Conlon v QGC Pty Ltd - [2020] QLC 3

LAND COURT OF QUEENSLAND

CITATION: Conlon & Ors v QGC Pty Ltd [2020] QLC 3

PARTIES:
Patricia Conlon
(applicant)

Natalie Alberts
(applicant)

Mona Booth
(applicant)

Pansy Colonel
(applicant)

v

QGC Pty Ltd
ACN 089 642 553
(respondent)

FILE NO: LCA011-20

DIVISION: Cultural Heritage Division

PROCEEDING: Application for injunction under the Land Court Act 2000

DELIVERED ON: Orders delivered ex tempore 20 January 2020
Reasons delivered 22 January 2020

DELIVERED AT: Brisbane

HEARD ON: 20 January 2020

HEARD AT: Brisbane

PRESIDENT: FY Kingham

ORDERS:
1. 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.

2. The application is dismissed.

CATCHWORDS:
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)

APPEARANCES: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conlon v QGC Pty Ltd

Details

AGLC: Conlon v QGC Pty Ltd [2020] QLC 3
Case: [2020] QLC 3
Decision Date: 20 January 2020

CaseChat Overview and Summary

Conlon v QGC Pty Ltd involved a dispute between the applicants and QGC Pty Ltd concerning the interpretation of an Indigenous Land Use Agreement (ILUA) entered into under the Native Title Act 1993 (Cth). The agreement annexed a Cultural Heritage Management Strategy and was subject to the Aboriginal Cultural Heritage Act 2003 (ACHA). The applicants sought enforcement of the agreement, alleging that QGC Pty Ltd had breached it. The primary issue before the court was whether a breach of the ILUA constituted a "relevant act" under section 32H of the Land Court Act 2000 (LCA), thereby providing the court with jurisdiction.

The court found that while the ILUA operated as a defence to potential contraventions of the ACHA, a breach of the agreement did not necessarily constitute a contravention of the ACHA. Consequently, a breach of the ILUA was not a relevant act under section 32H of the LCA, meaning the court did not have jurisdiction to enforce the ILUA based on a breach. Furthermore, the court held that the ILUA was not a "negotiated agreement" under section 32G of the LCA because the Queensland Government was not a party to the agreement. This meant that the court did not have jurisdiction to enforce the ILUA as a negotiated agreement. The court also noted that even if the ILUA was considered a certified Cultural Heritage Management Plan under the ACHA, the court would not have general jurisdiction over disputes arising out of the CHMP.

In light of the above, the court dismissed the application, illustrating the difficulty of enforcing agreements about process to ensure compliance with the ACHA. The court granted the applicants leave to amend their originating application to clarify their claims. The applicants were directed to submit an amended application by a specified date. This decision underscores the nuanced jurisdictional issues involved in enforcing agreements concerning Indigenous heritage protection and the importance of clear agreement terms.

Orders

Orders of the court

1. 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.

2. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Conlon & Ors v QGC Pty Ltd [2020] QLC 3
PARTIES:	Patricia Conlon (applicant) Natalie Alberts (applicant) Mona Booth (applicant) Pansy Colonel (applicant)
v
QGC Pty Ltd ACN 089 642 553 (respondent)
FILE NO:	LCA011-20
DIVISION:	Cultural Heritage Division
PROCEEDING:	Application for injunction under the Land Court Act 2000
DELIVERED ON:	Orders delivered ex tempore 20 January 2020 Reasons delivered 22 January 2020
DELIVERED AT:	Brisbane
HEARD ON:	20 January 2020
HEARD AT:	Brisbane
PRESIDENT:	FY Kingham
ORDERS:	1. 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. 2. The application is dismissed.
CATCHWORDS:	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)
APPEARANCES:	T Hauff (solicitor), Trevor Hauff Lawyers, for the applicants E Longbottom QC (instructed by Norton Rose Fullbright) for the respondent