Colonel, for and on behalf of the Jarowair People v New Acland Coal Pty Ltd (No 3) [2002] QLRT 16

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Lillian Colonel, for and on behalf of the Jarowair People v New Acland Coal Pty Ltd (No 3) [2002] QLRT 16 PARTIES: Lillian Colonel, for and on behalf of the Jarowair People Applicant -and- New Acland Coal Pty Ltd Respondent FILE NO: CHA00020/2002 PROCEEDING: Application to vary terms of interlocutory injunction DELIVERED ON: 9 April 2002 DELIVERED AT: Emerald HEARING DATE: 8 & 9 April 2002 PRESIDING MEMBER: Smith DP ORDER/S: 1. I do not propose to interfere any further with the orders made with respect to field 81 as set out in my order of 3 April 2002 and amended on 8 April 2002. (at [14]) 2. I will not make the orders sought by the Applicant in her Application in a Proceeding to set aside certain of my previous orders, but I will order that order 2 of my order of 3 April 2002 be amended by altering 14 April 2002 where contained in order 2A to 18 April 2002 and 15 April 2002 in 2B be altered to 19 April 2002. (at [21]) 3. I reserve the costs of this Application in a proceeding. (at [23]) CATCHWORDS: INTERLOCUTORY INJUNCTION – ARCHAEOLOGY – GEOMORPHOLOGY – AMENDMENT OF ORDERS – FEDERAL MINISTER – EMERGENCY DECLARATION Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss. 9 and 10 Land and Resources Tribunal Act 1999, s. 53 -- 1 of 6 -- Acts Interpretation Act 1954 COUNSEL: Mr A Vasta QC & Mr J Byrne for the Applicant Mr J Bond SC & Mr S McLeod for the Respondent SOLICITOR/S: Mr G J Atkinson of NATSILLS for the Applicant Mr G J Carter, Senior Legal officer, QSRBAC, for the Applicant Clayton Utz for the Respondent. AGENT/S: N/A [1] SMITH DP: (Ex Tempore) I propose to give ex tempore reasons for judgment in this matter now, due both to my other hearing commitments currently before me in Emerald and also to provide certainty to the parties as to the dealings that should or should not proceed on the mining lease area at this interlocutory stage. [2] The matter currently before me is an Application in a Proceeding, this time brought by the Applicant, to vary the terms of the interlocutory injunction in this matter. [3] In giving these ex tempore reasons for judgment I state at the outset that I have taken into account all of the material referred to by learned Counsel for both the Applicant and the Respondent, including the affidavit and oral evidence. [4] Yesterday evening following the adjournment of the urgent application I went through all of the material that had been provided in an endeavour to isolate aspects of difference between this application and the applications previously before me in this matter. I attempted to place the Applicant's case at its highest in a search for new material that could lead to a different result other than that as I found both in my first decision, which must be read in conjunction with my second decision. As I pointed out in my first decision it was and remains my view that although on its face the application for injunctive relief is cast too broadly, when read in light of the material, a balancing exercise was conducted by myself during the course of submissions from Counsel as part of my first decision ultimately leading for practical purposes to the urgent application being brought by Mr Bond and the second decision being made. Put simply, my intention from the first decision was to grant interlocutory relief. What has occurred in the application since has been an exercise in striking the right balance for the terms of the interlocutory relief. -- 2 of 6 -- [5] Apart from the issue of timing I have been unable to find anything new in the material before me. I am not at all surprised by the timing of the work on field 81. In fact it appears to have proceeded almost entirely as predicted, both from the evidence of both expert archaeologists and from the submissions made. In the imprecise field of archaeology, as is accepted by all parties, I think the parties can both be confident of the abilities of both archaeologists and the other people involved in the work that it has proceeded in accordance with a time frame which I believed at the time of making my orders to be sensible and I believe, taking into account the evidence now before me, has proven so to be. [6] I am also not at all surprised and find nothing new in the number of items that have been collected from field 81. It was because of the likelihood of those items being found that the orders I made on 3 April 2002 were made. The primary issue as I see it from the material now before me relates to timing with respect to field 83. [7] I should also point out that the issue of the Federal Minister's involvement pursuant to ss. 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (hereafter “the ATSIHP Act”) is a matter that I do not believe is relevant for me to consider at this time. The submission raised by the Applicant was whether or not the Land and Resources Tribunal Act 1999 (hereafter “the LRT Act”) contemplates through an interpretation of the Acts Interpretation Act 1954, the incorporation into s. 53 of the LRT Act of the ATSIHP Act as a “relevant act”. [8] Whether or not that is the case, the ultimate result is the same in the event of the Federal Minister not making the emergency declaration sought. That said, however, the letter from the Federal Minister of 8 April 2002 is a relevant consideration that I can take into account in formulating my decision in this matter, as is the general fact of the application under the ATSIHP Act. [9] I should add that the existence of the ATSIHP Act was a relevant consideration that I took into account at both my first and second judgments in this matter, although those provisions had not been specifically referred to me by either party, and even though the Applicant in this matter had already made application to the Federal Minister under that legislation, and that information was not brought to my attention. -- 3 of 6 -- [10] The existence of the ATSIHP Act is not a surprise to anybody who practices in this field, and is certainly a factor which I considered either was being run in parallel with this matter, or could be instigated at any time by the Applicant in this matter. [11] The area of concern, dealing with field 81 first, is whether or not there should be any test pitting of that field. This deals with issues of geomorphology. I accept the evidence of Mr Strong regarding his expertise in that regard and his particular knowledge of field 81. [12] In doing so I do not draw unsatisfactory inferences against Ms McFadden because, by her evidence, she made it clear that she is not an expert in geomorphology and had not taken those issues into account in her evidence. She did not pretend, if I can put it that way, to be something which she is not. She is to be acknowledged in that regard and her expertise in other fields remains despite her shortcomings in this particular aspect of the case. [13] Pursuant to that finding I believe that for the purposes of the interlocutory balancing act which has been my lot in this matter for the last week and a half, the balance has been correctly struck with respect to field 81, in particular in light of the amendments to the orders which occurred yesterday. [14] Therefore I do not propose to interfere any further with the orders made with respect to field 81 as set out in my order of 3 April 2002 and amended on 8 April 2002. [15] I now turn to field 83. With respect to this field I accept the evidence of both Ms McFadden and Mr Strong. Again, as I commented in my previous judgments, it is a matter of some comfort for myself that in the great majority of respects the core evidence between the experts is so close relating to field 83 and particularly relating to the need for test pitting of field 83. [16] The principal difference relates to that of timing. With respect to timing I take note of the evidence given by Ms McFadden. She was able to adapt her processes for field 81 in order to have the task concluded and, I take it, concluded properly, in a shorter time period than she otherwise felt. -- 4 of 6 -- [17] This is consistent with the reasons for judgment that I gave on the second occasion and, again, Ms McFadden is to be congratulated for her willingness to act in that way. The orders made on 3 April 2002 take into account the need, where necessary, to extend time as has happened to order 1, and also for order 2. [18] It is proposed by Mr Bond that I amend order 2 to change the date of 14 April in 2A to 18 April, and in 2B from 15 April to 19 April, and that the parties in effect see if they can conclude the work in that time. Bond has agreed on behalf of his clients that the indigenous parties have used their best endeavours to conduct the work on field 81 and the adjacent field within the timeframes of the original order. [19] I have every confidence that all parties will also give their best endeavours relating to order 2. However, if it proves to be the case that the work cannot be concluded then time does allow for an application to be brought to vary the order that I propose to make regarding field 83. [20] By her Application in a Proceeding, the Applicant seeks that I set aside the allowances that I have given to the Respondent in exempting them from certain provisions of the interlocutory injunction in certain circumstances. For reasons that I set out at the beginning of these ex tempore reasons, and for all the reasons incorporated relating to each field, I cannot find anything in the material that supports me derogating from the position that I have previously adopted in this matter. [21] Accordingly, I will not make the orders sought by the Applicant in her Application in a Proceeding to set aside certain of my previous orders, but I will order that order 2 of my order of 3 April 2002 be amended by altering 14 April 2002 where contained in order 2A to 18 April 2002 and 15 April 2002 in 2B be altered to 19 April 2002. [22] Mr Bond SC has sought an award for costs with respect to this application. There is some force in his submission in that regard. Mr Atkinson has countered by saying the matter is not one that is being brought improperly. Mr Atkinson also has on his side the fact that there has been variations made to the original order which was an alternative as sought in part in his Application in a Proceeding. -- 5 of 6 -- [23] I do not wish, though, to dispose finally of the issue of costs because I think the matter still requires some ventilation. I reserve the costs of this Application in a Proceeding. [After a short exchange with Counsel, Smith DP continued] [24] I formally place on record, although I don’t believe I need to do so, but in this matter I will do it anyway, the fact that if there is agreement between the parties in this matter that would call for an amendment of these orders by consent, and when I say by consent, Mr Bond, I obviously take into account your position, which is retained, that your client did not consent to the interlocutory injunction to begin with, then provided there is commonality between the parties in altering any of the timing in any of the orders that I have made, I am happy to receive documents signed by each Counsel in Chambers with a view to making Chamber Orders without the necessity for any party incurring further expense by coming back before me again. -- 6 of 6 --