Queensland's Parliament and Supreme Court move to clarify Indigenous cultural heritage law and practice

The last week has been momentous for Indigenous cultural heritage management in Queensland, for two reasons.

On 30 October 2018, Parliament passed the Bill to reinstate the "last claim standing" rule for identifying Aboriginal and Torres Strait Islander parties (as widely understood before the Nuga Nuga decision). The Revenue and Other Legislation Amendment Bill 2018 (ROLA Bill) does so by amending the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) (CH Acts).

The commencement of these amendments will allow CHMPs held in abeyance for the last few months to be approved, and enable CHMP processes placed on hold to be kickstarted or re-enlivened, where the cause of the delay was the uncertainty regarding the last claim standing rule.

One day later, the Supreme Court handed down its long-awaited decision in Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships [2018] QSC 248. Justice Bond provided important clarification on how the development of a cultural heritage management plan (CHMP) will be affected in the not-uncommon case of a change of "Aboriginal party" after CHMP negotiations have begun.

ROLA Bill passed, with review to follow

At the beginning of the year, we argued that the chaos caused by Nuga Nuga could only be quieted by the passage of legislative amendments to reintroduce the last claim standing rule, and to retrospectively validate pre-Nuga Nuga CHMPs and other agreements - a view quoted during the second reading of the Bill.

The amendments we called for were included in Parts 2 and 6 of Division 10 of the ROLA Bill, which was introduced in late August, and then immediately referred to the Parliament's Economics and Governance Committee for inquiry and report.

In its report, the Committee recommended that the ROLA Bill be passed, while noting the potential for a broader review of the CH Acts and expressing interest in being kept apprised of the progress of the review.

The ROLA Bill passed with bipartisan support on 30 October (with one amendment unrelated to the CH Acts).

In her second reading speech, the Minister for Aboriginal and Torres Strait Islander Partnerships announced that her Department would be:

"conducting a broad review of the cultural heritage acts to commence in 2019. This review will provide a valuable opportunity to examine whether the legislation is still operating as intended, is achieving outcomes for Aboriginal and Torres Strait Islander Queenslanders, and is in line with the government’s broader objective to reframe the relationship with First Nations Queenslanders and update it to reflect the current native title landscape."

We will be taking a keen interest in the progress of this review, which has the potential to shape - for a generation or more - the way in which Indigenous cultural heritage will be recognised, protected and conserved in Queensland.

Mirvac decision

The Mirvac decision dealt with how a CHMP process would be impacted where the Aboriginal party endorsed to take part in developing the plan is superseded by a new registered native title claimant before the plan has been approved. While the Mirvac decision considered a CHMP proposed under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA), the principles posited by the decision are relevant to the operation of both CH Acts.

Background

Mirvac Queensland Pty Ltd, the developers of a 3,300 residential lot project in the Logan area, sought to comply with the cultural heritage duty of care (prescribed under the ACHA) by developing, and having approved, a CHMP with the former applicant to the Jagera People #2 native title claim, which had been discontinued in 2013.

(Notably, notwithstanding the authority to the contrary in Nuga Nuga, neither the Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP) nor the Court disputed Mirvac's conclusion that, when it commenced the CHMP process in November 2016, the Jagera Applicant was an Aboriginal party for the plan area under the last claim standing rule.)

Following the notification process required by Part 7 of the ACHA, Mirvac "endorsed" the Jagera Applicant to take part in developing the CHMP.

On 4 August 2017, the Yuggera Ugarapul claim was registered over a small portion of the plan area. This meant that, for that portion of the plan area, the Jagera Applicant was superseded as Aboriginal party by the applicant for the Yuggera Ugarapul claim.

The CHMP was agreed, and provided to DATSIP for approval, on 6 September 2017. (Under section 107(3) of the ACHA, DATSIP must approve a CHMP if there is at least one endorsed party for the CHMP - ie. an Aboriginal party endorsed to take part in developing the CHMP - and all of the "consultation parties" for the CHMP agree that DATSIP may approve the CHMP.)

On 14 September 2017, after the CHMP had been provided to DATSIP but before the approval decision had been made, the Danggan Balun claim was registered over the balance of the plan area. After that date, the Jagera Applicant ceased to be the Aboriginal party for any part of the plan area.

DATSIP decision

DATSIP acknowledged that, when the CHMP was received on 6 September, the Jagera Applicant was an endorsed party for the plan area. Nevertheless, DATSIP refused to approve the CHMP on the basis that:

• when it came to assess the CHMP, the prerequisites for "mandatory" approval in section 107(3) did not exist because the Jagera Applicant was no longer an Aboriginal party (and therefore no longer an endorsed party) for any part of the plan area; and
• it would not be appropriate to exercise the discretion in sections 107(2) and 108 of the ACHA in favour of approving the CHMP, because the key aspects of cultural heritage management prescribed by the CHMP required the involvement of a party who was not an Aboriginal party for the plan area.

Decision of the Supreme Court

The Court set aside DATSIP's decision to refuse to approve the CHMP, and referred the matter back to DATSIP with a direction that the CHMP be approved under section 107(3).

The Court did so because, when the CHMP was provided to DATSIP on 6 September, the prerequisites for "mandatory" approval in section 107(3) did exist. That is, there was an endorsed party for the CHMP (the Jagera Applicant), and all of the consultation parties (the Jagera Applicant and Mirvac) agreed that DATSIP could approve the CHMP.

In other words, the appropriate point in time at which to assess whether section 107(3) was engaged was the date on which the CHMP was submitted for approval. As the section 107(3) elements were satisfied on that date, DATSIP had a strict duty to approve the CHMP. The fact that the Jagera Applicant ceased to be an endorsed party after that date did not relieve DATSIP of this duty.

Takeaways from the Mirvac decision

The Mirvac decision clarifies two key aspects of CHMP development:

• remaining an Aboriginal party is an essential component of being an endorsed party for a CHMP. Therefore, if an endorsed party is replaced as Aboriginal party at any stage before a CHMP is provided to DATSIP for approval, the section 107(3) prerequisites will not be satisfied and approval will in all likelihood be denied. This highlights the importance, particularly where CHMP negotiations are being conducted with an endorsed party that is a last claim standing Aboriginal party, of advisers being aware of the potential for new claims to be lodged and registered before agreement is reached and approval is sought; and
• potentially, loss of Aboriginal party status for only a part of the plan area will not prevent a party from remaining an endorsed party "for the plan", and approval will still be mandatory under section 107(3). While his Honour did not deal with the matter explicitly, Justice Bond did not decide that the Yuggera Ugarapul claim area needed to be excised from the Mirvac/Jagera CHMP area - he instead appeared to accept that the fact that the Jagera Applicant remained an endorsed party for a part of the plan area, meant that the CHMP had to be approved in respect of the whole of the plan area. One wonders whether the Court would have focused more on this issue (and, if so, whether it would have reached the same conclusion) if the Jagera Applicant had lost its Aboriginal party status in respect of a majority, rather than only a small portion, of the plan area.

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