Indigenous Cultural Heritage Schemes in Victoria, Queensland and ...

anyone, including the Minister. The relevant Aboriginal party must be given the
opportunity to participate. The party undertaking the study may appoint a
suitably qualified cultural heritage assessor to assess the heritage value of the
study area, which can include an Aboriginal person with knowledge of the
Aboriginal traditions of the area. Section 53(2)(a) states that Aboriginal parties
are responsible for determining the significance of any heritage objects and
places found during a study.
When completed, the chief executive considers the report, and if necessary, seeks
expert advice, and then decides to either include or to not include the results of
the study in the register.
Identification and consultation of appropriate Indigenous parties
Consultation and the duty of care
Consultation with relevant Indigenous parties is a significant element of the Act.
From a conservation and protection point of view, one of the most important
elements is the role that involving Indigenous parties in consultation,
participation and agreements plays within the overall process of cultural heritage
assessments. Given that the purpose of a cultural heritage assessment is to
determine if there are features of cultural heritage significance, and if so, how
best to manage the proposed action so that harm is minimised, proponents are
obliged to contact the relevant Aboriginal parties so as to seek:
(a) Advice as to whether the feature constitutes Aboriginal cultural heritage; and
(b) If it does, agreement as to how best the activity may be managed to avoid or minimise
harm to any Aboriginal cultural heritage. 143
Where agreement cannot be reached, however, the duty of care remains. As a
consequence, the proponent can seek alternatives beyond agreements with
Aboriginal parties, such as through the development of a CHMP. This could be
viewed as offering proponents a detour around consultation processes, although
CHMPs also require the sponsor to invite the relevant Aboriginal party to
contribute to the plan. 144 The duty of care guidelines also state that the ‘views of
the Aboriginal Party for an area are key in assessing and managing any activity
143 Duty of Care Guidelines, item 5.16.
144 ACH Act, s. 93.
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