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Allens Arthur Robinson

Focus: Native Title – February 2006

First LRT decision on cultural heritage management plans

In brief: In its first decision on cultural heritage management plans, the Queensland Land and Resources Tribunal demonstrated that it will recommend approval of a plan considered fair and reasonable in the circumstances. It also made important determinations on a number of contentious issues common to most cultural heritage management plans. Senior Associate Ben Zillmann and Strati Pantges report.

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Background

Powerlink Queensland was required to enter into a cultural heritage management plan (CHMP) with the Jagera People #2 native title claimants under the Aboriginal Cultural Heritage Act 2003 (Qld) (the Act) in respect of a proposed electricity transmission line. Agreement had been reached on all aspects of the CHMP apart from:

  • the method of choosing an archaeologist;
  • the remuneration for the Jagera People's monitoring activities;
  • the provision of a subsidy for legal costs in the event of a dispute; and
  • the fee to be paid by Powerlink for cultural heritage induction sessions to be given by the Jagera People for the benefit of project workers.

Powerlink applied to the Tribunal seeking a recommendation that the Minister for Natural Resources and Mines approve the CHMP proposed by Powerlink, and the Jagera People opposed the plan based on the above issues.

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Engagement of archaeologist

The parties had not agreed on the identity of an archaeologist who was to undertake certain work for the purposes of the CHMP. 

Powerlink proposed that, in the event of disagreement, it would request the Jagera People's nominated archaeologist to provide a list of six suitable archaeologists (which could include himself) from which Powerlink would choose. The Jagera People argued that they should be able to choose and engage their preferred archaeologist for the purpose of the CHMP.

The Tribunal held that Powerlink's proposal was fair and reasonable given the Jagera obviously had confidence in their archaeologist and could take comfort from the fact that the consultant chosen by Powerlink would be their archaeologist or a person nominated by him.

Importantly, the Tribunal decided there was no requirement under the Act that an archaeologist for the purposes of a CHMP must be one chosen by the traditional owners, as the Jagera People had argued. This is an important aspect of the Tribunal's decision, as the selection of an archaeologist (who are often engaged under CHMPs to provide expert advice) is often one of the most contentious aspects of CHMP negotiations.

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Monitoring activities remuneration

Powerlink proposed a base rate of $300 per day plus expenses of $77.30 for the Jagera People's monitoring activities. The Jagera People proposed $450 per day plus expenses including a travel allowance of $120 per person per day.

The Tribunal held that the reasonable rate in the circumstances would depend on the factors set out in the CHMP guidelines, namely, the nature and location of the work, the need for overnight stays, timeframes, area size, number of monitors and industry standards.

Most argument centred on what were 'industry standards'. While the Jagera People were able to show that rates of at least $450 per day had been paid in particular instances, the Tribunal held that the relevant figure is the rate 'adopted generally in Queensland' and was satisfied that a figure of $317.35 could be fairly regarded as the current industry standard. The Tribunal made reference to the 'State-wide model ILUA' and the native title protection conditions (both of which apply to mineral exploration in Queensland), which set similar rates.

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Subsidy for legal costs

The Jagera People requested a subsidy of $10,000 for any legal costs they incurred in the event of a dispute arising under the CHMP. However, the Tribunal held that the plan would not be unreasonable without a subsidy and did not require Powerlink to provide one.

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Fee for induction sessions

The parties agreed that the Jagera People would provide cultural heritage induction sessions to Powerlink employees.  Powerlink proposed a fee of $225 per session and, while the Jagera People proposed a different fee, Powerlink's proposal was accepted.

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Implications of the decision

This eagerly awaited decision is significant as the Tribunal's first determination about a CHMP since the Act commenced in 2004. The decision provides useful direction on several issues that are often hotly debated in CHMP negotiations and, in this respect, will provide an important yardstick for future CHMP negotiations. 

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