AV Jennings Properties Limited v McCarthy & Ors on behalf of the Yuggera Ugarapul People [2018] QLC 28

LAND COURT OF QUEENSLAND CITATION: AV Jennings Properties Limited v McCarthy & Ors on behalf of the Yuggera Ugarapul People [2018] QLC 28 PARTIES: AV Jennings Properties Limited (applicant) v Margaret McCarthy & Ors on behalf of the Yuggera Ugarapul People (respondent) FILE NO: ACH292-18 DIVISION: Cultural Heritage and Indigenous Land Use Agreement Division PROCEEDING: Application for mediation under the Aboriginal Cultural Heritage Act 2003 DELIVERED ON: 13 September 2018 DELIVERED AT: Brisbane HEARD ON: 31 August 2018, final submissions received on 7 September 2018. HEARD AT: Brisbane PRESIDENT: FY Kingham ORDERS: 1. The parties, including their representatives, must attend, participate in, and act reasonably and genuinely in a court supervised mediation before the Judicial Registrar of the Court, the date, time and venue in Ipswich to be fixed by the Judicial Registrar in consultation with the parties. 2. By no later than 4pm one week prior to the mediation each party must: 1. deliver to any other party a brief mediation statement which: a) sets out the issues they say arise in the case; -- 1 of 7 -- 2 b) states how they would like the case resolved; c) lists any documents they intend to specifically refer to in the mediation; and d) if those documents are not included in the Land Court’s file, deliver copies of those documents. 2. deliver a copy of the statement and attachments to the Land Court Registry in a sealed envelope or by email marked “Confidential to be opened only by mediator, Land Court”. 3. Providing a document by attaching it to a mediation statement is without prejudice to a parties’ right to object at the hearing to the admission into evidence of all or part of the document. 4. If the mediation is adjourned, and when the mediation ends, the Mediator must deliver a certificate in the approved form to the Land Court Registry. 5. Unless all parties deliver prior written notice to the Land Court Registry that the case has resolved without the need for court orders, the case is listed for review on 26 October 2018. CATCHWORDS: ABORIGINAL CULTURAL HERITAGE – HERITAGE PROTECTION – Aboriginal Cultural Heritage Act 2003 – s 106 – where a developer sought mediation of a dispute about a cultural heritage management plan – where the Aboriginal party resisted mediation – whether there was a dispute suitable for mediation – where it was found there is a dispute, there is no abuse of process in requesting mediation, and mediation is not premature Aboriginal Cultural Heritage Act 2003, s 5, s 34, s 35, s 106, s 17, sch 2 Native Title Act 1993 (Cth) s 66B, s 253 Williams v Spautz (1992) 174 CLR 509, cited APPEARANCES: P Hunter (solicitor), HWL Ebsworth Lawyers for the applicant T Hauff (solicitor), Trevor Hauff Lawyers for the respondent [1] Any person conducting an activity in Queensland is under a cultural heritage duty of care. This requires them to take all reasonable and practicable measures to ensure -- 2 of 7 -- 3 their activities do not harm Aboriginal cultural heritage.1 One way a person can fulfil their duty of care is to act under an approved Cultural Heritage Management Plan. 2 [2] AV Jennings Property Limited is the developer of a mixed residential and commercial development at Deebing Heights in Ipswich. Ms McCarthy and the other named respondents are the applicants in a native title claim on behalf of the Yuggera Ugarapul People, over an area including the project land. The parties are in active correspondence about developing a CHMP for the project. [3] The project land is near the Deebing Creek Cemetery and Mission, areas of high cultural sensitivity to the YUP group. The project land may include part of the Cemetery. To avoid disturbance of such a sensitive site, AV Jennings has identified an area it will not develop without further investigation. At this stage, it proposes a CHMP over the balance of the land. [4] The parties have taken some steps under the Aboriginal Cultural Heritage Act 2003 to develop a CHMP but the consultation period under the Act has now expired. AV Jennings has applied for the Court to provide mediation. [5] If it appears to a party that a dispute is substantially delaying the development of a CHMP, they may apply for mediation.3 The Court may provide mediation if it considers the dispute is suitable for mediation.4 [6] The YUP group resists mediation on three grounds: 1. There is no dispute because the parties have not even met yet to discuss the CHMP. 2. The application is an abuse of process. 3. Mediation is premature because the applicants in the YUP native title claim may change. Is there a dispute? 1 Aboriginal Cultural Heritage Act 2003, s 23. 2 Aboriginal Cultural Heritage Act 2003, s 23(3)(a)(ii). 3 Aboriginal Cultural Heritage Act 2003, s 106(1),(2). There is also a requirement for a portion of the consultation period to have elapsed, but that is not in issue here. 4 Aboriginal Cultural Heritage Act 2003, s 106(3). -- 3 of 7 -- 4 [7] As the YUP group submitted, the parties have not yet met. That serves to demonstrate, rather than deny, the dispute. [8] The YUP group proposed a process it has used for other developments. That starts with a meeting between the claim applicants and elders and the project developer so the parties can get to know each other, discuss the proposed project and identify some of the cultural issues. [9] AV Jennings prepared a draft CHMP some time ago and has been pursuing a response from the YUP group. AV Jennings expressed concern about the how many people would attend the first meeting and the associated costs. Instead, it proposed a hybrid meeting to both discuss the draft CHMP and to undertake a cultural heritage survey in accordance with the draft. The YUP group is opposed to acting under a draft plan that is not yet agreed. [10] There is a clear dispute about the process for consulting on and developing a plan. Is the application an abuse of process? [11] The YUP group alleged this application by AV Jennings amounts to an abuse of process. That is a serious allegation and the onus is on the party making it to show that “the predominant purpose of the other party in using the legal process has been one other than that for which it was designed.”5 [12] The YUP group argued AV Jennings has not attempted to properly consult and negotiate a CHMP. AV Jennings has not agreed to its preferred and usual process for developing a CHMP. A respectful and culturally appropriate process is particularly important to the YUP group given the high cultural sensitivity of the area and the respect that is due to their elders. The YUP group says that its process is consistent with the fundamental principles that underlie the Act’s main purpose: “(a) the recognition, protection and conservation of Aboriginal cultural heritage should be based on respect for Aboriginal knowledge, culture and traditional practices; (b) Aboriginal people should be recognised as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage; (c) it is important to respect, preserve and maintain knowledge, innovations and practices of Aboriginal communities and to promote understanding of Aboriginal cultural heritage; 5 Williams v Spautz (1992) 174 CLR 509 at [42]. -- 4 of 7 -- 5 (d) activities involved in recognition, protection and conservation of Aboriginal cultural heritage are important because they allow Aboriginal people to reaffirm their obligations to ‘law and country’; (e) there is a need to establish timely and efficient processes for the management of activities that may harm Aboriginal cultural heritage.”6 [13] AV Jennings has proposed other options and seeks to minimise the cost. In itself, that conduct is not unreasonable. Its focus is on timeliness and efficiency. However, that is only one of the fundamental principles underlying the purpose of the Act. [14] It is clear that consultations got off to a bad start. I have read the correspondence carefully. There is an unfortunate tone to some of the correspondence both ways. While the parties may approach the issue from different perspectives, I see the Act’s scheme encourages respectful and meaningful consultation. [15] That said, one party cannot mandate a process in a consensual engagement. The fact that AV Jennings has not agreed to the YUP process does not mean its request for mediation is an abuse of process. [16] The evident legislative purpose in providing for mediation is to assist the parties in their consultations if a dispute is substantially delaying development of the plan. The correspondence reveals that the parties have reached an impasse, with neither willing to agree to the process proposed by the other. Unless that is resolved, there will be no further progress. In those circumstances, AV Jennings’ application is not an abuse of process. Is mediation premature because there may be a change to the YUP claimants? [17] AV Jennings is consulting with the YUP group because of its role in a registered native title claim that includes the project land.7 Under the Native Title Act 1993 (Cth), the applicant for a registered native title claim is the registered native title claimant for the area. That means the applicant is a native title party and, therefore, an Aboriginal party under the Aboriginal Cultural Heritage Act 2003.8 That status invokes procedural and other rights under the Act. 6 Aboriginal Cultural Heritage Act 2003, s 5. 7 QUD213/207, see Register of Native Title Claims, National Native Title Tribunal. 8 Aboriginal Cultural Heritage Act 2003, ss 34, 35, sch 2; Native Title Act 1993 (Cth), s 253. -- 5 of 7 -- 6 [18] It is possible the composition of the applicant group will change. A meeting of the YUP group was notified for 9 September to consider whether the respondent Maggie McCarthy should be named in the claim group as an apical ancestor.9 Depending on the outcome, the meeting might also authorise a replacement applicant.10 [19] Given the potential change to the composition of the applicant group, the YUP group argue mediation is premature. If the parties agree to a CHMP, the Chief Executive of the Department of Aboriginal & Torres Strait Islander Partnerships must approve the CHMP.11 However, the YUP group argued that, if the membership of the applicant group changes, a CHMP agreed to by a group differently constituted could not be approved. [20] It relied on the following advice from the Principal Advisor Cultural Heritage of DATSIP: “…should the native title party lose its status as an Aboriginal party prior to the Chief Executive approving the CHMP, the CHMP cannot be approved under s107(3) of the ACHA as the party cannot be considered the endorsed party for the plan.” [21] He also referred to a case currently before the Supreme Court where, it appears, DATSIP took a similar stance. It is not clear to me that the advice responds to the circumstances of this case. Firstly, it talks of a loss of status and I am not persuaded that a change to composition of the group would result in a loss of status. [22] On one interpretation of the relevant provisions, the applicant is the group of persons recorded in the register as the applicant for the native title claim from time to time. That is consistent with the scheme of the Native Title Act. A change in the applicant to a native title determination does not result in time-periods being reset for responding to or dealing with certain notices under that Act.12 [23] Secondly, even if the advice is apposite, it is the opinion of an officer of DATSIP. The Supreme Court has not decided the point and I do not know when it might do so. [24] I am not persuaded a possible change in the applicant group is a reason to defer mediation. The point of concern may never arise. If it does, the mediation will provide 9 In anthropology, an apical ancestor is a common ancestor from whom a lineage or clan may trace its descent. 10 Native Title Act 1993 (Cth), s 66B. 11 Aboriginal Cultural Heritage Act 2003, s 107. 12 E.g. Future Act notices issued under Division 3 Part 2 of that Act. -- 6 of 7 -- 7 a convenient forum for the parties to discuss how to proceed. As the advice from the DATSIP officer identifies, there may well be another way to obtain approval for an agreed CHMP.13 [25] In conclusion, I am satisfied there is a dispute suitable for mediation and will direct the parties to participate in a mediation by the Judicial Registrar of the Court. Orders 1. The parties, including their representatives, must attend, participate in, and act reasonably and genuinely in a court supervised mediation in Ipswich before the Judicial Registrar of the Court, the date, time and venue to be fixed by the Judicial Registrar in consultation with the parties. 2. By no later than 4pm one week prior to the mediation each party must: 1. deliver to any other party a brief mediation statement which: a) sets out the issues they say arise in the case; b) states how they would like the case resolved; c) lists any documents they intend to specifically refer to in the mediation; and d) if those documents are not included in the Land Court’s file, deliver copies of those documents. 2. deliver a copy of the statement and attachments to the Land Court Registry in a sealed envelope or by email marked “Confidential to be opened only by mediator, Land Court”. 3. Providing a document by attaching it to a mediation statement is without prejudice to a parties’ right to object at the hearing to the admission into evidence of all or part of the document. 4. If the mediation is adjourned, and when the mediation ends, the Mediator must deliver a certificate in the approved form to the Land Court Registry. 5. Unless all parties deliver prior written notice to the Land Court Registry that the case has resolved without the need for court orders, the case is listed for review on 26 October 2018. FY KINGHAM PRESIDENT OF THE LAND COURT 13 Affidavit of Trevor Hauff filed on 7 September 2018, “TGH 16”. -- 7 of 7 --