Shore and the waters of Hervey Bay and the Great Sandy Strait.

[35] This has been criticised because of the potential to bestow political patronage on certain individuals.

[36] It can also include a mortgagee in possession of the land, a person who has a mining interest, and the Conservator of Forests if the land is State Forest or Timber Reserve.

[37] In addition several other statutes reserve ownership of components of Indigenous cultural heritage to the Crown. Pursuant to s. 61 of the Nature Conservation Act 1992 (Qld), all cultural resources of a National Park (Scientific), National Park, Conservation Park or Resources Reserve are the property of the State. In this Act 'cultural resources'

of a protected area means places or objects that have anthropological, archaeological, historical, scientific, spiritual or sociological significance or value, including such significance or value under Aboriginal tradition or Island custom (s.7).

Similarly, in accordance with s. 5(1) of the Forestry Act l959 (Qld), the term 'forest products' includes 'Aboriginal remains, artefacts or handicraft of Aboriginal origin or traces thereof', and where found on all State Forests, Timber Reserves, Forest Entitlement Areas, Crown Lands and on all Crown holdings 'shall at all times be presumed to be the absolute property of the Crown'(s. 45). Thus all Aboriginal and Torres Strait Islander sites and objects, unless legally owned by Aboriginal or Torres Strait Islander people, are owned by the Queensland Government. Since the Cultural Record Act operates in addition to any other Act (subs. 64(1)), the two aforementioned Acts will prevail.

[38] For a critique of museum relationships generally with Indigenous communities in Australia , see, H. L Fourmile, 'Museums and Aborigines: A Case Study in Contemporary Scientific Colonialism' (1987) 17 Praxis M, 7.

[39] Supra n. 6, p. 17.

[40] lbid, p.18.

[41] Ibid.

[42] In 1987, when commenting on the Bill, Adrian Jeffreys of the Queensland Conservation Council observed a double standard operating with regard to the protection of mining interests compared with the protection of cultural heritage in respect of the rights of private property owners:

... even if there are powerful arguments for the protection of an important site the legislation cannot be enforced without the consent of a private property owner or the authority of other Ministers. This is in stark contrast to another piece of proposed new legislation - the Mines Act Amendment Act - which is clearly intended to override all other individual rights. ... The changes to the Mines Act proposed in the recent Green Paper work on the assumption that, ... :

'.. the determination of the most appropriate land use at any given time should rest with the government and not with the party owning or controlling the land in question'

This would allow the government to allow mining on almost any piece of land without the consent of its owners. It is proposed to bring all land (excluding national and environmental parks) including lands held by deed of grant in trust to Aboriginals and Torres Strait Islanders within the jurisdiction of this insidious proposal.

The Queensland Government, it seems is quite prepared to wield exceptional powers to help the mining industry on the one hand but will not use these same powers to protect the heritage of all Queenslanders on the other.

The wording of the Bill regarding the rights of property owners remained unaltered in the Act. Undated summary attached to letter from Paul Braddy, MLA, Shadow Minister for Community Services to RC Katter, Minister for Northern Development and Community Services, 4/8/87.

[43] As reported by C. Thurlow, 'Stockman cracks whip to muster Nationals', The Courier Mail, l6 May 1992, p. 13.

[44] It might be noted that McDonald's family grazing empire covers more than two million hectares spanning eight properties from the Gulf of Carpentaria to the Channel Country: ibid, p. 12. By way of contrast, some 61,000 Aboriginal and Torres Strait Islander people in Queensland have access to or live on 3.2 million hectares of lease-hold land, the Deed of Grant in Trust (DOGIT) lands. In other words, one individual and his family own or lease an area of land equivalent to nearly two-thirds of the total amount of land to which the entire Indigenous population of Queensland has limited title. The potential for the destruction of Indigenous cultural heritage by individuals who can own or control so much land and who are hostile towards Indigenous interests is therefore considerable.

[45] The current monetary value of a penalty unit is $60.

[46] While no penalty is specifically prescribed for breaches in relation to a permit under ss. 28, 29, 30 and 31, presumably a maximum penalty under s. 60 of 20 penalty units would apply. Similarly, if, for example, a person was excavating in a Designated Landscape Area without a permit, and therefore trespassing, the same maximum penalty would apply (subs. 24(1)).

[47] A 'structure' in this case presumably means any structure erected 'to protect the area or the Queensland Estate therein' (subs. 20(3)(b)).

[48] The Local Government Court was established in 1965 by s. 27 of the City of Brisbane Town Planning Act 1964. The Court is preserved by s. 73 of the Local Government (Planning and Environment) Act 1990 under a new name and style 'The Planning and Environment Court'. The Planning and Environment Court is constituted by District Court judges appointed by the Governor in Council (s. 7.3(2)) and is a court of record (s. 7.3(5)). W.D Duncan, (ed) Planning and Environment Law in Queensland, The Federation Press, Sydney, (1993), p. 358.

[49] The day on which the Queensland Heritage Act 1992 (Qld) received assent.

[50] N. Lofgren, 'Complaint Procedures under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination', (l994) [1994] AboriginalLawB 14; 3 (67) Aboriginal Law Bulletin, 11.

[51] With regard to the lack of any provision for an appeal process within the Cultural Record Act 1987 (Qld).

[52] With regard to the lack of a statutory body of equivalent status to the Queensland Heritage Council and on which Aboriginal and Torres Strait Islander heritage interests might be represented.

[53] With regard to the lack of acknowledgment and clear and unambiguous provisions in the Act of ownership of Indigenous sites and objects by Indigenous people and the potential for restrictions on access to culturally important sites which effectively inhibit Indigenous people's religious freedom with regard to the performance of ceremonies and the maintenance of sites.

[54] The many inadequacies of the Act have the compound effect of denying Indigenous people in Queensland the right to enjoy their cultures in the same way that non-Indigenous people are enabled to enjoy theirs.