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- Unreported Judgment
Conlon v QGC Pty Ltd QLC 3
LAND COURT OF QUEENSLAND
Conlon & Ors v QGC Pty Ltd  QLC 3
QGC Pty Ltd
ACN 089 642 553
Cultural Heritage Division
Application for injunction under the Land Court Act 2000
Orders delivered ex tempore 20 January 2020
Reasons delivered 22 January 2020
20 January 2020
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the parties entered into an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth), which annexed a Cultural Heritage Management Strategy – where a dispute arose regarding the interpretation of the agreement – whether breach of the agreement was a “relevant act” under s 32H of the Land Court Act 2000 – where the Court held that the agreement operates as a defence to potential contraventions of the Aboriginal Cultural Heritage Act 2003, but a breach of the agreement is not necessarily a contravention of the ACHA, meaning it is not a relevant act under the LCA
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – whether the parties’ ILUA was a “negotiated agreement” under s 32G of the LCA – where the Court found that the ILUA was not a negotiated agreement because of its terms and the fact that the Queensland Government was not a party to the ILUA – where the Court therefore did not have jurisdiction to enforce the ILUA as a negotiated agreement under s 32G
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the parties had agreed that the Land Court could resolve disputes about their ILUA – where the agreement inter partes could not confer jurisdiction on the Court – where the Court found that, even if the parties’ agreement was a certified Cultural Heritage Management Plan under the ACHA, the Court would not have general jurisdiction over disputes arising out of the CHMP – where the Court’s lack of jurisdiction illustrated the difficulty of enforcing agreements about process to ensure compliance with the ACHA
Aboriginal Cultural Heritage Act 2003 s 24, s 25, s 26
Land Court Act 2000 s 32H, s 32G
Native Title Act 1993 (Cth) s 31(1)(b)
T Hauff (solicitor), Trevor Hauff Lawyers, for the applicants
E Longbottom QC (instructed by Norton Rose Fullbright) for the respondent
- This application illustrates the difficulty indigenous people face in enforcing agreements about processes to protect aboriginal cultural heritage under the Aboriginal Cultural Heritage Act 2003. The parties disagree about the process for a cultural heritage survey pursuant to their agreement. For reasons that follow, the Court cannot resolve that disagreement and I dismiss the application.
- The application arises out of a dispute about the process for investigating aboriginal cultural heritage ahead of works associated with QGC’s Qld Curtis Liquid Natural Gas project. That project involves an interconnection network of gas transmission and water pipelines and water treatment infrastructure, related to the export of LNG from a plant on Curtis Island, off Gladstone.
- Annexed to the ILUA is a Cultural Heritage Management Strategy. The applicants are members of the Cultural Heritage Coordinating Committee established under the Strategy.
- In essence, the dispute is about the Committee’s role in identifying cultural heritage. They say the Strategy provides for the Committee to conduct a physical assessment and archival research, and report to QGC about cultural heritage, before an archaeologist conducts a cultural heritage survey. From the applicants’ perspective, the significance of the Committee’s work is that it provides input to the cultural heritage survey. The importance of the survey is that it precedes operational work, and could well affect where or how QGC carries out the works.
- The dispute before the Court relates to the survey process. The applicants do not allege any specific item or area of cultural heritage significance is at risk by the survey itself. Their concern is whether the survey will properly identify cultural heritage if the Committee does not investigate and provide a report beforehand. They argue the process defined in the CHMS is the agreed process to identify, conserve, and protect cultural heritage and QGC should honour it.
- The applicants applied for an injunction and other orders, alternatively under s 32H and s 32G of the Land Court Act 2000. Pursuant to s 32H, the Court can restrain a party from doing a “relevant act.” Pursuant to s 32G, the Court can determine disputes about, and enforce, a “negotiated agreement.” In exercising that jurisdiction, the Court has the power to grant an injunction. I will address each basis for the application in turn.
Application under s 32H – to restrain a relevant act
- Section 32H defines a relevant act in the following way:
(4)…relevant act means an act that is a contravention of —
(a) an Aboriginal cultural heritage protection provision; or
(b) a Torres Strait Islander cultural heritage protection provision; or
(c) a provision of another Act providing for the protection or preservation or access to, items, places or areas of cultural significance to Aboriginal people or Torres Strait Islanders.
- The applicants argue a breach of the Strategy is a relevant act because the Strategy was the agreed way for QGC to fulfil its obligations under the ACHA. In effect, the applicants argue the Strategy supplants and substitutes the obligations under an “Aboriginal cultural heritage protection provision.”
- The Aboriginal cultural heritage protection provisions are sections 24(1), 25(1), and 26(1) of the ACHA. They provide it is an offence to harm (s 24(1)), excavate, relocate or take away (s 25(1)), or possess (s 26(1)), Aboriginal cultural heritage. However, under subsection (2)(a)(iii) of each of those sections, it is not an offence if a person does any of those acts under a native title agreement.
- Both parties have identified the Strategy as a type of agreement that falls within the definition of a native title agreement in the ACHA, although they differ about what type of native title agreement it is.
- QGC accepts it forms part of an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements. The applicants argue it is an agreement under s 31(1)(b) if the Native Title Act 1993 (Cth). For the purpose of the application under s 32H, it does not matter which it is.
- As I understand the applicants’ submission, they argue the Strategy does not merely provide protection to QGC; as the agreed way to ensure QGC does not breach the protection provisions, the Strategy states legal obligations. A breach of the Strategy is a breach of one or more of those obligations and the court has jurisdiction to restrain the breach.
- The Strategy is certainly the parties’ agreed way to ensure compliance with the ACHA. It recites that QGC and the native title party entered into the Strategy “to ensure that any Aboriginal Cultural Heritage within the ILUA Area is identified, protected and managed in accordance with the ACHA and with a view to sustaining a relationship of cooperation between the Parties.”
- That does not mean, however, that a breach of the Strategy is a “relevant act” within the meaning of s 32H.
- The definition of a relevant act does not refer to a native title agreement. It refers only to a contravention of the protection provisions.
- The evident intention of subsection 2 of the protection provisions is to identify defences to the offences prescribed by the protection provisions. Acting in accordance with a native title agreement serves as a shield against prosecution for an act that would otherwise contravene the protection provisions. However, the native title agreement is not a sword, in the sense that a breach of the agreement is not an offence under the ACHA.
- Section 23 of the ACHA reinforces that interpretation of the effect of a native title agreement. That section imposes a cultural heritage duty of care on a person who carries out an activity. The duty requires them to take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage. A person is taken to have complied with the cultural heritage duty of care if they act under a native title agreement. Compliance with the cultural heritage duty of care is another defence to each of the protection provisions.
- The applicants did not refer me to any other provision in the ACHA that supported their argument, and I could find none.
- The Court can only restrain an act under s 32H if the act is a “relevant act.” Because I have found a breach of the Strategy is not a “relevant act,” I dismiss the application under s 32H.
Application under s 32G – to enforce a negotiated agreement
- In the alternative, the applicants applied for relief under s 32G of the LCA, arguing the Strategy is a negotiated agreement, as defined in that section. The applicants ask the Court to interpret and enforce the Strategy and restrain QGC from breaching it. The Court’s power to do so depends on the applicants establishing the Strategy is a negotiated agreement.
- The definition of negotiated agreement is:
negotiated agreement means an agreement obtained under the Commonwealth Native Title Act, section 31(1)(b).
- The applicants say the Strategy is an agreement under s 31(1)(b) of the NTA. QGC says it is not. I find it is not an agreement under s 31(1)(b).
- Section 31(1)(b) appears in Subdivision P of Division 3 of Part 2 of the NTA. That subdivision is entitled “Right to negotiate.” Subdivision P applies to certain future acts that might interfere with native title, including, relevantly, the creation of a right to mine. The ILUA refers to the future grant of project rights under various Qld Acts, including the Petroleum Act 1923. This was the applicants’ basis for asserting the Strategy is an agreement under s 31(1)(b). QGC did not appear to contest the proposition that Subdivision P could apply to the grant of some of the project rights. That is consistent with the definition of mine in the NTA, which includes: “extract petroleum or gas from land or from the bed or subsoil under waters”.
- However, Subdivision P, and therefore s 31(1)(b), does not apply to an act covered by s 24EB of the NTA. Section 24EB describes the consequences of registration of an ILUA for an act covered by the ILUA. In brief, s 24EB validates the act, applies the non-extinguishment principle, and defines compensation rights. Section 24EB only applies to an act that involves a right to mine, if the agreement includes a statement to the effect that Subdivision P does not apply.
- The ILUA that annexes the Strategy contains the following clauses:
“5 (e) Subdivision P of Division 3 of Part 2 of the NTA is not intended to apply to the doing of the Future Acts consented to under clause 5(a)…
6.1 (a) This Agreement is an area agreement pursuant to sections 24CA to 24CL NTA and regulation 7 of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth).”
- By its terms, then, the ILUA to which the Strategy is annexed, excludes the operation of s 31(1)(b) by the parties agreeing it is an area ILUA to which Subdivision P does not apply.
- Another indication is the fact that the Queensland government, as the Government party that would grant a right to mine, is not a party to the ILUA. Subdivision P defines the negotiation parties as each of the Government party, any native title party and any grantee party. The negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act. Although this is not express, it is a fair reading of s 31(1)(b) that it contemplates an agreement between all of the negotiation parties, including the Government party. The Queensland government is not a signatory to either the Strategy or the ILUA.
- Because the Strategy is annexed to an ILUA, it may be open to the applicants to enforce it pursuant to the NTA. The parties did not argue that point before me and it is not appropriate for me to address it. I note, however, that the link between the ILUA and the annexed Strategy is opaque. QGC was unable to identify any provision of the ILUA that directly references the Strategy.
- Because I have found the ILUA that annexes the Strategy is not a negotiated agreement, the Court does not have jurisdiction to grant relief under s 32G.
- My findings also mean the Court cannot make any finding about whether the survey process QGC is undertaking constitutes a breach of the Strategy.
- This case illustrates a lacuna in the law in Queensland relating to Aboriginal cultural heritage.
- The main purpose of the ACHA is “to provide effective recognition, protection, and conservation of Aboriginal cultural heritage.” That purpose is to be achieved by, amongst other matters, ensuring Aboriginal people are involved in processes for managing the recognition, protection and conservation of Aboriginal cultural heritage. One way of ensuring the involvement of Aboriginal people is to promote agreements about those processes. That is what the Strategy purported to do.
- The stated purpose of the Strategy is to identify, conserve, and protect Aboriginal cultural heritage and to ensure compliance with the ACHA.
- It is hardly surprising the applicants approached this Court to interpret and enforce the Strategy. The parties agreed the Land Court would play that role. The Strategy’s dispute resolution clause says the parties should endeavour to resolve disputes through the Committee, failing which they will mediate in good faith. If that is unsuccessful, either party may commence proceedings in the Land Court.
- However, the dispute resolution clause is ineffective to confer jurisdiction on the Court. This is a specialist Court of statutory jurisdiction. The parties cannot confer jurisdiction upon the Court by agreement. That can only be done by the LCA, or another Act of Parliament.
- The ACHA does confer some jurisdiction on the Court. The Act provides a process for making and obtaining approval of a cultural heritage management plan. The ACHA contains dispute resolution provisions that assist parties in negotiating and finalising the terms of a CHMP. They include access to this Court for mediation, and failing agreement, for the Court to make recommendations to the Minister about the CHMP.
- The Strategy is not styled as a CHMP, and there is no evidence that it has been approved under Part 7.
- In any case, even if it was an approved CHMP, the ACHA appears to confer no jurisdiction on this Court or, as far as I can make out, any other Court to resolve disputes about the interpretation of a CHMP or to enforce it in accordance with its terms.
- The applicants sought to invoke this Court’s jurisdiction for cultural heritage and negotiated agreements. This decision demonstrates that jurisdiction is specific and limited in scope. It is regrettable the parties entered into the Strategy under an erroneous assumption about such an important matter. It is unfortunate for all parties that the ACHA provides no clear or accessible mechanism to resolve disputes about agreed processes to achieve the main purpose of the Act.
- The applicants are granted leave to amend their originating application in the terms identified in their email to the Land Court Registry dated 20 January 2020.
- The application is dismissed.
Affidavit of Siobhán Walker filed 20 January 2020, Indigenous Land Use Agreement, Annexure 2: Cultural Heritage Management Strategy, recital A.
An Indigenous Land Use Agreement made pursuant to s 24CA to 24 CL of the Native Title Act 1993 (Cth).
Affidavit of Trevor Hauff filed 20 January 2020, .
Land Court Act 2000 s 7A(2)(b).
LCA s 32H(4).
Aboriginal Cultural Heritage Act 2003 ss 24(2)(a)(iii), 25(2)(a)(iii), 26(2)(a)(iii).
ACHA Schedule 2.
Affidavit of Siobhán Walker filed 20 January 2020, Indigenous Land Use Agreement, Annexure 2: Cultural Heritage Management Strategy, recital D.
ACHA s 23(1).
ACHA s 23(3)(a)(iii).
ACHA ss 24(2)(a)(iv), 25(2)(a)(iv), 26(2)(a)(iv).
LCA s 32H (2).
LCA s 32G(4).
Native Title Act 1993 (Cth) s 26(1)(c)(i).
NTA s 253.
NTA s 26(2)(a).
NTA s 30A.
NTA ss 31(1)(b), (2).
ACHA s 4.
ACHA s 6(g).
Affidavit of Siobhán Walker filed 20 January 2020, Indigenous Land Use Agreement, Annexure 2: Cultural Heritage Management Strategy, [15.3].
LCA s 5(1).
ACHA Part 7 Division 6.
- Published Case Name:
Conlon & Ors v QGC Pty Ltd
- Shortened Case Name:
Conlon v QGC Pty Ltd
 QLC 3
22 Jan 2020