Changes may be afoot to Queensland’s cultural heritage laws amid growing calls from Indigenous leaders and conservationists to make it mandatory to consult traditional owners before large scale clearing on privately-owned land.
- In October, a pastoralist was charged for clearing 500 hectares of land on his property
- The prosecution argued he had failed to check the clearing would not harm Aboriginal sites, but he was found not guilty
- Archaeologists say this “first test” shows weaknesses in the law
The state government is reviewing the findings of a landmark criminal case which recently ruled in favour of a Cape York grazier was accused of breaching cultural heritage protections on his Kingvale station.
Scott Harris was found not guilty after being charged with failing to take all reasonable steps to ensure 500 hectares of private land he had cleared did not harm Aboriginal cultural heritage.
The District Court judge ruled the offence could not be proved beyond reasonable doubt.
It was the first time a prosecution had been sought since the laws were introduced in 2003.
Concerns from traditional owners, archaeologists
Cape York ranger Vincent Harrigan wants to see consultation and surveys by traditional owners compulsory.
“These are the areas that have been passed down through generations. These are the areas that we do our lore,” he said.
“Our people have been using it for generations and I definitely, really support that should be mandatory.
“There must be a cultural survey done before any clearing happens.
Queensland’s Department of Aboriginal and Torres Strait Islander Partnerships is now in consultation with key stakeholders, including landowners and traditional owners, as part of the ongoing review of cultural heritage acts.
“The Queensland government is considering the findings of the District Court in Cairns as part of the cultural heritage acts review … to ensure the legislation is operating as intended,” a spokesman said.
Associate Professor of archaeology at the University of Queensland, Michael Westaway, said the Cape York case was an important legal test and showed changes were needed.
“[In] the legislation of Queensland, protecting cultural heritage isn’t really strong,” he said.
“The problem is, because the Queensland legislation doesn’t require an assessment prior to a large clearing like this, of 500 hectares, there’s no way that we could understand what was lost.
Understanding what might be there
Dr Westaway said the Cape York Peninsula had a rich archaeological tapestry with rock art, stone tools, burial sites, and scarred trees.
“When we look at the archaeological record, people have occupied every environment type in this country over that period of time [65,000 years],” he said.
Vincent Harrigan said important features like scar trees, rock art, and graves often required trained eyes to detect.
“[Even] graves, they might look to the naked eye like there’s nothing there,” he said.
“Those things have been passed down and taught to us as we were kids what to look for.
“You’ve got to remember … a lot of this area hasn’t been just put in place in the last few years, it’s been around for thousands of years.
Dr Westaway said material evidence was only one part of the story.
“The stories that relate to the dreaming and the cultural significance of a place that can’t be seen or touched,” he said.
What do conservationists think needs to change?
Dr Westaway suggested a solution could be to establish a treaty with local Indigenous groups which would allow normal activities on private land without the need for a heritage assessment.
“A treaty doesn’t of course exclude land use by pastoralists and others, but it does give more recognition to Aboriginal people to look after their heritage,” he said.
But he also cautioned against the “hyperbole” used after the court’s decision was handed down in October.
He also said there was no implication pastoralists were being negligent.
“To be honest, some of these archaeological residues are really difficult to detect, they can be hard to identify,” he said.
“It’s been shown across Queensland and many other states that cultural heritage assessments for significant-size developments don’t necessarily impact on those developments going ahead.
“It just ensures that the two activities can coexist.”
In the meantime, Mr Harrigan has urged landowners to approach traditional owners before they embarked on any broadscale clearing.
“We’re not against everything, and we’re willing to listen, definitely.”