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06 Feb 2020

Referring disputes to “a Court of competent jurisdiction” – not always a viable option in the cultural heritage context

By Mark Geritz, Tosin Aro and Georgia Davis

Project proponents and other parties to cultural heritage agreements (whether current or proposed) should be wary of clauses that provide for referral of disputes to the Land Court or to another “Court of competent jurisdiction”.

The Land Court of Queensland has shed light on the difficulties parties can face in trying to have the Courts resolve disputes arising under agreements made under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) (and has reinforced a long-standing position we have taken in negotiating cultural heritage agreements on behalf of clients).

In Conlon v QGC Pty Ltd [2020] QLC 3, the Land Court dismissed an application brought in relation to a dispute about the interpretation of a cultural heritage agreement due to a lack of jurisdiction.

The Barunggam, Cobble Cobble, Jarowair, Western Wakka Wakka and Yiman native title party (BCJWY party) and QGC Pty Ltd are parties to an Indigenous Land Use Agreement (ILUA). The ILUA, which relates to QGC's Qld Curtis Liquefied Natural Gas Project, was registered with the National Native Title Tribunal in 2010. The ILUA annexes a Cultural Heritage Management Strategy, which provides a process for investigating cultural heritage prior to the carrying out of project works, and establishes a Cultural Heritage Coordinating Committee.

The BCJWY party and QGC disagreed about the process for investigating cultural heritage under the Management Strategy. The BCJWY party contended that the process allowed for the Committee to conduct a physical assessment and archival research, and then prepare an assessment report, before an archaeologist carries out a formal cultural heritage survey. The BCJWY party argued that this input from the Committee is a critical aspect of the cultural heritage survey process, and applied for an injunction and other orders to require QGC to honour this process under sections 32H or 32G of the Land Court Act 2000 (Qld).

The cultural heritage duty of care

Section 23 of the ACHA imposes a positive duty on all persons carrying out an activity to take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage.

A person will be taken to have complied with this duty of care if, among other things, that person is acting under a “native title agreement” or “another agreement with an Aboriginal party”, unless cultural heritage is expressly excluded from being subject to the agreement.

It was common ground that the ILUA, together with the annexed Management Strategy, constituted a "native title agreement" for the purposes of the ACHA.

Land Court jurisdiction in cultural heritage matters

Part 2, Division 6B of the Land Court Act deals with the jurisdiction of the Land Court, sitting in its cultural heritage division:

  • section 32H allows the Land Court to hear and decide an application for an injunction to stop the doing of a “relevant act”; and
  • section 32G allows the Land Court to enforce, decide a matter in relation to, or make a declaration about the interpretation of, a “negotiated agreement”.

We also note that section 32F confers jurisdiction on the Land Court to deal with matters arising under ILUAs, including making decisions in relation to disputes, where parties have agreed that such matters can be referred to the Land Court. These circumstances did not arise here, however, as section 32F only applies where the State is a party to the ILUA.

The Court considered that there was no other source of jurisdiction for it to hear and determine a dispute of this nature.

Was there a "relevant act"?

A relevant act is relevantly defined under the Land Court Act to mean an act in contravention of an Aboriginal cultural heritage protection provision (CHPP).

The CHPPs referred to in the Land Court Act are sections 24(1), 25(1) or 26(1) of the ACHA, which provide that it is an offence for a person to:

  • harm Aboriginal cultural heritage;
  • excavate, relocate or take away Aboriginal cultural heritage; and
  • possess an object that is Aboriginal cultural heritage,

which the person knows or ought reasonably to know is cultural heritage.

It is not an offence, however, if the person does any of the above acts under a native title agreement. That is, an act done under a native title agreement will not be done “in contravention of” any CHPP.

The BCJWY party argued that, as the Management Strategy was the agreed way for QGC to fulfil its obligations under the ACHA, breach of the Management Strategy should be seen as a breach of the CHPPs and, therefore, as a relevant act.

The Court disagreed that a breach of the Management Strategy comprised a relevant act. The Court:

  • recognised that acting in accordance with a native title agreement protects against prosecution for an act that would otherwise contravene the CHPPs; but
  • held that it did not follow that a breach of the native title agreement would be an offence under the ACHA, given that compliance with the duty of care and CHPPs could be achieved through other mechanisms.

As the asserted breach of the Management Strategy – even if made out – could not be a relevant act, the Court found that it did not have jurisdiction under section 32H to restrain QGC from denying the Committee’s role (as asserted by the BCJWY party) in investigating cultural heritage that might be affected by the Project.

Is the Cultural Heritage Management Strategy a "negotiated agreement"?

The BCJWY party argued, in the alternative, that the Land Court should be able to interpret and make orders enforcing the Management Strategy (and restraining QGC from breaching it) because it was a negotiated agreement. A negotiated agreement is defined under the Land Court Act to mean an agreement obtained under section 31(1)(b) of the Native Title Act 1993 (Cth) (NTA).

 “Section 31 agreements” are sought and obtained pursuant to the “right to negotiate” procedure in part 2, division 3, subdivision P of the NTA, which applies to “future acts” (as defined under the NTA) that comprise the creation of a right to mine; these include the grant under petroleum legislation of the rights to explore for and produce petroleum. Where subdivision P applies, section 31(1)(b) of the NTA requires the State, each native title party and the grantee party to negotiate in good faith with a view to obtaining the agreement of the native title parties to the grant of the project rights.

The BCJWY party sought to argue that the ILUA is in effect a section 31 agreement, and therefore that it and the annexed Management Strategy constitute a “negotiated agreement” for the purposes of section 32G of the Land Court Act.

In dismissing this argument, the Court noted that section 24EB of the NTA lists the effects of registration of an ILUA. In short, a registered ILUA will generally validate future acts to which the parties consent. However, this will only be the case, in relation to acts to which subdivision P apply, where the ILUA contains a statement confirming that subdivision P is not intended to apply. The BCJWY ILUA contained a clause stipulating that subdivision P is not intended to apply.

This being the case, the ILUA could not be a negotiated agreement for the purposes of section 32G of the Land Court Act, and the Court ruled that it does not have jurisdiction under that section to restrain QGC from acting in a way that the BCJWY party asserted would amount to a breach of the ILUA (and annexed Management Strategy).

Moving from stalemate to good mate

Where a project proponent or other land user acts under any of the various types of agreement mentioned in the CHPPs, the person will comply with the cultural heritage duty of care, and will have a defence with respect to the offences prescribed by the ACHA, and against the grant of a stop order under the ACHA or an injunction under the Land Court Act.

It is common for these agreements to include provision for the resolution of disputes that might arise either with respect to the interpretation of the agreement or in the performance of the agreement. In carrying out due diligence on projects and transactions, we have seen many of these agreements containing provisions that create an obligation to try to resolve such disputes by negotiation, and also by mediation. Where neither of these succeeds, the remedy often provided in these agreements is to seek recourse from the Land Court or another “Court of competent jurisdiction” without any alternative to take into account that Courts may not have jurisdiction to resolve all (or any) disputes under the agreement.

Reinforcing the position that we always agitate for in advising clients on the making of cultural heritage agreements, this case must serve as a warning that the Land Court will often not (and may never) be that Court. Similarly other Courts may not have jurisdiction to resolve all (or any) disputes under the relevant agreement. Parties proposing to enter into these agreements should consider whether there is a mechanism other than referral to a Court for which they could make provision, in circumstances where a negotiated outcome cannot be reached. Such alternative mechanisms could include referral to expert determination or binding arbitration.

While, in this case, it was the BCJWY party that sought and was refused relief, it should not be assumed that it will always be the Aboriginal party that is aggrieved by a Court’s lack of jurisdiction to determine a dispute. It is in the interests of all parties to cultural heritage agreements for disputes to be able to resolved or determined, rather than be stuck in stalemate.

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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.