Bond v Brisbane City Council [2002] QLRT 58

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Bond v Brisbane City Council [2002] QLRT 58 PARTIES: Alexander Llewellyn Bond (Applicant) and Brisbane City Council (Respondents) FILE NO/S: CHA00046/2002 PROCEEDING: Application for cultural heritage injunction DELIVERED ON: 4 September 2002 DELIVERED AT: Brisbane HEARING DATE: 4 September 2002 PRESIDING MEMBERS: Koppenol P ORDER/S: Application refused. (at [10]) CATCHWORDS: INJUNCTION – INDIGENOUS CULTURAL HERITAGE – BUILDING WORKS – Whether contravention of Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 Land and Resources Tribunal Act 1999, s. 53 Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987, ss 33, 56 COUNSEL: N/A SOLICITORS: Ms K Houston, for the Respondent AGENT/S: Mr Bond (Applicant) appeared on his own behalf [1] This is an application for an injunction to restrain the Respondent until Wednesday 11 September 2002 (when an application for an interlocutory injunction is to be heard) from proceeding with certain works and activities. [2] The application relates to certain excavation and building works which the Respondent is undertaking near Nudgee. An Aboriginal bora ring is situated in the area concerned. The land is held by the Respondent as trustee for recreation -- 1 of 3 -- purposes under a deed of grant in trust. Most of the works have already been completed. [3] I was told today that the works remaining which were planned for the next week were the completion of some fencing around a viewing platform. The fence will prevent anyone walking onto the bora ring. Some other works have yet to be completed on the overall site, but these are apparently scheduled for after 11 September. [4] Mr Bond claims that he and his family have native title and cultural links to the site. He said that in addition to the fence, he is concerned that people using the recently constructed track to view the bora ring would disturb or desecrate the area, which is regarded as a sacred place. The track is some 5m from the bora ring at its closest point. I can understand Mr Bond’s concerns. He also told me that he was concerned about the inadequate cultural heritage assessment process that was involved in relation to the site. [5] The Tribunal’s jurisdiction to grant injunctive relief in cultural heritage cases is sourced in s. 53 of the Land and Resources Tribunal Act 1999, in circumstances where a contravention of s. 56 of the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Cultural Record Act) is established. That was the jurisdiction which the Applicant relied upon. [6] Relevantly, s. 56 of the Cultural Record Act provides as follows: “Offences concerning Queensland Estate 56. (1) . . . (2) A person shall not take, destroy, damage, deface, excavate, expose, conceal or interfere with an item of the Queensland Estate unless— (a) if the item is one of which particulars are not entered in the register— (i) the person does so under the authority of this Act; or (ii) the person is the owner of the item or does so under the owner’s authority; (b) … .” [7] Ms Houston for the Respondent told me that the Respondent’s activities were being conducted under s. 56(2)(a)(ii) – namely under the owner’s authority. She submitted that the State of Queensland was the owner of the land under the deed of grant in trust. She also relied upon s. 33(1) of the Cultural Record Act, which deems all parts of the Queensland Estate1 that constitute evidence of occupation of any part of 1 That term is defined in s. 5 of the Cultural Record Act as meaning “evidence of human occupation of the areas comprising Queensland at any time that is at least 30 years in the past”, but does not include facsimiles, items made after 1987 for sale, or things which are not of prehistoric or historic significance. -- 2 of 3 -- Queensland by indigenous persons to be and to always have been “the property of the State”. [8] I have considered the submissions that each party has made. In the end, although I accept that Mr Bond firmly holds the views which he has expressed, I am not satisfied that I should make an order this afternoon restraining the Council from continuing the work in this particular area. I have regard to the fact that the track near the bora ring has already been completed, as has the viewing platform. The fence to be constructed around it will prevent anyone walking onto the bora ring. It is obviously very important by way of the cultural significance of the bora ring that no persons should walk onto it or across it. The public cannot enter the area because it is a construction site. And for all intents and purposes, the capacity for anyone else to enter upon the bora ring will be prevented by the construction of the fence. I am therefore not prepared today to order the Council to cease building that fence. [9] When it comes to the other aspects of the submissions that have been made by Mr Bond, I am not satisfied that an injunction should be granted. I have particular regard to the provisions of s. 33(1) of the Cultural Record Act, which purports to confer upon the State of Queensland ownership of the subject area. I am also not satisfied that in those circumstances and having regard to the material that has been put before me today, there would arguably be a breach by the Respondent of s. 56(2) of the Cultural Record Act if the works that the Respondent is engaging in were permitted to continue for a further week. I accept that the works have been ongoing over a period of at least many months and that some of those activities have been performed by a Community Jobs Project, which includes unemployed people (including indigenous people) who are paid and trained by the Respondent. That program expires at the end of October and a further week’s delay would no doubt place great strain on the capacity of those people and the Respondent to have the works completed in the required time-frame. [10] Accordingly, I am not satisfied that on the present material and on the submissions that have been made to me today, the Respondent’s actions arguably constitute a contravention of s. 56 of the Cultural Record Act. In those circumstances, I am not able to grant the injunction which Mr Bond has urged me to do today. That application is therefore refused. -- 3 of 3 --