Australia: Confusion as indigenous cultural heritage Last Man Standing Rule thrown out

Last Updated: 29 May 2018
Article by Jenny Humphris and Alex Buck

Most Read Contributor in Australia, October 2018

The Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP) has responded to the Queensland Supreme Court's decision in Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships i (the Nuga Nuga Decision) by no longer recognising that the last registered claimants for an area are the Aboriginal party, unless and until a new native title claim is registered or determined.

In December 2017, Justice Jackson overturned a decision by the Minister for DATSIP to deny registration of the Nuga Nuga Aboriginal Corporation (the Corporation) as a cultural heritage body under section 36 of the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA). The Minister decided that the Corporation did not have the agreement of the relevant Aboriginal parties to be registered. The case turned on the question of who were the native title parties for the purpose of s.36(4)(b)(i) of the ACHA. DATSIP had identified the native title party as being the native title claimants for the previously registered Bidjara People native title claimii (the Bidjara Claim).

The Bidjara Claim, together with other overlapping claims made by the Karingbal People and the Brown River People, was dismissed by the Federal Court on 6 December 2013. As no other claim or determination had been registered over the Bidjara Claim area, the Minister identified the Bidjara claimants as the native title party in reliance upon the "last man standing" rule in s.34(1)(b)(i)(A) of the ACHA.

His Honour Justice Jackson did not agree. He decided that the last registered native title claimants are not the native title party (and hence the Aboriginal party) where there is a native title holder for the area under s.34(1)(b)(i)(C) of the ACHA. DATSIP had interpreted "native title holder" in that section to mean a registered native title holder, that is where a determination that native title exists is made. However his Honour relied upon the findings of Justice Jagot in the Bidjara Claim that at sovereignty, the area in question was Karingbal country with Karingbal People having the rights and interests in the land, arising from their recognition, acknowledgement and observance of traditional laws and customs in connection with the land. His Honour said this was sufficient for the Karingbal People to be deemed to be the native title holder for the area for the purpose of s.34 of the ACHA.

DATSIP's response

DATSIP has responded to the Nuga Nuga Decision by conceding that the last man standing rule no longer applies in the way previously understood by DATSIP. In DATSIP's view, there is likely to have been a native title holder at common law in most parts of Queensland and therefore it is unlikely that previously registered native title claimants can be considered to be a native title party, and it follows the Aboriginal party, in their former claim areas.

DATSIP has removed all native title claimants as native title parties from its online Database of Aboriginal cultural heritage. Any searches to ascertain the correct Aboriginal party will direct the searcher to DATSIP for further information about how those persons can be identified. In practice, how DATSIP will identify the Aboriginal parties in those circumstances is unclear. DATSIP is also considering removing previous registered native title claimants as native title parties from its Register.

DATSIP has written to all the previous registered native tile claimants seeking their views on this change. Previous native title claimants have been invited to advise DATSIP if they assert to be an Aboriginal party, not because they are native title claimants, but because they say they are Aboriginal persons with particular knowledge about the traditions, observances, customs or beliefs of the area as referred to in s.35(7) of the ACHA.

What does this mean in practice?

Proponents can no longer confidently rely upon the "last man standing rule" as a basis for engaging with the last registered native title claimants as the Aboriginal party. Proponents will be required to undertake searches of the Register and Database on a case by case basis and to contact DATSIP to identify the correct Aboriginal party. The decision and DATSIP's response also raises questions about the validity of agreements made with the last registered claimants.

The consequences arising from the Nuga Nuga Decision and DATSIP's response could potentially be addressed by legislative change to the definition of "native title holder" in s.34(1)(b)(i)(C) of the ACHA to "registered native title holder". We understand that the State is considering this option.

In the meantime and in practice, the decision and DATSIP's response means potential confusion for proponents as to who they should properly be consulting with when undertaking activities or development that have the potential to harm Aboriginal cultural heritage in areas where there is no current registered native title claim or registered determination.

Footnotes

i [2017] QSC 321

ii Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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