Dunn v Ostwald Construction Materials Pty Ltd [2018] QMC 23

MAGISTRATES COURTS OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: Dunn v Ostwald Construction Materials Pty Ltd [2018] QMC 23 Michael Dunn (Complainant) v Ostwald Construction Materials Pty Ltd (Defendant) Magistrates Courts Criminal Emerald Magistrates Court DELIVERED ON: 2 November 2018 DELIVERED AT: Emerald HEARING DATE: 30 August 2018 and 17 October 2018 MAGISTRATE: Magistrate C Benson ORDER: CATCHWORDS: 1. That the Defendant is fined $188,000 2. That the Defendant is to pay the sum of $250,000 to the Department of Aboriginal and Torres Strait Islander Partnership towards the cost of repairing or restoring the Aboriginal Cultural heritage at the Bottletree Quarry site 3. That the Defendant pay agreed costs of $2519.00 4. That there be no conviction recorded 5. That the Defendant have three months to pay the Fine and Costs, the subject of Orders 1 and 3 Failing to comply with cultural duty of care; Harming Aboriginal cultural heritage that defendant knew or ought reasonable to have known was Aboriginal cultural heritage; payment of costs of or towards repairing or restoring Aboriginal cultural heritage SOLICITORS Department of Environment and Heritage (Complainant) HWL Ebsworth Lawyers (Defendant) -- 1 of 18 -- 2 COUNSEL: Mr Dillon I/B Department of Environment and Heritage for the Prosecution (Defendant) Mr Ware, I/B HWL Ebsworth Lawyers [1] The Charges [2] The Defendant is charged with: 1. Failing to comply with its cultural heritage duty of care 2. Harming Aboriginal Cultural Heritage that it know or ought reasonably to have known was Aboriginal Cultural Heritage. [3] Penalty [4] The maximum penalty, because the Prosecution elected summary jurisdiction, is 2000 Penalty Units for each charge. That is a total of $471,200 ($235,600 for each). [5] Both parties agree that a single global penalty should apply for both charges. The Prosecution suggests a global fine of between $160,000 and $200,000. The defence proposes a global fine of between $80,000 and $100,000. [6] The Defendant further argues that the charges arise out of the same set of facts and that the Defendant ought not, therefore, be punished twice. [7] The Defendant pleaded guilty to an agreed set of facts. The parties disputed certain facts which were the subject of evidence. Those facts being: 1. the degree of harm done to Aboriginal Cultural Heritage 2. the degree to which the Bottletree site had been previously disturbed and therefore the level of harm to be attributed to the Defendant 3. the need to rehabilitate the site at this time 4. the capacity to rehabilitate the site and the costs associated, in the event that a need is established 5. whether it is appropriate for an order for repair and restoration to be made at all and if so what amount should be ordered [8] A number of Exhibits were tendered by each party. A List of those exhibits is annexed. [9] Expert evidence was called by each party. Each expert submitted a report and was cross examined, including on the other’s evidence. [10] Summary of Evidence of Ann Wallin on behalf of the complainant: • conceded the site had been cleared previously on one occasion in or about 1977, which affected the integrity of the ground surface of the site. • The most recent clearing has covered a larger area and had a more significant impact. -- 2 of 18 -- 3 • The likely method of previous clearing will have affected the surface as opposed to this clearing which removed about an average of 200mm of top soil over a large area and pushed it into bund walls. • There has been other surface disturbance in the past through vehicle tracks, but the impact of that is likely to have been minimal on the movement of artefacts around the site, again affecting the surface area only. • The site had not been subject to intense grazing and land clearing. • The site had not been used by pastoralists other than to move cattle through for watering or camping. The site was a camping reserve and not a part of any pastoral lease. • There are not a large number of feral animals such as pigs at the site. • She had spent considerable time personally at the site over a number of years. • The site contains “many” artefacts with the actual number not known. • She has knowledge of the site and its significance to the traditional people arising from her ongoing involvement with the elders of the Karingbal people regarding the site. • The site traditionally was one where many Aboriginal people travelled through from different parts of the state to attend various ceremonies and used this site to camp. As such, the site provides potentially important information about the identities of many traditional Aboriginal groups and their movements throughout the state which is of importance scientifically but also means discoveries allows the sharing of any such information gleaned, with the current traditional people. • Advancements in scientific techniques diminishes the importance of the integrity of a site for scientific research. • To cause harm to an artefact the artefact does not need to be broken or physically damaged. There remains a potential for significant harm from a cultural perspective in displacing artefacts. • It is impossible to say if any artefacts have been broken or physically damaged as a result of the Defendants actions but it is likely that there has been a large number of artefacts that have been harmed either through physical damage or displacement. -- 3 of 18 -- 4 • Any Cultural Heritage Management Plan must be negotiated with the traditional land owners and this has not occurred to date. • Her proposals for mitigation are not the only possibilities but include her preliminary views on options. The Karingbal people have made it clear that they prefer her option 2 which is to use a combination of manual/mechanical sorting of the bund walls, and storing them in a culturally sensitive way. They do not accept a suitable option to be recovering and replacing some or all of the artefacts across the site. It would not be possible to know where each artefact was removed from in the first place and the site can never be put back to the way that it was. • Her suggested costs for rehabilitation of the site, to carry out this option are conservative. [11] Summary of Evidence by Ben Keys on behalf of the defence: • there is little impact of an archaeological/scientific basis. • The evidence before the court supported one prior clearing of the site in 1977 but is of the opinion the site was subjected to land clearing on another occasion since then, based upon aerial maps. • Subsequent evidence was provided, prior to submissions being made, of these maps, and it was conceded by the Complainant that a 2 nd clearing of the land site occurred in or about 1997-2000. • The earlier clearings were most likely by way of bulldozer and chain method, with trees being removed, stockpiled and burned. The top soil is likely to have been disturbed to between 5-15 cm at this time. He believes this is evidence of the site being cleared for pastoral purposes. • This indicates a fairly significant earthworks having been carried out at the site in the past which has had equal impact as this Defendant’s interference on the site. • Artefacts could have been moved around all over the quarry site from bulldozing. It is difficult to say that this Defendant’s behaviour has impacted any further than the prior clearing did. • There remains the ability to gain scientific information from the artefacts which are present despite their displacement. • He has visited the site on one occasion only, for the purpose of preparation of his report, and only after the quarrying works had been carried out • is of the opinion that the site was subject to intensive cattle grazing in the past, which is an educated hypothesis based upon his belief the site was previously cleared for pastoral purposes. -- 4 of 18 -- 5 • Believes the site will have been subject to a large number of feral animals, based upon his knowledge of cattle properties generally. • Accepted that the site likely has a large number of artefacts in the bund walls, and possibly hundreds, but that it is not possible to determine how many without testing. He personally located 50 artefacts by walking alongside and on top of the bund walls and without digging or drilling below the surface. • Accepted that a previous study chose 17 locations into which a hole was drilled, with artefacts present in 15 of those. • Does not consider it is worth spending money on excavating the bund walls at this site for archaeological purposes. It would be a waste of resources to do so, and is better to spend money on a pristine site. • Displacement of the artefacts allows a great deal of archaeological information to still be gained • His rehabilitation recommendations are based on his professional experience and a standardised approach. • If any work is carried out it should be limited to a walk over the area, collection of artefacts that can be easily gathered and dispersing them back around the site • An amount of $88,000 which the Defendant would have spent if it had carried out the correct pre work procedures is a suitable amount to carry out this work. Although a very hypothetical figure he nevertheless considers it to be a very generous amount • Has had no contact with the Karingbal people • Agrees there are different aspects to Cultural Heritage Significance, including scientific significance and from a traditional owner’s perspective. His report and evidence does not address the latter as he was not tasked to do so. • Was unaware that the Bottletree site is an area significant because various visiting tribes moved through and camped there, in the past, other than what he read in Ms Warrin’s report. [12] Comparative Cases relied upon by both parties [13] The Court is not bound by any of these cases but I have taken guidance from them. Angel (DERM) v Barrick (Osborne) Pty Ltd (2010) • Harm included damage to 2 items and displacement of 100 artefacts • Defendant fined $60,000. Max penalty was $150,000. PU at time was $75. Parties agreed on the proposed penalty which the court adopted. The fine was 40% of maximum -- 5 of 18 -- 6 • Early plea • Not deliberate behaviour • No priors • Defendant reported the incident immediately upon becoming aware • Defendant had a good and respectful working relationship with the traditional owners and towards Aboriginal Cultural Heritage • Defendant had taken necessary pre work enquiries and a relevant plan was in place. The offence arose through failure to adequately supervise contracted staff. • Defendant had, at time of sentence, already taken action to ensure such incident would not happen again; and, • had worked with the traditional people to implement a rehabilitation plan spending in excess of $50,000 to rehabilitate or remediate the disturbed area • Magistrate Hall was particularly struck by the forgiving nature of the letter to the Court by the traditional owners and the positive communication that had developed between them and the Defendant following the incident Angel (DERM) v Mount Isa Mines Limited (2010) • Defendant charged with one offence. • Fined $80,000. PU at the time was $75. Max penalty was $150,000. The Court identified that the maximum fine on indictment would have been $750,000 but equally stated that the maximum on summary jurisdiction was $150,000. Clearly the fine was imposed with that maximum in mind. The fine amounted to greater than 50% of the maximum. • The fine was also agreed upon by both parties and accepted by the Court as appropriate. • 14 artefacts disturbed and 2 damaged • Defendant had made appropriate pre work enquiries including searching the Cultural Heritage Register and had commissioned a Cultural Heritage Survey in consultation with traditional owners • Defendant had told contractors not to go near the relevant area • Damage arose through not properly supervising contractors • Defendant immediately reported to traditional owners when realised the damage had been done and agreed to rehabilitate the site which was to take place the following year by agreement with the traditional owners -- 6 of 18 -- 7 • Traditional owners were supporting of the Defendant and not wanting a prosecution • The Court distinguished Barrick on the basis he had entered a plea on the first available date whereas this was a timely plea involving a number of mentions and Barrick had spent $50,000 on immediate rehabilitation and remediation of the site that was disturbed Coome (DERM) v MCG Quarries Pty Ltd ( 2011) • Defendant was charged with one offence. • Defendant was fined $80,000. A PU at the relevant time was $100 and the max penalty was $200,000. The fine amounted to 40% of the maximum. • 30-35 artefacts displaced with no artefacts destroyed • Not deliberate but a result of an absence of any relevant policies and procedures • No study or survey took place • No search of cultural database • No approved cultural heritage management plan • Defendant relied on a written report made by the Company who had previously done work on the site which was flawed in that it did not mention Aboriginal Cultural Heritage • On realising its actions, the Defendant immediately sealed off the site • Defendant immediately took measures to comply and foster a relationship with the traditional people to establish and form a cultural heritage plan • At time of sentence a CHMP was not in place • The traditional owners were supportive of the prosecution • The Court accepted the harm was greater than in Barrick and Mt Isa Mines and the Defendant’s behaviour more serious • His Honour considered a fine similar to that in Mt Isa Mines was appropriate on the basis this was a more serious breach but an earlier plea • The parties had proposed a range of penalty of $60,000 ( the Defendant’s lower end) and $90,000 (the prosecution’s higher end) McCracken and Bastemeyer Group (2010) • McCracken fined $140,000 for 6 state offences and $42,500 for various council offences. Bastemeyer Group was fined a total of $40,000 for its involvement in -- 7 of 18 -- 8 some of the offences. These fines appear to have been suggested and agreed upon by both parties. • There was little evidence of environmental harm or damage. • Plea of guilty before a scheduled trial took place although was not an early plea. • Harm to Aboriginal Cultural Heritage was only one of the issues involved and the sentence was a global one. • The Defendant appears to have been at least somewhat ignorant of the laws and His Honour rejected a submission that this led to him being “grossly negligent” Both parties agreed this case was of little assistance as a comparative and I also agree. It has not greatly assisted in relation to appropriate penalty. [14] In this case [15] The Defendant has pleaded guilty to the charges and indicated this at an early stage. However, evidence has been required to determine the extent of harm caused by the Defendant’s behaviour and therefore what penalty should apply and also the issue of whether there should be mitigation works, and if so, at what cost. There have been a number of mentions for the parties to finalise an agreed set of facts and evidence taken by two experts. It is therefore, a timely plea but not as early a plea is in Barrick or Mt Isa Mines. [16] The Defendant has no prior offences. [17] The physical harm involves destruction of an unknown number of Gumbi Gumbi trees but on the balance of probabilities, 3 trees, as well as the displacement of at least 22 identified artefacts, and likely many more which cannot be quantified. The Defendant’s expert witness conceded in cross examination that it was possibly hundreds and that he had personally identified 50 artefacts by conducting a walk over each side and top of the bund wall and not searching below the surface. Of those 50, 9 were broken or damaged. [18] While the precise number of artefacts involved is not of itself a measure of the overall harm, on the balance of probabilities I find that the number of artefacts displaced or damaged is at least 50, and likely many more, being as many as hundreds which are now contained in the bund walls. It is impossible to know how many of these are broken or damaged but all have been displaced. [19] It is accepted that the Karingbal people are the traditional owners of the land. [20] The harm to the cultural, historical, spiritual, and social values of the traditional owners is significant. [21] Harm is defined in the Aboriginal Cultural Heritage Act 2003 as -- 8 of 18 -- 9 “… damage or injury to, or desecration or destruction of, the cultural heritage” [22] Some definitions of Desecrate include: • To violate the sanctity of; to treat disrespectfully, irreverently or outrageously (Merriam Webster) • The actions of damaging or showing no respect towards something holy or very much respected (Cambridge English Dictionary) • The act of depriving something of its sacred character, or the disrespectful, contemptuous, or destructive treatment of that which is held to be sacred or holy by a group or individual (Wikipedia) [23] S 5 of the Principles of the Act refers among other things to: (c) it is important to respect, preserve and maintain knowledge, innovations and practices of Aboriginal communities …”; and (d) activities involved in recognition, protection and conservation of Aboriginal cultural heritage are important because they allow Aboriginal people to reaffirm their obligations to “law and country” [24] Aboriginal Cultural heritage is defined at s 8 as (a) a significant Aboriginal area in Queensland; or (b) a significant Aboriginal object; or (c) evidence, or archaeological or historical significance, of Aboriginal occupation of an area of Queensland [25] s 10 describes an object being of significance to Aboriginal people because of: (a) Aboriginal tradition (b) The history, including contemporary history, of an Aboriginal party for an area [26] Ss 11 and 12 also make clear that the area surrounding a significant Aboriginal object cannot be separated from the object without destroying or diminishing the object’s significance as evidence of Aboriginal occupation. [27] Mr Keys on behalf of the Defendant at page 32 of his report discusses the definition of Cultural Heritage Significance. He refers to the Burra Charter which defines Cultural significance “encompassing all forms of Spirituality, regardless of the culture from which it emanates. Similarly aesthetic value is not limited to a western perception of aesthetics.” -- 9 of 18 -- 10 [28] Further “it is critical that assessments of cultural significance for Indigenous heritage places reflect the views and input of the relevant Indigenous knowledge-holders.” [29] Ms Wallin, on behalf of the Complainant, addresses the two perspectives of how significance of cultural heritage can be measured. On the one hand, scientific and archaeological significance, which is assessed by trained archaeologists and which is usually associated with the amount of information a site holds or potentially holds. On the other hand, cultural significance applied by the people who have the traditional rights and responsibilities to that site or place. [30] The Defendant has sought to minimise the harm, referring to such as “displacement only” (written submissions). Also, while claiming to “acknowledge the impact … on the traditional owners of the land”( Mr Ostwald’s Affidavit), the Defendant has focused almost entirely upon the scientific values of the archaeological features within the site. Its expert was asked only to assess harm on that aspect. [31] The Karingbal people describe the hurt caused to them in the Statements of Ms Scheske and Mr Stapleton. These witnesses were not cross examined although an initial application was made to strike out parts of their statements which application was not successful. [32] Mr Stapleton states: • “The Bottletree Quarry site is a significant site for the Karingbal people because it was historically used as a camping and resource reserve by my people, and it contains extensive artefacts, a midden site and medicinal gumbi gumbi trees, which are very rare” • “the gumbu gumbi trees are sacred trees…” • “there are many artefacts in the area from our ancestors …axe and spear heads, grinding stones, scrapers and skinning stones … and other levallois tools used making a special stone-flaking technique.” • “I find it hard to describe the damage and hurt…” • “it is our cultural and spiritual home and our scared place. It is like a white fella’s museum and home and church all in one” • “Ostwald’s disturbance and destruction of the site has damaged our connection with the land and the landscape and the history of our people and our artefacts which cannot be fixed” [33] Ms Scheske says: • … “ it is hard to articulate what it feels to see an area of such significance disturbed. Its forever changed and will never be like it was before, the story is now forever altered. Seeing such destruction makes me feel as if Ive been disrespected on a very deep personal level, that my People’s existence, our story, wisdom, and our culture means absolutely nothing. I now feel a sense of loss in regard to that area” -- 10 of 18 -- 11 [34] Despite the Defendant’s submission that the Duty of Care Guidelines would suggest that disturbance by the Defendant at this site is unlikely to have caused harm because of previous impacts, the Defendant has acknowledged that it has caused harm. [35] Mr Ostwald on behalf of the Defendant states in his Affidavit that he: (a) “acknowledge that the Bottletree Quarry is situated within the traditional country of the Karingbal people”; a. “Acknowledge the impact that Ostwald’s activities at the Bottletree Quarry have had on the Karingbal people and express sincere remorse” b. “Formally apologise to the Karingbal people for the harm that Ostwald’s activities have caused to Aboriginal cultural heritage at the Bottletree Quarry” [36] I find that the harm goes far beyond any physical damage that may have been sustained by any particular artefact and the harm to the spiritual culture of the Karingbal people is significant. [37] There is evidence of a previous land clearing in 1977 and again in or about 1999. [38] Both experts seemed to agree that the earlier land clearings would likely have involved the top soil being cleared with trees being uprooted and then either left or dragged away by the use of bulldozer and chain method. This method is likely to have disturbed 5-15cm of the top soil on the Defendant’s evidence, and such damage was not consistent across the entire area. [39] The clearing by the Defendant has removed, on average, 20 cm of top soil over a larger area. The Prosecution describes that result as having stripped the land. The soil removed, being a significant amount, has been pushed into bund walls. [40] Ms Wallin is clearly more familiar with this site having spent considerable and various time there over many years. I accept her evidence that: 1. The clearing by the Defendant covered a greater area than the evidence of the earlier clearings and 2. The clearing by the Defendant was more intense in that it involved removing, on average, 200mms deep of top soil over a large area and up to 300mm, as stated in Mr Key’s report 3. There is clear evidence from both exerts that the bund walls consisting of the cleared soil contains artefacts, likely, many, and possibly, hundreds. 4. While this clearing may not have significantly impacted the capacity for archaeological or scientific research and it is unclear, apart from the gumbi gumbi trees, what artefacts may have been physically damaged, it has significantly desecrated an important historical Aboriginal site. 5. Not knowing the extent of the damage or destruction of the artefacts makes the offence more serious -- 11 of 18 -- 12 [41] Given her knowledge of the traditional aspects of the site, I also accept her evidence that the site was not the subject of intense cattle grazing or of wild animals. It is, further, a significant historical Aboriginal site as a result of its being used as a camping spot for numerous traditional peoples. [42] The harm caused by the Defendant is greater than any harm that may have been caused by earlier activity at the site. [43] It is accepted that the Defendant did not intentionally cause harm. However: • the Defendant has been involved in the business of conducting quarry activities over many years. It was informed by Santos, the owner of the site, in 2013, from whom it obtained its licence to carry out works, and prior to any work commencing, that Aboriginal Cultural Heritage had been identified at the site. Further, the Defendant had been provided with the results of a prior Cultural Heritage Survey that had been conducted which clearly identified that cultural artefacts had been found and identified at almost every random drilling hole made at the site. • This is distinguished from the situation in MCG where the Defendant apparently relied on an incorrect survey which failed to identify Aboriginal Cultural Heritage significance. • This Defendant was clearly on notice not only that it could be an issue but that it was an issue at this site. • The Defendant itself had a Safety Management Plan for the site which included a requirement that it “… ensure that a request for cultural heritage clearance has been approved …” • Despite this prior information, and its own plan, the Defendant did not carry out any relevant searches or enquiries or seek to consult with the Karingbal people prior to carrying out the work. It did not have a Cultural Heritage Plan. [44] The Defendant’s behaviour, in these circumstances, was not that it negligently relied on incorrect information or that it was ignorant of its obligations. Its behaviour amounts to gross negligence on its part. [45] The Defendant did not report any issues and only stopped work when the damage was discovered and reported by the Karingbal people. [46] On being notified, the Defendant did co-operate with the investigation. It also took steps to meet with the Karingbal people and commenced communication to prepare a mutually agreed Cultural Heritage Plan. Such discussions were not fruitful and appear to have ceased in or about April 2016. [47] The Defendant allowed some work on the site to continue into 2016 being the loading out of stockpiled quarry material which continued until about April 2016. It did however, cease other quarry work. -- 12 of 18 -- 13 [48] The Defendant has not carried out rectification work, does not have a specific plan for such in place, and does not have a Cultural Heritage Management Plan, despite some attempts to have one prepared. [49] The Defendant continues to offer to create a Cultural Management Plan in consultation with the Karingbal people, and in submissions, stated that communication regarding same has re-commenced following the hearing of this matter. However a plan is not yet in place. [50] The Defendant, through Mr Ostwald, apologised to the Karingbal people, but this occurred only on the event of this litigation. I am further told that he personally approached the 2 traditional land owners and offered a personal apology to them following the hearing of this matter, some 3 years after the event. [51] The Defendant’s mitigating circumstances are not as significant as many of the mitigating factors in the other cases. • The offending behaviour occurred through its gross negligence; • It has not managed to repair or develop a working relationship with the traditional people although some attempts have clearly been made towards doing so and some positive steps appear to now be underway in that regard; • It has not commenced restoration works. • It has not offered to restore or repair the site [52] While the Defendant has no prior similar behaviour, has otherwise been a good corporate citizen, and has shown through its plea and the evidence of Mr Ostwald, a genuine remorse, any Penalty must include a general deterrence as well as a personal deterrence. [53] The Defendant is in the business of quarrying. The other Defendants who have been charged under this legislation have all been in the business of mining or similar. [54] The Defendant faces 2 separate charges. The Defendant urges the court not to double penalise it. The prosecution says the two charges are different. Charge one is a breach of the Defendant’s statutory duty of care. Charge 2 relates to the level of harm caused to the Aboriginal Cultural Heritage as a result of its breach of that duty. In each of the prior comparable cases the Defendants were charged with a breach of duty of care only and while the issue of harm was considered relevant to the penalty to apply there was not the emphasis on evidence being presented to support that aspect. The Defendant argues that it could not have been charged with charge 2 if it had not been guilty of charge 1. It is therefore improbable that the legislation intended that if a Defendant is convicted of both that it only be penalised for one. [55] Both parties agree that one global penalty is appropriate. [56] The total penalty in these matters is 4000 PU. However in applying one overall fine, the amount will be tempered to take into account that the 2 charges arise from the same set of facts. -- 13 of 18 -- 14 [57] I have found the harm in this case is greater than the harm in the cases to which I have been referred. The Defendant’s conduct occurred through gross negligence which is not the situation in any of the previous cases. The Defendant does not have many of the mitigating circumstances that were present in the previous matters. [58] Taking into account the comparable cases, therefore, a global penalty in excess of 40% of the maximum penalty is appropriate. However this should be reduced to reflect that the Defendant is being penalised on 2 separate charges arising essentially from the same set of facts. [59] I therefore impose a fine of $188,000 which is approximately 40% of the maximum fine. [60] Rehabilitation or Restoration [61] It is agreed that there must and will be rehabilitation works carried out by the Defendant of this site. [62] The Defendant does not agree that there should be any order for payment of money towards such rehabilitation or restoration. [63] It is accepted by both parties that full restoration cannot ever occur. [64] It is accepted that some salvaging of disturbed artefacts can occur but the parties are not agreed on the necessity for that and, if found necessary, the process or costs involved. [65] S 27 of the Act allows a court to make an order “for or towards” the cost of repair or restoration of the Aboriginal cultural heritage “needing to be carried out” or anything else which is associated with the Aboriginal cultural heritage. [66] The order can be made payable to the State or to another appropriate entity. [67] The intention is not to penalise the Defendant twice. The issue is whether the court considers it is necessary for rectification to be carried out and if so, whether it is appropriate that despite the penalty imposed, the Defendant pay for or contribute to the cost of repairing the harm it has caused. [68] That there has been no such order made by this court in the past is not a bar to this court doing so. [69] It does not appear that any such application was brought in any of the prior matters. In Barrick the Defendant had carried out such work, before sentence, at its own expense, and with the agreement of the traditional owners. In Mt Isa Mines the Defendant had moved quickly to work with the traditional owners who were happy with the arrangement reached. In MCG, by the time of sentence, the Defendant had in place a cultural heritage management plan. The Prosecution clearly had little information about the need for or capacity to undertake any restoration. The court simply seemed to accept that it was more likely than not that restoration could not occur. The court was not invited on any of the above occasions, to consider this aspect. -- 14 of 18 -- 15 [70] The Defendant here has made some attempts to negotiate an arrangement with the Karingbal people. That has not been successful. It remains willing to work towards such an arrangement but this has not occurred to date. In any event a Cultural Heritage Management Plan relates to future work and does not require or ensure that any arrangement will be included to repair or rectify damage or harm already done. [71] Under its licence agreement the Defendant will be required to rehabilitate the site at the end of that agreement but this could be as far away as 2030 or beyond, and it is not clear what the requirements of such rehabilitation would be. Any plan for the rehabilitation of the cultural heritage, it is agreed, would require the agreement of the traditional people. The licence agreement does not include consultation with those people. [72] I have already found that the harm in this case is far more significant than in any of those previous, with the deep emotional harm to the Karingbal people arising from the desecration of the site. [73] The Defendant has benefited commercially from the work that has been carried out at this site which work led to the harm being created. It will continue to benefit financially from its work at the site into the future. [74] While it is accepted that it is impossible to completely fix the damage that has been caused, and that there is not a need to repair the site for scientific or archaeological purposes, there is a need to repair the harm that has been done to the Karingbal people. [75] It is, in the circumstances of this case, entirely appropriate that the Defendant should pay an amount towards mitigation works to restore or repair the harm caused. [76] The prosecution contends that the appropriate amount is $565,409.30 which will allow the Karingbal people to carry out their preferred option. [77] The Defendant proposes that if any payment is to be made that it would be appropriate to order an amount of $88,000, that being what it would have cost if the Defendant had complied with its obligations in the first place. [78] On the other hand, the Defendant’s proposal to collect some artefacts from the surface and place them back around the site, with the guidance of the traditional owners, has been absolutely rejected by the traditional owners. [79] The Defendant acknowledges, through Mr Ostwald, that in developing a CHMP for the site in consultation with the Endorsed parties would “necessarily involve Ostwald undertaking activities to rehabilitate the bund walls …” although does not expand on what rehabilitation it would propose or when it would occur. [80] The Defendant submits that as a result of its receivership, any amount ordered is likely to be paid at the rate of about 30%. While this is a factor to consider it should not, of itself be a measure of the amount I order the Defendant to contribute. [81] Both experts agree that their respective proposals and suggestion of costs are estimates only. Both agree there are other options that are not canvassed in their respective reports. [82] In all of the circumstance, I order that the Defendant pay an amount of $250,000. -- 15 of 18 -- 16 [83] Any arrangements for repair or restoration will need the input and agreement of the traditional owners. [84] Such amount is to be paid to the Department of Aboriginal and Torres Strait Islander Partnership, to be utilised specifically towards the cost of repairing or restoring the Aboriginal Cultural heritage at the Bottletree Quarry site. [85] Costs [86] The Defendant is to pay the agreed costs of $2,519.95. [87] Conviction As to the recording of a conviction, given the impact such is likely to have on its capacity to tender and win contracts in the future, I accept the Defendant’s submission and a conviction will not be recorded. -- 16 of 18 -- -- 17 of 18 -- -- 18 of 18 --