Cultural heritage duty of care

The Aboriginal Cultural Heritage Act 2003 and Torres Strait Islander Cultural Heritage Act 2003 (the Cultural Heritage Acts) prohibit a person from harming; excavating, relocating or taking away; or possessing any Aboriginal or Torres Strait Islander cultural heritage if they know—or reasonably should know—its cultural heritage.

The Cultural Heritage Acts establish a duty of care that requires all persons to take reasonable and practicable steps to prevent harm to cultural heritage. A person meets this duty of care and doesn’t commit any offence when acting:

  • in compliance with gazetted cultural heritage duty of care guidelines
  • under an approved cultural heritage management plan (CHMP)
  • under a native title agreement
  • in an emergency.

If you believe a person is acting unlawfully and is harming (or is likely to harm) cultural heritage, you may be able to apply to the Land Court for an injunction to stop the activity.

Activities that can be restrained

The Cultural Heritage Division of the Land Court can grant injunctions to restrain activities that contravene:

  • the Cultural Heritage Acts, specifically
    • s. 24(1)—unlawful harm to cultural heritage
    • s. 25(1)—prohibited excavation or relocation of cultural heritage
    • s. 26(1)—unlawful possession of cultural heritage
  • any other Act that protects Aboriginal or Torres Strait Islander cultural heritage.

Who can apply

An Aboriginal or Torres Strait Islander group, or member of such a group, can apply to the Land Court for an injunction to stop an act relating to cultural heritage if the group has a traditional, historic or custodial interest in the cultural heritage.

How to apply

To apply, complete, print and sign a Form 1 - Originating application (PDF, 855.2 KB) and (DOC, 106.5 KB), and lodge it with the Land Court either:

  • in person at Level 8, Brisbane Magistrates Court building, 363 George Street, Brisbane
  • by post to The Registrar, Land Court of Queensland, GPO Box 5266, Brisbane Qld 4001.

What happens next

The Land Court sets the matter down for an urgent hearing to decide whether to order an interim injunction pending a full hearing.

The parties are usually directed to participate in a mediation to try to resolve the underlying dispute or at least narrow the issues.

If the parties can’t resolve the matter at mediation, the court sets the matter down for a full hearing as soon as possible.

When the court can grant an injunction

The Land Court can grant the injunction only if all these criteria are met:

  • the person that the injunction is sought for is doing the act or the court reasonably concludes they are likely to
  • the act involves harming; excavating, relocating or taking away; or possessing Aboriginal or Torres Strait Islander cultural heritage
  • the applicant meets the criteria for seeking an injunction

the injunction is necessary to stop the person doing the act.