The paper was based on 54 submissions from industry, government and native title stakeholders, and proposed several changes that could significantly impact clients in the property, infrastructure and resources sectors.

Gavin Scott, a partner in Ashurst’s Brisbane resources practice specialising in native title, told Lawyers Weekly that the guidelines enable businesses to assess the potential impact of their proposed activities on Aboriginal cultural heritage and then determine whether they need to engage with Aboriginal stakeholders.

As they stand, the guidelines suggest that where the ground has previously been disturbed, such as a farm site, further activities of other types are not likely to have a great impact on Aboriginal cultural heritage.

However, Mr Scott said the proposed changes to the guidelines will include the more intangible aspects of cultural heritage, such as the meaning of a place itself, rather than just the physical artefacts and appearance of the site.

“[They are] quite well-used guidelines for multiple industries: for infrastructure, for mining, for local councils and for residential developers,” he said.

“There had been some angst in the use of them. Particularly some Aboriginal groups alleging that proponents were probably taking the assessment a bit too far, about whether any Aboriginal heritage could remain in an area that has been subject to previous ground disturbance.

“And that’s why in August last year the government issued a discussion paper about whether the guidelines, which have been in place since 2004, needed updating and needed to have a bit more of a focus on not just heritage artefacts but also on residual cultural heritage values of areas.”

The issues paper proposed a recategorisation of land use activities, adjusting the current five categories to four. The proposed categories are: activities causing no physical impact, activities consistent with previous land uses, activities inconsistent with previous land uses, and activities in previously undisturbed areas.

Notably, the current guidelines state that no further assessment is required in areas that have already experienced development or significant ground disturbance. Under the proposed changes the duty of care would hinge instead on whether a project is consistent with previous land uses.

“I think it will impact particularly on residential developers who buy old farms out in the suburbs and then turn them into residential sub-developments, because a residential development is an inconsistent use with the past use of, say, grazing or pastoral practices,” Mr Scott said.

“So there’s this slight shift between looking at what the past disturbance history of the land is to whether what I want to do now is consistent with what has previously been done.

“I think where the government is heading is it casts a wider net to capture more projects and ensure that there’s an adequate consultation and engagement with Aboriginal parties about projects that might impact on both cultural heritage artefacts and also on the residual cultural heritage value of an area.”

Mr Scott said the proposed changes are unlikely to have a significant impact on the resources sector, as these businesses commonly enter agreements with Aboriginal groups, which obviates the use of the guidelines.

He predicted that property development would be the sector most affected by the new guidelines, followed by infrastructure and utilities. By way of example, Mr Scott said the construction of power lines and pipelines in areas that have already been disturbed would be considered an inconsistent land use under the changes, and would require further consultation with Aboriginal groups.

He added that there are three points lawyers need to be aware of so they can guide their clients through any changes.

“One: understand the recategorisation of activities and how that impacts on their clients’ current and future projects.

“Two: they’re going to have to help their clients better document their assessments. The department is really keen on making the process more transparent, so if a developer considers that their use of land is consistent with past uses of land or it isn’t going to impact on cultural heritage in any great way, there is going to be a requirement to document that in a better way, and that could involve both legal and archaeological expertise.

“And then thirdly, something that we haven’t had in the guidelines in the past is understanding how the dispute resolution process will work. The government seems to want to put in a viable dispute resolution process when the two parties can’t agree on appropriate measures to mitigate any damage.

“There is always the ability to resort to the Land Court, but I think anything that resolves things in a more informal way through alternative dispute resolution is probably going to be acceptable to both sides, and it would be good to see that there is that sort of transparent path forward.”

The issues paper proposed three options for dispute resolution: the use of an independent expert, a mediation service provided by the department, or mediation through the Land Court.

Mr Scott said land use disputes often require archaeological or anthropological expertise, which could become a much more important part of the dispute resolution process under the new guidelines.

He concluded that there is no need for clients to be spooked by the proposed adjustments, but that the government is looking to strengthen the protection of Aboriginal cultural heritage by shifting the focus of the guidelines.

“If introduced, the new guidelines will ensure more engagement with Aboriginal groups even in areas where some might think that Aboriginal cultural heritage could not exist any more,” Mr Scott said.

“There will be a renewed focus on residual values and important areas such as landscapes and areas considered sacred because of songlines and dreaming stories.”