On 31 October 2018, the Queensland Supreme Court handed down its decision in Mirvac v Chief Executive of the Department of Aboriginal and Torres Strait Islander Partnerships. The Court found in favour of Mirvac and ordered that the Cultural Heritage Management Plan (CHMP) be resubmitted to the Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP) for approval.
However the Court also decided that an endorsed party to a CHMP will lose their status if they are no longer an Aboriginal party.
The case concerned a decision by DATSIP to refuse to approve a CHMP that had been voluntarily entered into between Mirvac and the Applicants for the Jagera People (Jagera Applicants). At the time the CHMP was negotiated, the Jagera Applicants were the recognised Aboriginal party for the CHMP area under the Aboriginal Cultural Heritage Act 2003 (ACHA).
Mirvac gave notice to and endorsed each of the Jagera Applicants to take part in developing the CHMP. At the end of the CHMP consultation period the Jagera Applicants were the only Aboriginal party and endorsed party for the plan area.
Before the CHMP was signed, on 4 August 2017 the Yuggera Ugarapul People claim was accepted for registration. From that date the Jagera Applicants lost their status as the recognised Aboriginal party for that area under the ACHA.
The CHMP was signed between Mirvac, the Jagera Applicants and Jagera Daran on 6 September 2017 and lodged with DATSIP for Chief Executive approval.
On 14 September 2017, before the Chief Executive had considered the CHMP, the Danggan Balun People native title claim was registered over the balance CHMP area. From that date the Jagera Applicants lost their status as the recognised Aboriginal party for any part of the CHMP area.
On 30 October 2017 the Delegate of the Chief Executive of DATSIP refused to approve the CHMP under s 107(2) of the ACHA. This was based on the Delegate’s view that the Jagera Applicants were no longer an “endorsed party” for the purposes of s 107(1)(a) of the ACHA. The Delegate argued that in those circumstances he had a discretion whether to approve the CHMP and that the considerations in s 108 of the ACHA were relevant, including whether the CHMP made enough provision for how the project was to be managed to avoid harm or minimise harm to Aboriginal cultural heritage.
The Delegate decided the CHMP did not make enough provision because the Danggan Balun and the Yuggera Ugarapul People Applicants were not involved in steps under the CHMP including deciding whether a cultural heritage survey was required, undertaking that survey, advising on management recommendations, or engaging the consultant and cultural heritage officers.
Mirvac argued that the Jagera Applicants did not lose their status as an endorsed party even if they subsequently lost their status as an Aboriginal party. They also argued that the appropriate time for the Delegate to consider the circumstances in s 107 was the time that the CHMP was lodged, and at that point the Jagera Applicants were, in any event, still an Aboriginal party.
The Court held that the time for deciding whether a sponsor has validly submitted a plan for approval, and what the Chief Executive is therefore required to do with that plan is when the plan is lodged. It is at that point that the Chief Executive must decide which of the two functions in s 107 the Chief Executive (or their delegate) is required to carry out.
The Court found that at the time that Mirvac lodged the CHMP the circumstances in s 107(1)(a) of the ACHA applied, namely there was an endorsed party for the plan and that the Jagera Applicants were still an Aboriginal party for at least part of the plan area. On that basis the Court held that the Delegate must approve the plan pursuant to s 107(3) of the ACHA and that the considerations in s 108 were irrelevant. The Court ordered the decision of the Delegate to refuse to approve the CHMP be quashed and that the Delegate approve the CHMP.
However, the Court went on to say that if it was wrong about the timing issue that it would be necessary to consider whether an endorsed party can lose their endorsed status upon losing their status as an Aboriginal party. The Court was of the view that once an Aboriginal party loses its status it would no longer meet the critical element of the definition of ‘endorsed party’ in the ACHA.
The result is that if the Chief Executive was required to consider the CHMP after 14 September when the Jagera Applicants had lost their status as an Aboriginal party, the Delegate would have been right to consider the circumstances in s 108 as, at that point, the Jagera Applicants could not be an endorsed party.
Whilst the Court ordered that the Mirvac CHMP be approved, the Court also expressed the view that a party can lose its status as an endorsed party if they are no longer the Aboriginal party.
It appears therefore that if at the time a CHMP is lodged for approval the party with whom it is made, even though endorsed at the relevant time, has lost its status as an Aboriginal party that the Chief Executive would be entitled to treat the CHMP as if there is no endorsed party. In that case the Chief Executive or his Delegate would be required to have regard to the circumstances in s 108 of the ACHA namely whether the plan makes enough provision for how the project is to be managed to avoid or to minimise harm to Aboriginal cultural heritage.
Based upon the approach taken in Mirvac, the Delegate may take the view that there must be sufficient involvement in the development and implementation of the CHMP by the (then) current Aboriginal party to be satisfied that the CHMP makes adequate provision for the protection of cultural heritage. It follows that a possible change in the Aboriginal party during a CHMP negotiation and approval process will need to be carefully monitored and may require parties to engage with the (new) Aboriginal party.
Author: Jenny Humphris
Jenny Humphris, Partner
T: +61 7 3135 0690
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Published by Jenny Humphris