Let's talk: The Land Court orders parties to mediate CHMP

In brief

The case of AV Jennings Properties Limited v McCarthy & Ors on behalf of the Yuggera Ugarapul People [2018] QLC 28 concerned an application to the Land Court of Queensland for a mediation to facilitate the development of a Cultural Heritage Management Plan (CHMP) under the Aboriginal Cultural Heritage Act 2003 (ACH Act).

The Applicant was developing a mixed residential and commercial development at Deebing Heights in Ipswich. The Respondents have an existing Native Title claim over an area that includes the development land. In accordance with section 23 of the ACH Act, the applicant developed a CHMP.

The Respondents identified areas of high cultural significance, namely the Deebing Creek Cemetery and Mission. The Applicant, in order to avoid disturbance to the culturally significant areas, proposed that it would not develop without further investigation (at [3]).

A dispute arose between the parties concerning the development of the CHMP. The Respondents proposed a consultation process regarding the CHMP which involved a meeting between the Applicants and the indigenous elders. However the Applicant expressed concern over the process advanced by the Respondents due to the large number of people who may attend the initial meeting and the associated costs.

Ultimately, the Court held that the parties participate in a Court supervised mediation before the Judicial Registrar of the Court.

Contentions made by the Respondents

The Respondent's contentions were as follows:

• the application was an abuse of process; and
• a mediation would be premature as there may be a change to the applicants for the Native Title claim.

Contention One: Abuse of process

The Respondents argued that the Applicant failed to properly consult and negotiate the CHMP. The Respondents further argued that the Applicant failed to consider the consultation process that the Respondents had suggested.

The Court noted that the Applicant proposed alternative options to that of the Respondents and also sought to minimise costs. The Court found that such conduct by the Applicant was not an abuse of process and, rather, the Applicant had a "focus on timeliness and efficacy" (at [13]). The Court further held that the fact that the Applicant did not agree to the Respondents' process did not mean that the request for mediation was an abuse of process.

Contention Two: Potential change to applicants for the Native Title claim

Each applicant for a Native Title claim must be named. The Respondents argued that there was a potential change regarding the composition of the Native Title claim group and, if the change eventuates, the applicant for the Native Title claim may change. As such the Respondents argued that any CHMP that is agreed to now may not be authorised for approval by the newly composed applicant for the Native Title claim.

To support this contention, the Respondents relied on advice given by the Principal Advisor Cultural Heritage of Department of Aboriginal and Torres Strait Islander Partnerships. The advice relevantly stated that if an Aboriginal party lost its status prior to the Chief Executive approving a CHMP, the CHMP cannot be approved per section 107(3) of the ACH Act.

The Court found that the advice did not correlate to the circumstances of this matter as it referred to the loss of status. The Court found that a change in composition of a Native Title party was not a loss of status, and further held that this was not a reason to defer mediation.

Conclusion

The Court found that there was a dispute between the parties warranting the application to the Court. The Court held that the nature of the dispute was suitable for mediation due to the failure of the parties to successfully arrange a meeting. The Court ordered that the parties and their representatives participate in, and act reasonably and genuinely in, a Court supervised mediation.