In the recent case of Burns v Redland City Council [2025] QDC 15, the District Court considered an appeal by an applicant who was convicted of carrying out a prohibited development for the clearing of reserve land. The applicant defended the charge on several grounds, of which included that the clearing of land was a traditional Aboriginal cultural activity and therefore fell within the scope of an express exemption for such activity for the offence arising under section 162 of the Planning Act 2016 (the cultural activity exemption).
On appeal the court ultimately dismissed this ground stating the exemption was not made out on the evidence, however in considering the exemption the court offered some useful insight into when an activity will be a traditional Aboriginal cultural activity and therefore may give rise to a cultural activity exemption.
The court provided that an activity will be a traditional Aboriginal cultural activity if it is an activity which is carried on by a specific group of Aboriginal people and:
- it is an activity which is carried on according to some accepted system of rules, practices or conventions common to that group (a cultural activity);
- that system of rules, practices and conventions has been handed down to current group members from earlier generations (a traditional activity); and
- is a cultural activity unique to the culture of that group, as opposed to being a cultural activity carried on by the community or parts of the community who are not the relevant Aboriginal people (e.g. in this case, the Quandamooka people).
In considering how long a cultural activity must have existed for, for it to be traditional, the court concluded that each case must be determined on a case-by-case basis having regard to the nature of the activity and its history in the relevant group. However, generally for a cultural activity to be traditional, it must have been carried on in a group for a sufficient period to have become accepted as an established cultural activity by reason of that history of behaviour. In determining a sufficient period, the court and other authorities have suggested that a cultural activity needs to be intergenerational, being more than two generations. The court also noted that cultural activities reaching back to early settlement will plainly be traditional.
It was noted for an activity to be a cultural activity of a group of people, it must have some content (be it rules, practices or conventions) which is shared by the group. If there are no shared norms around a particular activity, it is just an activity that people who are part of a group carry on, not a cultural activity of that group.
Finally, a cultural activity does not have to remain unchanged over time for it to be a traditional cultural activity. The manner in which a cultural activity is carried out may change to adjust for modern conditions in which it is carried out. However, at some point the manner of carrying out the activity may be so fundamentally altered as to sunder the link with the traditional source.
The court’s summary of the considerations for a traditional cultural activity, offers useful guidance for Councils to have regard to in considering whether an exemption such as that under the Planning Act may exist and where Aboriginal and Torres Strait Islander people may have rights to carry out particular activities that would otherwise constitute an offence.
If Council requires assistance in considering whether an act may be the subject of a cultural activity exemption, please reach out to our local government team and we would be happy to assist.