06 February 2020
The Queensland Land Court’s recent decision in Patricia Conlon & Ors v QGC Pty Ltd  QLC 3 demonstrates how the limited jurisdiction of the Land Court under both the Aboriginal Cultural Heritage Act 2003 (ACHA) and the Land Court Act 2000 (LCA) with respect to Aboriginal cultural heritage can give rise to difficulties for parties wishing to enforce agreements about the protection and management of cultural heritage.
In connection with QGC’s Queensland Curtis Liquid Natural Gas Project, the Barunggam, Cobble Cobble, Jarowair, Western Wakka Wakka and Yiman (BCJWY) native title party entered into an Indigenous Land Use Agreement (ILUA) with QGC. The ILUA had annexed to it a Cultural Heritage Management Strategy.
The Strategy included reference to a Cultural Heritage Co-ordinating Committee. The BCJWY applicants in the case maintained that pursuant to the Strategy, the Committee was to conduct a physical inspection of survey areas and conduct archival research before an archaeologist could conduct a cultural heritage survey of the area. Their concern was that the archaeological survey needed to be informed by the results of the Committee’s own investigations before being undertaken.
The Applicants sought an injunction and other orders under the LCA sections 32H and 32G, essentially to enforce their understanding of the Strategy by restraining its alleged breach.
The Land Court has jurisdiction with respect to Aboriginal cultural heritage, however, as the case shows, that jurisdiction is not ‘at large’. It is quite constrained.
Pursuant to section 32H of the LCA, the Land Court can restrain a party from doing a ‘relevant act’, defined as follows:
“(4) Relevant Act means an act that is a contravention of –
(a) an Aboriginal cultural heritage protection provision; or
(b) a Torres Strait Island cultural heritage protection provision; or
(c) provision of another Act providing for the protection or preservation or access to, items, places or areas of cultural significance to Aboriginal people or Torres Strait Islanders.”
Pursuant to section 32G of the LCA, the Court can determine disputes about and enforce a ‘negotiated agreement’, defined as follows:
“Negotiated Agreement means an agreement obtained under the Commonwealth Native Title Act, section 31(1)(b).”
Under Part 7 Division 6 of the ACHA, the Land Court also has limited jurisdiction to hear an appeal from the Chief Executive’s refusal to register a Cultural Heritage Management Plan (CHMP) to decide whether to approve a CHMP after a failed negotiation or mediation process under the ACHA (by way of recommendation to the Minister).
However, under the ACHA the Court has no enforcement powers. Stop orders can be granted by the Minister under section 32 of the ACHA to restrain actual or threatened unlawful interference with Aboriginal cultural heritage.
The Land Court also has limited jurisdiction with respect to ILUA’s under section 32F, but only where the State is a party to the ILUA.
The Applicants sought orders under both section 32H and 32G of the LCA.
In relation to section 32H, President FY Kingham found that a breach of the Strategy was not a ‘relevant act’ for purposes of the section. That was because the definition of relevant act does not refer to a ‘native title agreement’.
Both parties accepted the Strategy was part of a native title agreement. The section only refers to a breach of the Aboriginal cultural heritage provisions of the ACHA (i.e. the offence provisions of sections 24(1), 25(1) and 26(1)), dealing with unlawful interference (in various ways), with Aboriginal cultural heritage.
The Applicants in the case did not allege any specific item or area of cultural heritage significance was at risk by the undertaking of the archaeological survey itself.
In relation to section 32G of the LCA, the Applicants argued the Strategy was a ‘negotiated agreement’ as defined in the LCA and that the Court had jurisdiction to determine a dispute about and enforce such a ‘negotiated agreement’.
The parties accepted the Strategy was part of the registered ILUA, although as President Kingham observed, any reference in the ILUA to the Strategy itself was ‘opaque’.
An ILUA however is not a negotiated agreement as defined in section 32G. A negotiated agreement as defined is one under section 31(1)(b) of the Native Title Act 1993 (NTA), i.e., one that results from the right to negotiate process under Subdivision P of Division 3 of Part 2 of the NTA, most commonly applied in relation to the creation of a ‘right to mine’ (i.e., the grant of mining and petroleum exploration and production tenements).
An ILUA is not an agreement under section 31(1)(b) even though it can serve the same purpose.
President Kingham therefore concluded the Land Court did not have jurisdiction under either section to determine the dispute. In coming to that conclusion, the President noted that it may have been open to the Applicants to seek to enforce the Strategy as an ILUA, but that was not argued.
The President also noted that parties to agreements such as the Strategy cannot, by agreement, confer on the Land Court, a dispute resolution jurisdiction the Court does not have under a relevant Act.
President Kingham has highlighted some of the deficiencies in the Land Court’s jurisdiction in relation to Aboriginal cultural heritage under both the LCA and ACHA as presently drafted.
In the absence of legislative change, parties to cultural heritage agreements (whether part of an ILUA or not) will need to give careful consideration to jurisdictional issues when seeking to enforce or interpret such agreements.
Also, in the drafting of these agreements it should be remembered the Court cannot be invested with jurisdiction it does not have simply because the parties agree to refer certain types of disputes to the Land Court.
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