The Queensland government has introduced a Bill which would dramatically alter the application of the Aboriginal and Torres Strait Islander cultural heritage legislation for Brisbane Olympics venues, villages and games-related transport infrastructure. Default cultural heritage plans would be available where no agreement can be reached with an Aboriginal party or Torres Strait Islander party. Significantly, no stop orders or injunctions will be available for the protection of cultural heritage if a proponent has issued a notice of their intention to develop a plan – there is no requirement that they have even started negotiation before obtaining the benefit of this ban.
The Deputy Premier today tabled the Planning (Social Impact and Community Benefit) and Other Legislation Amendment Bill 2025, which has attracted media attention as it would deem the development of Olympic venues exempt from compliance with certain laws, notably the Environmental Protection Act 1994 (Qld), Planning Act 2016 (Qld) and the Nature Conservation Act 1992 (Qld).
The proposed changes to the application of the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) (the Cultural Heritage Acts) are significant and provide a pathway for proponents to obtain compliance with the Cultural Heritage Acts even if agreement has not been reached with the relevant Aboriginal or Torres Strait Islander party.
Default plans to apply if no agreement
The Bill would introduce a new ‘part 3 plan’, which would appear to be modelled on the process for obtaining a Cultural Heritage Management Plan, with several important differences.
Firstly, there would be a shorter timeframe for obtaining a part 3 plan – only 60 days from the day the Aboriginal or Torres Strait Islander party issues a participation notice for development of the plan. If a part 3 plan is agreed, it is taken to be an approved Cultural Heritage Management Plan under the Cultural Heritage Acts.
Perhaps most significantly, if there is no plan agreed by the end of this period, the ‘default plan’ applies, which is set out in Schedule 5 of the Bill. The default plan flips the usual process for cultural heritage management on its head. Instead of being led by the Aboriginal or Torres Strait Islander party first surveying the land and then proposing management measures, the proponent’s coordinator would prepare management measures and training plans and seek ‘submissions’ from the relevant party. At each step, the proponent’s coordinator would have absolute discretion to implement management measures if no agreement is reached or if no response is received.
By contrast, under the Cultural Heritage Acts, if agreement cannot be reached after 84 days after the end of the notice period, a sponsor may refer a proposed Cultural Heritage Management Plan to the Land Court for approval.
Under the Bill, there is a requirement for negotiating parties to negotiate in good faith, and a requirement that if there is more than one Aboriginal or Torres Strait Islander party for an area, they must attempt to reach agreement on a single part 3 plan. This may be difficult as different groups may have different concerns and different cultural heritage to protect.
No stop orders or injuctions
A proponent need only have given the chief executive a ‘cultural heritage notice’, indicating their intention to develop a part 3 plan, and the prohibitions on stop orders and injunctions will apply. This applies both to stop orders under the Cultural Heritage Acts, and injunctions which may be granted by the Land Court.
Other provisions
There is an unusual distinction between the process applied to Aboriginal or Torres Strait Islander parties who are ‘native title parties’ and those who are not. A proponent need only give a ‘negotiation notice’ for development of a plan to an Aboriginal or Torres Strait Islander party which is also a native title party under the Cultural Heritage Acts. It may give an ‘information notice’ to native title representative bodies seeking information about any other Aboriginal or Torres Strait Islander parties, who may then elect to participate. This may seem like a technical point, but it privileges certain parties over others in a way that is not contemplated under the Cultural Heritage Acts.
There are some other curious provisions in the Bill, such as the recourse to mediation by the Land Court if after 40 days the parties have not reached agreement on a plan, but only if they ‘agree there is a reasonable prospect of all the terms being agreed by mediation’. It would seem that parties who cannot reach agreement on a plan may not be able to agree on the likelihood of mediation resolving their issues.
Take aways
The government is seeking to smooth the path for development of Brisbane Olympic venues, villages and games-related infrastructure, at the expense of agreement with Aboriginal and Torres Strait Islander parties on the protection of their cultural heritage. Of most concern is the short period allowed for negotiation of an agreement, defaulting to a proponent-led plan which reverses the usual Traditional Owner-led survey and management process.
It is particularly disappointing that, only a few years on from the Juukan Gorge disaster in Western Australia, the government would seek to limit the ability of Aboriginal and Torres Strait Islander parties to protect their cultural heritage via a stop order or injunction. This type of ‘gag clause’ in agreements was heavily criticised by the Federal Senate report into the Juukan Gorge disaster.