Adrian John Beattie for the Western Wakka Wakka Aboriginal People v Nexus Delivery [2016] QLC 60

LAND COURT OF QUEENSLAND CITATION: Adrian John Beattie for the Western Wakka Wakka Aboriginal People v Nexus Delivery [2016] QLC 60 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: 12 October 2016 [Ex tempore] DELIVERED AT: Brisbane HEARD ON: 12 October 2016 HEARD AT: Brisbane MEMBER: WA Isdale ORDER/S: 1. An interim injunction covering the works foreshadowed in the letter dated 28 September 2016 from Nexus Delivery to Margaret McLeod, Sandra Bauwens and Adrian Beattie Western Wakka Wakka Aboriginal Party which is Exhibit ‘AJB 15’ to the Affidavit of Adrian John Beattie sworn on 11 October 2016 and filed in Court on the same day is granted until 6pm on Monday 17 October 2016. 2. This matter is listed for review on Monday 17 October 2016 commencing at 2.30pm in Court 40, Level 8, 363 George Street, Brisbane. 3. The parties have liberty to apply upon the giving of one (1) business days’ notice in writing to the Court and to each other. 4. Costs are reserved. -- 1 of 6 -- 2 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 claimed to be protected – where injunction granted Aboriginal Cultural Heritage Act 2003 Land Court Act 2000 OD Transport Pty Ltd v The W.A. Government Railways Commission 71 ALR 190 APPEARANCES: The applicant appeared in person Mr AS Walls, in house lawyer, for the respondent [1] This is the decision on the matter that’s presently before the Court. The Court has before it a general application filed on 12 October 2016 by Mr Adrian John Beattie. The respondent is Nexus Delivery ABN 17 496 840 413. It’s a general application brought under the Land Court Act 2000 and the Aboriginal Cultural Heritage Act 2003. The general application under the heading of The Requirement to State the Facts, Circumstances or Other Relevant Matters says this: that the State of Queensland, represented by the Department of Transport and Main Roads, have authorised Nexus Delivery to build the Toowoomba Second Range Crossing project. Nexus Delivery proposes to bulldoze (1) lookout, (2) bora rings, (3) cut the range and destroy the creation of Mundagurra and (4) destroying numerous smaller sites. The State of Queensland have failed to follow the process in the Cultural Heritage Management Agreement, dated 7 October 2014, which is called the CHMA and provide the final report. The State failed to follow the process in clause 14.4 of the CHMA. The State failed to provide reports pursuant to clause 10.2 of the CHMA. I note that the Crown solicitor for the State of Queensland has been advised that this matter is on this afternoon but has elected not to appear. Under the heading of Orders and Other Relief Sought in the general application, it is stated that the orders sought are: (a) urgent injunction and other relief; (b) pursuant to s 33 of the Land Court Act 2000 declarations; (c) pursuant to s 32G of the Land Court Act 2000, orders for the enforcement of a negotiated agreement; -- 2 of 6 -- 3 (d) pursuant to s 32H of the Land Court Act 2000, injunctions restraining breaches of ss 23 to 27 of the Aboriginal Cultural Heritage Act 2003; (e) pursuant to s 321 of the Land Court Act 2000, orders for the enforcement of contract provisions; (f) pursuant to s 37 of the Land Court Act 2000 ADR, I take that to mean alternative dispute resolution; (g) pursuant to s 34 of the Land Court Act 2000, costs. [2] And there are grounds upon which that is sought and they refer to the essentially the matters that have been referred to under the statement of facts, circumstances and other matters, which has already been read out. [3] Now, the general application has been filed late this morning. The matter has been brought on this afternoon as soon as possible, as it appears that – well, as it is the case that an urgent injunction is being sought. The primary matter is an originating application filed on 11 October 2016 by Mr Adrian John Beattie for the Western Wakka Wakka Aboriginal People. [4] This afternoon, the respondent, Nexus Delivery, has been represented by Mr A.S. Walls, a legal practitioner employed by Nexus Delivery, which is a joint venture of some corporate bodies which has, by contract, an undertaking that it is seen to engage in, or is engaged in, which may soon be manifested in works conducted at a site which is a matter of concern to the applicant. The applicant has particularly referred to a letter in September where it is foreshadowed that soon works would be commencing. The date that has been foreshadowed has passed, but it seems on the evidence that is now before the Court that works are soon to commence. [5] Now, the relevant provision is s 32H of the Land Court Act 2000 which provides that the Land Court, in its cultural heritage jurisdiction, which is in its cultural heritage division, which is what’s now being constituted, must hear and decide such an application and may grant the injunction only if it’s satisfied 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 -- 3 of 6 -- 4 (c) the applicant has standing to make the application; and (d) it is necessary to grant the injunction to stop the person doing the act. [6] In the present circumstances, it is unnecessary to address these matters at length, as there is no opposition to an interim injunction being granted. The thrust of the case being foreshadowed on behalf of the respondent is that they simply want the matter resolved as quickly as possible. They indicate that they are not likely to commence works before next Monday, but might commence work as early as next Monday or soon thereafter. This is a case of a nature that was referred to in OD Transport Proprietary Limited versus Western Australian Government Railways Commission, a decision of the Federal Court of Australia constituted then by Justice French, as he then was, and it’s reported in 71 Australian Law Reports 190. [7] The Court considered there that where time doesn’t permit a proper consideration of questions of law at an interlocutory stage of the proceedings, including questions going to the Court’s jurisdiction, then the Court should not decide them. The Court should decide whether or not such questions of law raise a serious question to be tried. At present, the urgency, as such, is not likely to crystallise until most likely Monday of next week. It’s now Wednesday 12 October; Monday will be 17 October. [8] In view of the indication on behalf of the respondent that they don’t oppose an interim injunction so long as the matter is resolved quickly, this is a very significant influencing feature that the Court takes into account. The letter that was referred to briefly a little while ago in these reasons is dated 28 September 2016 from Nexus Delivery addressed to Margaret, Sandra and Adrian concerning the Toowoomba Second Range Crossing project. It says on the second page thereof: “Nexus will proceed as follows.” Now, this letter was dated 28 September 2016: 1. The exclusion fencing erected around the site will be removed by Thursday, 6 October 2016. 2. The clearing works and the alignment in this area will start immediately, followed by earthworks. -- 4 of 6 -- 5 3. We propose two test pits, one per ring to identify the cause of the discontinuity shown by the GPR. This can now be done without impacting construction due to the new alignment being further from the rings. [9] It is clear that works had not, indeed, commenced so far, but equally clear that they may, if not injuncted, proceed as early as Monday of next week. In the circumstances of the case, the Court does grant the injunction sought, as the balance of convenience favours the granting of the injunction now, otherwise the matter may simply become urgent again as early as Monday morning or perhaps on Sunday or some time over the forthcoming weekend. The balance of convenience is satisfied. [10] It’s proposed that the injunction be sought to operate from now until 6pm on next Monday 17 October 2016 or until such further or other order of the Court is made. The parties are given leave to bring the matter back to the Court upon one day’s notice to each other and to the Court and that notice is to be – can be a verbal notice by telephone given the urgency of the matter. The Court requires that – Mr Beattie, you make your contact details known to Mr Walls before you leave here today and, Mr Walls, you do the same thing in relation to obtaining details for Mr Beattie. [11] Now, I propose to bring it back before the Court on Monday for further argument as to whether the interim injunction which is being ordered should be extended or not. So, at this stage, it’s an interim injunction only until such time as the matter is heard on the merits. [12] The formal order is that there be an interim injunction ordered by the Court against Nexus Delivery Proprietary Limited and its servants and agents which forbids it from carrying out any action pursuant to the matters referred to in its letter of 28 September 2016, namely the removal of exclusion fencing erected around the site, and clearing works in the alignment in this area, and earthworks and the digging of test pits at the locations referred to in the letter of 28 September 2016 from Nexus Delivery to Margaret McLeod, Sandra Bauwens and Adrian Beattie. [13] So the orders the Court has made are for the injunction in the terms I’ve indicated, for costs to be reserved and for the matter to now come back. The matter will be adjourned for further review and directions to 2.30pm on Monday 17 October 2016. -- 5 of 6 -- 6 Orders 1. An interim injunction covering the works foreshadowed in the letter dated 28 September 2016 from Nexus Delivery to Margaret McLeod, Sandra Bauwens and Adrian Beattie Western Wakka Wakka Aboriginal Party which is Exhibit ‘AJB 15’ to the Affidavit of Adrian John Beattie sworn on 11 October 2016 and filed in Court on the same day is granted until 6pm on Monday 17 October 2016. 2. This matter is listed for review on Monday 17 October 2016 commencing at 2.30pm in Court 40, Level 8, 363 George Street, Brisbane. 3. The parties have liberty to apply upon the giving of one (1) business days’ notice in writing to the Court and to each other. 4. Costs are reserved. WA ISDALE MEMBER OF THE LAND COURT -- 6 of 6 --