Marrawah Law were engaged to provide advice regarding the potential legal liability arising from joint damage to cultural heritage which would involve a potential breach of the Aboriginal cultural heritage statutory duty of care. Marrawah Law drafted and provided advice in relation to an Agreement between the government party and the Aboriginal party under the Act.
In addition to the broadly stated nature of the statutory cultural heritage duty of care under the Act, the matter involved novel circumstances surrounding the damage to the heritage, including the changing native title landscape in the geographic area and associated consequences for the identity of the Aboriginal party. Negotiations with the Aboriginal party towards the agreement were initially focussed on resolving, by way of a binding settlement, legal liability risks to the government party and related entities. Consensus was reached between the parties and the overall terms. The agreements address the following risks:
- Legal liability for alleged breach of duty of care
- Duty of care in respect of future management of cultural heritage.
- Cost management.
- Future disputation between Aboriginal party.
- Change in the identity of the Aboriginal party.