Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships

In this case, the developer had submitted a Cultural Heritage Management Plan (CHMP) for approval under s 107 Aboriginal Cultural Heritage Act 2003.  After it was submitted but before the Chief Executive made a decision the Aboriginal party which had agreed to the CHMP ceased to be an Aboriginal party for the relevant area.  The key issue was whether the Chief Executive erred by determining that, consequently, the CHMP had not been consented to by a current Aboriginal Party and therefore the CHMP could not be approved. Bond J found that the time for assessing the validity of the CHMP under s 107 of the Act was when it was submitted. Accordingly, the Chief Executive had erred in law by not approving the CHMP pursuant to s 107 of the Act.  In the result, the decision rejecting Mirvac's CHMP was set aside, and a direction was made that it be approved.

Bond J

31 October 2018

Background

The applicant, Mirvac, is developing a large residential project within the Logan City Council local authority area. [1]. Under the Aboriginal Cultural Heritage Act 2003 (“the Act”), it owes a “cultural heritage duty of care”. [10]. A person is taken to have complied with that duty if they act in compliance with an approved “cultural heritage management plan” (“CHMP”). [15].

On 6 September 2017 Mirvac submitted a CHMP to the Chief Executive of the Department of Aboriginal and Torres Strait Islander Partnerships. [31]. On 30 October 2017, a delegate of the Chief Executive made a decision refusing to approve the plan. [35]. Pursuant to s 20(1) of the Judicial Review Act 1991, Mirvac applied for a statutory order of review of that decision, alleging a number of errors of law. It sought orders quashing or setting aside the decision, and a direction that the Chief Executive must approve the CHMP. [4]. It was successful on one of those grounds, discussed below.

The development of the CHMP

Section 107 of the Act provides that, if a CHMP has been agreed to by an “endorsed party”, then the chief executive “must approve the plan” (per subs (3)). However, if a CHMP is submitted without agreement by an endorsed party, then the chief executive must be satisfied that the plan makes enough provision for avoiding or minimising harm to Aboriginal cultural heritage. [19].

Notably, an ‘endorsed party’ is an “Aboriginal party” who becomes involved in consultations leading to the development of a CHMP. [17]. In turn, the definition of “Aboriginal party” interacts with certain provisions of the Native Title Act 1993 (Cth) (“NTA”). [13]. In particular, a registered native title claimant under the NTA is taken to be an Aboriginal party for the purposes of the Act, and will continue to be even if their claim subsequently fails, unless and until some other claim is registered in respect of the area (per s 34(1)(b)(i)(A)). [13].

In this case, at the time that Mirvac commenced its development of a CHMP, the applicant to the former Jagera #2 native title claim (a registered claim under the NTA) was an Aboriginal party for the purposes of the Act. [22]. By reason of the provision mentioned in the preceding paragraph, they remained an Aboriginal party despite the fact that, on 1 May 2013, the Jagera #2 claim had been discontinued. [22]. In developing its CHMP, Mirvac consulted with the Jagera #2 applicant. At the time the CHMP was submitted to the Chief Executive, it had been agreed to by the Jagera #2 applicant. [31].

Why the Chief Executive refused to approve the CHMP

On 14 September (after the CHMP had been received, but before it had been considered by the Chief Executive), a new native title claim was made and registered in relation to land that covered much of the relevant area (the Daggan Balun Claim). [34]. As a consequence, on that date the applicant to the former Jagera #2 claim ceased to be an Aboriginal party for the relevant area. [34].

In essence, the delegate of the Chief Executive considered that the time for assessing what it was required to do under s 107 was when the delegate in fact considered the CHMP that had been submitted. [37]. On that account, he considered that the CHMP which had been submitted was no longer agreed by a current Aboriginal party, and so was unable to be approved. He then considered whether it should be approved in the absence of such agreement, but concluded that it did not make enough provision for avoiding harm to Aboriginal cultural heritage. [38].

The judicial review

Justice Bond concluded that it was incorrect to assess the status of the Jagera #2 applicant as at the time when the delegate actually came to consider whether to approve Mirvac's CHMP. [52].

Critically, the text of s 107 uses the present tense, and thereby indicates that the time at which the application of the provision is to be considered is "as at the time the sponsor gives the plan to the chief executive". His Honour considered that "the text provides no reason to think that consideration is addressed to any subsequent time". [55]. The text also provided "no room" for the operation of the principle that, generally speaking, an evaluation should be made on the basis of material available to the decision-maker at the time the decision is to be made (per Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). [46], [55].

Accordingly, the duty was to consider what position obtained as at 6 September 2017, when the CHMP had been submitted. As at that time, the Jagera #2 applicant was an Aboriginal party, and an endorsed party for the purposes of the Act. Accordingly, the CHMP submitted was required to be approved. [57]. Consequently, Mirvac was entitled to an order quashing the decision, and an order requiring the CHMP to be approved. [58].

Other grounds of review raised by Mirvac were considered by Bond J, but were unsuccessful. [44]–[50], [59]–[66].

W Isdale