Butchella Native Title Claim Group v Gympie Main Roads Division [2002] QLRT 10

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Butchella Native Title Claim Group v Gympie Main Roads Division [2002] QLRT 10 PARTIES: Butchella Native Title Claim Group (Applicants) and Gympie Main Roads Division (Respondents) FILE NO: CHA00019/2002 PROCEEDING: Application for injunction DELIVERED ON: 20 March 2002 DELIVERED AT: Brisbane HEARING DATE: 20 March 2002 PRESIDING MEMBER: Koppenol P ORDER/S: Application dismissed. (at [15]) CATCHWORDS: INJUNCTION – INDIGENOUS CULTURAL HERITAGE – ROADWORKS – NUMBER OF MONITORS – Whether contravention of Cultural Record (Landscapes Queensland and Queensland Estate) Act Land and Resources Tribunal Act 1999, s. 53 Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987, s. 56 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1, applied COUNSEL: N/A SOLICITORS: Ms M. Pollard, Crown Law, for the State of Queensland (on behalf of the Respondent) AGENT/S: Ms M. Wilkinson, for the Applicants -- 1 of 6 -- Background [1] This is an urgent application for an injunction to prevent certain roadworks near Gympie from continuing tomorrow. The Applicants claim to be the native title holders of the land concerned. The roadworks involve various land clearing and other activities. The Applicants are concerned that there are inadequate indigenous monitors on site to ensure that any items of indigenous cultural heritage are found and protected. The Applicants have been engaged in monitoring activities on this site for the last 3 days. Their monitoring activities are due to be completed tomorrow, when another indigenous group commences that work. [2] The application was dealt with on the footing that interlocutory relief was sought, but it was clear that because only tomorrow’s monitoring was in issue and, as I understand it, the Applicants did not seek to permanently restrain the construction of the subject roadworks, the disposition of that application would effectively dispose of the entire matter.1 Evidence and submissions [3] I thank Ms Wilkinson, Ms Henderson and Mr Blackman (who gave evidence for the Applicants) as well as Ms Pollard for the assistance which they have given me in relation to this matter. Without that assistance of course, this Tribunal’s task would be very difficult. We can only act on the material that is put before us and have regard to the submissions that each party makes. [4] I have given detailed consideration to all of the evidence that has been submitted and to all of the submissions which each party has made. I have had regard to Ms Wilkinson’s comments and those of Ms Henderson and Mr Blackman and I have considered deeply the things that they have said. [5] It is of course of crucial and fundamental importance that the cultural heritage of indigenous people be respected, protected and preserved. In this case it is unfortunate in my opinion that this matter has arisen, but once the Tribunal’s 1 Paragraphs [1] and [2] were not included in the ex tempore reasons which were given at the conclusion of the hearing. For the purposes of the formal reasons for judgment, they set out the relevant background to the application. -- 2 of 6 -- jurisdiction is invoked, we have a statutory duty to act expeditiously, fairly and appropriately. [6] Whilst I completely understand the concerns which Ms Wilkinson and the Butchella Group have put before me, in the end I can only grant an injunction in the circumstances which have arisen here if the provisions of s. 53 of the Land and Resources Tribunal Act 1999 have been established. Those provisions require in subsection (2) that I may grant such an injunction only if I am satisfied of 4 things: That the person against whom the injunction is sought, that is the Main Roads Department or the State of Queensland, is doing what is called “the act” or there are reasonable grounds for concluding that the person is likely to do the act. Secondly, that the act is a “relevant act” as defined. Thirdly, that the applicant has standing to make the application. And finally, that it is necessary to grant the injunction to stop the person doing the act. I can say immediately that I am satisfied that the Applicants have standing to make this application. But in terms of the balance of the criteria, I have concluded that I am not satisfied that the Main Roads Department or the State of Queensland is doing, or there are reasonable grounds for concluding that it is likely to do, a relevant act, namely (in terms of s. 53(5)) a contravention of s. 56 of the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Cultural Record Act). That section relevantly provides in subsection (2) that a person “shall not take, destroy, damage, deface, excavate, expose, conceal or interfere with” an item of the Queensland Estate2 unless the person has authority under the Cultural Record Act or does so under the owner’s authority. That is in a case where the item is not entered in the Queensland Estate Register. There was no evidence that the artefacts here were entered in that Register. [7] The evidence adduced on behalf of the Applicants satisfied me that some items of indigenous cultural heritage, namely charcoal items and small chips, had been located in areas which are the subject of the work in this matter, namely the roadworks in the Gympie area. They were located by Mr Blackman on a particular earth stockpile. Whilst those items have not been tested as yet, Mr Blackman told 2 “Queensland Estate” is defined in s. 5 as meaning “evidence of human occupation of the areas comprising Queensland at any time that is at least 30 years in the past”, but does not include facsimiles, items made after 1987 for sale, or things which are not of prehistoric or historic significance. -- 3 of 6 -- me, and I accept what he said, that they were items of Aboriginal heritage because they were probably chips from stone axes and spear heads made by Aboriginal people in the distant past. [8] But whilst items of Aboriginal cultural heritage have, I think, probably been located, or alternatively that a serious question as to that has been raised, I am not satisfied that there has been, or are reasonable grounds for concluding that there is likely to be, a contravention of s. 56 of the Cultural Record Act. The reason for that turns I think upon the reasonable steps that should be taken on the part of the Applicant group and the Main Roads Department to ensure that items of indigenous cultural heritage are not taken, destroyed, damaged, defaced, excavated, exposed, concealed or interfered with contrary to the Cultural Record Act. The roadwork activities which are occurring involve items of machinery, large items including graders, excavators and so on. Naturally those items of equipment will interfere with the surface of the land and in doing so that may uncover items of indigenous cultural heritage. Indigenous monitors [9] Ms Wilkinson informed me that from her perspective, 12 indigenous monitors would be required to monitor the work that is being performed in this area. But on further consideration, Ms Wilkinson was prepared to concede that that work could be done by only 9 people. The Respondent tendered 3 documents relating to the number of monitors which it says would reasonably be required in respect of this activity. Two of the documents are from employees of the Main Roads Department, one is from the project engineer Ms Creagh, the other by Mr Murphy who is the manager of Quality Environment Safety. Mr Murphy’s report indicated that 6 cultural heritage indigenous monitors would be the number required and the document that was produced to the Tribunal from Ms Creagh was to a similar effect. Both of those documents were, I was told, especially concerned with the element of safety. It is of course of fundamental importance that when any construction activity is occurring, considerations of safety and especially human safety are uppermost. On this particular site, the evidence from Mr Murphy and Ms -- 4 of 6 -- Creagh is that 6 indigenous monitors would be the number to ensure that the monitoring was safely conducted. [10] I think of more importance and especially concerning the provisions of s. 56 of the Cultural Record Act is Ms Wallin’s report. Ms Wallin is an archaeologist. Her report, an extract of which was tendered by the Respondent, indicated that a minimum of 6 monitors were necessary for this particular work so as to ensure that indigenous cultural heritage was preserved. Although Ms Wallin’s report accepted that that was the minimum number, I think that it is fair to say that there is no suggestion in that report that the Cultural Record Act, particularly s. 56, would be contravened if there were only 6 indigenous monitors involved in this activity. [11] Whilst I have had regard to Ms Wilkinson’s submissions and evidence that more than 6 monitors would be required, I place emphasis upon the requirement that for an injunction to be granted, the Tribunal must be satisfied that, in effect, there would be a contravention of s. 56 of the Cultural Record Act if there were only 6 monitors on the site. Conclusions [12] Having regard to all of the evidence, I have concluded that I am not satisfied that on the present material, there would be a contravention of the Cultural Record Act if there were only 6 monitors on site to monitor the Respondent’s activities. In those circumstances, I have concluded that the Applicants have not demonstrated to me, on the present material, that (a) there is a serious question to be tried as to a possible contravention of s. 56 of the Cultural Record Act or (b) a prime facie case has been made out that there would be a breach of s. 56 of the Cultural Record Act.3 I stress that the conclusions which I have reached are based upon the material that has been put before me at the present time. [13] In the circumstances, it is not necessary for me to address the question of the balance of convenience. I do observe however and accept, that if any items of cultural heritage significance were found and destroyed, that would constitute 3 As to the principles governing the grant or refusal of an interlocutory injunction, see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1, per Gleeson CJ at [13]. -- 5 of 6 -- irreparable injury or prejudice to the Butchella people for which damages would not be an adequate compensation. [14] But the key feature here, in my opinion, is that on the material that has been provided to me, I am not satisfied that the Applicants have shown that there is a serious question to be tried or a prima facie case that there would be a contravention of s. 56 of the Cultural Record Act on the part of the Respondent if only 6 monitors were engaged. Order [15] In those circumstances I am not at liberty to grant an injunction because a key feature of the requirements of s. 53 of the Land and Resources Tribunal Act has not been established. Therefore I must dismiss this application and I order accordingly. -- 6 of 6 --