Adrian John Beattie for the Western Wakka Wakka Aboriginal People v Nexus Delivery (No. 2) [2016] QLC 61

LAND COURT OF QUEENSLAND CITATION: Adrian John Beattie for the Western Wakka Wakka Aboriginal People v. Nexus Delivery (No. 2) [2016] QLC 61 PARTIES: Adrian John Beattie for the Western Wakka Wakka Aboriginal People (applicant) v Nexus Delivery (ABN 17 496 840 413) (respondent FILE NO/s: LCA 1087-16 DIVISION: Cultural Heritage and Indigenous Land Use Agreement Division PROCEEDING: Hearing of General Application DELIVERED ON: 17 October 2016 [Ex tempore] DELIVERED AT: Brisbane HEARD ON: 17 October 2016 HEARD AT: Brisbane MEMBER: WA Isdale ORDER/S: 1. The interim injunction granted on 12 October 2016 is not extended. 2. Each party provide to the mediator and serve on each other a statement of issues by 4pm on Tuesday, 18 October 2016. 3. Mediation is set down for 10am on Wednesday, 19 October 2016. 4. The originating application and the general application brought on behalf of the State of Queensland will come before the Court at 10am on Thursday, 20 October 2016. CATCHWORDS: ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – GENERALLY – where a General Application was filed seeking an injunction to prevent works which would have a likely impact upon sites -- 1 of 6 -- 2 claimed to be protected – where injunction granted on 12 October 2016 was not extended – where matter set for mediation. APPEARANCES: The applicant appeared in person Mr AS Walls, in house lawyer, for the respondent [1] What follows is a decision in the matter before the court presently, which is the general application filed on behalf of Mr Adrian John Beattie on the 12 October 2016. The injunction which has been given in respect of it will expire today, the 17 October 2016, at 6pm – that’s in about one hour’s time – if not extended. The matter’s been listed for review and directions today. The general application by the State of Queensland filed on the 14 October 2016 to be joined as a party has not yet come before the court to be heard. The State of Queensland has leave to appear in the matter before the court today in the terms of its request for leave. The court is informed that the respondent proposes to start the work presently forbidden by injunction tomorrow. There is a real prospect that the work will interfere with the sites of concern to the applicant, Mr Beattie. [2] The court must consider at present the question of whether to extend the interim injunction. This does not amount to a ruling on the substantive litigation before the court, which is that commenced by the originating proceedings, but relates to the interim injunction only. The respondent and the State of Queensland oppose such an extension. The opposition is focused on the four aspects referred to in the outline of submissions provided by counsel for the State of Queensland, Mr O’Gorman. The State seeks to file and rely on the affidavits of Paula Penelope Freeleagus, and Miles Vass, provided to the court today, and counsel for the applicant objects to them being admitted. In relation to the areas of objection raised on behalf of the State of Queensland, I’ll deal with them, as there are four, one at a time. [3] Firstly, it is submitted that Mr Beattie does not have the necessary standing to bring the proceedings, as, under the Cultural Heritage Management Agreement, which is exhibit AJB6 to his affidavit, clause 19 allows for the determination of disagreements by, inter alia, a majority. Mr Beattie is a party to this agreement, and exhibit AJB1 shows in the letter of the 20 May 2016 that the dispute, which is essentially what’s now before the court, has been, in accordance with that agreement, resolved contrary to the wishes of Mr Beattie. From that, it’s submitted that the court can take the matter no further. -- 2 of 6 -- 3 [4] Now, the Land Court Act, in section 32H(1), provides that a group or a member of a group may apply to the Land Court for an injunction under this section to stop the doing of an act. It’s said that Mr Beattie, by the agreement, is not able to take advantage of this provision. The provision is that it is a statutory right that, in effect, he may bring his present application, and his standing is that provided for and given to him by section 32H(1) of the Land Court Act. So the court is not able to accept that Mr Beattie does not have standing as required for present purposes, and so finds. [5] The second point raised was in relation to the existence or otherwise of a prima facie case, it being submitted that there is no prima facie case. Section 32H(2) provides that the court may grant the injunction effectively only if the court is satisfied of the things set out in subsection (2) and they are that: “… a) The person against whom the injunction is sought is doing the act, or there are reasonable grounds for concluding that the person is likely to do the act; and b) the act is a relevant act; and c) the applicant has standing to make the application…” [6] I’ve referred already to (c) and there has been – the court has been satisfied, by what its heard today, that it is proposed that actions be taken as early as tomorrow. [7] Now, the court is satisfied in accordance with subsection (2)(a) of section 32H that the respondent is likely to proceed to do acts as early as tomorrow and that the applicant has standing, under the Act, to bring the present proceedings. There must, however, be, as provided in subparagraph (b) of subsection (2) of section 32H, a relevant act. The act complained of must be a relevant act and what’s a relevant act is defined in subsection (4) of section 32H, in this way: “… relevant act means an act that is a contravention of – a) an Aboriginal cultural heritage protection provision; or b) a Torres Strait Islander cultural heritage protection provision; or c) a provision of another Act providing for the protection or preservation or access to items, places or areas of cultural significance to Aboriginal people or Torres Strait Islanders.” [8] Now, turning to the material that is presently before the court, at this stage of the proceedings, in Mr Beattie’s original affidavit, in exhibit AJB4 there is, at page that’s numbered 14 and 15 of that document, some relevant material that the court has to consider. The report states that, under heading 3.1 Results of Field Work and Excavation: -- 3 of 6 -- 4 “The field work resulted in a number of surface finds, showing that Aboriginal people were utilising the lookout as an area of limited tool production, possibly utilising local sources of high quality silicified wood eroding from north of the lookout, along the ridgeline. Some chunks of this had been brought to the lookout area, possibly for reduction, based on the presence of hammer stones, a core and a core fragment. It was surprising that no cultural material was located within the rocky boulder area at the apex of the lookout. This location would have been ideal for keeping watch over the surrounding valleys and most sites with it contained evidence of toolmaking activity in some form. No stone material was recovered from lower depths of the three areas excavated. Lack of artefactual material does not preclude the site from having been used as a lookout by Aboriginal people. It is likely that surface deposits may have eroded down the steep slopes. Indeed, artefacts were located just below the summit and within 50 metres of the base of the hill, along the ridgeline. There is ample evidence for the use of the site for toolmaking, but not clear evidence of its use culturally as a lookout. There appears no evidence that remains of its use as a smoke signal station.” [9] And on page 15, under General Comments, the statement is made that: “Despite the lack of archaeological evidence of its use as a signal station, there exists the major likelihood of its use as a lookout. There is a strong perception, by both members of the Western Wakka Wakka (Beattie) and also representatives of the Yagara people involved in the original survey, that the site has cultural significance. The historical evidence of Multuggerah’s activities in the immediate area, combined with lithic evidence, both on the hill and along the ridgeline on which the lookout is situated, would indicate its probable use by Aboriginal people.” [10] Now, I note that the reference in the material to there being a “major likelihood” must be distinguished from the existence of there being any evidence and the material that has been referred to – the material that’s been put before the court, at this stage, by the applicant, in relation to this aspect, does not disclose the existence of evidence in relation to that matter. [11] Turning to exhibit AJB3 to the affidavit of Mr Adrian John Beattie, sworn on 11 October 2016, at page 24 and 25 of the report that’s exhibited to that affidavit there are recommendations, under the category of General Comments 4.1 and it’s worthwhile reading them so that everyone has a good understanding of what they are. The authors say that: “On the balance of the study, it is more likely that the Holmes Road Earth Circle Complex is cultural in origin. This is based on the fact there are comparable features elsewhere on the Downs, including multiple rings and bear earth rings, that the landowner has had knowledge of the use of the circles as Aboriginal bora rings for nearly 80 years and that stone artefacts have now been located nearby. The conundrum is that if this site is cultural it represents a place of enormous significance. It would be, probably, the last surviving multiple bare earth ring -- 4 of 6 -- 5 complex left on the Downs. As the bora rings were places of initiation, they are among the most emotive and important of all Aboriginal sacred sites. The other view is that they are natural features. However, so far no explanation has been advanced as to what causes them. It appears that there is no underlying capstone that might inhibit growth, neither have cattle caused them. Nexus might wish to look at the following options:” [12] There are three options stated: “(1) Ask for an independent archaeological assessment by a respected archaeologist with the necessary skills and knowledge to undertake such a survey. Such a person would need to be acceptable to the Beattie group, after the experiences of having an inexperienced assessor imposed without discussion or agreement by TMR and the subsequent report being accepted as valid by TMR. (2) Undertake soil analysis to determine whether there is some fungal origin for the anomalies or other natural reason for their existence. It is unlikely they are melonholes, as some critics suggest, as there is no central depression and the sizes seem to (sic) coincidental in matching other recorded rings. (3) Undertake limited excavation of one of the ring features to see if there is any other explanation for their creation. This is unlikely to be acceptable to the WWW, given the potentially sacred nature of the rings.” [13] And over on page 25 is the following: “However, this report concludes that on the balance this will not provide further information beyond what is already known. The rings remain a controversial and mysterious feature.” On that basis the author makes recommendations. [14] The general application, filed on 12 October this year, doesn’t contain any further material of use for present purposes. It contains, rather, a number of assertions, which are not born out of the material presently filed. The court makes a finding that it’s not satisfied that there is, at present, a prima facie case shown on the material sufficient to warrant the continuing of the present injunction. This is not a finding in relation to the originating application, which is not presently before the court for decision. [15] Moving on to item 3 in the submissions raised by the State of Queensland, concerning the balance of convenience. In view of the reasons that I’ve given, it’s not necessary to make any finding in relation to this because of the finding in relation to existence of material and concerning a prima facie case. And in relation to submission 4, that the interim injunction’s said to be too wide, there’s, equally, no need to make any submission in relation to that. -- 5 of 6 -- 6 [16] The order of the court is that the interim injunction made on 12 of October 2016, and which will expire at 6pm today, which is in about three-quarters of an hour, is not extended. [17] The originating application will be progressed as promptly as possible and it’s proposed to order the parties to mediation to endeavour to resolve the principal issues. ORDERS: 1. The interim injunction granted on 12 October 2016 is not extended. 2. Each party provide to the mediator and serve on each other a statement of issues by 4pm on Tuesday, 18 October 2016. 3. Mediation is set down for 10am on Wednesday, 19 October 2016. 4. The originating application and the general application brought on behalf of the State of Queensland will come before the Court at 10am on Thursday, 20 October 2016. WA. ISDALE MEMBER OF THE LAND COURT -- 6 of 6 --