Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14

LAND COURT OF QUEENSLAND CITATION: Faye Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14 PARTIES: Faye Carr (applicant) v Frasers Deebing Heights Pty Ltd ACN 107 356 418 (respondent) FILE NO: ACH030-19 DIVISION: Cultural Heritage and Indigenous Land Use Agreement Division PROCEEDING: Application for interlocutory injunction DELIVERED ON: 28 February 2019 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 27 & 28 February 2019 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDERS: Upon the undertaking given by Mr Ullman in evidence during the hearing (noted at [11] of the reasons) and upon the respondent providing the undertaking in Annexure A: 1. The application for an interlocutory injunction is dismissed. 2. Costs are reserved. 3. The case is listed for review at 10 am on 28 March 2019. 4. Any party may apply for further review by giving at least two business days’ written notice to the Land Court Registry and to the other parties of: -- 1 of 20 -- 2 1. the proposed date for review; 2. the reasons for the request; and 3. the proposed directions. Annexure A 1. Frasers Deebing Heights Pty Ltd will engage Dr Godwin to: a. ask the authors of the Redleaf Environmental report to provide all information they have about the bora ring referred to in the report to Dr Godwin within 14 days; b. after a period of 14 days, to provide further advice to Frasers if he considers it necessary to change the location of the preliminary works or to undertake them in a different way because of any information provided by the authors of the Redleaf Environmental report. 2. Before Frasers Deebing Heights Pty Ltd undertakes any excavation work on the trunk sewer main in the former mission area within the Heritage area, it must file in the Land Court Registry and serve on Ms Carr, Dr Godwin’s written report on his request to Redleaf Environmental, the response he received if any, and his advice to the Respondent about that. CATCHWORDS: ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the applicant sought an interlocutory injunction preventing development works – where the respondent gave undertakings about the scope of the works during the period of the proposed injunction and about obtaining further information about potential sites of significance before undertaking certain works – whether there was a serious question to be tried – whether the balance of convenience favoured an injunction – where the application was refused Aboriginal Cultural Heritage Act 2003 s 24(1), s 25(1), s 26(1) Land Court Act 2000 s 32H APPEARANCES: T Hauff (solicitor), Trevor Hauff Lawyers, for the applicant -- 2 of 20 -- 3 M McKechnie of Counsel (instructed by McCullough Robertson Lawyers) for the respondent [1] This is an application for an interlocutory injunction. It is brought in proceedings for a final injunction to restrain Frasers Deebing Heights Proprietary Limited in undertaking a residential development in an area near Ipswich known as Deebing Creek. The land lies between the Centenary Highway and another residential development, I believe. Frasers is not the only company engaged in residential development in this area. [2] Before I turn to the terms of the injunction itself, I am going to say some things by way of background and about how I am going to refer to things in these reasons. I am aware that many people have attended here who are unfamiliar with legal terminology, and we use words in ways that might appear to be strange. So bear with me while I address some things I might not ordinarily do in a judgment of this nature. [3] I want to start by saying that in the vicinity of this land that Frasers is developing there are places that I accept would be deeply significant to the people connected to this area. There is an area of land that was formally the Deebing Creek Mission. Nearby is a cemetery where I understand more than 200 people – former residents of the mission and others – are thought to be buried, and the importance of those areas is obvious. [4] There is a native title claim which includes the development area, the mission, and the cemetery. A group of people, including the applicant in this case, Ms Carr, are the native title claimants on behalf of the Yuggera Ugarapul People. I hope I pronounced that correctly, and for the rest of these reasons, I hope you do not think I am being disrespectful if I refer to you as the YU People, just because it is so long. Thank you. [5] They are seeking – the YU People are seeking recognition as the holders of native title of that land. They have been involved in consultations with Frasers and another developer about their projects, and I am aware from this and another matter of their concerns about what might happen to the former mission area, to the cemetery, and to any burial sites outside the cemetery. -- 3 of 20 -- 4 [6] Of course, they are also concerned about protecting and preserving cultural heritage across the whole of their land in their claim area, and I well understand and I respect those concerns. The purpose of the Aboriginal Cultural Heritage Act is to provide effective recognition, protection and conservation of aboriginal cultural heritage, and I have sought to give effect to that purpose in dealing with this application. [7] Before I get into the merits of the application, I do want to talk about how I will describe the areas involved. When I refer to “the heritage area”, I mean the area listed under the Queensland Heritage Act, and that is shown in green on that exhibit – that map – that we put up a couple of times. It includes an area described as the former mission area, the cemetery, and the corridor along Deebing Creek that links the two. If I want to distinguish between those three parts of the heritage area, I will call them the former mission area, the cemetery, and the creek. [8] I will use the term “the housing area” to describe the area on which Frasers proposes to build houses. That area – the former housing area – does not include the former – sorry. The housing area does not include: the former mission area; the cemetery, which is located on land that Frasers do not own; or the creek, including buffer areas for the creek and cemetery. [9] I want to acknowledge here that the YU People – that for the YU People, the whole area, including land not owned by Frasers, is part of their native title claim, and the area that they say is culturally significant to them. And I think that when YU People use the term “mission”, they refer to a much larger area than I will, or as Frasers has, or as the department has in their heritage listing. [10] And I suspect that, yesterday, when Mr McKechnie asked Mr Thompson if he knew there would be no houses on the mission and Mr Thompson said no, that the two people were referring to two different things. Mr McKechnie was referring to the former mission in the heritage area where there will be no houses. Perhaps Mr Thompson was referring to the larger area, which does include the housing area in this project, and I could see that. [11] Next, by way of background, it is important to state what works I am considering on this application. I acknowledge that Ms Carr’s application for final relief relates to any work on the entire area, both the housing area and the heritage area; however, -- 4 of 20 -- 5 the orders that are requested would only operate for 28 days, and Mr Ullman – Frasers’ development director for this project – undertook to the Court that the only activities Frasers will engage in over the next 28 days are, firstly, preliminary works as described in his affidavit and plotted on exhibit 2, and cultural heritage survey work for the next stage, which is described in the material as proposed future works. [12] Now, the preliminary works are trunk sewer main works, construction of temporary sales office, contamination remediation in a couple of sites, construction of billboard signage in two sites, and ground preparation and cultivation works within the existing electrical easement. Now, those works are not confined to the housing area. Although they do not affect the cemetery because Frasers does not own that land, there will be some excavation work to an average of eight metres for the trunk sewer main as it crosses the former mission area, and there will be some remediation of the Deebing Creek gulley area at two points to remove – in or near the gulley area at two points – to remove uncontrolled fill and waste, and that will involve some excavation as well. [13] I accept Mr Hauff’s submission that those works are, in themselves, significant. I also note that the trunk sewer main will pass near a feature of interest, both to the YU People and the Department of Environment and Science, and the feature I am talking about is the bunya tree noted on the south-eastern part of the former mission. The trunk sewer main runs near that tree. Its significance is twofold. Firstly, there is a report before the Court that refers to a possible bora ring near that tree. I will come back to that report later. Further, DES – the Department of Environment and Science – has an interest in preserving the tree itself and anything of archaeological significance near that tree. It is specifically referred to in the heritage agreement that is before the Court. [14] My last point by way of background refers to the YU People’s concerns about burial sites. Nobody could argue that a burial site is not culturally significant – very culturally significant. That is so in any culture. While the cemetery will not be affected, the YU People’s understandable concern is that there might be burial areas outside the cemetery and on other areas that could be affected by this project. There is certainly some evidence that there are burial sites outside the cemetery. Dr Godwin referred to evidence of indications that burial sites might lie to the north of the -- 5 of 20 -- 6 cemetery, and that is also consistent with the evidence that Mr Thompson gave about that area. [15] Now, I say again, Frasers do not own that land to the north of the cemetery, and the land will not be affected by the preliminary works, or, as I understand it, by the future works. However, Mr Thompson gave evidence of a possible burial site across Deebing Creek from the bunya tree. It is some distance from the area of the preliminary works. I accept, as Dr Godwin did, that there is some prospect that there are burial sites on other parts of Frasers’ land, and that reinforces the need for sound cultural heritage assessment and monitoring. [16] Dr Godwin gave evidence about how such potential sites might be identified. Although he did refer to physical indications, I took from his evidence to be the best approach is to have the input of people who have cultural knowledge about the land. That is what he recommended for cultural heritage assessments, as well as for monitoring the works in progress. So I have taken that into account in my decision. [17] I will now turn to the application I have to deal with today. There was an unsuccessful attempt to reach agreement through mediation and this matter returned very quickly for hearing. Because the application and Mr Hauff’s submissions, I am afraid, were poorly drafted, there was some basis for Frasers to believe this would be a hearing of the originating application, that is, the final hearing of the matter. However, the application did refer to an urgent interim injunction and Mr Hauff confirmed yesterday morning that he sought only an interlocutory injunction at this stage to apply for 28 days, and I gave him leave to proceed on that basis. [18] The Court does expect parties who are legally represented to be better prepared than this matter was. That said, I must acknowledge that Mr Hauff is acting pro bono on this application. Giving leave to proceed as he asked is consistent with the Court’s requirement to act according to equity, good conscience and the substantial merits of the case, without having regard to legal technicalities. It is also consistent with considering the objectives of the Aboriginal Cultural Heritage Act. I gave leave to Frasers to file further evidence dealing with balance of convenience, which it had not addressed because it thought this was a final injunction hearing. -- 6 of 20 -- 7 [19] Mr Hauff prepared proposed interlocutory and final orders, and they are set out in exhibit 1. I am not going to read them in full. I am dealing here today only with the interlocutory orders, although the final orders do have some relevance in a way I will explain. The period of the injunction he sought is 28 days for certain things to take place under the proposed orders. [20] It is not clear to me who was to undertake this work, but it was to obtain archaeology reports on the entire site, expert evidence on the scope of ground-penetrating radar studies and what can be achieved, investigations into the tenure of the property, investigations into the possibility of issues relating to the development application, investigations into environmental issues on the site. [21] And I just pause to note that this Court would not have jurisdiction to deal with any questions of the tenure of the property, issues relating to the development application, or the environmental issues, except as they relate to cultural heritage matters. [22] The orders sought by way of final relief assume the Court will make findings about all of those things I mentioned, and I have just explained why the Court cannot make findings on some of them. The final orders that Mr Hauff formulated would also require Frasers to negotiate with Ms Carr about GPR investigations of the entire site before any work is done on their land – on the Frasers project land – and, failing agreement, to apply pursuant to section 113 of the Aboriginal Cultural Heritage Act to have a proposed Cultural Heritage Management Plan, which I will call a CHMP, approved by the Court. As I observed during the hearing, this Court cannot make a binding decision on the CHMP, but it can make a recommendation to the decision- maker. [23] This morning Mr McKechnie informed me that Frasers will file an application by close of business tomorrow to refer the proposed CHMP to the Court for recommendation, and the parties have already told me that they will – the lawyers have told me that they will try to agree on directions about how that application will proceed, including the use of ADR, and also what effect it will have on the current matter I am dealing with. -- 7 of 20 -- 8 [24] But, returning to the current matter, there are two primary questions I must consider. First is, has the applicant made out a prima facie case? Second is, does the balance of convenience favour the grant of the injunction? [25] So let us look at the first one: has the applicant made out a prima facie case? Now, that legal test is sometimes stated in this way: is there a serious question to be tried? And that is the phrase I used yesterday afternoon, but I need to explain what that means in a legal sense, as it seems to me that Mr Hauff might have misunderstood it. Whether there is a serious question to be tried is not the same as, “Is the subject matter of the application serious?” Plainly, an application to protect cultural matters of – areas and items of cultural significance, particularly involving the possibility of burial sites, is a serious matter. That is what Mr Hauff sought to persuade me of, but I accept that without reservation. It is a most serious matter for the YU People. [26] However, the test is a legal test, and it has a different meaning. It refers to the strength of the case for an injunction. So the question I am asking is: is there a sufficient likelihood that Ms Carr will succeed on the application for final orders to justify preserving the status quo in the meantime. So the basis for the application is critical. This court is a court of statutory jurisdiction; it can only grant an injunction under section 32H of the Land Court Act if Frasers is, or is doing, or is likely to do an act that contravenes sections 24(1), 25(1), or 26(1) of the Aboriginal Cultural Heritage Act. [27] To translate the arguments made to me, that is a question of: is there a relevant act under section 32H? If that is not proved at trial, then the court would not have the power to make the order that Ms Carr has asked the court to make. So I have to be satisfied that there is a prima facie case about that, or a serious question to be tried, that Frasers is breaching, or is likely to breach one of those sections of that Act. When I publish the reasons, I will include the provisions – relevant provision in full. But in brief, they prohibit a person from harming cultural heritage – that is section 24 – from excavating, relocating, or taking away cultural heritage – that is section 25 – or possessing cultural heritage – that is section 26. -- 8 of 20 -- 9 24 Unlawful harm to Aboriginal cultural heritage (1) A person must not harm Aboriginal cultural heritage if the person knows or ought reasonably to know that it is Aboriginal cultural heritage. Maximum penalty— (a) for an individual— (i) if the Aboriginal cultural heritage is a registered significant area or registered significant object— 1,000 penalty units or 2 years imprisonment; or (ii) otherwise—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who harms Aboriginal cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Aboriginal cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Aboriginal cultural heritage; or (iii) under a native title agreement or another agreement with an Aboriginal party, unless the Aboriginal cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the Aboriginal cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Aboriginal cultural heritage, or is acting with the owner’s agreement; or (c) the harm is the result of doing an act that is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person’s knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. -- 9 of 20 -- 10 25 Prohibited excavation, relocation and taking away (1) A person must not excavate, relocate or take away Aboriginal cultural heritage if the person knows or ought reasonably to know that it is Aboriginal cultural heritage. Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who excavates, relocates or takes away Aboriginal cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Aboriginal cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Aboriginal cultural heritage; or (iii) under a native title agreement or another agreement with an Aboriginal party, unless the Aboriginal cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the Aboriginal cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Aboriginal cultural heritage, or is acting with the owner’s agreement; or (c) the excavation, relocation or taking away is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person’s knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. 26 Unlawful possession of Aboriginal cultural heritage (1) A person must not have in the person’s possession an object that is Aboriginal cultural heritage if the person knows or ought reasonably to know that the object is Aboriginal cultural heritage Maximum penalty— -- 10 of 20 -- 11 (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who has in the person’s possession an object that is Aboriginal cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the object; or (ii) under an approved cultural heritage management plan that applies to the object; or (iii) under a native title agreement or another agreement with an Aboriginal party, unless the object is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the object is expressly or impliedly the subject of the conditions; or (b) the person owns the object, or is acting with the owner’s agreement; or (c) the person’s possession of the object is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person’s knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. (4) This section does not apply to Aboriginal human remains. [28] Cultural heritage includes significant areas, objects, and evidence of archaeological or historical significance, or of Aboriginal occupation of an area. There is evidence before me to satisfy me for the purposes of this application that there is cultural significance in this area. There is evidence of archaeological and historical significance, and of Aboriginal occupation. And there may be significant objects found on the land owned by Frasers. And that comes from the evidence put forward to the court by both parties. -- 11 of 20 -- 12 [29] The Aboriginal Cultural Heritage Act imposes a cultural heritage duty of care on any person carrying out an activity. And that is done by section 23. And that duty requires them to take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage. The Court can consider a number of matters in deciding whether a person has complied with that duty of care, and they are set out in section 23(2). And it might be worthwhile just reading a couple of those, perhaps all of them. [30] The Court would take into account: the nature of the activity, and the likelihood of it causing harm to Aboriginal cultural heritage; the nature of the Aboriginal cultural heritage likely to be harmed; the extent to which the person has consulted with Aboriginal parties about carrying out the activity, and the results of consultation; whether the person carried out a study or survey of any type of the area affected by the activity to find out the location and extent of Aboriginal cultural heritage, and the extent of the study or survey; whether the person searched the database and register for information about the area affected; the extent to which they have complied with the cultural heritage Duty of Care Guidelines; and the nature and extent of past uses in the area affected by the activity. [31] I have taken the trouble to read those out because there are a number of ways a person can show they have not breached sections 24, 25, or 26 of the Act. And relevantly for this development, Frasers will not breach any of those sections, even if they harm, excavate, or possess cultural heritage, if they act in accordance with a Cultural Heritage Management Plan – there is not one of those yet – the Cultural Heritage Duty of Care Guidelines, or their cultural heritage duty of care. And that is what I have just been talking about – what the Court would look to if it was asked to consider whether Frasers had complied with its cultural heritage duty of care. [32] Frasers has engaged Dr Godwin and his company to conduct cultural heritage surveys, and to advise on, and oversee reasonable and practicable measures to ensure it complies with its cultural heritage duty of care. It has chosen, as many people do, to approach this in a staged way, conducting activity-specific cultural heritage surveys ahead of specific works. Frasers’ preference was to have a CHMP agreed with the YU People to cover the entire project, with terms of reference agreed for cultural heritage surveys, assessment, and then supervision and monitoring of the -- 12 of 20 -- 13 works at each stage. It is common ground that, to date, the parties could not reach agreement about that. [33] It is clear from Dr Godwin’s evidence that is harder, not easier, for a developer to protect cultural heritage without the involvement of people without cultural connection to, and knowledge of the land. And that is why it is best practice to involve traditional owners. That is not always possible, and there are cases where work has proceeded without the involvement of the traditional owners. Here, Dr Godwin has undertaken a cultural heritage survey of the area that will be affected by the preliminary works, and he has made recommendations about how that work will be undertaken. [34] For the future works, Dr Godwin has proposed terms of reference for a cultural heritage survey of the next stage of the works. Although initially he proposed the YU People would be involved, because they said they did not want to be involved in negotiating the CHMP, or terms of reference, Dr Godwin has undertaken that survey without their input. And he found no places, or objects of Aboriginal cultural heritage significance, including at locations recorded on a database. And that is relevant because that database was referred to in the Red Leaf Environmental report relied on by Ms Carr. [35] On the basis of that assessment, Dr Godwin made the following recommendations. And I stress again that this is about the area to be affected by the preliminary works only. Firstly, in the absence of any Aboriginal cultural heritage issues being identified, the proposed preliminary works can proceed as planned. Two: in the absence of any finds being made during the assessment, there are no specific reasonable and practicable management recommendations to mitigate the impact of the proposed preliminary works. Three: as a reasonable and practicable action, and in line with the precautionary principle, in the event that any Aboriginal cultural heritage is identified during activities associated with the preliminary works, Frasers should immediately contact the technical advisor – which is his company, QCCHM – to seek advice on what -- 13 of 20 -- 14 action should be taken. Activities should cease within a buffer of 50 metres of the Aboriginal cultural heritage until advice has been received and implemented in full. Four: in the event that any human remains are encountered, Frasers should take note of, and apply the provisions of the gazetted guidelines for the management of human remains issued by the Queensland Government. [36] Mr Ullman gave evidence that the preliminary works would be undertaken in accordance with Dr Godwin’s recommendations. Nothing came from Mr Hauff’s cross-examination of Dr Godwin’s recommend – about his recommendations to suggest they were inadequate. [37] I have referred to the possibility of a bora ring near the bunya tree, which is in the vicinity of the trunk sewer main as it crosses the former mission area of the heritage area. That is of concern to me. However, Dr Godwin provided some further evidence about that. He said – this is page 16 of his affidavit. He said, a bora ring is located… “Red Leaf reports five locations in development areas south of the Centenary Highway. A bora ring is located in an area close to the Bunya Pine Tree (Location 5). This area was closely inspected during the CQCHM” – that is his company – “investigation, but no bora ring was identified. Coordinates would need to be supplied by Red Leaf to determine exactly where it is situated, to determine whether the claimed bora ring is within the area of preliminary works. No drawings or measurements are supplied that can be used to determine what this bora ring physically looks like. It would be appropriate to apply a verification process to the purported site.” [38] Now, when I had a look at the Red Leaf report while I was considering my decision, when I looked closely, I found there was some information in the report about that. It does include a photograph, and the coordinates of the centre point of that bora ring are noted. It is not clear to me what further coordinates or information are required by Dr Godwin. Unfortunately, this point of detail was not put to Dr Godwin when he was cross-examined by Mr Hauff, and I did not see this until I had a close look at the report during the adjournment. So I will return to this point, because I have made some orders about that. -- 14 of 20 -- 15 [39] While I have some concern about that bora ring, I am going to make orders that I think will be adequate to protect it if it is at any risk from the preliminary works. And subject to compliance with those orders or undertakings about that, I am satisfied that Dr Godwin would recommend appropriate measures to avoid and preserve any significant cultural heritage, should it be detected, and that Frasers would implement his recommendations. [40] I am also satisfied on the evidence that Dr Godwin is a suitably qualified professional with extensive experience in cultural heritage matters, that he will genuinely investigate and advise on cultural heritage matters, as long as he is engaged by Frasers to do so, and that Frasers will implement his recommendations, as they have sought to do to date. [41] There is no evidence before the Court that there are any burial sites within the immediate vicinity of the preliminary works. I do accept, though, that particular care must be exercised to avoid human remains being disturbed. Dr Godwin heard Mr Thompson’s evidence about possible burial sites, none of which are close to the area of the preliminary works. It was not clear to me, from the way Mr Hauff presented the case, whether what the YU People want is a survey of the entire site using GPR. That seemed to be the way it was put. [42] On Ms Schollum’s evidence, that would not be reasonable or practicable because of the cost – more than 10 million dollars – the time – I cannot remember the number of days, but it was 600 plus – and also the need to avoid or remove vegetation to use the equipment. In any case, Ms Schollum is not an expert in either cultural heritage surveys or in the GPR technology her company uses. I accept she knows how the machine works and its potential uses. That does not qualify her as an expert in the use of that machine, or GPR generally, in cultural heritage surveys. In fact, she has never been involved in one. [43] On the other hand, Dr Godwin is an expert. He did not rule out the use of GPR. He has used it in the past, although not the machine that Ms Schollum gave evidence about. He did not consider it a useful diagnostic tool – that is, a way of finding an area of significance. He saw it as a method that might be used if there is good reason to believe there might be a burial site in an area. And that good reason could come from an historical record; from some other survey results; from physical indications -- 15 of 20 -- 16 on the surface; or from a person with cultural knowledge. Dr Godwin did not rule out the use of GPR, and said he would employ it if he thought it was useful. I accept his evidence about that. [44] Taking all of what I have just said into account, I am not satisfied there is evidence that Frasers will breach sections 24 to 26 – any of those sections – by undertaking activities on the land. [45] And the other basis for the injunction was that Frasers will be in breach of that Act if they undertake any work without a CHMP. I see no merit in that argument. [46] Firstly, I accept Mr McKechnie’s submissions that, at least on the evidence before me, a CHMP is not mandatory for this project. Sections 87 and 88, which are the only sections requiring a CHMP, do not apply. [47] Section 88 refers to an approval for a project under which there must be an environmental assessment and that the project is of a type prescribed under a regulation for the section. There is no regulation that I could find – and Mr Hauff did not refer me to one – in relation to that section. [48] Section 87 refers to a permit under the operations of an Act that requires an EIS – an environmental impact statement – and in Queensland, that could be required under either the Environmental Protection Act or the State Development and Public Works Organisation Act, and neither of those seem to apply in this case either. [49] Further, there is a letter in evidence about this, and it comes from the Director, Development – Assessment Economic Development, Queensland. And I am not going to read that letter in full, but it is clear to me from that, that an EIS was not required by the State Government on the development application. [50] So neither section 87 or section 88 require a CHMP, as far as I can see. And Mr Hauff did not argue that there was a requirement or that it fell within 87 or 88. He said he did not know. He seemed to proceed on the basis that, having started a CHMP process, Frasers must see it through to the end. And again, my view is that there is nothing in the Act to suggest that. And, in any case, there is nothing to suggest, on the evidence, that Frasers have not genuinely tried to reach agreement with the YU People. -- 16 of 20 -- 17 [51] The evidence is that they were willing to continue negotiations and Mr Ullman confirmed having a CHMP is still their preferred way of fulfilling its obligations under the Act. Mr McKechnie confirmed that, after taking instructions today. Frasers is willing to continue to negotiate, even though they will now apply to the Court to approve, or recommend approval, of their proposed CHMP. [52] I note it was the YU People who withdrew from negotiations before this matter came to Court, although they did leave open the door for negotiations at some later point. I am not criticising them for doing so. They preferred to concentrate their efforts on a different solution, and they are entitled to do so. However, they cannot then complain if Frasers initially waited to see if they would change their mind about that. [53] It seems that both parties have now shifted their positions somewhat. Frasers will seek the Court’s involvement in the CHMP process, and the YU People are now willing to talk about the CHMP. Or I think that is what Mr Hauff said the position is now. And it is important, of course, to understand that the CHMP is only one way Frasers can satisfy its duty of care under the Act. The absence of a CHMP will not make any action that affects cultural heritage an offence under sections 24 to 26. [54] Frasers says it intends to comply with the duty of care guidelines by implementing Dr Godwin’s recommendations. Mr Hauff did not demonstrate that Dr Godwin’s recommendations fall short of the requirements of those guidelines. The guidelines do have a strong preference for consultation with, and if possible, agreement with the Aboriginal party. But it does contemplate a failure to reach agreement. Sections 5.15 to 5.19 are the relevant provisions, because, as Mr Hauff submitted and Mr McKechnie agreed, this is a category 5 activity. 5.19 says this: where agreement cannot be reached with the Aboriginal Party for the area, you – that is the developer – continue to have a duty of care obligation under section 23 of the Act, and must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage, including, where necessary, through the development of a Cultural Heritage Management Plan under part 7 of the Act. [55] I observe that where it says – where it refers to “where necessary through the development of a CHMP”, I interpret that to mean where it is mandatory, such as under sections 87 and 88, and I have found they do not apply. -- 17 of 20 -- 18 [56] Mr Hauff faintly proposed the principles of contract or equity might bind Frasers to complete a CHMP process, but he could not articulate that in way I understood, and I will not address it further. I am not satisfied that Ms Carr has made out a prima facie case on either basis put forward by Mr Hauff. Because of my finding on that question, it is not strictly necessary to address the balance of convenience, but I will make some observations in case I am wrong in the finding I have made on that first question. [57] Firstly, the evidence establishes that until recently, Frasers sought the agreement of and the involvement of the YU People in surveys and monitoring pursuant to a CHMP and specific terms of reference for surveys and monitoring. And it was the YU People who walked away from that process. [58] Secondly, I am not satisfied there is any particular place or item of significance in immediate peril. [59] Thirdly, I am satisfied that Dr Godwin will suitably prepare any Frasers employee or contractor engaged in undertaking the preliminary work, and will appropriately supervise the works. I also accept that if anything is identified during preliminary works, Dr Godwin will properly advise Frasers, and Frasers will act on his advice. Further, I have made orders, or I will make orders or I will seek undertakings from Frasers that will ensure that Dr Godwin, and therefore Frasers, are armed with any more specific information about the bora ring site identified by Red Leaf Environmental. [60] Fourthly, the preliminary works have already been delayed. [61] Fifthly, the application is brought by Ms Carr alone, although it was initially brought by the native title claimants. I accepted Mr Hauff’s statement from the bar table that Ms Carr does not have the means to offer an undertaking as to damages, and that, whether the undertaking exits, in my view, does not determine the matter anyway. But it is a relevant factor, particularly in light of the change in the applicant after Mr McKechnie raised the question of an undertaking. [62] Taking all those matters into account, I refuse the application for interlocutory orders in the terms sought by Ms Carr. I propose to make the following directions unless Frasers undertakes in these terms: -- 18 of 20 -- 19 (1) The respondents must engage Dr Godwin to ask the authors of the Red Leaf Environmental report for all information they have about the bora ring referred to in the report, and to provide further advice to Frasers if he considers it necessary to change the location of the preliminary works, or to undertake them in a different way because of that information; and (2) before the respondent undertakes any excavation work on the trunk sewer main in the former Mission area within the heritage area, you must file in the Land Court Registry and serve on Ms Carr Dr Godwin’s written report on his request to Red Leaf Environmental, the response he received and his advice to the respondent about that. [63] I will stand down in a moment, and I will give you that in writing so that you can seek instructions on whether you are willing to give that undertaking, otherwise I will make orders in those terms. [64] Frasers have asked for costs to be reserved and I make that order. I will list this matter for further directions in about 28 days, and I will get a date from my associate in a moment. The purpose of allowing 28 days I think I have already made clear, which is to allow the parties to continue to talk if they wish to about CHMP, to enter into mediation if they would like to and the Court can offer assistance in that regard, either by a member of the Court or through its ADR panel, and to allow time to consider how the new proceedings that will be filed tomorrow will be dealt with and how the two can be brought together. Orders Upon the undertaking given by Mr Ullman in evidence during the hearing (noted at [11] of the reasons) and upon the respondent providing the undertaking in Annexure A: 1. The application for an interlocutory injunction is dismissed. 2. Costs are reserved. 3. The case is listed for review at 10 am on 28 March 2019. 4. Any party may apply for further review by giving at least two business days’ written notice to the Land Court Registry and to the other parties of: 1. the proposed date for review; 2. the reasons for the request; and 3. the proposed directions. -- 19 of 20 -- 20 FY KINGHAM PRESIDENT OF THE LAND COURT Annexure A 1. Frasers Deebing Heights Pty Ltd will engage Dr Godwin to: a. ask the authors of the Redleaf Environmental report to provide all information they have about the bora ring referred to in the report to Dr Godwin within 14 days; b. after a period of 14 days, to provide further advice to Frasers if he considers it necessary to change the location of the preliminary works or to undertake them in a different way because of any information provided by the authors of the Redleaf Environmental report. 2. Before Frasers Deebing Heights Pty Ltd undertakes any excavation work on the trunk sewer main in the former mission area within the Heritage area, it must file in the Land Court Registry and serve on Ms Carr, Dr Godwin’s written report on his request to Redleaf Environmental, the response he received if any, and his advice to the Respondent about that. -- 20 of 20 --