Colonel, for and on behalf of the Jarowair People v New Acland Coal Pty Ltd [2002] QLRT 13

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Lillian Colonel, for and on behalf of the Jarowair People v New Acland Coal Pty Ltd [2002] QLRT 13 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 for interlocutory injunction DELIVERED ON: 3 April 2002 DELIVERED AT: Brisbane HEARING DATE: 28 March and 3 April 2002 PRESIDING MEMBER: Smith DP ORDER/S: 1. The Respondent, New Acland Coal Pty Ltd, be restrained until 7 April 2002 or further order from commencing any work upon any area of ML 50170 unless and until the area of such work has been assessed and clearance to commence work has been given in writing by the Applicant. (at [92]) [By order made on 4 April 2002 the terms of the interlocutory injunction were extended until the hearing of the matter. (at [92])] 2. I adjourn the hearing of this application until noon, Friday, 5 April 2002 for further submissions as to the scope of the orders and undertaking provided. (at [93]) 3. I give each party liberty to apply with respect to the orders given. (at [94]) 4. I reserve the question of costs. (at [95]) CATCHWORDS: INTERLOCUTORY INJUNCTION – SERIOUS ISSUE TO BE TRIED – BALANCE OF CONVENIENCE – CULTURAL HERITAGE – TRIBUNAL A COURT OF RECORD – CONDUCT OF PROCEEDING – POWERS OF PRESIDING MEMBER – MINING LEASE – QUEENSLAND -- 1 of 44 -- ESTATE – LANDSCAPE QUEENSLAND – STANDING – TRADITIONAL SIGNIFICANCE – REPRESENTATIVE SAMPLE – CULTURAL HERITAGE MANAGEMENT PLAN – SITE – ITEM – PERMIT – UNDERTAKING AS TO DAMAGES – SIGNIFICANT FINANCIAL HARDSHIP – COMMUNITY CONSULTATION – DEFECTIVE LEGISLATION – UNDERTAKING Land and Resources Tribunal Act 1999, ss. 49, 53 Cultural Record (Landscape Queensland and Queensland Estate) Act 1987, ss. 5, 27, 28, 56 Native Title Act 1993 (Cth) Mineral Resources Act 1989 Minister for Immigration and Multicultural Affairs v Jia; Re Minister for Immigration (2001) 178 ALR 421, considered New Acland Coal Pty Ltd No 3 [2001] QLRT 30, considered Jagween and Others v. The State of Western Australia and Others Supreme Court of Western Australia, Owen J, 4 February 1994, unreported, referred to Queensland South Representative Body Aboriginal Corporation v. Agility Team Built Pty Ltd [2001] QLRT 65, referred to Queensland South Representative Body Aboriginal Corporation (for the Kamilaroi and Bigambul People) v. Visionstream Pty Ltd and Others [2001] QLRT 64, considered Smith v. Tenneco Energy Queensland Pty Ltd and Others (1996) 66 FCR 1, considered James Watts Taylor on behalf of the Kalkadoon People v. North Queensland Electricity Commission and Another [1996] 913 FCA 1 (18 October 1996), referred to Williams v. Homestake Australia Ltd and Ors [2002] NSW LEC 22 March 2002, considered ABC v. Lenah Game Meats Pty Ltd (2001) 76 ALJR 1, applied COUNSEL: Mr M J Byrne for the Applicant Mr J K Bond SC for the Respondent SOLICITOR/S: Mr G J Carter, Senior Legal Officer, QSRBAC, for the Applicant Clayton Utz for the Respondent AGENT/S: N/A -- 2 of 44 -- [1] SMITH DP: (Ex Tempore) This matter came before me firstly following the filing of an application to start proceedings on behalf of the Applicant, Lillian Colonel, for and on behalf of the Jarowair People. The original application was an application for an injunction under s. 53 of the Land and Resources Tribunal Act 1999 (hereafter “the LRT Act”) and sought two orders which are set out in that application. [2] The first order can be summarised as seeking to restrain the Respondent, New Acland Coal Pty Ltd, from commencing work under its Mining Lease No. 50170 and the second order sought was that the matter be referred to the alternate dispute resolution branch of the Department of Justice and Attorney-General for mediation. [3] The application to start proceedings was subsequently amended on 26 March 2002 by including an application for an interim injunction. Reference to the interim injunction has been taken for the purposes of the hearing conducted on Thursday last to be an application for an interlocutory injunction in the way the term is usually referred to by the Courts. [4] Following a preliminary hearing of the matter on 26 March 2002 I referred the matter to mediation before Deputy President Kingham of this Tribunal. That mediation occurred on 27 March 2002 and mediation reports were provided to me by Deputy President Kingham. Unfortunately, in the short time available, mediation was unable to resolve the issues. [5] The matters I have to deal with can be summarised into 2 broad headings, and this is common ground between the parties. First, I must seek to find if there is a serious issue to be tried and, secondly, I must consider the balance of convenience for the parties. However before turning to those issues it is appropriate that I deal with an issue raised by the solicitors for the Respondent in a facsimile to the Tribunal yesterday evening. [6] I will quote from the first 3 paragraphs of that facsimile as follows. “RESPONSE TO REQUEST FROM DP SMITH (LAND AND RESOURCES TRIBUNAL) FOR FURTHER EVIDENCE DATED 2 APRIL 2002 For activities to be conducted up to and including 21 April 2002 -- 3 of 44 -- On 2 April 2002, the Respondent’s solicitors received a telephone call from a staff member at the Land and Resources Tribunal, the substance and effect of which was that the staff member passed on a request from Deputy President Smith that the Respondent provide details of a plan of operation of proposed work on a day by day basis for the next three weeks. The staff member said that the details should be as comprehensive as possible, knowing that Deputy President Smith had asked for this to be delivered today. The Respondent is puzzled by this request. The application before the Tribunal is not inquisitorial in nature. To the contrary, the duty of the Tribunal is to determine the application according to law and on the evidence adduced by the parties: see Minister for Immigration and Multicultural Affairs v Jia: Re Minister for Immigration [2001] HCA 17 (29 March 2001) per Hayne J at para 179. Nevertheless, the Respondent advises that for the next three weeks the only site activities which it planned to carry out in the area of ML50170 are:” And the facsimile then continues. [7] I wish to place on record the nature of the request that I made to the Respondent in this matter which was also conveyed to the Applicant. During the course of the hearing on Thursday last I had made reference to the activities that were to be conducted on the site and I received general responses from the Respondent regarding same. [8] It was a point raised in the Applicant counsel's submissions that the absence of any detailed information was a factor that I should take into account as a weighing factor in determining this application for an interlocutory injunction. [9] I made a request early on the morning of Tuesday 2 April 2002, which it should be noted was the first working day immediately after the hearing of this matter on the afternoon of the Thursday before Easter, for a request to be passed on to the Respondent and for that request to be copy advised to the Applicant. [10] The request is essentially in the terms set out in the Respondent solicitor's facsimile. The request was made by my case officer who takes a dual role, that of, effectively, an associate role and as a case officer to the parties. She was clearly exercising the associate functions in passing on the request. [11] The Respondent has stated its puzzlement with this request and has reminded the Tribunal of its duties in this matter. It is appropriate that I refer to the decision of the High Court referred to by the Respondent and, in particular, to paragraphs 178, 179 of 180 and 181 of the reasons for judgment of Justice Hayne as follows: -- 4 of 44 -- “178. Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision-making which, although not always defined with absolute certainty, are generally discernible before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached. 179. Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not “[descend] into the arena and … have his vision clouded by the dust of the conflict”. The central task and, it may be said, the only loyalty, of the judge is to do justice according to law. 180. Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up “expertise” in matters such as country information. Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment. 181. The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be “appropriate and adapted to the circumstances of the particular case”. What is appropriate when decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body. Ministerial decision-making is different again.”1 [12] What must be remembered is that the Land and Resources Tribunal, although set up as a court of record, is a creature of statute. The conduct of a proceeding has been set out clearly within s. 49 of the LRT Act. That section relevantly provides as follows: “Conduct of proceeding 49.(1) When conducting a proceeding, the tribunal must – (a) observe natural justice; and 1 Minister for Immigration and Multicultural Affairs v Jia; Re Minister for Immigration (2001) 178 ALR 421. -- 5 of 44 -- (b) act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it. (2) For the proceeding, the tribunal – (a) is not bound by the rules of evidence; and (b) may inform itself of anything in the way it considers appropriate; and (c) may decide the procedures to be followed for the proceeding. (3) However, the tribunal must comply with this division and the rules. (4) Directions about the way a proceeding is to be conducted may be given at any time – ” [13] It then goes into various scenarios there but, essentially, directions may be given by a Presiding Member which is myself. I was relying upon the powers contained within s. 49 and certainly not any inquisitorial process when my request was made. However, in light of the Respondent’s objection and so as to allay any fears of the Respondent that the approach I took in seeking that material was of prejudice to the Respondent, I have disregarded the contents of the facsimile, from the point that I have quoted, on. [14] I find in the nature of this matter that this is an unfortunate position to come to because I do believe that that information could have been very relevant to the issue of balance and convenience in my determination of this interlocutory matter. [15] It is also relevant that I have already today upheld the objection of the Respondent to the Applicant placing additional affidavit evidence before me for consideration prior to delivery of this decision. [16] The case for the Applicant is summarised in the submissions provided by Mr Byrne. It is that the Applicant is a registered native title claimant over that part of the area subject to the mining lease application and that under the mining operations which will occur in the imminent future under the mining lease, there are reasonable grounds to conclude that the mining will destroy, damage, excavate, expose or interfere with an item of Queensland State or Landscape Queensland as defined in the Cultural Record (Landscape Queensland and Queensland Estate) Act 1987 (hereafter “the Cultural Record Act”), s. 5. [17] I will not for the purposes of time quote from extensive passages of the Applicant's case but will summarise it in general terms. The Applicant is acknowledged by -- 6 of 44 -- both the Applicant and the Respondent to have standing to bring this application. The Applicant by her affidavit sworn on 23 March 2002 is a senior elder of the Jarowair people and authorised to speak for those people in relation to the country covered by the mining lease application area. [18] One aspect of this application which concerns me, but it is not necessary for me to make any rulings on at this stage, is the stated fact in the affidavit material that the Applicant is a registered claimant under the Native Title Act 1993 (Cth) (hereafter “the Native Title Act”) on the basis that the freehold interests have not been validly granted. If that is the case I would have expected certain aspects of the Native Title Act came into play with respect to the grant of the Mining Lease but I have no other information before me in that regard. [19] In her affidavit at paragraph 4 the Applicant states as follows: “I am familiar with the traditional significance of the Jarowair country (which includes the project area) as I used to travel through that area with my mother and grandmother, and they told me about the traditional significance of that area, including that Jarowair country was an important meeting place for Aboriginal groups on their way to the Bunya mountains for the bunya nut festivals. In particular, I have been told that amongst other things, Jarowair country contains campsites, corroboree grounds and burial grounds.” She then goes on to state the following at paragraph 19: “At the visit to the project area I was on the verge of tears my feelings were so strong for that country. I could recall my grandmother’s face as she told me about that area. Since the visit I have had sleepless nights thinking about the traditional sites and objects which are under threat of destruction in the project area.” The significance of this part of the Applicant's affidavit is that she has specifically linked the area of the mining lease application to the statements made to her by her grandmother regarding the cultural significance of the area and the existence of campsites, corroboree grounds and burial grounds on that site. [20] At paragraphs 24 and 25 of the Applicant's affidavit she states as follows: “Trevor Noyce from the Company called me some time after I received the letter and asked why I hadn’t signed the agreement (regarding the CHMP). I said that I had concerns regarding the CHMP, and asked whether it was possible to have another meeting. Trevor did not agree to another meeting, and said that the Company would be going ahead with mining whether or not traditional owners signed the agreement. I also said to Trevor that the Jarowair People wanted all artefacts to be picked up. Trevor replied by saying that it would take 2-3 years to pick up the artefacts, and words to the effect that “the mine didn’t want that”. I understood his answer to mean that the Company would not agree to pick up the artefacts on the project area.” At paragraph 27 the Applicant says that: -- 7 of 44 -- “The Jarowair People do not agree to a representative sample of artefacts being collected from the 4 sites to be disturbed in the near future on the project area, or any other part of the project area. The Jarowair People want all artefacts on the project area to be collected, and full-time monitoring of the mining operations. I am particularly concerned that there may be burial sites on the project area, which have not been discovered to date.” I take particular note from the affidavit of the Applicant and the submissions by counsel that the Applicant is not seeking to have the mining project not proceed. It is simply the manner of the way the project is to proceed, as I see it, that the applicant is complaining about. [21] The Applicant also relies upon the affidavit of Gregory James Carter sworn on 25 March 2002. Mr Carter is an employee of the Queensland South Representative Body Aboriginal Corporation (hereafter “the QSRBAC”) and has the care and conduct of this matter as the legal representative for the Jarowair people. His affidavit sets out various statements regarding meetings which occurred between the Respondent and the Applicant and members of the QSRBAC. It also indicates that various correspondence has passed between the representatives of the Applicant and her Respondent as well as letters to the State Government. I note that the letters to the State Government have not been replied to. [22] One of the exhibits to the Carter affidavit is a letter from Archaeo which is Exhibit GJC5. That letter is in the following terms. “ARCHAEO CULTURAL HERITAGE SERVICES PTY LTD ABN 71 366 535 889 18 March 2002 Mr. Greg Carter Senior Legal Officer QSRBAC PO Box 2562 Toowoomba. QLD. 4350 Dear Greg, I refer to a letter you copied to Mr. Eddie Neumann of Craddock Murray & Neumann, that was sent to New Acland Coal Pty. Ltd. on 15 March 2002. I have discussed the matter of mining activities in the Acland area in detail with both the Jarowair and the Western Wakka Wakka people, and am in complete agreement with them in regard to the archaeological and cultural significance of this place. Could you please note, however, that your letter contained an error that should be rectified. In discussions with Mrs. Lillian Colonel today, it became clear that your letter contained information that was not actually stated when she briefed you. Ann Wallin and Associates (now ARCHAEO) certainly conducted an extensive field assessment in 1999, during which time the high levels of cultural and archaeological significance were defined. This work was in full -- 8 of 44 -- partnership with the Jarowair, Western Wakka Wakka, Daylight and Giabal people, and they still speak very highly of the resulting report. We have had nothing to do with formulation of the current Cultural Heritage Management Plan that New Acland Coal have provided the Traditional Owners (apparently dated 20 February), and do not agree with aspects of its content. Rather, our involvement at present is limited to being the cultural heritage consultancy nominated by every Traditional Owner group involved with the Acland area, to work in partnership with them in any mitigation work that is to be carried out if agreements on such are reached. I am very glad that the Jarowair People have legal advice on this matter. Your further enquiries would be most welcome. Yours sincerely, Ann Wallin” [23] I will not take the time to go through the other material set out in the affidavit in detail. There is a further affidavit relied upon by the Applicant and that is the affidavit of Lillian Colonel sworn on 28 March 2002. That refers to issues that occurred at a site trip and a factual dispute as to whether or not the Applicant was present when an oral agreement was apparently reached between the traditional owners and the mining company with regard to the cultural heritage management plan for the minesite. [24] For purposes of his interlocutory process it is merely necessary for me to note the conflict of evidence in that regard but not make rulings on reliability of the evidence of either party. It is, however, a matter to take into account in determining whether or not I consider it appropriate at the end of the day in this matter to grant the interlocutory injunction. [25] The case for the Respondent is concisely set out in the submissions made by Mr Bond SC and provided to the Tribunal on 28 March 2002. [26] Essentially, Mr Bond SC contends that the Respondent has identified as a result of a report referred to as the Wallin Report (to which I will make significant reference later - that report being Exhibit DBK11 to the affidavit of Dennis Brown-Kenyon sworn 27 March 2002) six various sites within the subject area. He contends that the Respondent has, following consultation with indigenous people, worked up a cultural heritage management plan as required following my recommendation to the Honourable Minister for Natural Resources and Minister for Mines in this matter as -- 9 of 44 -- contained within my decision2 when I heard the application for mining lease in this matter. [27] The Applicant then sets out the various legislative provisions and says that the Act concerned under this matter must be a relevant Act as defined by the legislation. I will go through in detail the references to this legislation later in my decision. [28] The case for the Respondent is that the company will not commit any breach of the legislation as it will either not carry out work on the sites identified by the Wallin Report or will do so only with the authority of a permit under the Cultural Record Act. [29] The Respondent contends that because of its actions there is not a serious issue to be tried and even if there is a serious issue to be tried, the balance of convenience does not support the grant of the interlocutory injunction. The Respondent, in its material, sets out various reasons for the balance of convenience not being met, including the absence of any undertaking as to damages. [30] I note and concur with the reasons of the Applicant with respect to the importance of an undertaking for damages in matters such as this and will deal with that aspect later in my reasoning. [31] The affidavit of Trevor Lewis Noyce, who is Tenures Coordinator for Newhope Coal Australia, was sworn on 27 March 2002 and is relied upon by the Respondent. It sets out in detail the occurrences at a meeting which was convened by the Respondent. I have explained earlier the conflict in evidence in this regard. It is important, however, to note that the affidavit of Mr Noyce makes no reference to the evidence given by the Applicant in her affidavit that to collect all items within the project area would take two to three years. [32] It is unclear on the evidence whether that reference made by the Applicant as being stated by Mr Noyce is in reference to a collection of items within the mentioned sites or whether it refers to items generally within the entire mining lease area. [33] A significant affidavit in considering this matter is that of Mr Dennis Brown- Kenyon, who is the Deputy General Manager of Newhope Coal Australia. That 2 [2001] QLRT 30. -- 10 of 44 -- affidavit was also sworn and filed on 27 March 2002. As I have mentioned, it is a significant affidavit with numerous annexures totalling some 100mm in thickness. [34] It is appropriate that I take some time in dealing with Mr Dennis Brown-Kenyon's affidavit. However, at this point I should also state that, in referring to specific elements of each affidavit and other pieces of evidence before me, such references are to representative samples only. In considering my reasons for judgment in this matter I have read all of the evidence and considered all the material placed before me and the material which I am referring to specifically in this judgment is representative only. My decision is based on all the material. [35] I can save some time in considering this matter from one aspect as set out clearly in Mr Brown-Kenyon's first affidavit and also in his supplementary affidavit of 28 March 2002. From having previously considered the bona fides of New Acland Coal Pty Ltd to undertake this mining activity as part of my recommendation process in delivering my recommendation in re New Acland Coal Pty Ltd No 3,3 I have absolutely no doubt as to the company's ability to undertake the mining program, the significance of the project to the State - both by means of employment and, even more so, employment in a rural community - and the fact that this company has not ever had any instances of any issues relating to mine safety or other action taken against it by the relevant authorities that monitor such matters being the now Environmental Protection Agency or the Department of Natural Resources and Mines or the relevant Ministers for those portfolios. [36] The bona fides of the respondent in this regard, I believe, are beyond question. Likewise, the bona fides of the Applicant, at least on the material before me for the purpose of this interlocutory matter, are also, I believe, beyond question. [37] From the material I have seen, save for one reference in the material to a request for payment as set out in a pre-arrangement, there is no indication, as has been stated of other matters such as this which have occurred throughout Australia, that the application is not about culture but more about money. That does not appear at all to be the position in this case on the material before me. The Applicant, as I see it, is a bona fide Applicant concerned with preservation of culture. 3 [2001] QLRT 30. -- 11 of 44 -- [38] The matter then turns to one that was aptly described in a case now a number of years ago as a battle between God and Mammon. That case was Jagween and Others v. The State of Western Australia and Others,4 where His Honour Owen J. said as follows: “On one view of it this is a classic clash between ‘God and mammon’! The economic interests of a commercial enterprise are set against the spiritual and cultural life of a section of the community. Of course, it is not that simple. Both sets of interests are entirely legitimate and deserving of the most careful consideration by the courts. The ultimate question is whether the plaintiffs will, or are likely to suffer irreparable injury or harm if, as a result of the refusal of interlocutory relief, the park proceeds."5 [39] In that case His Honour then went on not to grant the interlocutory relief sought. I refer to that material at this time simply because I wish to place on record my belief of the bona fides of both parties in this matter and my view that both parties are clearly the victims of legislation which, at best, can be referred to as dated, as referred to by Deputy President Kingham in a recent decision of this Tribunal.6 [40] I will refer more particularly to both Deputy President Kingham's previous rulings and to the legislation in a moment. For the purpose of this judgment I do not believe it is necessary for me to quote further from Mr Brown-Kenyon's affidavit or his supplementary affidavit, apart from one exhibit and save to also note that should an interlocutory injunction be granted in this matter the Respondent would suffer significant financial hardship. [41] The contents of Exhibit DBK11 to Mr Dennis Brown-Kenyon's affidavit of 27 March 2002 are significant. The exhibit is a report by Ann Wallin and Associates Pty Ltd of May 1999 (hereafter “the Wallin Report”). The purpose of the Wallin Report is set out in the summary as follows:7 “Summary Ann Wallin and Associates undertook a cultural heritage survey for Shell Coal Pty Ltd, of a proposed Coal Mine and Power station site near Acland, Oakey, Darling Downs in association with Aboriginal people who claim a traditional interest in the Acland area. The survey located 30 indigenous archaeological sites and 7 historical sites. The greater number of indigenous sites were located in proximity to artefact reduction sites and quarries or to Lagoon Creek. 4 Supreme Court of Western Australia, Owen J, 4 February 1994, unreported. 5 Ibid at p27. 6 [2001] QLRT 64 at 15. 7 Wallin Report – Summary. -- 12 of 44 -- The survey found that the area has a significant archaeological record, with a density of artefacts that implies a considerable association of Aboriginal people with the area. As a result of the survey, any future development in the area will be required to prepare a cultural heritage management plan (CHMP) to adequately ensure these sites are appropriately protected.” [42] The introduction to the report is also relevant. The final two paragraphs state that: "The study was carried out by Ann Wallin and Associates in association with members of the Western Wakka Wakka people, the Jarowair Corporation, the Jerome family and the Daniels family, following several weeks of consultation. Eight Aboriginal people with traditional links to the Acland area undertook the cultural heritage field work. This study looked at all aspects of cultural heritage, both indigenous and historical. A broad approach was taken with the indigenous cultural heritage, with archaeological, traditional, historic and contemporary cultural values being involved during the course of the study."8 [43] I find, for the purposes of the interlocutory issue, that although the Applicant has complained that she was not properly represented in the Wallin Report, the Wallin Report has been widely accepted by indigenous groups in the area and is, in fact, relied upon by the Applicant in these proceedings. So I place no weight on the Applicant's evidence regarding her non-participation in the Wallin Report and find that the interests of the people she represents were taken into account by Ann Wallin in preparation of the report. [44] The quotes that follow are lengthy but necessary considering the importance of this matter. The scope of the study is important: “SCOPE OF STUDY Ann Wallin and Associates were commissioned by Shell Coal Pty Ltd to conduct a cultural heritage analysis of the impact of the proposed development on any archaeological or historical site or place, and culturally significant sites, places and landscapes within the Study Area. The scope of this study includes:  liaison with members of the relevant Aboriginal community regarding places of cultural and indigenous archaeological significance within and close by the study area on which development may impact;  background research into historical and archaeological material in the vicinity of the study area;  field work to locate archaeological material within the study area; Should the mine or any other development proposal proceed, a full Cultural Heritage Management Plan (CHMP) would be required. This scope of study acknowledges that the archaeological record is both fragile and non- renewable, and any major disturbance of the environment through landscape-changing factors poses a threat to this valuable cultural resource.”9 8 Wallin Report, pp 1-2. -- 13 of 44 -- [45] The Wallin Report makes the following key comments: “Each site, place or precinct requires assessment both as an individual entity, and in comparison with other similar sites, places or precincts if they exist. A range of cultural significance values may apply, and Article 5 of the Charter states that “conservation of a place should take into consideration all aspects of its cultural significance without unwarranted emphasis on any one aspect at the expense of others”. To meet expectations generated by the Burra Charter, this cultural heritage analysis is made of several distinct but interrelated sections, namely:  Historical assessment;  Archaeological assessment;  Community consultation.10 …. Indigenous archaeological assessment focuses on material cultural remains, and then only on those types of material culture that have survived through time. A more helpful approach may be to appreciate the landscape from the indigenous viewpoint. The landscape is a living existence, with a spiritual presence. Thus, people living within this landscape relate to the whole – all of the landscape – not particular parts. Within this whole, parts may have provided preferred living places; parts may have mad (sic) more defined spiritual significance; parts may have provided specific resources. The indigenous archaeological record plays only a part in the understanding of landscape, for several reasons:  Firstly, the archaeological record only features a part of the original indigenous material culture. This was a varied material culture, featuring items made from substances such as hair, skin, fur, plant fibre, bark, wood, bone, shell and stone. As most of these substances are organic and susceptible to relatively quick decay in most climatic and geomorphic conditions, only a remnant of the original material culture may remain in the archaeological record – thus the apparent dominance of stone, and, in coastal areas, shell.  Following on to the above reason, if some activities within the landscape do not leave material culture traces, or may only involve material culture made from organic material that has since disappeared, then the archaeological record will not account for these activities. Notwithstanding these difficulties, archaeological assessment is necessary because the archaeological record can be used to indicate the focal points or places where activities did involve the use of inorganic material culture than can be detected. Shared archaeological assessment analyses the possibility of the existence of archaeological material deposited in the past 150 or so years. Such material may contain important data on past activities, and may increase the understanding gained from historical assessment of a site, place or precinct. The scientific significance of an archaeological site should be assessed according to “timely and specific research questions on the one hand, and representativeness on the other” (Bowdler 1984:1). “Research questions” or research potential may be gauged through factors such as site integrity, structure and content. “Representativeness” takes into account how common a site type it (sic) (Bowdler 1984:2), requiring reference to the known archaeological record. Both research potential and representativeness should be constantly assessed variables. As research interests and methods change, so also should criteria for assessing site significance. Frequently considerable historical and/or cultural significance is attached to archaeological material by the community, and its definition and management is an important function of a cultural heritage analysis. 9 Wallin Report p 4. 10 Wallin Report p 5-6. -- 14 of 44 -- Community consultation is the approach through which cultural significance is measured. In the case of indigenous culture, archaeological material may not account for sites, places and landscapes of spiritual, ceremonial or social significance. These may include pathways, totem places, “good” and “bad” places, and significant landscapes among other things. Because these sites and places cannot be defined archaeologically (no archaeological material is deposited in them on which definition can be based), they can only be made apparent through the knowledge of the traditional owners of the area.”11 [46] I also take particular note of the community consultation set out in the Wallin Report as follows: “COMMUNITY CONSULTATION The mining lease lies in an area that historically was the territory of Aboriginal people who called themselves ‘Gooneburra’ – the ‘fire blacks’ (Meston 1920). Today, it is the traditional homeland of several Aboriginal groups who either claim traditional links to the country or have expressed an interest in the area because of family or historical connections. While many of these people no longer live in their traditional lands as a result of dispossession, violence and forced removals during Queensland’s notorious mission years, many people have maintained a sense of connection to their country. Even when the claimants have lost most of their cultural heritage, it is family ties and the inherent sense of Aboriginal people with regard to kinship and connection that have allowed them to rebuild links to country again. However, it should be clearly understood that there are traditional claimants and those with historical association – people who have moved into the area after contact times as a result of the disintegration of tribal life and traditional values and custom, and the forced dispossession of traditional country. It is commonly accepted that traditional affiliations have primacy over historical associations. On this basis, Ann Wallin and Associates undertook to consult with all Aboriginal groups who could demonstrate either traditional connection to the study area or had expressed interests in the area, either through family bloodlines or cultural heritage values. Each group agreed to undertake fieldwork as a team and accept a joint report of the findings. Any cultural heritage material located within the Study Area would obviously only be recorded, and its future locale should the mine proceed would require further consultation among the groups.12 …. The study area where the proposed coal mine at Acland is located is subject to the Western Wakka Native Title Claim. This is an inclusive claim that recognises that other families may also have connections to the Acland area. Beyond this, however, there is community concern about the potential impact of mining on the cultural heritage landscape. Balanced and suitable involvement of the relevant Aboriginal Traditional Owners in the project was seen as vital to the success of the project. This required the involvement of the Aboriginal community from an early stage in a managerial role in relation to cultural heritage issues. On this basis, Ann Wallin (Ann Wallin and Associates) met with members of the Western Wakka and Jarowair communities, and independently with members of the Jerome and Daniels families. Each group contributed one or more members to the fieldwalking team and was asked to provide their own cultural report for inclusion within the overall project report.” 13 I also note for the purpose of this judgment the part of the Wallin Report on the Aboriginal landscape set out on pages 30 to 37 of the report. [47] At page 64 the bottom two paragraphs are as follows: 11 Wallin Report p 6-8. 12 Wallin Report p 9. -- 15 of 44 -- "In most parts of Australia, where soils tend to be light and subject to erosion, artefacts may have moved several metres from their discard point. However, in the case of the large artefact reduction sites located in this survey, the sheer volume of lithic material present in the ploughsoil may have mitigated against the plough doing little more than spinning the cores around and dragging them only minor distances from the site of discard. At Acland ground surface visibility (GVS) was remarkably high. Most of the fields surveyed were bare earth with visibility between 90-100%. In fact, one of the possibilities of why so much lithic material was in evidence may directly relate to exceptionally high visibility. The banks of Lagoon Creek, however, were very poor, with thick grass cover, reducing visibility to less than 20%. This suggests that if the quality of artefactual material covered by either vegetation or colluvial hillwash, was combined with the material located during the survey, it would produce a total of artefact deposition that is quite remarkable."14 [48] The field techniques are then set out as follows: “Field techniques A number of archaeological field survey techniques were employed.  Walk through transects  Random sampling  Systematic sampling  Walk through transects were used when ground visibility was minimal and the area was timbered and grassed. The team would walk rough transects approximately 5-10 metres apart, but the terrain would often mitigate against this and in practice, people often walked in pairs or formed small groups.  Random sampling was the most commonly employed form of survey over open fields selected at random. The team spaced themselves approximately 5-10 metres apart and a percentage of finds would be noted within the field. This method was used until the team had acquired sufficient confidence in accurately identifying artefacts.  Systematic sampling was used once the team was able to consistently identify artefacts and stone material. While similar to random sampling, the team walked exact transects clearly defined by furrows, and recorded every find. This proved time consuming, but was the optimum method for accurate recording, providing tighter controls on the dispersal and discard rates of lithic material. All finds were identified and recorded on transect forms (see Archaeological Transects 1-12). All artefact scatters were recorded. However, because almost every ploughed field had a light scatter, a differentiation was made between density of artefacts or where artefacts were restricted to the odd surface flake or core. Sites where more than 5 artefacts per square metre were noted, or artefacts whose use could be identified (ie. grindstones, axes) or with secondary working (ie. retouched flakes). Sites also included other cultural places. Those located at Acland, (although no necessarily within the Mine location) included:  quarry sites  scarred trees  lookout hills  bora rings  stone arrangements 13 Wallin Report p 10. 14 Wallin Report p 64. -- 16 of 44 --  food resource areas”.15 [49] At the bottom of page 69 there is Table 1 titled, "Site definition at Acland", in the following terms: “Table 1: Site definition at Acland Artefact scatter Less than 5 artefacts per square metre. No identifiable tool types Includes flakes, cores and debitage Site More than 5 artefacts per square metre Identifiable tool types Retouched flakes Sites or places with distinctive or historical parameters, such as ceremonial sites, quarries, historical sites, landscape sites (ie lookout places, food resource areas, etc.).”16 [50] I take note of the definitions referred to by Anne Wallin and in particular to her reference to “site” as that reference is inter-related to the material in this application. There have been 6 “sites” specifically referred to in the material and they are set out in some detail in the Wallin Report. They are sites 16, 17, 20, 24, 26 and 28. Due to their importance extracts from pages 89 to 97 are incorporated into these reasons as Annexure “A”. [51] At pages 113 and 114 the Wallin Report contains the following conclusions and recommendations as follows: “CONCLUSIONS This report has addressed the two fundamental aspects of this cultural heritage study, namely an assessment of the archaeological and historical aspects of the study area; and indigenous community consultation that ascertains cultural significance of the area for those described under the Cultural Record Act as “affected people” (Section 27). In summary the survey located a range of archaeological sites, including artefact scatters, scarred trees, stone axes, quarries and possible occupation sites. The survey has demonstrated that the Acland area contains a high proportion of lithic scatters and resources. Whether this is comparable to other sites in the district is unclear, but on the basis of known archaeology elsewhere, appears to be higher than average. The uncertainly (sic) exists because no other project in the Downs has examined ploughsoil in such detail. While possibly disturbing the original context of artefacts, the higher visibility allowed by ploughsoil survey, may have influenced the findings. The only way to confirm this would be to undertake a similar assessment several kilometres away and compare the results. 15 Wallin Report pp 68-69. 16 Wallin Report p 69. -- 17 of 44 -- From the archaeological record, it appears that the Acland area was an important route for Aboriginal people travelling to the bunya nut festivals in the Bunya Mountains. This triennial festival with its social, economic and spiritual associations had a major significance for the tribes of southeast Queensland and northern New South Wales.17 …. RECOMMENDATIONS The following recommendations are made to reflect the findings of the assessment. Although a large number of artefacts were located, it is feasible that this would not necessarily impede approval of mining in the area from an archaeological perspective, so long as a representative collection of artefacts was made prior to excavation, and the process was duly monitored. However, attention is drawn specifically to Recommendation 2. 13.1 Recommendation 1 Should further work be undertaken to develop this area, a detailed Cultural Heritage Management Plan (CHMP) should be developed, taking into consideration the wishes and involvement of the traditional Aboriginal people concerned. 13.2 Recommendation 2 If possible, negotiations should be facilitated between EPA, the Shell Coal Company, the landowners and concerned Aboriginal groups with recognised interests in the area to undertake protection for Sites 5 and 31 in particular.”18 [52] The report then contains amongst other things documents titled, "Acland's survey, Systematic Sampling, Transect 1” through to transect “12”. Doing the best that I can with the material, I have identified in those transects, particularly at transect 7 and transect 8, specific references to the relevant sites in this matter being sites 26 and 28. Those transects show the areas that were surveyed in a representative manner and provide a legend of what has been located over the area the subject of that survey. I also take note of all of the transects numbered 1 to 12 over the entire area of the Wallin Report as showing in greater detail the nature of the items of cultural estate present on the land. Transects 1 – 12 are Annexure “B” to these reasons. [53] The Wallin Report then goes on to show representative pictures in sketch form of material found at the site. [54] Deputy President Kingham of this Tribunal has given two judgments on applications for interlocutory injunction that have been provided to me by the Respondent and it is of particular note that I am urged by both the Applicant and the Respondent to follow the reasoning of Deputy President Kingham from the case of Visionstream Pty Ltd.19 However, I will first deal with Queensland South 17 Wallin Report p 113. 18 Wallin Report p 114. 19 [2001] QLRT 64. -- 18 of 44 -- Representative Body Aboriginal Corporation v. Agility Team Built Pty Ltd.20 I note that in that decision Deputy President Kingham did not grant the injunction sought. In her reasons she set out the facts which included the following: "(g) The cultural heritage clearance survey proceeded in early August and items of significance that were identified were removed from the path of the pipeline route. (h) The archaeologist engaged for the Mandandanji people identified a number of items significant to those people. For each of those items the archaeologist considered them to be of significance to the Iman people as well. (i) Two representatives of the Iman people did participate in the cultural heritage clearance survey and expressed their satisfaction with the protection and management of those artefacts removed and sorted off “ROW”. This I take to be a reference to right-of-way or the pipeline easement.”21 [55] What is significant about that case is that there was a cultural heritage management plan in existence and work was undertaken pursuant to that plan and for those reasons, although the Applicant contended that there was a risk that other items may be under threat, there was not sufficient evidence to properly allow the interlocutory injunction to succeed. [56] I now turn to the Queensland South Representative Body Aboriginal Corporation (for the Kamilaroi and Bigambul People) v. Visionstream Pty Ltd and Others.22 [57] That matter was determined by Deputy President Kingham in August of 2001. The judgment reveals that there had been negotiations between the Applicant and the Respondents since at the latest January of 2001 and attempts by the Respondents as far back as September of the previous year - in other words a period of 12 months. [58] Deputy President Kingham then goes through the appropriate law that she is to consider. As pointed out to me by the Respondent in this case, paragraphs 8 and 9 of her decision are relevant: “[8] The Respondents deny that they will or have contravened the Cultural Record Act. At the heart of this dispute is whether items of Queensland Estate have been identified and if so whether they are under threat from the Respondents activities. The Applicant’s contentions regarding the items fall into the following categories. Firstly, that there was an artefact located on the route by the Applicant’s archaeologist. Secondly, the Kildonan Remains burial site. Thirdly, general and unparticularised assertions that there are such items within the proposed route. 20 [2001] QLRT 65. 21 [2001] QLRT 65 at 2(g) to (i). 22 [2001] QLRT 64. -- 19 of 44 -- [9] As to the artefact, the Applicant has not provided the Tribunal with evidence of its location, a description of the item, its cultural heritage significance or its connection to the people the Applicant represents. In the circumstances I am unable to place any weight on this evidence.” [59] At paragraphs 12 to 14 there is reference made by Deputy President Kingham to the route that was proposed for the cable crossing of the McIntyre River and the proximity of the matter to areas under consideration which are also relevant. [60] Deputy President Kingham then has this to say at paragraphs 15 to 17: "[15] It is clearly preferable for traditional owners to be involved in cultural heritage clearance and monitoring activities. Unfortunately, the parties are operating within an old legislative regime that has not adjusted to changes in attitudes, knowledge and practices in this field and I note that the legislation is still under review. [16] Nevertheless, the Applicant cannot succeed in obtaining an interlocutory injunction unless it can demonstrate that there is a serious question about whether the Respondents will breach the Cultural Records Act. The Respondents have sought to involve both their Kamilaroi and Bigambul people and have received input from the Bigambul people. They have also engaged an experienced archaeologist to assess the route. The Applicant's assertions are general and do not establish an imminent threat to an item of Queensland Estate. [17] I am not satisfied that the Applicant has established there is a serious question to be tried. In the circumstances it is unnecessary for me to address the balance of convenience.” [61] I agree as a proposition of law with the manner in which Deputy President Kingham approached the issue in that case. [62] Other cases referred to include Smith v. Tenneco Energy Queensland Pty Ltd and Others23 and James Watts Taylor on behalf of the Kalkadoon People v. North Queensland Electricity Commission and Another.24 [63] It is not necessary for me to go through in detail the reasoning of Justice Drummond in either of those cases except to make this reference to the issue of an undertaking by way of damages from Smith as follows: “The Gunggaris do not offer the usual undertaking by way of damages and even if it were offered, there is no reason to think it would be capable of providing anything approaching the sort of compensation to which Tenneco Energy would be entitled, if the injunction is now granted but the Gunggaris’ action ultimately fails. I accept that the absence of a worthwhile undertaking is not decisive of a claim to interlocutory relief by a native title claimant. But it is, as Nicholson J said in Ward v Western Australia (unreported, Federal Court, Nicholson J, 21 December 1995), a matter which weighs against relief, especially where refusal of interlocutory relief will not prevent the applicants prosecuting the claims they have made for damages for trespass and compensation for extinguishment of their native title rights, as is the case here.”25 23 (1996) 66 FCR 1. 24 [1996] 913 FCA 1 (18 October 1996). 25 (1996) 66 FCR 1 at 9. -- 20 of 44 -- [64] I also note the very recent decision of the Land and Environment Court of New South Wales in the matter of Williams v. Homestake Australia Ltd and Ors, currently unreported.26 This decision was not referred to by either the Applicant or the Respondent. There are some aspects of the case I should refer to in some detail. I note of course it is referring to New South Wales legislation, not Queensland legislation, however there are some marked similarities with the matter at hand. I quote from part of paragraph 8: "5. The vehicle tracks being used by the mining company are not defined, indeed the edges of the vehicle tracks as seen by ones eyes are very irregular and often wider than normally expected. 6. These vehicle tracks boundaries appear to me to be flexibly used and their use not particularly monitored or managed. The case point being that when the pegs were driven to mark the artefacts, the mining company personnel automatically started driving off and around the existing tracks. There appears to be no effective Cultural Management Plan in place that can deal with the location of relics and the procedures to take if relics are identified. Given the occurrence of relics on the two tracks that were inspected, it is archaeologically feasible that other relics will occur off the current tracks. I am concerned as to how further relics potentially exposed due to mining activities (namely heavy vehicle usage) will be identified and managed." 27 Bignold J. continued: “12. Dr Pardoe expressed the opinion (par 14) that “the relocation of relics by the National Parks and Wildlife Service authorised archaeologist is clearly the best management solution to achieve the protection for relics on the vehicle tracks” and that “there is no archaeological or cultural disbenefit associated with such a relocation exercise having regard to the fact that the relics are not in situ or the original places-the places they are in are merely their current resting places.” (par 15). 13. After expressing opinions as to the locations of the relics so observed, being the result of natural forces, Dr Pardoe expresses the following opinions on the matter of “damaged relics” in par 20 to 23: 20. The lake bed and adjacent areas have also been ploughed for many years (decades) and this could also obviously have damaged relics. 21. As a result, where there are indications of relics having been damaged it is not possible to say with any certainty what caused this damage, even recent damage caused in the last 100 years. It is not possible to say when it occurred. In particular, I saw no evidence of damage that I could probably or reasonably ascribe to the First Respondent’s activities impacting on these relics. 22. During the site inspection I heard Mr Johnston say that the relic referred to in paragraph 10 of his affidavit was recently damaged but that could be cattle. 23. I saw cattle on Lot 23 and in my view cattle impact could have resulted in the damage noted in paragraph 10 of Mr Johnston’s affidavit (and for that matter any other damage seen to relics).”28 26 [2002] NSW LEC 22 March 2002. 27 Ibid paragraph 8. 28 Ibid paragraphs 12-13. -- 21 of 44 -- [65] Significantly, as in this case, the trial Judge was dealing with land that had been ploughed, which had caused items or relics referred to to be moved from their original locations, and, in some cases, to be damaged. [66] There was significant prejudice to the Respondent in that case of contractual payments of $18,000 per day and there was also employment of 25 to 30 people at the immediate time so the matter was not without some cost. Paragraph 29 and 30 are also relevant. “29. Unlike its first claim where the evidence of threatened breach of the NP&W Act, s 90 was found to be significantly wanting, the evidence in support of the present claim is significantly strong. 30. A further significant difference between the original claim and the present claim is that it now appears that the Protocol between the first Respondent and the third Respondent (upon which I placed considerable reliance in withholding interlocutory relief of the first hearing) has not yet been implemented because vital decisions were taken on behalf of the third Respondent in granting a clearance to the first Respondent before the Protocol was adopted. I am here referring to the fact deposed to in Mr Shallvey’s affidavit that the six east/west drilling rig pathways shown on the annexed plan were cleared by the third Respondent. They involve a total length of more than two kilometres, and in respect of one small section of only one of those pathways situate near the junction with the north/south access road, the joint inspection revealed the presence thereon of some 14 relics. The position with respect to the east/west pathways that were not inspected by the inspection team must now be considered to be much in doubt, notwithstanding the clearance granted by the third Respondent in January 2002.”29 [67] His Honour then went on to grant the orders sought restraining the Respondents. He also found that, with respect to the balance of convenience: “38. Although the Applicant has offered the usual undertaking as to damages (he did not do so, when making his initial claim to interlocutory injunction) he is a pensioner with no real financial wherewithal which would enable him to satisfy any liability for damages that may be incurred pursuant to the undertaking. 39. Despite this fact, I have concluded that on balance, it is just and reasonable to grant the injunction because the risk of damage to relics if the exploratory activities continue is so great, that that factor tilts the balance in favour of the grant of the injunction until the final hearing on 1–3 May 2002.”30 [68] The issue in this case, although a cultural heritage injunction, does of course follow the standard considerations of law in interlocutory injunctive matters. For completeness, I note the decision of the High Court of 15 November 2001 in ABC v. Lenah Game Meats Pty Ltd.31 That case relevantly summarised the law as follows: 29 Ibid paragraphs 29-30. 30 Ibid paragraphs 38-39. 31 (2001) 76 ALJR 1. -- 22 of 44 -- “In Castlemaine Tooheys Ltd v South Australia, Mason ACJ summarised the principles governing the grant or refusal of interlocutory injunctions in both private law and public law litigation. He said: “In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.””32 [69] As is obvious from the manner in which I have dealt with this matter, the two critical pieces of legislation in applying the limited facts that I have before me are the LRT Act and the Cultural Record Act. Section 53 of the LRT Act is in the following terms: “Exclusive jurisdiction for certain cultural heritage matters 53.(1) A group, or a member of a group, may apply to the tribunal, and only to the tribunal, for an injunction under this section to stop the doing of an act. (2) The tribunal must hear and decide an application under subsection (1) and may grant the injunction only if the tribunal is 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 (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. (3) For this section, a group or member of a group has standing to make an application if the group has a traditional, historic or custodial interest in – (a) if the relevant act is a contravention of section 56 of the Cultural Record Act – the item of the Queensland Estate to which the contravention relates; or (b) if paragraph (a) does not apply – an item, place or area of cultural significance that may be adversely affected by the doing of the act the subject of the application. (4) Subject to section 67, the jurisdiction given to the tribunal under this section is exclusive of the jurisdiction of any other court or tribunal. (5) In this section – “Cultural Record Act” means the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987. “group” means a group of Aboriginal people or Torres Strait Islanders. “relevant act” means an act that is a contravention of – 32 Ibid page 5. -- 23 of 44 -- (a) section 56 of the Cultural Record Act; or (b) a provision of another Act providing for the protection, preservation of, or access to items, places or areas of cultural significance to Aboriginal people or Torres Strait Islanders.” [70] Specifically, the Tribunal must hear and decide an application under ss. (1) only in certain defined circumstances. This aspect has been relied upon heavily by the Respondent. Particularly, the act must be a "relevant act." "Relevant act" means an act that is a contravention of section 56 of the Cultural Records Act or any other Act relating to the protection, etc, of places or areas of indigenous cultural significance. [71] Section 56 of the Cultural Record Act is in the following terms: “Offences concerning Queensland Estate 56.(1) A person shall not be in possession of an item of the Queensland Estate of which the State is the owner except under the authority of the State or of this Act. (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) If the item is one of which particulars are entered in the register – (i) the person does so under the authority of this Act; or (ii) being the owner of the item the person does so in accordance with standards and guidelines set by the Minister under section 44; or (iii) the person does so under the authority of an owner who has lawful authority such as is referred to in subparagraph (ii) so to do. (3) A person shall not do an act in a designated landscape area that is likely to endanger an item of the Queensland Estate in, on or under the area unless, if the act had affected the item, that person would not thereby be liable to punishment pursuant to subsection (2). (4) It is a defence to a charge of an offence defined in subsection (1), (2) or (3) to prove that at the time of the alleged offence the defendant did not suspect and could not be reasonably expected to suspect that the thing to which the charge relates was an item of the Queensland Estate. (5) A person who contravenes subsection (1), (2) or (3) commits an offence against this Act and is liable to a penalty of 100 penalty units.” [72] Importantly, “Queensland Estate” is defined as follows: -- 24 of 44 -- ““Queensland Estate” means 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 anything – (a) made or constructed as a facsimile; or (b) made or constructed at or after the commencement of this Act for the purpose of sale; or (c) that is not of prehistoric or historic significance.”33 [73] During the substantive hearing of this matter on Thursday last, much was made of the reference to an “item” of the Queensland Estate as opposed to a “site”. In so far as the Cultural Record Act applies, I am bound to only refer to an item of the Queensland Estate in making these rulings. In that regard, I refer particularly to the Wallin Report mentioned earlier and the definition in the Wallin Report of a “site". [74] Applying the Wallin Report, I also note that under the definition of "item of the Queensland Estate", the scatters which do not form part of sites are also, arguably, items of the Queensland Estate. The Applicant has applied for a permit under section 27 of the Act to deal with the sites as mentioned. [75] I am concerned that the reference to sites is not particularised by meets and bounds definitions as such in the application for a permit, and that the Wallin Report also refers to the “scatter of items”. [76] As mentioned previously by Deputy President Kingham and as acknowledged by the Queensland Government as part of its review of Cultural Heritage legislation,34 the legislation upon which the application is based and upon which the defence of the Respondent is based is old and, in my view, is lacking in many respects. [77] What occurs within the Environmental Protection Agency as part of an administrative process in applying the Cultural Record Act is not also what is relevant here. What is relevant are the words contained within the legislation. Section 27, on its face, despite the administrative processes I have referred to, does appear fairly clear. It is in the following terms: “Exploration etc. of Queensland Estate 27.(1) The Minister may – 33 Cultural Record Act s. 5. 34 “Queensland Indigenous Cultural Heritage Review – Draft Model for New Legislation” December 1999. -- 25 of 44 -- (a) cause to be performed surveys, excavation, examination or research of or upon designated landscape areas or in respect of any part of Landscapes Queensland or the Queensland Estate; and (b) authorise the removal of any part of the Queensland Estate from its location in the field to the Queensland Museum. (2) A person who desires to perform systematic field exploration to establish the existence of the Queensland Estate shall make application in writing to the Minister for a permit that authorises the person to perform the exploration and shall in connection with the application furnish to the Minister such information as is prescribed or as the Minister requires. (3) A person who desires to perform any systematic survey or any excavation, examination or research of or upon any designated landscape area or in respect of Landscapes Queensland or the Queensland Estate shall make application in writing to the Minister for a permit that authorises the person to perform the work and shall in connection with the application furnish to the Minister such information as is prescribed or as the Minister requires. (4) To determine whether an application made under subsection (2) or (3) should be granted regard shall be had to – (a) the qualifications of the applicant to effectively attain the purpose to which the application relates; and (b) the financial resources of or available to the applicant for use in attaining the purpose to which the application relates and the applicant’s ability to effectively attain that purpose; and (c) the desirability of performing the work to which the application relates; and (d) whether consultation, sufficient in the Minister’s opinion, has been undertaken with all persons who might be affected by the performance of the work to which the application relates; and (e) all other matters that appear to the Minister to be relevant to the application.” [78] It is clear from ss. (2) and (3), or as clear as this defective legislation in my view can be, that the purposes for which the permits may be granted are for persons who desire to either perform a systematic field exploration to establish the existence of the Queensland Estate and make application in writing to the Minister for a permit, or a person who decides to perform any systematic survey or any excavation and examination or research of and upon any designated landscaped area in respect of Landscape Queensland or the Queensland Estate. [79] The clear intent of such purposes is the surveying and identification of items of the Queensland Estate. I find nowhere in the legislation anything that allows a “representative sampling” of items to be made by way of Permit. -- 26 of 44 -- [80] I do note that in s. 28 there is reference to removal of any part of the Queensland Estate found therein but again that reference does not sit well with s. 27. In effect there appear to be gaps and poor drafting in various elements of the current legislation, but as so strenuously put by Counsel for the Respondent, it is legislation which we must deal with. [81] I believe the legislation in this particular case acts to the detriment of both the Applicant and the Respondent, despite the best endeavours of both of them to comply with this legislation, and it is a matter of deep regret to me that the legislation in this regard is so deficient, because as a result harm must come to either the Applicant or the Respondent. [82] After this lengthy examination of the material before me and the legislation dealt with I find that the Wallin Report has identified specific sites within the area of Mining Lease 50170. I also find that there is evidence by the Applicant that connects her grandmother specifically to the area that is contained within the mining lease for the purpose of this interlocutory application. I also find consistent with the decision of the New South Wales Land and Environment Court in Williams that there is almost an inevitability of items being located throughout the mining lease application area. That is also supported by the Wallin Report in references to the scatters and in the methodology undertaken within the project area specifically as set out in the systematic sampling transects numbered 1 to 12. I also find that the Wallin Report is not a comprehensive analysis of all of the mining lease area. [83] I also find that there is a serious question to be tried as to whether or not the Respondent could proceed with interference with the items of the Queensland estate so identified even if a permit was granted under s. 27 of the Cultural Record Act. [84] A further basis upon which I have found there is a serious question to be tried relates to the statement attributed to an employee of the Respondent saying that it would require 2 to 3 years to collect all of the items. I do not know and cannot know under the material currently before me whether that is site specific or specific to the entire mining lease application area. [85] I accordingly formally find that there is a serious issue to be tried in this matter. -- 27 of 44 -- [86] I next turn to the issue of the balance of convenience and it is on this issue that as I have mentioned previously, I have the most difficulty. I find compelling reasons as put by both the Applicant and the Respondent why I should or should not determine that on the balance of convenience an interlocutory injunction be granted. It is for that very reason that I sought the additional information from the Respondent as to the activities that were likely to be undertaken on the mining lease land in an endeavour to find a way of allowing the mining project to proceed for the time being under an arrangement that would also protect the items of the cultural estate prior to the hearing of the final injunction in this matter. However, for the reasons that I have pointed out already, I take no account of the material that has been provided regarding the activity to be undertaken by the Respondent. [87] I also specifically find that the nature of the relief sought by the Applicant is broad in seeking to stop all activity of any nature on the mining lease area. In this matter we are not dealing with virgin land, we are dealing with land that has had artefacts disturbed by ploughing over a considerable period of time, being 100 years or more. [88] I have no doubt that some mining activity given the broad definition of mining under the Mineral Resources Act 1989 could properly occur on the mining lease area without any damage occurring to items of the Queensland Estate. I am then left with the quandary as to what to do in this matter. The simply response would be to grant the interlocutory injunction under the terms as sought but rule that a speedy hearing must be had in this matter to resolve the matter. [89] Due to my other commitments in Central Queensland no such hearing could occur prior to the 15th of April 2002. As I have indicated I believe that even that period of time may be too long a delay taking into account the unfortunate position that the Respondent finds itself in. [90] Another way to proceed would be to not grant the interlocutory injunction because of the balance of convenience arguments but this would result in items of the Queensland Estate being interfered with in the manner in which I have found and in that regard I am persuaded by the rulings as made by the New South Wales Land and Environment Court in Williams which only involved exploration but has many many parallels with this case. -- 28 of 44 -- [91] As difficult as this balancing operation is, there must of course be a decision and resolution. Having found that there is a serious issue to be tried but also having found difficulty with the balance of convenience, I note the undertaking given by the Applicant in the following terms: “The Applicant undertakes in conjunction with representatives of QSRBAC to use its best endeavours to assess in a timely manner the areas to be worked as identified by the company.” As I have already found the application by its scope is broad, it is my view that it is appropriate to allow an interlocutory injunction on a more limited basis, taking into account the undertaking. [92] I will make the following order: The Respondent, New Acland Coal Pty Ltd, be restrained until 7 April 200235 or further order from commencing any work upon any area of ML50170 unless and until the area of such work has been assessed and clearance to commence work has been given in writing by the Applicant. I also, as part of the order, note the undertaking given by the Applicant. [93] I adjourn the hearing of this application until noon, Friday, 5 April 2002 for further submissions as to the scope of the orders and undertaking provided. [94] I give each party liberty to apply with respect to the orders given. [95] I reserve the question of costs. 35 By order made on 4 April 2002, the terms of the interlocutory injunction were extended until the hearing of the matter. -- 29 of 44 -- ANNEXURE A -- 30 of 44 -- -- 31 of 44 -- -- 32 of 44 -- ANNEXURE B -- 33 of 44 -- -- 34 of 44 -- -- 35 of 44 -- -- 36 of 44 -- -- 37 of 44 -- -- 38 of 44 -- -- 39 of 44 -- -- 40 of 44 -- -- 41 of 44 -- -- 42 of 44 -- -- 43 of 44 -- -- 44 of 44 --