native title year in review 2019 28 Apr 2020 What is happening in the Indigenous cultural heritage space in each State?

Queensland

Legislative reform

On 23 May 2019, the Deputy Premier and Minister for Aboriginal and Torres Strait Islander Partnerships announced a review of the Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Islander Cultural Heritage Act 2003 (Qld).  The Government released a Consultation Paper outlining the scope of the review, key "discussion points" and a timetable for the completion of the review. The scope of the review is to examine whether the legislation is still operating as intended, achieving the desired outcomes, and reflects the current native title landscape in Queensland. 

The key issues identified in the Consultation Paper, and areas where the Government has indicated there may be reform, relate to ownership, identification of relevant parties and the "last claim standing" provisions in the legislation, the Duty of Care Guidelines, compliance, and the recording of Aboriginal cultural heritage. 

The Government carried out a consultation process in relation to these proposed reforms. A total of 70 submissions were made by interested parties in relation to the Consultation Paper. Following that, the Government released an Options Paper to those parties that submitted a submission to the Consultation Paper. 

The Government has flagged that parliamentary processes considering proposed changes to the legislation will occur before mid-2020.

This review follows the stalled review of the Aboriginal Cultural Heritage Duty of Care Guidelines, which commenced in 2016.  For more details about this review, see our April 2017 Native Title Alert: Department releases Issues Paper in Cultural Heritage Duty of Care Guidelines Review.  The Department announced in mid-2018 that this review was effectively on hold while the Department considered the implications of Mirvac Queensland Pty Ltd v Chief Executive DATSIP [2018] QSC 248 and Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321.  Legislation to respond to those decisions was passed in late 2018, but the Department remained silent about bigger picture reforms. For more details about these decisions and the legislative response, see our November 2018 Native Title Alert: Two Supreme Court decisions and one Amendment Bill - we're back where we started for Queensland Aboriginal cultural heritage!

Enforcement

According to the 2019 Consultation Paper, since 2004 there have been 8 Stop Orders issued by the Minister and 11 prosecutions under the Aboriginal Cultural Heritage Act.  It is not known whether any enforcement action was taken in 2019.

Litigation

On three separate occasions in 2019 and early 2020, the Land Court has refused to grant cultural heritage related injunctions to Indigenous parties. 

In Faye Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14, the relevant Aboriginal Party sought an injunction against Frasers carrying out preliminary works on a site near the former Deebing Mission. The Court heard that the parties had been unsuccessful in attempts to negotiate a CHMP, but was not convinced that Frasers would cause harm to any Aboriginal cultural heritage in undertaking the preliminary works.
 
Further, the Court observed that, despite a CHMP not being agreed between the parties, Frasers had taken other steps to ensure its compliance with the Aboriginal cultural heritage duty of care. These steps included engagement of an archaeologist to undertake survey work, in the absence of any involvement from the relevant Aboriginal party. 

In Watson v State of Queensland [2019] QLC 19, the Court dismissed an application brought by a party seeking an injunction in relation to certain works proposed by the State at a school in Toowong on the basis that the party seeking the injunction did not have standing, and the works were to be carried out in accordance with an agreement with an Aboriginal party.  

The decision in Watson was followed by the Court in the recent decision of Conlon & Ors v QGC Pty Ltd [2020] QLC 3 where a number of Indigenous applicants were unsuccessful in their application for an injunction in relation to certain activities proposed by QGC. QGC argued, and the Court accepted, that the Court does not have jurisdiction to hear matters where the parties are acting in accordance with an existing native title agreement.

These decisions reinforce the fact that acting under an approved CHMP, native title agreement, or other agreement with an Aboriginal party provides deemed compliance with the Aboriginal cultural heritage duty of care, and a complete defence with respect to the relevant offence provisions in the Aboriginal Cultural Heritage Act. 

New South Wales

Legislative reform

Indigenous cultural heritage legislative reform is moving at a snail's pace in New South Wales.

The consultation draft Aboriginal Cultural Heritage Bill 2018 (NSW) was released for public comment in February 2018. Consultation involved a wide range of stakeholders, including public consultations beginning in September 2017 and closing in April 2018.  For more information about the draft Bill, see our 23 March 2018 Native Title Alert The wait is over: NSW finally moves forward with Aboriginal heritage reform and the Department of Planning, Industry and Environment page here. 

In excess of 300 submissions were received from a broad range of stakeholders.  Everyone supported the introduction of contemporary standalone legislation (the regime currently sits in the National Parks and Wildlife Act 1974 (NSW)).  The model for the governance structures attracted the most comment.  Creating a structure that accommodates native title parties, Aboriginal Land Councils and cultural knowledge holders and ensures the participation of people with other necessary skill sets has proved challenging (inevitably).  There were additional targeted stakeholder consultations during January and February 2019, along with some further work to refine the proposals.  Nine years on from the decision to proceed with the reform, we are still some distance from a broadly accepted reform model.

Enforcement

Since we last wrote on Aboriginal heritage, there has been one notable prosecution.  In Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 Clarence Valley Council was prosecuted under section 86(1) of the National Parks and Wildlife Act 1974.  The Council pleaded guilty to the lopping and subsequent removal of a scar tree, an action they had self-reported.  The Council was ordered to pay $300,000 to the Grafton Ngerrie Local Aboriginal Land Council, rather than a fine, with the court emphasising the reparative and restorative purpose of sentencing.  The Council was also ordered to: (i) place notices in various newspapers and web pages stating it had knowingly caused harm to an Aboriginal object, (ii) notify Local Aboriginal Land Councils of the offence, and (iii) conduct cultural skills workshops for its staff.  The Council was also ordered to pay the prosecutor's costs of $48,000.  Three years earlier, the Council had received a penalty notice for "harming an Aboriginal object" in breach of section 86(2) of the Act, in respect of the same scar tree.  This provides an explanation for the considerable financial penalty.

Litigation

In the recent case of Mehmet v Carter [2020] NSWSC 413, the NSW Supreme Court considered whether the existence of Aboriginal objects on land (within the meaning of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) is capable of constituting a defect in title.  The answer is a firm yes, depending on the object's nature and location.  The Court's conclusions were based on the fact that an Aboriginal object is property vested in the Crown due to the operation of the NPW Act and because of the potential development constraints that may arise from their presence under the NPW Act.  The significance of the Court's assessment in this case, was that the vendor's refusal to respond substantively the purchaser's inquiries regarding the Aboriginal objects amounted to a repudiation of the sale contract, entitling the purchaser to terminate.  The Court also considered that the purchasers would have been entitled terminate the contract.  This is because the development constraints arising from the undisclosed presence of one particular Aboriginal object on the land amounted to a substantial and material defect in title.  Vendor beware!

Victoria

Legislative reform

The Aboriginal Heritage Act 2006 (Vic) was last comprehensively reviewed and amended in 2016, while the Aboriginal Heritage Regulations were reviewed and updated in 2018.  No further reform processes are currently underway.

Litigation

In Clark v Minister for Environment [2019] FCA 2027, the Federal Court quashed the decision of the Federal Environment Minister to reject an application under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) for the protection of an area considered sacred by the Djab Wurrung traditional owners that would have been impacted by an upgrade to the Western Highway. The works were the subject of an approved cultural heritage management plan under the Aboriginal Heritage Act 2006 (Vic) with a registered Aboriginal party (registration now revoked), whom the Djab Wurrung traditional owners asserted did not represent their interests.  The Court ordered that the Minister's decision be set aside and the applicants' application be remitted to the Minister for further consideration. 

Other developments

Debate is ongoing about climbing in sections of the Grampians, which is home to almost 90% of south eastern Australia's Aboriginal rock art.  The Grampians is also one of Australia's premier rock climbing sites.  With some exemptions for licensed tour operators, Parks Victoria has imposed a climbing ban within sensitive Special Protected Areas of the Park where rock art sites are most concentrated.  Special Protected Areas constitute about 40% of the Park. This has been a very public discussion between communities committed to different aspects of the wonderful landscape of the Grampians National Park.

Western Australia

Legislative reform

Throughout 2019, the WA State Government progressed the second phase of its review of the Aboriginal Heritage Act 1972 (WA Act).  As part of this phase, the Minister for Aboriginal Affairs released a Discussion Paper in March 2019, which set out a number of proposals to reform the current regime.  This phase involved stakeholder input, including community meetings.

The proposals set out in the Discussion Paper are aimed towards improved protection and management of Aboriginal heritage, and providing a framework for efficient land use decisions.

The proposals include, among other things:

• redefining terms to better capture the nature of Aboriginal cultural heritage;
• providing for the recognition of agreements between Aboriginal people and land use proponents;
• streamlining land use proposals (with tiered assessments), and including a "call-in" power and consents that run with the land;
• facilitating the use of "Local Aboriginal Heritage Services" and an "Aboriginal Heritage Council" to involve traditional owners more in heritage decision making; and
• increasing penalties and providing for more time to investigate and prosecute offences.

Over 70 submissions were made by stakeholders.  According to the State, these submissions reflected general community and industry support for the proposals.  The next phase is the drafting and release of a "Green Bill" for public comment in 2020. 

In April 2020, the State announced that the timeframe for the reforms has been amended in the wake of the COVID-19 restrictions in place throughout WA, and in particular that consultations will be postponed until the pandemic response has subsided and restrictions on travel and meetings are lifted. 

For more background information, see our 14 March 2018 Native Title Alert: Back on the agenda: Latest review of the WA Aboriginal Heritage Act announced.

Enforcement

The Discussion Paper recommends "modernising" the current enforcement mechanisms in the WA Act.  The proposal includes retaining the current range of offences, but placing a limit on the application of the current "ignorance" defence (so that it only applies where a land use proponent has done everything "reasonably practicable" to inform themselves).

The proposal includes increasing the prosecution limitation period to five years, and increasing the penalty for a contravention to $1 million.  The Minister would be able to issue stop work orders.  The Court could also order a person to take restorative measures, and pay compensation for damage caused.

Litigation

In Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC 33, the WA Supreme Court considered an issue related to Fortescue Metals Group's Solomon iron ore project.  The Aboriginal Cultural Material Committee (ACMC) had recommended that the Minister for Aboriginal Affairs provide consent under section 18 of the WA Act in relation to the extension of certain mining operations and infrastructure, which the Minister subsequently did.

Wintawari Guruma Aboriginal Corporation RNTBC (WGAC) sought judicial review of the ACMC's recommendation and the Minister's decision.  The WA Supreme Court ultimately dismissed WGAC's application.  The Court concluded that all of WGAC's grounds of challenge failed after an evaluation of their merits.

Northern Territory

Legislative reform

The Petroleum (Environment) Regulation 2016 has been amended by the Petroleum (Environment) Regulations 2019 (No. 7 of 2019) (which commenced on 11 June 2019) to provide that the approval criteria for an environment management plan include an Authority Certificate (granted under the Northern Territory Aboriginal Sacred Sites Act 1989) (Sacred Sites Act).  This amendment implements Recommendation 11.1 of the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory and is significant because it effectively makes an authority certificate a compulsory requirement in this context ─ a departure from the usual position under the Sacred Sites Act.  

Draft Environment Protection Regulations 2019 have been published in the Northern Territory as part of the new environmental regulatory regime. The Draft Regulations state that a cultural impact assessment, namely an assessment that considers the potential impact of a proposed action or strategic proposal on Aboriginal culture or sacred sites or the Territory's natural or built heritage, may be included in an environmental impact assessment. The consultation period for the Draft Regulations closed on 16 December 2019.  The Environment Protection Bill 2019 was assented on 9 October, and the Northern Territory Government expects commencement to occur this year.

In April 2019, the Northern Territory Government released the Northern Territory Land and Sea Action Plan (Action Plan) (available here) detailing, among other things, actions to be taken by the Aboriginal Areas Protection Authority (AAPA).  At Sub-Action 9.2, the Action Plan advises that "AAPA will work with the land councils to improve the efficiency and effectiveness of the administrative processes under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT)".  At Sub-Action 9.4, the Action Plan advises that "AAPA will consult with the land councils to gauge support for the implementation of the legislative recommendations from the Sacred Sites Processes and Outcomes Review and the final report into the Scientific Inquiry into Hydraulic Fracturing, and progress legislative amendments to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT)."

Enforcement

The AAPA reports on enforcement in its Annual Report.  

The 2018-2019 Annual Report states that at the beginning of 2018–19, the Authority had eight alleged sacred site damage matters carried over from the previous reporting period.  During 2018–19, the Authority received 11 new alleged site damage reports and closed 11 cases.  By the end of 2018–19, eight cases remained active.  In the previous financial year (2017–18), the Authority commenced legal proceedings against a commercial fisherman for breaching the Sacred Sites Act in the Blythe River in 2016. This matter was finalised before the court in August 2018, with convictions recorded. Both the company and individual were fined $3,000 each for entering and working within the boundary of a sacred site.

Other developments

In November 2019, AAPA announced an improved "Request for Information" process pursuant to regulation 7 of the Northern Territory Aboriginal Sacred Sites Regulations 2004.  The new map provided in response to a request under regulation 7 now includes more information, including registered and recorded sacred sites and information about where Authority Certificates have been issued in the past.  The AAPA has also prepared a revised Frequently Asked Question sheet to assist with interpretation of the map, and which can be accessed here.

South Australia

Legislative reform

The SA State Government's Stronger Partners Stronger Futures initiative continued to be progressed throughout 2019.  Broadly, the initiative is intended to help facilitate engagement between Aboriginal communities, the mining exploration industry and the State Government in relation to the native title system as it applies to mining and exploration.  In April 2019, the State released three discussion papers to support the next phase of consultation:

• Discussion Paper 1: Reform options to improve the operation of the native title mineral exploration system in South Australia;
• Discussion Paper 2: Reform options to improve relationship building and cultural awareness in the mineral exploration process; and
• Discussion Paper 3: Reform options to improve Aboriginal cultural heritage management and the mineral exploration process.

• Aboriginal site conservation planning for resource projects in South Australia; and
• Aboriginal cultural heritage surveys and work area clearances for resource projects in South Australia.

The State invited comments from interested stakeholders in response to the Discussion Papers by July 2019.  The State indicated there would be further targeted consultation to inform a series of reform recommendations to Government.

Tasmania

Legislative reform

The State of Tasmania is currently reviewing the Aboriginal Heritage Act 1975 (Tas), as contemplated in the 2017 amendments to the Act.  For more details about these amendment see our June 2017 Native Title Alert After Truganini - recent reforms bring Tasmanian Aboriginal cultural heritage protection laws into the 21st century.  

Public consultation occurred from July to September 2019 and the Consultation Feedback Report was released in December 2019.  The Review Report detailing the outcomes of the review and recommendations is expected to be prepared in the second half of 2020 and to be tabled in Parliament by the end of 2020.

Enforcement

The Discussion Paper states that there have not been any prosecutions under the Aboriginal Heritage Act since the penalties for existing offences under the Act were strengthened in 2017.  It also notes that the enforcement options under the Act are limited, and do not include stop work orders or infringement notices.