Clarity but some uncertainty about parties to CHMPs

Two developments are potentially changing who project proponents need to negotiate with when developing a cultural heritage management plan in Queensland.

For project proponents, identifying the potential parties to a cultural heritage management plan (CHMP) is now a little easier as a result of the Revenue and Other Legislation Amendment Act 2018 (Amending Act) passing through Queensland Parliament.

But what a project proponent may need to do to get a CHMP approved and who they need to reach agreement with, may be a little more difficult after a recent Supreme Court decision.

Key points

The Amending Act amended the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) to provide certainty around the “last man standing” rule, being the persons with whom project proponents will need to negotiate a CHMP. Project proponents seeking to develop CHMPs will be able to identify the parties for a CHMP through searches of the National Native Title Register as parties to a CHMP will be limited to one or more of any current or former registered native title holders, or current or former registered native title claimants.

Project proponents that have already commenced a CHMP process under the ACHA and have endorsed parties for a CHMP may nevertheless, in some circumstances, need to negotiate with Aboriginal parties who arise after the parties for a CHMP have been endorsed to satisfy the Chief Executive of the Department of Aboriginal and Torres Strait Islander Partnerships, that “enough” provision has been made for how the project will be managed with regard to Aboriginal cultural heritage.

The Amending Act and the “last man standing” rule

The Amending Act has amended the ACHA to clarify the “last man standing” rule.

The “last man standing” rule is found in the definitions of “native title party” and “Aboriginal party” as defined in s 34 and s 35 of the ACHA.

Before the Amending Act, a native title party, as defined in s 34(1) of the ACHA, comprised four categories being:

(a) a registered native title claimant for the area

(b) a person who, at any time after the commencement of this section, was a registered native title claimant for the area, but only if—

(i) the person’s claim has failed and—

(A) the person’s claim was the last claim registered under the Register of Native Title Claims for the area, and

(B) there is no other registered native title claimant for the area, and

(C) there is not, and never has been, a native title holder for the area, or

(ii) the person has surrendered the person’s native title under an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements, or

(iii) the person’s native title has been compulsorily acquired or has otherwise been extinguished

(c) a registered native title holder for the area

(d) a person who was a registered native title holder for the area, but only if—

(i) the person has surrendered the person’s native title under an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements, or

(ii) the person’s native title has been compulsorily acquired or has otherwise been extinguished.

The Amending Act amends paragraph (b)(i)(C) of the definition to read:

(C) there is not, and never has been, a registered native title holder for the area.

By this change, the “last man standing” rule is restated to be that where there is no current or former registered native title holder for an area (that is, people who fall within paragraphs (c) and (d) of the definition), and where there is no current registered native title claimant (that is, people who fall within paragraph (a) of the definition), then the registered native title claimant for the area whose claim was the last in time to have failed will continue to be the “native title party” (and “Aboriginal party”) for the area until a new claim is registered.

This amendment was introduced in response to the Supreme Court of Queensland’s decision in Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321 (Nuga Nuga). In Nuga Nuga, there were no current or former registered native title holders, nor any current registered native title claimants for the relevant area. The Supreme Court considered the then definition of native title party in s 34(1)(b) of the ACHA. It found that a former registered native title claimant was not a native title party (and by extension not the Aboriginal party) for that area if there had been a “native title holder” for the area even if that native title holder had not had their claim determined for the area (i.e. was not a registered native title holder). In other words, there was a category of “non-registered native title holder” and the existence of any “non-registered native title holder” would prevent a former registered native title claimant from being a native title party (and Aboriginal party) for the purposes of negotiating a CHMP under the ACHA.

The practical difficulty with Nuga Nuga was it could be a very difficult, long, costly and ultimately uncertain exercise for a project proponent to try to identify if there was a “non-registered native title holder” for the area. Equally, persons who were former registered native title claimants would not know if they had the right to participate in the CHMP negotiations until it was clear whether or not there was a “non-registered native title holder” for the area.

The amendment to paragraph (b)(i)(C) removes the uncertainty of Nuga Nuga. Non-registered native title parties will be removed from the equation. The native title parties (and therefore the Aboriginal parties) for the area will be any current or former registered native title holders or, if there are none, any current registered native title claimants or, if there are no current registered native title claimants, the former registered native title claimant whose claim was the last in time to fail. For project proponents, any of these native title parties can be readily determined by a search of the National Native Title Register.

Will the CHMP negotiation parties change?

The clarification of the “last man standing” rule in the ACHA and the certainty that it provides may be somewhat offset by the recent Supreme Court decision in Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships [2018] QSC 248 (Mirvac).

In Mirvac, the Supreme Court was asked to judicially review a decision to refuse to register a CHMP by the Chief Executive of the Department of Aboriginal and Torres Strait Islander Partnerships (Chief Executive).

The Court considered the situation that arose in Mirvac where the persons who would be Aboriginal parties for a CHMP changed after the parties had been endorsed.

Under the ACHA, a project proponent identifies the Aboriginal parties for the area for the purposes of negotiating a CHMP through a process of advertisement and notification within timeframes set out in the ACHA. At the end of that process, the relevant Aboriginal parties are identified and then endorsed to negotiate the CHMP.

It is possible, and indeed happened in Mirvac, for new Aboriginal parties to arise after parties have been endorsed and that parties that have been endorsed may cease to be Aboriginal parties. In Mirvac, the Court found that once persons have been endorsed for a CHMP, they remain the endorsed parties even if the Aboriginal parties change, including where those endorsed parties would otherwise ceased to have been Aboriginal parties. Further, those new Aboriginal parties would not become endorsed parties for CHMP negotiations as there were specific timeframes for endorsement. From a project proponent’s perspective, this provides certainty about who they need to negotiate with and confidence that the parties will not change even if the Aboriginal parties change.

However, the Supreme Court in Mirvac also considered the function of the Chief Executive when determining whether or not to register a CHMP. One factor is that the Chief Executive must be satisfied that the CHMP made “enough” provision for how the project, and any Aboriginal cultural heritage identified in the course of project activities, was to be managed[1]. The Court found that this language was very broad and would be sufficiently broad to permit the Chief Executive to “form the view that ‘enough’ provision would require the involvement of someone who was a current Aboriginal party” for the area of the CHMP.

This means there is a risk for project proponents that, even though they endorsed all the correct parties at the requisite time under the ACHA for a CHMP and do not need to endorse Aboriginal parties that arise later in time, it may still be necessary for project proponents to negotiate with these new Aboriginal parties to ensure “enough” provision is made for how the project is to be managed. This could provide further complexity for a project proponent if endorsed parties and subsequent Aboriginal parties have different views about how to manage any Aboriginal cultural heritage identified during project activities. It also means project proponent may need to return to the negotiation table more than once if the Aboriginal parties change multiple times during the course of negotiating a CHMP.

The ideal outcome for a project proponent would therefore be to reach agreement with all endorsed parties for a CHMP as, under s 107(3) ACHA, the Chief Executive must register the CHMP without needing to consider whether “enough” provision for how the project is to be managed. Indeed, it may also be in the interests of endorsed parties to ensure agreement is reached or they may face a risk that a new Aboriginal party may need to be a party to the CHMP to ensure that “enough” provision is made about managing the project.

Another option for project proponents may be to restart a CHMP process if there has been a change to the Aboriginal parties to ensure they are dealing with the current Aboriginal parties for the area. The obvious disadvantage of this is the additional time and cost to restart the process from the beginning. Also, if the Aboriginal parties change again, the project proponent may find themselves in a repeating loop of restarting negotiations, which may result in unacceptable delays to the project. Re-starting negotiations may also impact the relationship between the project proponent and the Aboriginal groups for the area.

What do project proponents need to do now?

The proposed clarifications to the “last man standing” rule will provide greater certainty for project proponents and Aboriginal groups when identifying the persons to be parties to CHMP negotiations. Project proponents will need to identify any current or former registered native title holders for the area, any current registered native title claimants for the area, and if there are none of those groups, the former registered native title claimants for the area whose claim was the last in time to fail.

Project proponents will also need to be conscious of changes to the Aboriginal parties for an area once CHMP negotiations have passed the endorsement stage. Where there is a change to the Aboriginal parties and no agreement has been reached on the terms of a CHMP, it may be necessary for the project proponent to negotiate with the new Aboriginal parties as well as the endorsed parties to satisfy the Chief Executive that “enough” provision has been made for how the project is to be managed. Where there is a change in the parties, it would be advantageous for project proponents to reach agreement with endorsed parties. This is because where agreement is reached, the CHMP must be registered on the agreed terms without need for a consideration by the Chief Executive of whether there has been “enough” provision for how the project is to be managed. Alternatively, the project proponent may need to consider restarting the negotiation process so the current Aboriginal parties can be endorsed and can be the parties to the CHMP.

[1] The Chief Executive will not always need to consider whether “enough” provision has been made for how the project is to be managed, for example, under s 107(3) ACHA, if there is an endorsed party for a CHMP and all parties agree for the CHMP to be registered, then the Chief Executive must register the CHMP and will not need to consider whether “enough” provision has been made.