08 May 2019
#Construction, Infrastructure & Projects, #Native Title & Indigenous Cultural Heritage
A recent landmark cultural heritage prosecution in Queensland provides insight into the factors relevant to deciding penalties for harm to Aboriginal cultural heritage.
In the Magistrates Court decision of Dunn v Ostwald Construction Material Pty Ltd  QMC 23, Ostwald Construction pleaded guilty to an agreed set of facts, including that it failed to comply with its cultural heritage duty of care and had harmed Aboriginal cultural heritage. Ostwald argued however that the extent of previous disturbance to the site reduced the level of disturbance and harm attributable to Ostwald’s activities and that any penalty awarded should reflect that.
The case concerned a quarry site near Roma, in Queensland. The Karingbal People were recognised as the Traditional Owners and Aboriginal party for the area under the Aboriginal Cultural Heritage Act 2003. Ostwald cleared a large area which the Magistrate found resulted in approximately 20 cm of top soil being pushed into bund walls. The Magistrate was satisfied that the clearing also resulted in the physical destruction of at least 3 Gumbi Gumbi trees and the displacement or damage of at least 50 artefacts.
When Ostwald leased the site from Santos it was advised that Aboriginal cultural heritage had been identified at the site and it was provided with the results of a prior survey which clearly identified cultural artefacts.
Ostwald was charged with and pleaded guilty to two offences: failing to comply with its duty of care and harming Aboriginal cultural heritage that it knew or reasonably ought to have known was Aboriginal cultural heritage.
The Court was required to determine the extent of the harm caused by Ostwald’s actions; the appropriate penalty to be imposed; and whether mitigation costs should be ordered.
The Court found that at least part of the site had at some point been previously cleared (to a depth of approx. 5-15cm) but that the ground disturbing activities conducted by Ostwald were more intense, involving the removal of approximately 20cm of top soil across a larger area. The Court found that the harm caused by Ostwald’s actions was greater than the harm that may have been caused by the earlier activities.
The Court accepted that whilst Ostwald did not intentionally cause harm, it nevertheless should have been on notice of potential harm to cultural heritage caused by the activities given that it had been conducting quarrying for many years and the information about the significance of the site was provided by Santos. The Court also took into account that Ostwald did not follow its own risk management procedures and had refused to rehabilitate the site, to the extent required by the Aboriginal party, in deciding that Ostwald’s conduct amounted to gross negligence.
In reliance upon archaeological evidence of the scientific value of the site, Ostwald argued that any harm was minimised as most artefacts were displaced rather than damaged. However, the Court found that the harm went “far beyond any physical damage that may have been sustained by any particular artefact and the harm to the spiritual culture of the Karingbal people is significant”.
Ostwald was fined $188,000 and further ordered to pay $250,000 to the Department of Aboriginal and Torres Strait Islander Partnership towards the cost of repairing/restoring the site. Ostwald also agreed to pay costs of $2,519.00. No conviction was recorded.
The case highlights the need for infrastructure providers, developers and other persons who undertake ground disturbing activities to ensure that employees and contractors are aware of the cultural significance of sites and comply with procedures for protecting Aboriginal cultural heritage adopted by the proponent. The decision also highlights that activities that cause harm to the spiritual values of the Aboriginal people may be sufficient to found a successful prosecution for breach of duty of care in circumstances where the scientific or archaeological significance of the site cannot be established.
Authors: Jenny Humphris & Alex Buck
Jenny Humphris, Partner
T: +61 7 3135 0690
Breellen Warry, Partner
T: +61 2 8083 0420
Joseph Monaghan, Partner
T: +61 3 9321 9857
Vanessa Maruna, Special Counsel
T: +61 7 4230 0402
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