Cultural heritage update: greater clarity, more scrutiny for injunctions in the Queensland Land Court

Injunction applications are an increasingly common feature of the cultural heritage landscape, so any guidance on how the courts will consider injunction applications will be welcome. The Queensland Land Court has recently done that, in two judgments that, in refusing to grant injunctions, highlight:

• where there is no cultural heritage agreement, other methods that promote adherence to the cultural heritage duty of care will be important considerations for the Court; and
• the Court will scrutinise applicants' standing to bring proceedings to ensure they fulfil the statutory criteria – mere general concerns will not be enough.

The legal framework for cultural heritage injunctions in Queensland

In Queensland, under section 23 of the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA), there is a positive cultural heritage duty of care placed on every person who undertakes an activity to take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage.

The Court has the authority to hear cultural heritage matters under section 32H of the Land Court Act 2000 (Qld), which stipulates that the Court may only grant an injunction if satisfied that a person is likely to contravene a cultural heritage protection provision, the applicant has standing, and it is necessary to grant the injunction in order to stop the act.

A group or member of a group has standing if the group has a traditional, historical, or custodial interest in the Aboriginal cultural heritage to which the contravention relates.

Faye Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14

Ms Carr, on behalf of the Yuggera Ugarapul People (YU People), brought an application for an injunction against Frasers Deebing Heights Pty Ltd (Frasers) to cease preliminary works that it sought to commence on a residential development project. The proposed works were to be carried out wholly within the YU People native title claim area, in relation to which the registered native title claimant (YU Claimant) is the Aboriginal party. Ms Carr is a member of the YU Claimant.

As the Aboriginal party, the YU Claimant has been involved in discussions with Frasers about managing the impacts of its development on cultural heritage. These included voluntary, but unsuccessful, negotiations between the parties to enter into a Cultural Heritage Management Plan (CHMP).

President Kingham acknowledged the efforts made by Frasers to reach agreement, observing "there is nothing to suggest, on the evidence, that Frasers have not genuinely tried to reach agreement with the YU People".

President Kingham also noted that, even though CHMP negotiations had failed, Frasers had taken steps to ensure its development would not breach the cultural heritage duty of care. Importantly, Frasers had:

• engaged an archaeologist to undertake an extensive survey to ascertain whether any places or objects of significance existed on the proposed site; and
• prepared a proposed CHMP which, given the failed negotiations, will be the subject of a separate application in the Court for a recommendation as to approval.

Frasers' expert did not identify any Aboriginal cultural heritage places or objects in the area affected by the proposed works during his survey. The Court accepted this conclusion, and was also satisfied that, should cultural heritage subsequently be detected, the expert would make appropriate recommendations with which Frasers would comply.

In these circumstances, the Court was not convinced Frasers would harm cultural heritage in undertaking the works. That being the case, and as a CHMP was not mandatory for the project, the Court dismissed the injunction application.

CHMPs were introduced into the ACHA to reflect existing best practice with respect to the assessment of cultural heritage and the management of impacts upon it, and this judgement should not be taken to mean that CHMPs or indeed other cultural heritage agreements are unnecessary. It does, however, underscore the reality that if, despite reasonable efforts, negotiations with an Aboriginal party fail to yield agreement, there are other options for a proponent or developer to ensure compliance with the cultural heritage duty of care. These options, which can include the appointment of an expert, are listed in section 23(2) of the ACHA.

Watson v State of Queensland [2019] QLC 19

The State entered into a Cultural Heritage Agreement (CHA) with both Maroochy Barambah, on her own behalf and on behalf of the Turrbal People, and Turrbal Association Inc, in connection with the planned expansion of the Toowong campus of the Queensland Academy for Science, Mathematics & Technology (the School). Ms Barambah, as the registered native title claimant for the former Turrbal People native title claim, is an Aboriginal party for the Brisbane metropolitan area. Turrbal Association is a registered Aboriginal cultural heritage body for much of the same area, including the site of the School.

Samuel Watson was not satisfied the State had appropriately dealt with cultural heritage issues on the campus – of particular concern was an ironbark tree, which appeared to be a scar tree.

Mr Watson sought an injunction to prevent the School from starting works until they entered into a CHMP.  In order to determine if the matter could proceed, the Court was required to consider two questions:

• whether Mr Watson had standing to bring the application; and
• whether the Court had jurisdiction to hear the application.

As to standing, Mr Watson (who is not an Aboriginal party for the area) is a member of the Wangerriburra Aboriginal Corporation (WAC). The Court found that, while WAC has an interest in Aboriginal heritage generally, there was no evidence to demonstrate that the group had an interest in the particular site.

Turrbal Association is the only Aboriginal cultural heritage body for the site of the School. WAC could, for the purposes of this project, also be registered as a cultural heritage body for the site, under section 36(3) of the ACHA, but only with the written agreement of Turrbal Association as the existing Aboriginal cultural heritage body. As there was no evidence that such agreement was forthcoming, the Court was not prepared to accept that such registration was certain or even likely to occur. As a result, the Court held that Mr Watson could not satisfy the standing requirements.

As to jurisdiction, the Court noted that an injunction could not be obtained to restrain an activity being conducted by a person who is acting (relevantly) under "a native title agreement or another agreement with an Aboriginal party". The Court accepted that the CHA was "another agreement with an Aboriginal party" for the purposes of the ACHA. As a result, activities undertaken in accordance with the CHA would not breach the cultural heritage duty of care. The ironbark tree with which Mr Watson was particularly concerned sat within a permitted tree clearing mapped area of the CHA. The CHA permitted the clearance.

That being the case, the Court:

• reached the "inescapable conclusion" that the State would be acting "under" an agreement with an Aboriginal party;
• therefore held that Mr Watson did not have standing to bring the application, and nor did the Court have jurisdiction to hear it; and
• as a consequence, dismissed the application.

This judgment highlights that it is not enough to have general concerns in relation to cultural heritage. To have standing to bring injunction proceedings, an applicant will need to show they are part of a group with a traditional, historical or custodial interest in the Aboriginal cultural heritage to which the action relates. This will be most readily demonstrated where the applicant is an Aboriginal party, or a registered Aboriginal cultural heritage body, for the relevant area.

Related Insights

• Money Money Money: Costs in native title proceedings and the consequences of ignoring Cultural Heritage obligations