Colonel, for and on behalf of the Jarowair People v New Acland Coal Pty Ltd (No 2) [2002] QLRT 14

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Lillian Colonel, for and on behalf of the Jarowair People v New Acland Coal Pty Ltd (No 2) [2002] QLRT 14 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: 3 April 2002 DELIVERED AT: Brisbane HEARING DATE: 3 April 2002 PRESIDING MEMBER: Smith DP ORDER/S: 1. Upon the undertaking of the Respondent by its Counsel: (a) to permit the Applicant together with its archaeological expert field access to field 81 and to the unnumbered field between fields 149 and 152 (using the field number references from plan 7 of the Wallin Report) during the period 4 April 2002 to 7 April 2002 for the purpose of identification and collection of such artefacts as may be there present (subject to the conditions identified in paragraph 3 below); and (b) not to commence any work on those fields until after noon, 8 April 2002. The Tribunal exempt the carrying out of work by the Respondent in those fields from the terms of the interlocutory injunction granted by the Tribunal today. (at [10]) 2. Upon the undertaking of the Respondent by its Counsel: (a) to permit the Applicant to give its archaeological experts access to field 83 during the period 8 April to 14 April 2002 for the purpose of the identification and collection of such artefacts as may be present -- 1 of 6 -- (and subject to the conditions identified in paragraph 3 below); and (b) not to commence any work in field 83 until after noon 15 April 2002. The Tribunal exempt the carrying out by the Respondent of the construction of a water bore in field 83 from the terms of the interlocutory injunction granted by the Tribunal today. (at [10]) 3. The conditions referred to in paragraphs 1(a) and 2(a) are as follows: (a) the Applicant and other relevant persons undertake the usual site induction course (unless they have done so already); and (b) they be accompanied by representatives from: (i) Archaeo Cultural Heritage Services Pty Ltd – if the Respondent can arrange that; and (ii) the Respondent; and (iii) such members of the Western Wakka Wakka people as the Respondent may wish to have present; (iv) that the Respondent ensure the Western Wakka Wakka people not interfere in any way with the activities of the Applicant; (c) the Applicant not interfere with the Western Wakka Wakka people taking such steps in relation to clearance of relevant fields as they and the Respondent agree; (d) the Applicant and the Respondent cooperate in taking such steps as may be necessary to obtain permits under the Cultural Records (Landscapes Queensland and Queensland Estate) Act 1987 to authorise the conduct referred to in paragraphs 1(a) and 2(a); and at [10]) 4. The parties are granted liberty to apply on the giving of 24 hours notice. (at [10]) 5. The hearing of the substantive application is set down for a directions hearing at 2.30pm on Thursday, 4 April 2002. (at [10]) CATCHWORDS: INTERLOCUTORY INJUNCTION – EXEMPTION OF CERTAIN WORK – ARCHAEOLOGICIAL EXPERTISE – TIMING Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 -- 2 of 6 -- COUNSEL: Mr M J Byrne for the Applicant/Respondent Mr J Bond SC for the Respondent/Applicant SOLICITOR/S: Mr G J Carter, Senior Legal Officer, QSRBAC, for the Applicant/Respondent Clayton Utz for the Respondent/Applicant AGENT/S: N/A [1] SMITH DP: (Ex Tempore) This is the hearing of an urgent Application in a Proceeding brought by the Respondent to vary the terms of an interlocutory injunction ordered by me earlier today. The terms of the variation are set out in Exhibit 4. In support of its application the Respondent has called evidence from Ms Ann Wallin. [2] Ms Wallin is the same person responsible for the Wallin Report of May 1999 dealt with in the substantive judgment that I gave earlier today in this matter. Ms Wallin gave various time frames regarding the work to be undertaken pursuant to that as set out in Exhibit 4. The Respondent called no other evidence. [3] In referring to Ms Wallin, I accept her as an expert for the purposes of this hearing. I have previously indicated my reliance upon her work and material in support of the Applicant’s application for an interlocutory injunction in this matter. Her material has gone a substantial way to satisfying me of the need for the interlocutory injunction so it would be trite indeed for me not to rely upon Ms Wallin's evidence and give it substantial weight in the hearing of this application. [4] Importantly, in the Wallin Report of 1999, Ms Wallin refers to the work that she has undertaken with the various groups in unison in working through the cultural heritage report that she prepared. Contained within the Wallin Report are various letters and other statements by indigenous persons stating their support for the methodology that was adopted. [5] In that manner, it is my view that quite a significant amount of work has been done with the applicant group, if not specifically with the named Applicant who does bring a representative application in this matter, for a unified approach to work on this site and I take notice of those aspects of the report for the purposes of this judgment. [6] The Respondent called Karen McFadden to give evidence. Ms McFadden has like qualifications to Ms Wallin, although her qualifications are more recent, and she has -- 3 of 6 -- clearly indicated that she is young in the field compared to the expertise of Ms Wallin. Ms McFadden is an employee of the Queensland South Representative Body Aboriginal Corporation. [7] In spite of Ms McFadden's relative inexperience, I was impressed by the degree of similarity between the evidence given between both Ms Wallin and Ms McFadden. The only real departure on their evidence related to that of timing. [8] When it comes to the issue of timing I prefer the evidence of Ms Wallin over that of Ms McFadden. I do so because Ms Wallin is very familiar with the area at hand and also has more experience in the field and, like all things, Ms McFadden, although clearly also talented in her field will, I expect, become quicker at doing this work as she gains more experience of the kind that Ms Wallin has. Also, apart from, I gather, seeing the sites yesterday, Ms McFadden has not worked specifically on these areas. [9] Reference has been made in cross-examination and in submissions by Mr Byrne to Ms Wallin not being able to well-identify the area of land concerned. However, I take it as a matter of record that Ms Wallin has been on the area and is very familiar with the area concerned and I do not place any weight on her difficulty in that regard, accepting as I do that some people simply have difficulty in accurately giving estimates of distance, but that does not, if they have the proper knowledge of what they are talking about, necessarily affect the time frames they refer to. [10] In the circumstances, I am prepared to make the orders as sought by the Respondent in this application with certain amendments as to timing and the involvement of the Western Wakka Wakka people. I make these orders in the knowledge of the undertaking provided by the Applicant1 and the Respondent's duties, which are well understood, regarding items of the cultural state. I therefore make the following orders: 1. Upon the undertaking of the Respondent by its Counsel: (a) to permit the Applicant together with its archaeological expert field access to field 81 and to the unnumbered field between fields 149 and 152 (using the field number references from plan 7 of the Wallin Report) during the period 1 See [2002] QLRT 13. -- 4 of 6 -- 4 April 2002 to 7 April 2002 for the purpose of identification and collection of such artefacts as may be there present (subject to the conditions identified in paragraph 3 below); and (b) not to commence any work on those fields until after noon, 8 April 2002. The Tribunal exempt the carrying out of work by the Respondent in those fields from the terms of the interlocutory injunction granted by the Tribunal today. 2. Upon the undertaking of the Respondent by its Counsel: (a) to permit the Applicant to give its archaeological experts access to field 83 during the period 8 April to 14 April 2002 for the purpose of the identification and collection of such artefacts as may be present (and subject to the conditions identified in paragraph 3 below); and (b) not to commence any work in field 83 until after noon 15 April 2002. The Tribunal exempt the carrying out by the Respondent of the construction of a water bore in field 83 from the terms of the interlocutory injunction granted by the Tribunal today. 3. The conditions referred to in paragraphs 1(a) and 2(a) are as follows: (a) the Applicant and other relevant persons undertake the usual site induction course (unless they have done so already); and (b) they be accompanied by representatives from: (i) Archaeo Cultural Heritage Services Pty Ltd – if the Respondent can arrange that; and (ii) the Respondent; and (iii) such members of the Western Wakka Wakka people as the Respondent may wish to have present; (iv) that the Respondent ensure the Western Wakka Wakka people not interfere in any way with the activities of the Applicant; (c) the Applicant not interfere with the Western Wakka Wakka people taking such steps in relation to clearance of relevant fields as they and the Respondent agree; (d) the Applicant and the Respondent cooperate in taking such steps as may be necessary to obtain permits under the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 to authorise the conduct referred to in paragraphs 1(a) and 2(a); and -- 5 of 6 -- 4. The parties are granted liberty to apply on the giving of 24 hours notice. 5. The hearing of the substantive application is set down for a directions hearing at 2.30pm on Thursday, 4 April 2002. -- 6 of 6 --