Aboriginal cultural heritage management in disarray as Court does away with the "Last Claim Standing" rule

A decision of Justice Jackson of the Supreme Court just before Christmas last year (Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321 (NNAC Decision)) has thrown past cultural heritage management in some areas of Queensland into chaos, and created significant uncertainty for those who, in the future, will need to identify Aboriginal parties in areas where there is no registered native title holder or claimant.

Following the NNAC Decision, resources and infrastructure project proponents, as well as other land developers and users, urgently need to review their Aboriginal cultural heritage management arrangements to ensure that they are not undermining their efforts to conserve and manage cultural heritage by dealing with incorrect parties.

Aboriginal parties under the Aboriginal Cultural Heritage Act 2003 (Qld)

The Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) imposes a duty on all land users to take all reasonable and practicable measures to avoid harming Aboriginal cultural heritage. Failure to comply with this "cultural heritage duty of care" is one of several criminal offences created by the ACHA "cultural heritage protection provisions". Individuals and corporations risk criminal prosecution if they commit any of these offences, with conviction potentially resulting in fines and even imprisonment. Further concerns for project proponents and developers are the availability of "stop orders" under the ACHA, and injunctions under the Land Court Act 2000 (Qld), to restrain the carrying out of activities that could contravene the cultural heritage protection provisions or otherwise harm Aboriginal cultural heritage.

Compliance with the cultural heritage duty of care while carrying out activities in an area will usually require consultation with the "Aboriginal party" for the area. Moreover, a land user who, relevantly, is acting under an approved cultural heritage management plan (CHMP) or another agreement with an Aboriginal party for the area will be taken to have complied with the cultural heritage duty of care (and will be able to resist any criminal prosecution or any stop order or injunction application).

These circumstances make it critical for land users to be able to confidently identify the Aboriginal party for any area - and the ACHA prescribes a formula for doing so. There are two types of Aboriginal party.

"Native title parties", whose role is based on their status under the Native Title Act 1993 (Cth), are automatically Aboriginal parties. Where there is no native title party for an area, identification of "general" Aboriginal parties is less certain and depends on knowledge of local traditions, observances, customs or beliefs, and on responsibility under Aboriginal tradition for the area.

The hierarchy of native title parties is:

• registered native title holder (usually, a registered native title body corporate under a native title determination for the area);
• (in some cases) former registered native title holder;
• registered native title claimant (RNTC) (although there may be cases where a RNTC takes priority over a former registered native title holder); and
• former RNTC, but only where their claim was the most recently failed claim in the area (the "last claim standing" rule) and there has never been a "native title holder" for the area.

The ACHA provides that a corporation may be registered as an Aboriginal cultural heritage body (ACHB) for an area where the native title parties (or, in their absence, the general Aboriginal parties) for the area agree that the corporation should be registered. The primary role of an ACHB is to identify Aboriginal parties for an area.

What happened in the NNAC Decision?

An application was made to the Minister for Aboriginal and Torres Strait Islander Partnerships for the registration of Nuga Nuga Aboriginal Corporation (NNAC) as an ACHB. The Minister refused the request on the basis that the affected native title party did not agree to NNAC's registration.

The native title party was the former RNTC for the Karingbal People #2 native title claim, which "failed" in 2014 when Justice Jagot of the Federal Court determined that native title did not exist in the claim area. Since then, the former RNTC had been understood to be a native title party for the area under the last claim standing rule.

NNAC sought judicial review of the Minister's decision to refuse registration, arguing that the former Karingbal RNTC did not qualify as a native title party under the last claim standing rule as there had previously been a native title holder for the area - the descendants of those Karingbal people found by Justice Jagot in her earlier decision in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 to have held, at sovereignty, rights and interests in the area arising from their "recognition, acknowledgment and observance of traditional laws and customs in connection with the area".

Justice Jackson of the Supreme Court found in favour of NNAC, citing the statutory reference to "native title holder", instead of "registered native title holder", in rejecting the Minister's argument that the only "native title holders" who could prevent the application of the last claim standing rule were those who had been identified following the making of a determination of native title by the Federal Court. He went on to find that, there being no native title parties for the area, the only people who needed to agree to NNAC's registration were the general Aboriginal parties for the area, being representatives of the Karingbal descendants referred to in Wyman. (Whether these representatives are the only people who, according to Aboriginal tradition and even in the light of Wyman, could properly be regarded as general Aboriginal parties for the area is a topic for another day.)

Consequence of the NNAC Decision - a blow to certainty and question marks over validity of already approved CHMPs

It is clear from the ACHA Explanatory Note that the legislative intention in giving primacy to native title parties was to provide certainty in the identification of Aboriginal parties. It was consistent with this policy to regard only "determined" native title holders as being able to prevent the application of the last claim standing rule.

The construction favoured by Justice Jackson that "native title holder" instead refers to anybody who, at any time since sovereignty, has held native title rights and interests, irrespective of whether there has been a determination to that effect, seems less consistent with a policy favouring certainty.

In short, if one considers that, as at sovereignty, there likely were people holding traditional rights and interests in relation to most of Queensland, then, on a literal reading of the NNAC Decision, there would be very little scope for application of the last claim standing rule.

There remain extensive areas of Queensland in respect of which there has never been a native title determination, and in relation to which there is no active registered native title claim. For resources and infrastructure project proponents, and for other land developers and users, compliance with cultural heritage obligations in many of these areas has been achieved by consulting, and reaching agreement, with former RNTCs. If this avenue has now to all intents and purposes been closed, the impacts for the land users themselves, and for the wider economy, could be dramatic.

The regulator under the ACHA would also be placed in the impossible position of having to form a view as to whether there are, or previously have been, "native title holders" in areas where there has been no determination of native title or even where native title has been found not to exist but existed at sovereignty.

Very importantly, the decision also leaves open the possibility that the regulator will be asked to remove approved CHMPs from the Aboriginal cultural heritage register, thereby threatening the protection that has been provided to land users by such CHMPs. This is already occurring.

That being the case, and to avoid any farcical outcomes, this seems to be a clear situation that merits the passage of legislative amendments to the ACHA, with retrospective effect, to clarify that it is only where there have been determined native title holders that the last claim standing rule does not apply.