Queensland moves to fix major Indigenous cultural heritage issue by reviving "Last Claim Standing" rule in new Bill

22 Aug 2018

With today's introduction of the eagerly-awaited amendments into the Legislative Assembly, the Queensland Government has taken the first step towards restoring much-needed certainty to the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld), by confirming both the effectiveness of processes undertaken to develop cultural heritage managements plans (CHMPs), and the validity of CHMPs themselves as well as other agreements with Aboriginal (and Torres Strait Islander) parties (CHMAs), which are to be or have been entered into with people thought to have been Aboriginal (or Torres Strait Islander) parties under the "last claim standing" rule.

The loss of certainty from the Nuga Nuga decision has:

  • drastically hindered the prospects of delivering some of Queensland's most important infrastructure, resources and other projects on time and on budget, particularly those which are required to obtain CHMPs as part of their Environmental Impact Statement processes; and
  • potentially jeopardised past actions taken by proponents and developers in good faith to comply with their cultural heritage obligations – which is particularly hazardous, given that noncompliance is usually a criminal offence.

The measures, which are included in the Revenue and Other Legislation Amendment Bill 2018, are a first step in resolving the problem.

Proponents, native title parties, developers, and other stakeholders should now be:

  • reviewing the Bill's possible impact on their activities, in particular any past actions that may have been invalid as a result of the Nuga Nuga decision or stalled projects because of the uncertainty associated with it; and
  • considering making a submission on the Bill to the Economics and Governance Committee in support of the proposed amendments.

Background: The Nuga Nuga decision and Queensland Government's response

Justice Jackson's decision in Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321 established that a former registered native title claimant would not be a "native title party" for an area – that is, would not be an Aboriginal party for the area to the exclusion of all other Aboriginal people – if, at any time, people had held native title rights and interests in relation to the area, irrespective of whether those rights and interests had been recognised under a determination of native title. Similar issues arise for the identification of Torres Strait Islander parties in areas of the Torres Strait.

At the time, we suggested that this had effectively abolished the last claiming standing rule, and:

  • made it impossible to identify with certainty Aboriginal (and Torres Strait Islander) parties in areas with no native title holders or current registered native title claimants; and
  • cast doubt on the validity of CHMPs and CHMAs that had purportedly been entered into with last claim standing Aboriginal (and Torres Strait Islander) parties.

The State, taking the broadest possible view of the meaning and implications of the Nuga Nuga decision, responded by:

  • refusing to record on the Aboriginal and Torres Strait Islander Cultural Heritage Registers details of approved CHMPs that had been made with last claim standing Aboriginal (and Torres Strait Islander) parties;
  • declining to approve any new CHMPs entered into with these parties; and
  • withdrawing its official recognition of these parties.

We've contended that these difficulties could only clearly be addressed by the passage of amending legislation, with retrospective effect, to clarify that the native title holders whose presence would prevent the application of the last claim standing rule are only those holders who have been recognised under a Federal Court (or High Court) determination of native title.

By introducing the Bill, the Queensland Government has begun the process of delivering the required solution.

Crucial amendments proposed by the Revenue and Other Legislation Amendment Bill 2018

The Bill would insert two categories of amendment into the Acts, one of which will operate prospectively, and the other retrospectively.

Prospective amendment: when will there be no last standing claim native title holder?

The prospective amendment, to section 34(1)(b)(i)(C), will clarify that the circumstance in which there will not be a last claim standing native title party for an area is where there is or has previously been a registered native title holder – as opposed to merely a native title holder – for the area. The Acts define "registered native title holder" as an entity that is registered by the National Native Title Tribunal as either:

  • the holder of native title rights and interests, whether in its own right or in trust for the native title holders; or
  • the agent of the native title holders.

In each case, a prerequisite for registration is a determination of native title under the Native Title Act 1993 (Cth). As a result, these amendments would promulgate into law the understanding of the last claim standing rule that seemed to be universal before the Nuga Nuga decision, and also:

  • enable the State to advise stakeholders once again that last claim standing native title parties are Aboriginal parties for areas with no determined native title holders or current registered native title claimants; and
  • revive the viability of some of the State's most important projects and developments, including those currently proposed in Brisbane and in parts of the Gold Coast, the Darling Downs and the Surat and Bowen Basins.

Retrospective amendments: restoring the previous understanding of the last claim standing rule

It is because of the ubiquitous pre- Nuga Nuga decision understanding of the last claim standing rule that the second category of amendments is so critical. These amendments are directed at acts or omissions done under the Acts that were invalid or unlawful in light of the Nuga Nuga decision interpretation of the last claim standing rule. If the Bill becomes law, as we expect it to (in a form similar to that currently in the Bill), all such acts or omissions (including the issue of written CHMP notices to, and the making of CHMPs and CHMAs with, people erroneously thought to have been last claim standing native title parties) will be declared to have been as valid, and as lawful, as they would have been had the amended last claim standing rule been in effect.

Importantly, this second class of amendments will permit the State to lift its de facto moratorium on registering approved CHMPs made with last claim standing native title parties, and to remove any doubt as to the effectiveness of CHMAs made with last claim standing native title parties. In both cases, the effect will be to clarify that people who carried out activities under those CHMPs and CHMAs:

  • complied with the cultural heritage duty of care;
  • did not otherwise commit any of the offences created by the Acts' cultural heritage protection provisions; and
  • will no longer have their activities and projects exposed to the risk of injunctions or stop orders.

In addition to these validation provisions, the Bill also includes transitional amendments designed to preserve the validity and effectiveness of notification and endorsement processes that were undertaken for CHMPs and cultural heritage studies in reliance on the Nuga Nuga decision interpretation of the last claim standing rule.

Timeframe for the last claim standing fix

The Bill has been referred to the Economics and Governance Committee, which will be required to consider it and report back to Parliament. From our initial review of the Bill and explanatory notes, it may be that there need to be some amendments to the wording in the Bill to properly enshrine the legislative intention into the final Act.  This can be clarified through the Committee and subsequent Parliamentary processes.

If passed, the amendments will come into force upon receipt of Royal Assent, which is usually given soon after passage.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.