Money Money Money: Costs in native title proceedings and the consequences of ignoring Cultural Heritage obligations

By Mark Geritz, Tosin Aro and Georgia Davis
21 Mar 2019
Two recent decisions in native title and cultural heritage explore some of the costs issues parties and land users must consider.

A recent Federal Court of Australia judgment suggests that costs provisions under the Native Title Act 1993 (Cth) (NTA) could apply to applications brought under other legislation, if those applications relate to the administration of the NTA.

Also worthy of note is a recent prosecution brought in the Magistrates Court under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACH Act) for failure to comply with the Cultural Heritage duty of care  the consequence for the land user being over half a million dollars in fines and costs.  While accepting that there was no intention to cause harm, the Magistrate determined that the conduct, which resulted in failure to comply with the Cultural Heritage duty of care and damage to Cultural Heritage, amounted to gross negligence. 

These cases serve two timely and important reminders:

  • the fact that an application is not a proceeding "under the NTA", will not necessarily mean a costs order will be made, and successful parties to proceedings should be prepared to bear their own costs, where those proceedings "relate to" the NTA; and
  • all land users companies need to conduct appropriate Cultural Heritage due diligence to ensure they are appropriately addressing, and adhering to, the Cultural Heritage duty of care.

Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058

In Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058, the Federal Court dealt with the question of costs following delivery of judgment in Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955 (the Primary Judgment).  In the Primary Judgment, the Court dismissed two judicial review applications brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).  The judicial review applications sought to review a decision by a delegate of the Native Title Registrar to not register the Balanggarra #3 ILUA.  One of the applications was brought by the Kimberley Land Council and one by the State. 

Section 85A of the NTA provides that parties will bear their own costs to a proceeding unless the Court orders otherwise.  (It was common ground that the reference in section 85A to a "proceeding" is to a proceeding brought under the NTA.)  The exercise of the Court's discretion to order otherwise is affected by section 85A(2) of the NTA, which allows the Court to order a party to pay some or all of the costs where it is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs with the institution or conduct of the proceeding.

The Court considered the application of section 85A of the NTA as it relates to ADJR Act proceedings (as opposed to proceedings brought under the NTA).  In declining to make a costs order, Justice Barker seemed to cite with approval a long line of authority indicating that, even where proceedings are not directly affected by section 85A, where (as with judicial review applications) the subject matter of the proceeding relates to the administration of the NTA (and arises in the course of the administration of the NTA), the Court will take into account the "spirit" of section 85A.  This is particularly so where the proceeding has a public interest element and the matters in issue are important and complex.

Ultimately, he concluded that the matter came down to an exercise of judicial power under section 43 of the Federal Court of Australia Act 1976 (Cth), which allows the Court or a Judge power to award costs in proceedings, having regard to all relevant factors (including the subject matter of the litigation, the issues of construction involved, and the factual circumstances in which the key questions have been raised).

Regardless, this decision serves as a reminder that, even where applications may be brought under other Acts (for example, by way of judicial review), the NTA costs provisions may be invoked or considered by the Court if the proceedings relate to the administration or interpretation of the NTA.  Given the inconsistency with recent decisions in which the Federal Court and Full Federal Court have awarded costs in almost identical circumstances, parties also need to bear in mind that the result of the Court's exercise of the discretions implicit in sections 43 of the Federal Court of Australia Act and 85A of the NTA (applying the "spirit" of that provision) will be anything but predictable.

Dunn v Ostwald Construction Materials Pty Ltd [2018] QMC 23

In a recent judgment of the Emerald Magistrates Court, a company has been found guilty of failing to comply with its Cultural Heritage duty of care under the ACH Act and harming Aboriginal Cultural Heritage.  In Dunn v Ostwald Construction Materials Pty Ltd [2018] QMC 23, the Court ordered that the Defendant pay the following costs:

  • a fine of $188,000 for failing to adhere to the duty of care and causing damage;
  • $250,000 towards the costs of repairing or restoring the damage; and
  • $2,519.95 in agreed costs.

The damage arose from quarrying activities which resulted in the destruction of Gumbi Gumbi trees and the displacement of artefacts.  In considering the extent of the damage caused, the Court noted that the damage went beyond just physical damage to particular artefacts and included significant harm to the spiritual culture of the Karingbal people. The damage caused to these values of the traditional owners was significant. 

There was evidence of earlier works on the site, however, the Court was persuaded by the evidence that the damage caused by the Defendant exceeded any previous harm that may have been caused.  Although the Court acknowledged it was not the Defendant's intention to cause harm, there was evidence that, not only had the Defendant failed to carry out searches of the Aboriginal Cultural Heritage Register and Database to determine whether any Cultural Heritage had previously been identified on the site, it in fact knew the site was subject to Cultural Heritage. 

Specifically, the Defendant had been notified and provided by the owner of the site with results of a prior Cultural Heritage survey.  It had also noted an obligation in its Safety Management Plan to "ensure that a request for cultural heritage clearance has been approved".  Despite this knowledge, the Defendant did not make efforts to obtain a Cultural Heritage Management Plan (CHMP), nor did it carry out any of its own enquiries or consult with the Karingbal people (the acknowledged traditional owners of the land). 

The Court held that the conduct amounted to gross negligence, and imposed a penalty of 40% of the maximum fine.  The Court went beyond this to impose the first order made under section 27 of the ACH Act requiring a person convicted of unlawfully harming Cultural Heritage to pay to the State an amount towards the cost of repair or restoration of Cultural Heritage.

This is a timely reminder for companies that the duty of care imposed by the ACH Act is a positive duty to take all reasonable and practicable measures to avoid harm to Cultural Heritage.  This may require companies, prior to carrying out their activities, to carry out searches of the Aboriginal Cultural Heritage Register and Database, consider the likelihood of the proposed activities to cause harm as well as the extent of past uses in the affected area and, where appropriate, consult with the Aboriginal party for the area about the carrying out of the activity, which include conducting a Cultural Heritage survey to find out the location and extent of Cultural Heritage in the affected area.

One issue that is not discussed in this decision, and was not pleaded by the Defendant, was the difficulty inherent in any attempt to consult with the Aboriginal party for this particular area.  Under the ACH Act, the Aboriginal party comprises the five individuals who formerly comprised the registered native title claimant for the Karingbal People #2 native title claim.  The five individuals are  apparently irreconcilably  fractured into two camps.  This is an issue as any CHMP or other agreement would have needed to have been agreed with all five individuals. 

The problems within the Aboriginal party in this area highlight some of the difficulties with the requirement for unanimity.  This issue has been addressed for Indigenous land use agreements following amendments to the NTA and will be an issue likely to be considered as part of the "root and branch" review of the ACH Act which is currently proposed by Government.

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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.