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

SUPREME COURT OF QUEENSLAND

CITATION:

Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships [2018] QSC 248

PARTIES:

MIRVAC QUEENSLAND PTY LTD
ACN 060 411 207

(applicant)

v

CHIEF EXECUTIVE OF THE DEPARTMENT OF ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS

(respondent)

FILE NO/S:

SC No 12267 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

31 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2018

JUDGE:

Bond J

ORDER:

The orders of the Court are:

1. The respondent’s decision of 30 October 2017 refusing to approve the applicant’s cultural heritage management plan is set aside.

2. The matter to which the decision relates is referred back to the respondent with a direction that the respondent must approve the applicant’s cultural heritage management plan pursuant to s 107(3) of the Aboriginal Cultural Heritage Act 2003 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant is developing a residential subdivision development project – where the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) imposes on the applicant a cultural heritage duty of care – where the applicant developed and sought approval of a cultural heritage management plan under the Act – where the applicant identified an Aboriginal party (referred to as the applicant to the former Jagera #2 Claim) and an Aboriginal cultural heritage body for the area in respect of which it proposed to developed its cultural heritage management plan – where the applicant to the former Jagera #2 Claim was endorsed by the applicant to take part in developing the cultural heritage management plan – where, as at 1 May 2013, the applicant to the former Jagera #2 Claim was no longer a registered native title claimant under the Native Title Act 1993 (Cth) and no longer an Aboriginal party (as defined in the ACHA) – where the applicant entered into a cultural heritage management plan with the applicant to the former Jagera #2 Claim and the Aboriginal cultural heritage body – where, on 6 September 2017, the applicant submitted the cultural heritage management plan to the respondent for approval under s 107(1)(b) of the ACHA – where two other native title parties were registered for the area (one registered prior to the submission of the cultural heritage management plan and the other subsequent to the submission of the plan but prior to the respondent’s decision) – where the respondent decided that the cultural heritage management plan could not be approved under s 107(1)(b) of the ACHA because the applicant to the former Jagera #2 Claim could no longer be regarded as an endorsed party – where the respondent decided that the cultural heritage management plan also could not be approved under s 107(2) of the ACHA – where the applicant applies for judicial review of the respondent’s decision on the grounds that it involved a number of errors of law – whether the respondent erred in law – whether the respondent’s…

CaseChat Overview and Summary

Mirvac Queensland Pty Ltd applied for judicial review of a decision by the Chief Executive of the Department of Aboriginal and Torres Strait Islander Partnerships, who refused to approve the applicant’s cultural heritage management plan. The applicant was developing a residential subdivision project and had developed a cultural heritage management plan in accordance with the Aboriginal Cultural Heritage Act 2003 (Qld). The applicant identified an Aboriginal party and an Aboriginal cultural heritage body for the area. The Aboriginal party, who was endorsed by the applicant to take part in developing the cultural heritage management plan, was no longer a registered native title claimant and no longer an Aboriginal party at the time of the decision. The applicant submitted the cultural heritage management plan to the respondent for approval. The respondent refused to approve the plan on the grounds that the Aboriginal party could no longer be regarded as an endorsed party and also could not be approved under another provision of the Act. The applicant sought judicial review of the decision, arguing that it involved a number of errors of law.

The court had to decide whether the respondent erred in law by refusing to approve the applicant’s cultural heritage management plan and whether the decision should be quashed or set aside. The court also had to consider whether the respondent should be required to approve the applicant’s cultural heritage management plan. The court found that the respondent erred in law by failing to consider all of the evidence before it and by not giving appropriate weight to the evidence. The court held that the respondent’s decision should be quashed and set aside, and the matter referred back to the respondent with a direction that the respondent must approve the applicant’s cultural heritage management plan.

The court found that the respondent had failed to properly consider the evidence and had not given appropriate weight to the evidence. The court held that the respondent had not considered the fact that the Aboriginal party had been endorsed by the applicant to take part in developing the cultural heritage management plan. The court held that the respondent had not given appropriate weight to the evidence that the Aboriginal party had been endorsed by the applicant and that the applicant had developed the cultural heritage management plan in accordance with the Act. The court held that the respondent’s decision should be quashed and set aside, and the matter referred back to the respondent with a direction that the respondent must approve the applicant’s cultural heritage management plan.

The orders of the Court were that the respondent’s decision of 30 October 2017 refusing to approve the applicant’s cultural heritage management plan is set aside and the matter to which the decision relates is referred back to the respondent with a direction that the respondent must approve the applicant’s cultural heritage management plan pursuant to s 107(3) of the Aboriginal Cultural Heritage Act 2003 (Qld).

Orders of the court

The orders of the Court are:

1. The respondent’s decision of 30 October 2017 refusing to approve the applicant’s cultural heritage management plan is set aside.

2. The matter to which the decision relates is referred back to the respondent with a direction that the respondent must approve the applicant’s cultural heritage management plan pursuant to s 107(3) of the Aboriginal Cultural Heritage Act 2003 (Qld).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships [2018] QSC 248
PARTIES:	MIRVAC QUEENSLAND PTY LTD ACN 060 411 207 (applicant) v CHIEF EXECUTIVE OF THE DEPARTMENT OF ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS (respondent)
FILE NO/S:	SC No 12267 of 2017
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	31 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2018
JUDGE:	Bond J
ORDER:	The orders of the Court are: 1. The respondent’s decision of 30 October 2017 refusing to approve the applicant’s cultural heritage management plan is set aside. 2. The matter to which the decision relates is referred back to the respondent with a direction that the respondent must approve the applicant’s cultural heritage management plan pursuant to s 107(3) of the Aboriginal Cultural Heritage Act 2003 (Qld).
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant is developing a residential subdivision development project – where the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) imposes on the applicant a cultural heritage duty of care – where the applicant developed and sought approval of a cultural heritage management plan under the Act – where the applicant identified an Aboriginal party (referred to as the applicant to the former Jagera #2 Claim) and an Aboriginal cultural heritage body for the area in respect of which it proposed to developed its cultural heritage management plan – where the applicant to the former Jagera #2 Claim was endorsed by the applicant to take part in developing the cultural heritage management plan – where, as at 1 May 2013, the applicant to the former Jagera #2 Claim was no longer a registered native title claimant under the Native Title Act 1993 (Cth) and no longer an Aboriginal party (as defined in the ACHA) – where the applicant entered into a cultural heritage management plan with the applicant to the former Jagera #2 Claim and the Aboriginal cultural heritage body – where, on 6 September 2017, the applicant submitted the cultural heritage management plan to the respondent for approval under s 107(1)(b) of the ACHA – where two other native title parties were registered for the area (one registered prior to the submission of the cultural heritage management plan and the other subsequent to the submission of the plan but prior to the respondent’s decision) – where the respondent decided that the cultural heritage management plan could not be approved under s 107(1)(b) of the ACHA because the applicant to the former Jagera #2 Claim could no longer be regarded as an endorsed party – where the respondent decided that the cultural heritage management plan also could not be approved under s 107(2) of the ACHA – where the applicant applies for judicial review of the respondent’s decision on the grounds that it involved a number of errors of law – whether the respondent erred in law – whether the respondent’s…