Queensland: Torres Strait Islander Cultural Heritage Act 2003 (Qld)

Torres Strait Islander Cultural Heritage Act 2003 An Act to make provision for Torres Strait Islander cultural heritage Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Torres Strait Islander Cultural Heritage Act 2003. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State liable to be prosecuted for an offence. Division 2 Purpose of Act 4 Main purpose of Act The main purpose of this Act is to provide effective recognition, protection and conservation of Torres Strait Islander cultural heritage. 5 Principles underlying Act's main purpose The following fundamental principles underlie this Act's main purpose— (a) the recognition, protection and conservation of Torres Strait Islander cultural heritage should be based on respect for Torres Strait Islander knowledge, culture and customary practices; (b) Torres Strait Islanders should be recognised as the primary guardians, keepers and knowledge holders of Torres Strait Islander cultural heritage; (c) it is important to respect, preserve and maintain knowledge, innovations and practices of Torres Strait Islander communities and to promote understanding of Torres Strait Islander cultural heritage; (d) activities involved in recognition, protection and conservation of Torres Strait Islander cultural heritage are important because they allow Torres Strait Islanders to reaffirm their obligations to Island custom; (e) there is a need to establish timely and efficient processes for the management of activities that may harm Torres Strait Islander cultural heritage. 6 How main purpose of Act is to be achieved For achieving effective recognition, protection and conservation of Torres Strait Islander cultural heritage, this Act provides for the following— (a) recognising Torres Strait Islander ownership of Torres Strait Islander human remains wherever held; (b) recognising Torres Strait Islander ownership of Torres Strait Islander cultural heritage of a secret or sacred nature held in State collections; (c) recognising Torres Strait Islander ownership of Torres Strait Islander cultural heritage that is lawfully taken away from an area by a Torres Strait Islander party for the area; (d) establishing a duty of care for activities that may harm Torres Strait Islander cultural heritage; (e) establishing powers of protection, investigation and enforcement; (f) establishing a database and a register for recording Torres Strait Islander cultural heritage; (g) ensuring Torres Strait Islanders are involved in processes for managing the recognition, protection and conservation of Torres Strait Islander cultural heritage; (h) establishing a process for the comprehensive study of Torres Strait Islander cultural heritage; (i) establishing processes for the timely and efficient management of activities to avoid or minimise harm to Torres Strait Islander cultural heritage. Division 3 Interpretation 7 Definitions The dictionary in the schedule defines particular words used in this Act. 8 Meaning of Torres Strait Islander cultural heritage Torres Strait Islander cultural heritage is anything that is— (a) a significant Torres Strait Islander area in Queensland; or (b) a significant Torres Strait Islander object; or (c) evidence, of archaeological or historic significance, of Torres Strait Islander occupation of an area of Queensland. 9 Meaning of significant Torres Strait Islander area A significant Torres Strait Islander area is an area of particular significance to Torres Strait Islanders because of either or both of the following— (a) Island custom; Editor's note— Under the Acts Interpretation Act 1954, schedule 1 (Meaning of commonly used words and expressions), Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships. (b) the history, including contemporary history, of any Torres Strait Islander party for the area. 10 Meaning of significant Torres Strait Islander object A significant Torres Strait Islander object is an object of particular significance to Torres Strait Islanders because of either or both of the following— (a) Island custom; (b) the history, including contemporary history, of a Torres Strait Islander party for an area. 11 Extension of evidence of occupation to surroundings If a particular object or structure is evidence of Torres Strait Islander occupation, the area immediately surrounding the object or structure is also evidence of Torres Strait Islander occupation to the extent the area can not be separated from the object or structure without destroying or diminishing the object or structure's significance as evidence of Torres Strait Islander occupation. 12 Identifying significant Torres Strait Islander areas (1) This section gives more information about identifying significant Torres Strait Islander areas. (2) For an area to be a significant Torres Strait Islander area, it is not necessary for the area to contain markings or other physical evidence indicating Torres Strait Islander occupation or otherwise denoting the area's significance. (3) For example, the area might be a ceremonial place, a burial place or the site of a massacre. (4) Also, if significant Torres Strait Islander objects exist in an area and the significance of the objects is intrinsically linked with their location in the area— (a) the existence of the objects in the area is enough on its own to make the area a significant Torres Strait Islander area; and (b) if it is reasonably appropriate under this Act, the immediate area and the objects in it may be taken to be, collectively, a significant Torres Strait Islander area. (5) For identifying a significant Torres Strait Islander area, regard may be had to authoritative anthropological, biogeographical, historical and archaeological information. 13 Interpretation to support existing rights and interests A provision of this Act must not be interpreted in a way that would allow the provision to operate in a way that prejudices— (a) a right of ownership of a traditional group of Torres Strait Islanders, or of a member of a traditional group of Torres Strait Islanders, in Torres Strait Islander cultural heritage used or held for traditional purposes under Island custom; or (b) a person's enjoyment or use of, or free access to, Torres Strait Islander cultural heritage, if— (i) the person usually lives according to Island custom as it relates to a particular group of Torres Strait Islanders; and (ii) the access, enjoyment or use is sanctioned by the Island custom; or (c) native title rights and interests. Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage Division 1 Preliminary 14 Object and intent (1) The object of this part is to make rules about ownership, custodianship and possession of Torres Strait Islander cultural heritage. (2) The basic intent underlying the rules stated in this part is that Torres Strait Islander cultural heritage should be protected. (3) A supporting intent is that, as far as practicable, Torres Strait Islander cultural heritage should be owned and protected by Torres Strait Islanders with traditional or familial links to the cultural heritage if it is comprised of any of the following— (a) Torres Strait Islander human remains; (b) secret or sacred objects; (c) Torres Strait Islander cultural heritage lawfully taken away from an area. (4) Another supporting intent is that Torres Strait Islander cultural heritage of the type mentioned in subsection (3)(a) or (b) that is in the custody of the State, including the Queensland Museum, should continue to be protected by the State until it can be transferred into the protection of its Torres Strait Islander owners. Division 2 Torres Strait Islander human remains 15 Ownership of Torres Strait Islander human remains (1) On the commencement of this section, Torres Strait Islanders who have a traditional or familial link with Torres Strait Islander human remains in existence immediately before the commencement become the owners of the human remains if they are not already the owners. (2) Subsection (1) applies regardless of who may have owned the Torres Strait Islander human remains before the commencement of this section. 16 Torres Strait Islander human remains in custody of State (1) This section applies to Torres Strait Islander human remains if the human remains are in the custody of an entity that represents or is the State. (2) The persons who own the human remains may at any time ask the entity— (a) to continue to be the custodian of the human remains; or (b) to return the human remains to them. (3) If the entity is satisfied the persons making the request under subsection (2) are the owners of the human remains, the entity must comply with the request to the greatest practicable extent. (4) The persons who own the human remains are not limited to making only 1 request under subsection (2). Example— The owners could ask for the Queensland Museum to continue its custody of the human remains while they make suitable arrangements for dealing with the human remains, at which time they could ask for the human remains to be returned to them. 17 Possession of Torres Strait Islander human remains (1) This section applies to a person, other than the State, if the person has in the person's possession Torres Strait Islander human remains that were in existence immediately before the commencement of this section and the person does not have the necessary traditional or familial links with the human remains to be the owner of the human remains. (2) The person must take all reasonable steps to ensure that the human remains are taken into the custody of the chief executive as soon as practicable. Maximum penalty for subsection (2)—200 penalty units. 18 Knowledge of Torres Strait Islander human remains (1) This section applies to a person if the person— (a) knows of the existence and location of Torres Strait Islander human remains, but does not own the human remains or have possession of them; and (b) knows, or ought reasonably to know, the human remains are, or are reasonably likely to be, Torres Strait Islander human remains; and (c) knows or suspects— (i) that the chief executive does not know of the existence of the human remains; or (ii) that the chief executive knows of the existence of the human remains, but does not know the human remains are, or are reasonably likely to be, Torres Strait Islander human remains. (2) The person must— (a) as soon as practicable, advise the chief executive of the existence and location of the human remains; and (b) give the chief executive all details about the nature and location of the human remains the chief executive reasonably requires. Maximum penalty—100 penalty units. (3) For subsection (2), the obligation to advise the chief executive and to give the chief executive details must be complied with— (a) if all the circumstances giving rise to the obligation arose before the commencement of this section—as soon as practicable after the commencement; or (b) if all the circumstances giving rise to the obligation arise after the commencement, or if the circumstances arose partly before the commencement and arise partly after the commencement—as soon as practicable after all the circumstances apply. (4) For subsection (1)(c), the chief executive is taken to be in possession of any knowledge that was ever in the possession of the Minister mentioned in section 35 of the repealed Act. Division 3 Secret and sacred objects 19 Ownership and custody of secret or sacred object (1) This section applies to an object that is Torres Strait Islander cultural heritage if— (a) the object is a secret or sacred object; and Example of secret or sacred object— a ceremonial item (b) the object is, immediately before the commencement of this section, in the custody of an entity that represents or is the State, or after the commencement comes into the custody of an entity that represents or is the State. (2) The Torres Strait Islanders who have a traditional or familial link with the object, if they are not already the owners, become the owners of the object— (a) if the object was in the custody of the entity immediately before the commencement of this section—on the commencement; or (b) otherwise—when the object comes into the custody of the entity. (3) The persons who own the object may at any time ask the entity— (a) to continue to be the custodian of the object; or (b) to return the object to them. (4) If the entity is satisfied the persons making the request under subsection (3) are the owners of the object, the entity must comply with the request to the greatest practicable extent. (5) The persons who own the object are not limited to making only 1 request under subsection (3). Example— The owners could ask for the Queensland Museum to continue its custody of an object while they make suitable arrangements for dealing with the object, at which time they could ask for the object to be returned to them. Division 4 Other Torres Strait Islander cultural heritage 20 Ownership of Torres Strait Islander cultural heritage (1) The following Torres Strait Islander cultural heritage is not in the ownership of the State— (a) human remains and secret or sacred objects owned by Torres Strait Islanders under division 2 or 3; (b) Torres Strait Islander cultural heritage passing into the ownership of a Torres Strait Islander party under this Act; (c) Torres Strait Islander cultural heritage owned by a person whose ownership is confirmed under a provision of this Act; (d) Torres Strait Islander cultural heritage owned by a person to whom ownership is lawfully transferred. (2) Otherwise, the State owns Torres Strait Islander cultural heritage. (3) Subsection (2) applies to an object or evidence that is Torres Strait Islander cultural heritage even if the object or evidence— (a) forms, or has previously formed, part of land; or (b) is located, or has previously been located, in, on or under land. (4) Subsections (2) and (3) do not operate to give the State ownership of— (a) land in which is situated an object or evidence that becomes owned by the State under subsection (2); or (b) any other land. 21 Continued use of surface (1) This section applies if Torres Strait Islander cultural heritage is located on the surface of land, and— (a) under the tenure on which the land is held, the owner or occupier of the land is entitled to the use and enjoyment of the surface of the land; or (b) a person is otherwise entitled to the use and enjoyment of the surface of the land. (2) Despite the existence of the Torres Strait Islander cultural heritage, the owner or occupier or other person is entitled to the use and enjoyment of the land to the extent that the person does not unlawfully harm the cultural heritage. Division 5 Role of Queensland Museum 22 Care of Torres Strait Islander cultural heritage (1) The Queensland Museum may act under the Queensland Museum Act 1970 in relation to all Torres Strait Islander cultural heritage in its custody. (2) Subsection (1) applies subject to the particular requirements of this Act about the ownership, custody or protection of Torres Strait Islander cultural heritage. (3) The Queensland Museum may at any time accept custody of Torres Strait Islander cultural heritage. Part 3 Protection of Torres Strait Islander cultural heritage Division 1 Key cultural heritage protection provisions 23 Cultural heritage duty of care (1) A person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Torres Strait Islander cultural heritage (the cultural heritage duty of care). Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) Without limiting the matters that may be considered by a court required to decide whether a person has complied with the cultural heritage duty of care in carrying out an activity, the court may consider the following— (a) the nature of the activity, and the likelihood of its causing harm to Torres Strait Islander cultural heritage; (b) the nature of the Torres Strait Islander cultural heritage likely to be harmed by the activity; (c) the extent to which the person consulted with Torres Strait Islander parties about the carrying out of the activity, and the results of the consultation; (d) whether the person carried out a study or survey, of any type, of the area affected by the activity to find out the location and extent of Torres Strait Islander cultural heritage, and the extent of the study or survey; (e) whether the person searched the database and register for information about the area affected by the activity; (f) the extent to which the person has complied with cultural heritage duty of care guidelines; (g) the nature and extent of past uses in the area affected by the activity. (3) A person who carries out an activity is taken to have complied with the cultural heritage duty of care in relation to Torres Strait Islander cultural heritage if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with native title protection conditions, but only if the cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Torres Strait Islander cultural heritage, or is acting with the owner's agreement; or (c) the activity is necessary because of an emergency, including for example, a bushfire or other natural disaster. 24 Unlawful harm to Torres Strait Islander cultural heritage (1) A person must not harm Torres Strait Islander cultural heritage if the person knows or ought reasonably to know that it is Torres Strait Islander cultural heritage. Maximum penalty— (a) for an individual— (i) if the Torres Strait Islander cultural heritage is a registered significant area or registered significant object—1,000 penalty units or 2 years imprisonment; or (ii) otherwise—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who harms Torres Strait Islander cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the Torres Strait Islander cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Torres Strait Islander cultural heritage, or is acting with the owner's agreement; or (c) the harm is the result of doing an act that is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person's knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. 25 Prohibited excavation, relocation and taking away (1) A person must not excavate, relocate or take away Torres Strait Islander cultural heritage if the person knows or ought reasonably to know that it is Torres Strait Islander cultural heritage. Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who excavates, relocates or takes away Torres Strait Islander cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the Torres Strait Islander cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Torres Strait Islander cultural heritage, or is acting with the owner's agreement; or (c) the excavation, relocation or taking away is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person's knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. 26 Unlawful possession of Torres Strait Islander cultural heritage (1) A person must not have in the person's possession an object that is Torres Strait Islander cultural heritage if the person knows or ought reasonably to know that the object is Torres Strait Islander cultural heritage. Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who has in the person's possession an object that is Torres Strait Islander cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the object; or (ii) under an approved cultural heritage management plan that applies to the object; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the object is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the object is expressly or impliedly the subject of the conditions; or (b) the person owns the object, or is acting with the owner's agreement; or (c) the person's possession of the object is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person's knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. (4) This section does not apply to Torres Strait Islander human remains. 27 Court may order costs of rehabilitation or restoration (1) On a conviction of a person for an offence under this division involving the unlawful harming or possessing of Torres Strait Islander cultural heritage, the court may, if considered appropriate, order the person to pay to the State or another appropriate entity an amount for or towards— (a) the cost of any repair or restoration of the Torres Strait Islander cultural heritage needing to be carried out; and (b) the cost of any repair or restoration of anything else that is not itself the Torres Strait Islander cultural heritage, but that is associated with the Torres Strait Islander cultural heritage and also needs to be repaired or restored because of the offence. (2) In this section— conviction includes a plea of guilty or a finding of guilt by a court, even though a conviction is not recorded. Division 2 Duty of care guidelines 28 Cultural heritage duty of care guidelines (1) The Minister may by gazette notice notify guidelines (cultural heritage duty of care guidelines) identifying reasonable and practicable measures for ensuring activities are managed to avoid or minimise harm to Torres Strait Islander cultural heritage. (2) In formulating cultural heritage duty of care guidelines, the Minister may consult with the following— (a) Torres Strait Islander groups; (b) industry groups; (c) local governments; (d) other persons the Minister considers appropriate. Division 3 Information about cultural heritage 29 Information protection provision (1) This section applies to a person who, under this Act, submits to the chief executive or the Minister a report or other document about Torres Strait Islander cultural heritage matters. (2) The person must not include in the report or other document knowledge or information given to or otherwise acquired by the person if— (a) the person knows the knowledge or information is of a secret or sacred nature; and (b) the Torres Strait Islanders in whose understanding the knowledge or information is of a secret or sacred nature have not agreed to its inclusion in the report or other document. Maximum penalty— (a) for an individual—100 penalty units; (b) for a corporation—1,000 penalty units. 30 Putting cultural heritage management plan into effect (1) A person who is involved in putting an approved cultural heritage management plan into effect must take all reasonable steps to ensure the chief executive is advised about all Torres Strait Islander cultural heritage revealed to exist because of any activity carried out under the plan. Maximum penalty— (a) for an individual—100 penalty units; (b) for a corporation—1,000 penalty units. (2) Subsection (1) does not require the giving of advice to the chief executive if giving the advice would be a contravention of the information protection provision. 31 Other activities (1) A person who is involved in carrying out an activity, other than an activity under an approved cultural heritage management plan, may advise the chief executive of Torres Strait Islander cultural heritage revealed to exist because of the activity. (2) Subsection (1) does not authorise the giving of advice to the chief executive if giving the advice would be a contravention of the information protection provision. Division 4 Protection of cultural heritage under action of Minister 32 Stop orders (1) This section applies if the Minister is satisfied there are reasonable grounds for concluding— (a) a person is carrying out or is about to carry out an activity; and (b) either or both of the following apply— (i) in carrying out the activity, the person is or will be harming Torres Strait Islander cultural heritage; (ii) the carrying out of the activity is having or will have a significant adverse impact on the cultural heritage value of Torres Strait Islander cultural heritage. (2) The Minister may give the person a stop order for the activity. (3) The stop order must be given to the person— (a) by giving it to the person personally; or (b) if it is not reasonably practicable to give it to the person personally—by fixing it in a prominent position at the place where the activity is being carried out or is about to be carried out. (4) The stop order— (a) operates from when it is given to the person under subsection (3); and (b) unless it is revoked sooner, continues in force for 30 days from when it is given to the person, or for a shorter period stated in the order. (5) The Minister may give 1 further stop order of not more than 30 days under this section for the person's activity. (6) A person must not knowingly contravene a stop order given to a person under this section. Maximum penalty—17,000 penalty units. (7) The penalty amount mentioned in subsection (6) is the maximum penalty amount that may be imposed for an offence under the subsection, even if the offence is committed by a corporation. (8) A stop order under this section is ineffective in its application to an activity if the activity is the subject of an injunction granted in the exercise of the exclusive jurisdiction the Land Court has for cultural heritage matters under the Land Court Act 2000, section 32H. 33 Particular steps to preserve cultural heritage The Minister may— (a) for the State, acquire by purchase or gift Torres Strait Islander cultural heritage for the purpose of its preservation; and (b) cause structures to be erected, and other steps to be taken, that are necessary or desirable to preserve the Torres Strait Islander cultural heritage. Part 4 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies 34 Native title party for an area (1) Each of the following is a native title party for an area— (a) a registered native title claimant for the area; (b) a person who, at any time after the commencement of this section, was a registered native title claimant for the area, but only if— (i) the person's claim has failed and— (A) the person's claim was the last claim registered under the Register of Native Title Claims for the area; and (B) there is no other registered native title claimant for the area; and (C) there is not, and never has been, a registered native title holder for the area; or (ii) the person has surrendered the person's native title under an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or (iii) the person's native title has been compulsorily acquired or has otherwise been extinguished; (c) a registered native title holder for the area; (d) a person who was a registered native title holder for the area, but only if— (i) the person has surrendered the person's native title under an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or (ii) the person's native title has been compulsorily acquired or has otherwise been extinguished. (2) If a person would be a native title party under subsection (1)(b) but the person is no longer alive, the native title party is instead taken to be the native title claim group who, under the Commonwealth Native Title Act, authorised the person to make the relevant native title determination application. 35 Torres Strait Islander party for an area (1) A native title party for an area is a Torres Strait Islander party for the area. (2) Subsection (3) applies to a native title party for an area who— (a) is or was a registered native title claimant; or (b) is the native title claim group who authorised a person who is no longer alive, but who was a registered native title claimant, to make a native title determination application. (3) The native title party is a Torres Strait Islander party for the whole area included within the outer boundaries of the area in relation to which the application was made under the Commonwealth Native Title Act for a determination of native title, regardless of the nature and extent of the claimant's claims in relation to any particular part of the whole area. (4) Subsection (5) applies to a native title party for an area who is or was a registered native title holder the subject of a determination of native title under the Commonwealth Native Title Act. (5) The native title party is a Torres Strait Islander party for the whole area included within the outer boundaries of the area in relation to which the application for the determination was made, regardless of the extent to which native title was found to exist in relation to any particular part of the whole area. (6) However, a native title party to whom subsection (5) applies is not a Torres Strait Islander party for a part of the area if— (a) native title was not found to exist in relation to the part; and (b) there is a registered native title claimant for the part. (7) If there is no native title party for an area, a person is a Torres Strait Islander party for the area if— (a) the person is a Torres Strait Islander with particular knowledge about traditions, observances, customs or beliefs associated with the area; and (b) the person— (i) has responsibility under Island custom for some or all of the area, or for significant Torres Strait Islander objects located or originating in the area; or (ii) is a member of a family or clan group that is recognised as having responsibility under Island custom for some or all of the area, or for significant Torres Strait Islander objects located or originating in the area. 36 Registration as Torres Strait Islander cultural heritage body (1) The Minister may, on the application of a corporation, register the corporation as a Torres Strait Islander cultural heritage body for an area. (2) The Minister must not register a corporation as a Torres Strait Islander cultural heritage body for an area if there is currently another corporation registered as a Torres Strait Islander cultural heritage body for the area or any part of the area. (3) However, the Minister may register a corporation (the new corporation) as a Torres Strait Islander cultural heritage body for an area even though there is currently another corporation (the registered corporation) registered as a Torres Strait Islander cultural heritage body for the area or any part of the area if— (a) the new corporation's registration is only for the purposes of a particular project; and (b) the registered corporation has given written agreement to the new corporation's registration for the purposes of the project; and (c) the registration provides that the registration is effective only until the project finishes. (4) The Minister may register a corporation as a Torres Strait Islander cultural heritage body for an area only if the Minister is satisfied that— (a) the corporation— (i) is an appropriate body to identify Torres Strait Islander parties for the area; and (ii) has the capacity to identify Torres Strait Islander parties for the area; and (b) either— (i) Torres Strait Islander parties for the area that are native title parties for the area agree the corporation should be registered; or (ii) if there is no Torres Strait Islander party for the area that is a native title party for the area—there is substantial agreement among the Torres Strait Islander parties for the area that the corporation should be registered. Examples of corporations that may be appropriate to be registered— a registered native title body corporate, a representative body that is a corporation, a Torres Strait Islander body incorporated for furthering the interests of Torres Strait Islanders in relation to land or cultural matters (5) In deciding whether to register a corporation as the Torres Strait Islander cultural heritage body for an area, the Minister may do any of the following— (a) consult with Torres Strait Islander parties for the area or parts of the area; (b) advertise for submissions about the proposed registration of the corporation; (c) anything else the Minister considers necessary to inform himself or herself. (6) The Minister may cancel the registration of a corporation as the Torres Strait Islander cultural heritage body for an area if the Minister is no longer satisfied about the matters mentioned in subsection (4) in relation to the corporation. (7) In this section— register, a corporation, means record the corporation in the register. 37 Function of Torres Strait Islander cultural heritage body (1) The function of a Torres Strait Islander cultural heritage body for an area is to identify, for the benefit of a person who needs to know under this Act, the Torres Strait Islander parties for the area or for a particular part of the area. (2) The Minister may give a Torres Strait Islander cultural heritage body for an area the financial or other help the body needs to carry out its function. Part 5 Collection and management of Torres Strait Islander cultural heritage information Division 1 Torres Strait Islander Cultural Heritage Database 38 Establishment of database (1) The chief executive must establish and keep the Torres Strait Islander Cultural Heritage Database. (2) The chief executive may keep the database in the form or forms the chief executive considers to be the most appropriate in the circumstances for achieving the purpose of establishing the database. 39 Purpose of establishing database (1) The purpose of establishing the database is to assemble, in a central and accessible location, information about Torres Strait Islander cultural heritage. (2) The database is intended to be a research and planning tool to help Torres Strait Islander parties, researchers and other persons in their consideration of the Torres Strait Islander cultural heritage values of particular areas. (3) The placing of information on the database is not intended to be conclusive about whether the information is up-to-date, comprehensive or otherwise accurate. 40 Placing information on database (1) The chief executive may place information on the database to the extent the chief executive considers appropriate, having regard especially to the consistency of the information with existing anthropological, biogeographical, historical and archaeological information. (2) Information the chief executive places on the database may be either information another person asks the chief executive to place on the database or information the chief executive already holds. 41 Taking information off database (1) The chief executive may take information off the database if the chief executive is satisfied the information has been recorded in error. (2) However, before acting under subsection (1) to take information about Torres Strait Islander cultural heritage for a particular area off the database, the chief executive must, to the extent it is reasonably practicable to do so, consult with any Torres Strait Islander party for the area. 42 Availability of database to public generally The chief executive must not give access to the database generally. 43 Availability of database to Torres Strait Islander party (1) This section applies if a Torres Strait Islander party for an area seeks information from the database. (2) The chief executive must give the Torres Strait Islander party information from the database to the extent that, in the chief executive's opinion, the information on the database relates to the area. 44 Availability of database for cultural heritage duty of care purposes (1) This section applies if a person carrying out an activity, including for example a land user, seeks information from the database. (2) The chief executive must give the person information from the database if, in the chief executive's opinion, the person has a particular need to be aware of the information for satisfying the person's cultural heritage duty of care. (3) However, the person does not necessarily comply with the person's cultural heritage duty of care only because the person has consulted the database. (4) If information is to be given to the person under subsection (2), the information may be given to a nominee or professional advisor acting for the person. 45 Availability of database to researcher (1) This section applies if a researcher into Torres Strait Islander cultural heritage seeks information from the database. (2) The chief executive may give the researcher information from the database to the extent that, in the chief executive's opinion, the information on the database relates to the research. Division 2 Torres Strait Islander Cultural Heritage Register 46 Establishment of register (1) The chief executive must establish and keep the Torres Strait Islander Cultural Heritage Register. (2) The chief executive may keep the register in the form or forms the chief executive considers to be the most appropriate in the circumstances for— (a) achieving the purpose of establishing the register; and (b) ensuring the register otherwise complies with the requirements of this division. 47 Purpose of establishing register (1) The purpose of establishing the register is to assemble in a central and accessible location— (a) information contained in cultural heritage studies; and (b) information about whether particular areas have been the subject of cultural heritage management plans; and (c) information about Torres Strait Islander cultural heritage bodies; and (d) other information necessary to help the consideration of Torres Strait Islander cultural heritage, including for example addresses for service of Torres Strait Islander parties. (2) The register is intended to be— (a) a depository for information for consideration for land use and land use planning, including, for example, for local government planning schemes and for regional planning strategies; and (b) a research and planning tool to help people in their consideration of the Torres Strait Islander cultural heritage values of particular objects and areas. 48 Recording information from cultural heritage study (1) This section applies if, under part 6, the chief executive or Minister records in the register the findings of a cultural heritage study. (2) The chief executive or Minister must record— (a) a description of the cultural heritage study adequate to distinguish it from other cultural heritage studies; and (b) a description of the study area, including, if necessary for accurately locating the study area, a plan of the area and a detailed description of its boundaries; and (c) a description of all Torres Strait Islander cultural heritage that has been identified in the study area and a description of its location; and (d) in general terms, the reasons anything identified as Torres Strait Islander cultural heritage has been so identified; and (e) if the study makes recommendations for the management of Torres Strait Islander cultural heritage identified in the study—the recommendations; and (f) for each area or object assessed as a significant Torres Strait Islander area or significant Torres Strait Islander object—the name of each Torres Strait Islander party that assessed the area or object as a significant Torres Strait Islander area or significant Torres Strait Islander object; and (g) the name and contact details of each endorsed party for the study; and (h) the name of each endorsed party for the study who did not take part in the carrying out of the study; and (i) the name and contact details of each Torres Strait Islander cultural heritage body for the study area; and (j) the name and contact details of each cultural heritage assessor for the study; and (k) when the study was completed. 49 Information about cultural heritage management plans (1) The chief executive must record in the register identifying details for each cultural heritage management plan approved, or in the process of being developed, under this Act. (2) The chief executive must arrange the register in a way giving the persons searching the register reasonable access to information about— (a) whether any particular area of the State is the subject of— (i) an approved cultural heritage management plan; or (ii) a cultural heritage management plan in the process of being developed under this Act; and (b) the contact details for the sponsor and endorsed parties for each approved plan and plan being developed. 50 Keeping register up-to-date (1) The Minister may add information to, or take information off, the register if the Minister is satisfied the adding or taking off is a necessary adjustment for keeping the register up-to-date. (2) However, before acting under subsection (1) to take information off the register, the Minister must, to the extent it is reasonably practicable to do so, consult with any Torres Strait Islander party for the area to which the information relates. (3) Information added to the register under subsection (1) is taken to be information recorded in the register. (4) Information taken off the register under subsection (1) is taken to be information no longer recorded in the register. 51 Availability of register to public generally (1) The chief executive must give access to the register generally. (2) The chief executive may require a person seeking to obtain information from the register to pay the fee prescribed under a regulation. Part 6 Cultural heritage studies Division 1 Introduction 52 Requirements for carrying out cultural heritage study and recording findings Divisions 2 to 6 state the requirements for carrying out a cultural heritage study and for having its findings recorded in the register. 53 Roles and responsibilities for carrying out cultural heritage study (1) Any person, including the Minister, may be the sponsor for a cultural heritage study. (2) However— (a) Torres Strait Islander parties are responsible for assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas and significant Torres Strait Islander objects; and (b) if the findings of a cultural heritage study are to be included in the register, the study must be carried out, and its findings put in written form, in the way this part requires. 54 Cultural heritage study guidelines (1) The Minister may by gazette notice notify guidelines to help people in choosing suitable methodologies for carrying out cultural heritage studies. (2) However, a failure to conform to the guidelines is not a ground for refusing to record a cultural heritage study's findings in the register. (3) Before notifying the guidelines, the Minister may consult with the following— (a) Torres Strait Islander groups; (b) industry groups; (c) local governments; (d) other persons the Minister considers appropriate. Division 2 Preparing to carry out cultural heritage study 55 Reference to part of study area may be taken to include reference to whole For this division, a reference relating to a part of a study area may, if it is convenient to do so, be taken to include a reference to the whole of the study area. 56 Giving of written notice (proposed study) (1) The sponsor for a cultural heritage study must give a written notice (written notice (proposed study)) to— (a) the chief executive; and (b) each person who is an owner or occupier of a part of the study area; and (c) if, for a part of the study area, there is no Torres Strait Islander cultural heritage body—each Torres Strait Islander party that is a native title party for the part of the study area; and (d) each entity that is a Torres Strait Islander cultural heritage body for a part of the study area; and (e) if, for a part of the study area, there is no Torres Strait Islander cultural heritage body and there is also no Torres Strait Islander party that is a native title party—each entity that is a representative body for the part of the study area; and (f) each local government whose local government area includes a part of the study area. (2) The written notice (proposed study) must, to the greatest practicable extent, be given simultaneously to each person to whom it is required to be given. (3) If, under subsection (1)(c), the written notice is required to be given to a native title party for a part of the study area, the written notice may be sent to the address for service entered for the party in— (a) the register; or (b) if no address for service is entered in the register, but an address for service is entered in the National Native Title Register or the Register of Native Title Claims—the National Native Title Register or the Register of Native Title Claims. 57 Basic information requirements for written notice (proposed study) The written notice (proposed study) must comply with the following requirements (the basic information requirements for the notice)— (a) it must advise the sponsor's name and contact details, including the sponsor's address for service; (b) it must advise that the sponsor intends to carry out the cultural heritage study; (c) it must describe the study area for the study and identify its location, including, to the extent appropriate and practicable in the circumstances, by describing the study area's location in relation to the nearest town, using bearings and approximate distances. 58 Additional requirements for notice to Torres Strait Islander cultural heritage body (1) If the written notice (proposed study) is given to a Torres Strait Islander cultural heritage body, the notice must, as well as complying with the basic information requirements for the notice— (a) advise the body that if it wishes to identify a Torres Strait Islander party to take part in the cultural heritage study, it must give a written notice to the sponsor identifying the party and giving the party's contact details; and (b) state the notice day (proposed study) for the study, and advise the body of the time by which the sponsor must be given the written notice identifying a Torres Strait Islander party to take part in the cultural heritage study; and (c) advise the body that a Torres Strait Islander party identified by the body might not be endorsed to take part in the study if the body does not give the sponsor the written notice within the required time. (2) For subsection (1)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice identifying a Torres Strait Islander party to take part in the cultural heritage study must be— (a) the end of 30 days after the notice day (proposed study) for the study; or (b) a later time decided by the sponsor. 59 Additional requirements for notice to Torres Strait Islander party (1) If the written notice (proposed study) is given to a Torres Strait Islander party, the notice must, as well as complying with the basic information requirements for the notice— (a) advise the party that if it wishes to take part in the cultural heritage study, it must give a written notice to the sponsor that the party wishes to take part in the study; and (b) state the notice day (proposed study) for the study, and advise the party of the time by which the sponsor must be given the written notice that the party wishes to take part in the study; and (c) advise the party that it might not be endorsed to take part in the study if it does not give the sponsor the written notice within the required time. (2) For subsection (1)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in the study must be— (a) the end of 30 days after the notice day (proposed study) for the study; or (b) a later time decided by the sponsor. 60 Additional requirements for notice to representative body If the written notice (proposed study) is given to a representative body, the notice must, as well as complying with the basic information requirements for the notice, draw the attention of the representative body to the public notice (proposed study) published or to be published under this division. 61 Giving of public notice (proposed study) (1) This section applies if, for a part of the study area (the relevant part)— (a) there is no Torres Strait Islander cultural heritage body; and (b) there is no Torres Strait Islander party that is a native title party for the part. (2) The sponsor must ensure that a public notice (public notice (proposed study)) is published in a newspaper circulating generally in the relevant part. (3) If there is an approved form for the public notice (proposed study), the notice must be in the approved form. (4) The public notice (proposed study) must be published as close as practicable to the time the written notice (proposed study) is given. (5) The public notice (proposed study) must— (a) be directed to Torres Strait Islander parties for the relevant part; and (b) advise the sponsor's name and contact details, including the sponsor's address for service; and (c) advise that the sponsor intends to carry out the cultural heritage study; and (d) describe the study area for the study and identify its location, including, to the extent appropriate and practicable in the circumstances, by describing the study area's location in relation to the nearest town, using bearings and approximate distances; and (e) describe the relevant part, if it is less extensive than the study area; and (f) advise that if a Torres Strait Islander party for the relevant part wishes to take part in the study, it must give a written notice to the sponsor that the party wishes to take part in the study; and (g) state the notice day (proposed study) for the study, and advise the time by which the sponsor must be given the written notice that the party wishes to take part in the study; and (h) advise that a Torres Strait Islander party might not be endorsed to take part in the study if it does not give the sponsor the written notice within the required time. (6) For subsection (5)(g), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in the study must be— (a) the end of 30 days after the notice day (proposed study) for the study; or (b) a later time decided by the sponsor. 62 Torres Strait Islander cultural heritage body response to written notice and endorsement for study (1) A Torres Strait Islander cultural heritage body given the written notice (proposed study) relating to a part of the study area may respond by giving a written notice to the sponsor, within the time required under the written notice (proposed study), advising the sponsor of the name and contact details of each Torres Strait Islander party for the part of the area, including the party's address for service. (2) If the sponsor receives a response from a Torres Strait Islander cultural heritage body under subsection (1) within the time required under the written notice (proposed study), the sponsor must endorse each Torres Strait Islander party identified in the response to take part in the cultural heritage study. 63 Torres Strait Islander party response to written notice and endorsement for study (1) A Torres Strait Islander party given the written notice (proposed study) relating to a part of the study area may respond by giving a written notice to the sponsor, within the time required under the written notice (proposed study), that the Torres Strait Islander party wishes to take part in the cultural heritage study. (2) If the sponsor receives a response from a Torres Strait Islander party under subsection (1) within the time required under the written notice (proposed study), the sponsor must endorse the Torres Strait Islander party to take part in the cultural heritage study. 64 Torres Strait Islander party response to public notice and endorsement for study (1) A Torres Strait Islander party to which a public notice (proposed study) is directed may respond by giving a written notice to the sponsor, within the time required under the public notice (proposed study), that the Torres Strait Islander party wishes to take part in the cultural heritage study. (2) If the sponsor receives a response from a Torres Strait Islander party under subsection (1) within the time required under the public notice (proposed study), the sponsor must endorse the Torres Strait Islander party to take part in the cultural heritage study. 65 Endorsement for study in absence of response (1) The sponsor is not required to endorse a Torres Strait Islander party for the study area to take part in the cultural heritage study if a response provided for under this part has not been given to the sponsor, or has not been given to the sponsor within the required time. (2) However, the sponsor may endorse a Torres Strait Islander party for the study area to take part in the cultural heritage study even though the sponsor is not required to endorse the party. Division 3 Carrying out cultural heritage study 66 Role of endorsed party (1) An endorsed party for the cultural heritage study has the role of— (a) in particular, assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas significant and Torres Strait Islander objects; and (b) generally, consulting with the sponsor about the carrying out of the cultural heritage study, and giving help and advice directed at maximising the quality and authority of the study. (2) The endorsed party's role under subsection (1)(b) may be performed on the party's behalf by a nominee. 67 Role of sponsor The role of the sponsor for the cultural heritage study is to carry out the study— (a) in consultation with the endorsed parties for the study; and (b) in a way directed at maximising the quality and authority of the study. 68 Engagement of cultural heritage assessors (1) The sponsor may engage persons as cultural heritage assessors for the cultural heritage study. (2) An endorsed party for the cultural heritage study may ask the sponsor to engage a cultural heritage assessor for the study for a particular purpose. (3) The sponsor must comply with any reasonable request of an endorsed party under subsection (2). (4) However, the sponsor may engage a person as a cultural heritage assessor for the cultural heritage study only if the sponsor is satisfied the person is— (a) a Torres Strait Islander for the study area; or (b) an appropriately qualified person in a discipline directly relevant to the study; or Examples of disciplines that would ordinarily be expected to be directly relevant— anthropology, archaeology, history (c) another person who has particular knowledge or experience making the person suitable for engagement as a cultural heritage assessor. (5) In this section— Torres Strait Islander for the study area means a Torres Strait Islander who has particular knowledge about traditions, observances, customs or beliefs associated with the study area, and who— (a) has responsibility under Island custom for some or all of the study area, or for significant Torres Strait Islander objects located or originating in the study area; or (b) is a member of a family or clan group recognised as having responsibility under Island custom for some or all of the study area, or for significant Torres Strait Islander objects located or originating in the study area. 69 Role of cultural heritage assessors (1) A cultural heritage assessor for the cultural heritage study has the role of giving help and advice directed at maximising the quality and authority of the cultural heritage study. (2) The cultural heritage assessor may give the help and advice only to the extent agreed to by the sponsor. 70 Consultation supporting cultural heritage study (1) The sponsor and each endorsed party for the cultural heritage study must take reasonable steps to consult with each other about carrying out the study. (2) Without limiting subsection (1), the sponsor and an endorsed party must consult with each other on any of the following if the sponsor or endorsed party asks for the consultation— (a) timing of the cultural heritage study generally and of particular stages of the study; (b) access to particular areas; (c) particular methods of assessment activity; (d) choosing persons to be engaged as cultural heritage assessors; (e) the reasonable requirements the sponsor may have of the endorsed party, or the endorsed party may have of the sponsor, for the carrying out of the study. (3) The sponsor must also consult with