Eastern Yugambeh People v Coomera Waters Village and Resort Pty Ltd and Turnix Pty Ltd [2004] QLRT 128

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Eastern Yugambeh People v Coomera Waters Village and Resort Pty Ltd and Turnix Pty Ltd [2004] QLRT 128 PARTIES: Eastern Yugambeh People (Applicants) and Coomera Waters Village and Resort Pty Ltd and Turnix Pty Ltd (Respondents) FILE NO: CHA159/04 PROCEEDING: Application to strike out Aboriginal cultural heritage injunction application DELIVERED ON: 25 October 2004 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 25 October 2004 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Principal application by Eastern Yugambeh People struck out. (at [8]) 2. No order as to costs. (at [9]) CATCHWORDS: INJUNCTION APPLICATION – ABORIGINAL CULTURAL HERITAGE – STRIKE OUT Aboriginal Cultural Heritage Act 2003, ss 104, 167 COUNSEL: Mr S. Keim for Coomera Waters Village and Resort Pty Ltd and Turnix Pty Ltd (Coomera Waters) SOLICITORS: M.F. Lyons & Associates for Coomera Waters AGENT/S: Mr W. Aird and Ms K. Yuke, for Eastern Yugambeh People [1] I have before me an application by the Eastern Yugambeh People for an injunction to restrain the respondents from breaching the Aboriginal Cultural Heritage Act 2003 (the Act) and a cross-application by the respondents to strike out the principal application. [2] Dealing firstly with the application to strike out, Mr Keim of Counsel has submitted that s. 167 (Cultural heritage arrangements for project authorised before -- 1 of 4 -- commencement) of the Act applies.1 He submitted that it was a transitional provision which applied if the terms of the section were made out. Relevantly in this case, it was that prior to the commencement of the Act, there had been a decision of the Gold Coast City Council (the Council) to approve this particular project. I accept Mr Keim’s submission. [3] The evidence satisfies me that on 29 April 2003 the Council issued a decision notice in relation to phase 2 of the Coomera Waters project. Under s. 167(1) the authority of the Council was obtained before the commencement of s. 167 on 16 April 2004. In those circumstances, the terms of s. 167(2) apply. That provision relevantly makes it clear that until the project is finished, if certain activities are carried out in accordance with the decision notice, then the person so acting does not commit an offence against a cultural heritage protection provision in the Act. It seems to me that the effect of s. 167 is indeed a transitional provision to cover cases such as this where approval in relation to a project had been given before 16 April 2004. [4] The relevant provisions of the decision notice for the purposes of this case are set out on page 5 of that document under the heading Cultural Heritage. Clause 11 is the operative provision. It relevantly provides that a Cultural Heritage Management Plan (CHMP) shall be submitted and approved by the Chief Executive Officer; that is to occur prior to the issue of any development approvals for land adjacent to cultural heritage sites; and the plan shall be developed in consultation with traditional owners and agreed to by the EPA and shall deal with certain other things which are set out there. [5] So for present purposes, the key question is whether the CHMP has been developed in consultation with the traditional owners. The evidence, especially the copies of letters annexed to the affidavit of Mr Spinella, demonstrates, and I accept, that there has been that consultation. [6] I look firstly at Exhibit FS-1. It is a letter of 19 May 2004 from Mr Spinella on behalf of Coomera Waters Village and Resort Pty Ltd (Coomera Waters) to Ms K. Yuke of the Eastern Yugambeh Native Title Group (Eastern Yugambeh). The letter stated in part that “we wish to advise that you will be consulted in the management of the Aboriginal cultural heritage on the Coomera Waters site”, and also that “we are currently in the process of preparing a draft CHMP for this site and you’ll be provided with copies”. Subsequently on 16 August 2004 Mr Spinella wrote again to Ms Yuke on behalf of the Eastern Yugambeh Management Committee and enclosed 1 Section 167 provides as follows: “167 Cultural heritage arrangements for project authorised before commencement (1) This section applies to a project if— (a) under an Act other than this Act, an authority is required for the project; and (b) the authority was obtained before the commencement of this section; and (c) for the purposes of obtaining the authority, arrangements were put in place, whether by placing conditions on the authority or in some other way, directed at ensuring that the project would avoid or minimise harm to Aboriginal cultural heritage. (2) Until the project is finished, a person who, under the authority, carries out an activity for the project under the arrangements does not commit an offence against a cultural heritage protection provision in relation to Aboriginal cultural heritage expressly or impliedly the subject of the arrangements. (3) In this section— “authority” includes a lease, licence, permit or approval. ” -- 2 of 4 -- for her perusal and comment a final draft of the proposed CHMP. Submissions were directed to me about who in fact were the traditional owners for the area; but given that the principal application before the Tribunal was made by the Eastern Yugambeh People (who, I assume, regard themselves as the traditional owners) and that the correspondence from Coomera Waters was directed to Ms Yuke who appeared today for the Eastern Yugambeh, it is clear in my view that the Eastern Yugambeh were the recipient of the draft proposed CHMP. Then on 17 August 2004 Mr Spinella had a telephone conversation with Mr Wesley Aird. Mr Aird also appeared today on behalf of the Eastern Yugambeh Management Committee. In a note of that conversation, it is stated (and I accept) that Mr Aird called to advise that he had received the draft CHMP and he advised that he would be commenting on it; Mr Spinella said that he would await his groups’ comments. On 20 September 2004 Mr Spinella again wrote to Ms Yuke, thanked her for her response to the Coomera Waters Phase 2 CHMP and said that “we are now perusing your comments and we will respond to you once we have finalised this review”. Then on 20 October 2004 Mr Spinella wrote and said that he enclosed his company’s reply to Ms Yuke’s response and asked for her written instructive comments in respect to the revised draft CHMP within 14 days. [7] Mr Aird urged me to adopt the definition of “consult” in s. 104 of the Act. I decline to do so—but in the end it seems to me that nothing turns upon this point. Section 104 of the Act provides that subjects for consultation “may include, but are not limited to,” a list of 5 things; and sub-section (2) provides that consultation may include reasonable use of 4 prescribed ways of consulting. Each of those 2 sub- sections is an inclusive provision. They do not on their face purport to limit the types of things that may be included or the ways that consultation may occur. I accept Mr Keim’s submission that in this case, the ordinary meaning of the term “consult” should apply for the purposes of clause 11 of the decision notice. The Australian Concise Oxford Dictionary defines “consult” and meaning number 1 is “to seek information or advice from a person”. In my view, the letters from Coomera Waters to which I have referred adequately fall within the dictionary definition of “consult”; and given that those letters were addressed to the Eastern Yugambeh via Ms Yuke (and that Mr Aird was also involved as previously mentioned) I accept that consultation occurred with the traditional owners. In those circumstances I do not accept Mr Aird’s submissions that there has been a breach by Coomera Waters of its obligations under the Act. [8] I will therefore strike out the application to start proceedings brought by the Eastern Yugambeh People. It does seem to me however that there has been a misconception on the part of those people that this project is governed by s. 167 of the Act. That has not been fully appreciated and the submissions which were directed to me by the Eastern Yugambeh People were principally related to the effect of Coomera Waters’ purported non-compliance with other provisions of the Act which are now in force but which because of the transitional provisions of s. 167, have no application to this particular project. -- 3 of 4 -- Orders [9] The principal application by the Eastern Yugambeh People is struck out. The application by Coomera Waters has been successful. Costs were not sought and accordingly, there will be no order as to costs. -- 4 of 4 --