Proposed revival of the Aboriginal party "Last Claim Standing" rule clears a major hurdle

A Queensland Parliamentary Committee has made an important move to restore certainty to cultural heritage management across much of Queensland.

In a Report published last Friday, the Economics and Governance Committee recommended that the Revenue and Other Legislation Amendment Bill 2018 (Qld) be passed.

The Bill includes proposed amendments to the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) that, if passed, would (among other things):

• enable Aboriginal parties to be identified with certainty in the nearly 40% of Queensland with no current native title determination or registered native title claim; and
• confirm the validity of the more than 80 previously approved cultural heritage management plans (CHMPs) that were rendered invalid by Justice Jackson's decision in Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321.

In February this year, we contended that the chaos caused by the Nuga Nuga decision calls for:

"the passage of legislative amendments to the [Cultural Heritage Acts], 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".

The amendments to the Cultural Heritage Acts that are proposed in the Bill, if passed, would deliver precisely the clarification we argued was needed, and that is essential to the viability of existing and proposed major projects across the State.

The Nuga Nuga amendments: the story so far

Following its introduction on 22 August 2018, the Bill was immediately referred to the Queensland Parliament's Economics and Governance Committee for an Inquiry. A public briefing was held for the Inquiry on 3 September 2018, and interested stakeholders were invited to make submissions by 7 September 2018.

Some 14 submissions were made to the Committee. The key submissions in favour of the amendments were ours (submission 11) and those from the Queensland Resources Council (submission 5) and U&D Mining Industry (Australia) Pty Ltd (submission 13). Submissions opposing passage of the Bill included those made by the Nuga Nuga Aboriginal Corporation (submission 2), Queensland Law Society (submission 12) and Queensland South Native Title Services (submission 14).

Subsequently, on 17 September 2018, a public hearing for the Inquiry was held at Parliament House in Brisbane. We appeared with both U&D Mining and the QRC at that hearing. Finally, the Committee published its Report on 5 October 2018. All 14 submissions, and the Committee's Report, are publicly available on the Queensland Parliament's website.

What did the Committee have to say about the proposed changes?

After summarising the proposed amendments, the Committee quoted from or paraphrased written and oral submissions made by stakeholders both in favour of, and against, passage of the Bill. For example, the Committee noted our views that:

• given the significant consequences for failing to comply with the cultural heritage duty of care, "it is critical for land users to be able to confidently identify the Aboriginal or Torres Strait Islander party for any area";
• the Nuga Nuga decision had made it "practically impossible to identify Aboriginal and Torres Strait Islander parties in areas where there are no current registered native title holders or claimants with certainty";
• one consequence of the abolition of the last claim standing rule would be to increase the use of "public notice" CHMPs which need to be developed with everybody who responds to the public notice, with "no reliable way of vetting the respondents or testing their assertions".

Notwithstanding our strong support of the amendments, we noted in oral submissions at the public hearing that:

"Clearly, reasonable minds can [disagree] on whether [the current scheme] really does provide the best solution to this complex issue [of how to identify qualified Aboriginal parties]. However, let us get the current system working and then resume the debate about whether or not there might be a better way. The Minister for Aboriginal and Torres Strait Islander Partnerships has herself indicated that such a debate is overdue."

Despite what was frequently strenuous and impassioned opposition to the amendments, the Committee was ultimately persuaded by this argument, concluding that:

"The committee is cognisant of the concerns regarding the reinstatement of the ‘last claim standing’ provision, but also recognises the need … to provide certainty to the existing [CHMPs], previously registered native title claimants and any future cultural heritage management undertakings affected by the Nuga Nuga decision … The committee notes … the potential for a broader review of the [Cultural Heritage Acts], and the widespread support for such a review. As a result, the committee supports the proposed amendment to provide certainty until that review can be undertaken. The committee will be interested to hear of progress on such a review."

The next steps for Cultural Heritage reform in Queensland

Now that the Committee has recommended passage, the Bill should shortly go through its second reading, and the subsequent debate, before being considered in detail. If all goes well, at the conclusion of this consideration-in-detail, the Bill will be read for a third and final time before being presented to the Governor for Royal Assent.

Given how many major resources and infrastructure projects are affected by cultural heritage management arrangements that are being held in limbo, including because new CHMPs made with last claim standing parties are not being approved, or because the validity of approved CHMPs previously made with last claim standing parties has been called into question, it is very much hoped that the Bill will be enacted before the end of this year.

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