Certainty to return to Aboriginal cultural heritage in Queensland

Infrastructure & Transport Native Title Property & Development

In brief

Project proponents and operators in Queensland can breathe a sigh of relief following the introduction of a Bill to restore certainty and validity to agreements for the management of Aboriginal cultural heritage in that state. The Bill proposes amending the 2003 Aboriginal Cultural Heritage Act to overcome the recent decision in Nuga Nuga and to reinstate the 'last claim standing' rule for identifying relevant Aboriginal parties. Partner Ben Zillmann and Senior Associate Giselle Kilvert consider the changes.

Background: Nuga Nuga and the decline of the 'last claim standing' rule

In Queensland, the Aboriginal Cultural Heritage Act 2003 (Qld) (ACH Act) provides for the protection of Aboriginal cultural heritage, and imposes a duty of care on all persons to avoid harm to such cultural heritage. A person is deemed as having complied with their cultural heritage duty of care where they act in accordance with an approved cultural heritage management plan (CHMP) or other agreement (CHMA) with an 'Aboriginal party' for the management of cultural heritage.

In the past, where there was no current native title claim or native title determination over an area in question but the area had been subject to an earlier registered native title claim, the 'native title party', and hence Aboriginal party, for the area was identified as being the previous registered native title claimant. This practice was referred to as the 'last claim standing' rule. The rule would not apply where there had been a previous 'native title holder' for the area, although 'native title holder' was generally understood as meaning 'registered native title holder'.

In Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC321 (Nuga Nuga decision), Justice Jackson rejected this interpretation of 'native title holder' and held that 'native title holder' could mean a person who held native title rights and interests at common law, regardless of whether or not those rights had been recognised and 'registered' pursuant to a native title determination in the Federal Court under the Native Title Act 1994 (Qld). This decision effectively abolished the practical use of the 'last claim standing' rule, and as a consequence:

  • made it very difficult to determine with certainty the relevant Aboriginal party where there was no current registered native title claim on holder;
  • cast doubt on the progress of some cultural heritage negotiation processes already underway; and
  • undermines the validity of previous CHMPs and CHMAs that relied upon the 'last claim standing' rule.

The Solution: Legislative Amendments and the revival of the 'last claim standing' rule

To resolve this uncertainty, the Queensland Government has introduced the Revenue and Other Legislation Amendment Bill 2018 (Qld) (the Bill), which proposes to amend the ACH Act to give clear legislative effect to the common interpretation of s34(1)(b)(i)(C) (which defines the 'native title party for an area') prior to Nuga Nuga and to confer validity on past acts undertaken in reliance upon that interpretation. Accordingly, the proposed amendments will have both prospective and retrospective effect.

  • In terms of prospective amendments, the Bill proposes to amend s34(1)(b)(i)(C) by changing the reference; from 'native title holder' to 'registered native title holder'.
  • In terms of retrospective amendments, the Bill proposes to introduce a new Part 11, Division 2 (ss170 - 172) which will contain 'Transitional and Validation' provisions. These provisions seek to simultaneously:
    • clarify that past acts done in reliance upon the 'last claim standing' rule will be treated as being, and to have always been, valid; and
    • confirm that any acts done in reliance upon the Nuga Nuga decision may proceed validly on that basis.

Next steps

The Bill has been referred to the Economic and Governance committee for consideration. Submissions on the Bill are due by 7 September 2018. If you would like our assistance to prepare a submission on the Bill, please contact us.

Once the committee has considered the Bill, it will go back before Parliament for its second reading, before it may be passed.