FEDERAL COURT OF AUSTRALIA

Kaurareg Native Title Aboriginal Corporation RNTBC v Torres Shire Council [2019] FCA 746

ORDERS

PENAL NOTICE

TO: The Torres Shire Council, its officers, servants, agents, engaged contractors or other persons concerned in the undertaking of the works referred to in paragraph 1 of this Order:

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:

1.    Until close of business on 3 June 2019 or further earlier order, the Respondent by its officers, servants, agents, engaged contractors or otherwise howsoever be restrained from undertaking public works within the area identified in yellow in the first page of annexure SBR 7 to the affidavit of Mr Roberts filed 17 May 2019 (Mr Roberts’ affidavit).

2.    The Respondent is to furnish forthwith to the Applicants particulars as to the areas of land in respect of which it proposed to conduct public works and the nature of those public works which are the subject of the public noticed dated May 2019 referred to in paragraph 72 of Mr Roberts’ affidavit.

3.    The parties attend a mediation to be conducted by the Hon Stanley Jones AO or such other person as the court may appoint after consultation with the parties, on such date the court appoints.

4.    The case be adjourned until 3 June 2019 at 10.15 am for case management and the determination of whether or not and in what terms the restraint in Order 1 should be continued. Assuming, that the video link is available and workable, an appearance via video link will be permitted.

5.    Costs reserved.

6.    Liberty apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Late this afternoon, the Kaurareg Native Title Aboriginal Corporation RNTBC, a Mr Milton Savage and a Ms Enid Tom, filed an originating application under the Native Title Act 1993 (Cth) (Native Title Act), to which the Torres Shire Council is respondent. It has been possible for the Council to be heard in response to an interim injunction application, which was made by the applicants in conjunction with the filing of the originating application.

2    The applicant corporation is a registered native title body corporate. The applicants, both individual and corporate, have brought the application on behalf of the Kaurareg people, who are the determined native title holders for Apparrlu-Waubinin Mabauzi Lag above the high-water mark, the subject of the Kaurareg Muralag determination in proceeding QCD2001/002 in this Court, and the native title claimants for Apparrlu-Waubinin Malu below the high-water mark in matter QUD267/2008 in this Court, known as the Kaurareg #2 Native Title Claim.

3    The land concerned, which is the subject of the determination just mentioned, is on Prince of Wales Island, also known as Muralag. The land the subject of the claim is areas of the sea and seabed below the high-water mark off that particular island. Prince of Wales Island is located in the Torres Straits, to the north of Cape York Peninsula.

4    In addition, there are subsisting Indigenous Land Use Agreements in respect of the land the subject of the Court’s determination. Relevant here is the one between the Kaurareg people and the present local government respondent. The local government wishes to undertake public works, being both roadworks and harbour works, on land on Prince of Wales Island.

5    Suffice it to say, the applicants allege that the undertaking of such works would constitute an invalid future act, having regard to native title either determined or, as the case may be, claimed.

6    The occasion for the urgency of the interim injunction application is that the local government proposes to commence undertaking landward aspects of the proposed public works this coming Monday, 20 May 2019. The proposed public works are more particularly described in an affidavit of the applicants’ solicitor, Mr Roberts, which was filed today.

7    At paragraph 12, Mr Roberts deposes to a particular area within annexure SBR7, on page 1 of which there is an area, the metes and bounds of which are given geospatial precision and which is described by a yellow bordered area in the vertical photograph found there. An enlargement thereof on the second page shows particular areas hashed in red, in respect of which it is proposed to undertake roadworks, at least in terms of the evidence to hand.

8    Ordinarily, in terms of the granting of interim or interlocutory injunctive relief, the position is that an applicant must give to the Court what is known as the usual undertaking as to damages. The precise form of that undertaking is set out in the Court’s Usual Undertaking as to Damages Practice Note (GPN-UNDR). The present applicants, upon inquiry, are not disposed, at least at the present, to give that undertaking. That, of course, is, as was correctly submitted on behalf of the local government, a relevant consideration in terms of whether or not to exercise the discretion to grant interlocutory injunctive relief. Its absence is not, though, determinative of the fate of the application.

9    Also relevant - and this is deposed to in Mr Roberts’ affidavit on information and belief - are the very particular associations as between the Kaurareg people and land on Prince of Wales Island, the subject of this Court’s determination.

10    Those associations are not to be diminished in terms of their importance by a submission which was made on behalf of the local government that damages may be an adequate remedy. In relation to the bundle of rights represented by native title, and the particular associations and emotional and spiritual ties which underpin that bundle of rights, money may never be an adequate compensation for what may be an invalid future act - in other words, for something that will be destructive of one or more of the bundle of rights that comprise native title. In this particular case, one of that bundle of rights is an obligation to protect sacred site areas.

11    As was submitted, correctly again, in this instance on behalf of the applicants, sometimes, the strength of a prima facie case mitigates against the usual requirement for an undertaking as to damages: see Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91, especially at 100. It is not possible, in the time available this evening, to form a settled view as to the strength of the applicants’ substantive claim. That said, there is a subsisting native title determination in respect of Prince of Wales Island, which rather suggests to me that the application for interim injunctive relief is far from frivolous, but, rather, one in respect of which there is some prospect of success in relation to the applicants’ claim substantively for declaratory relief.

12    Of course, it may be, on a more detailed examination, that areas in respect of which the local government proposes to conduct public works are areas where, by virtue of earlier acts of State, native title was extinguished. But, in the urgency of today's interim application, and given the quite disastrous consequences that would follow from a destruction of determined native title rights, it seems to me that this is a case where, at least at an interim stage, the absence of the usual undertaking as to damages should not tell against the granting of interim injunctive relief.

13    Another factor quite understandably raised on behalf of the local government was that there has been much notice of the proposed works. Mr Roberts’ affidavit, quite properly, is fulsome as to the exchanges which have occurred before today as between the local government and those representing the applicants or the applicants directly.

14    It is, to say the least, unfortunate that a mechanism apparently found in the Indigenous Land Use Agreement for mediation has not been able to be engaged. It was so obviously one of the intents of the Indigenous Land Use Agreement, that matters would not have to come to the stage of litigation in order to resolve differences as between, relevantly, the native title holders and the local government.

15    It was also put on behalf of the local government that there had been delay such as would tell against the granting of even interim relief. Delay is, of course, relevant. But, looking at the flow of exchanges, it seems to me there are two ways of viewing those exchanges, not ways which are entirely in favour of the local government. By that, I mean it seems to me as if the applicants and those representing them have tried their very best not to have to come to court, and have been left, really, with no other choice. Equally, it appears to me, from my perusal of the exchanges, that it was a very large and fraught step indeed, in the absence of either exact precision as to the absence of native title by extinguishment, or by agreement, for the local government to incur costs in the positioning of equipment for the undertaking of the works proposed.

16    I was informed without objection that the local government will incur costs of some $14,500 per day. I was likewise so informed that there are particular considerations arising from the time of year and tidal flows in the Torres Strait which make the present a particularly useful time in which to undertake public works. Of course I take that into account, but again, an answer to that is: that it was fraught always, in the absence of closure as to native title, to go ahead. In that sense, it may well be that the losses lie where they fall.

17    It is, though, obvious that there is not just one public interest at large, even in respect of whether to grant interim injunctive relief. The importance of native title and not interfering with it is highly relevant. Also relevant - and I take this into account in terms of public interest - is the undertaking of public works, which the local government concerned has determined are necessary works. That said, in respect of an island the subject of a native title determination, it is just necessary, in today’s age, to take into account not just the native title determination but also the native title claim. I am far from persuaded that that need has fully resonated in the local government.

18    Of course, the more reflective consideration offered, upon the return of the orders I propose to make, may yield a different perspective; but, for the present, there is, in my view, an overwhelming need, having regard to the balance of convenience, to grant interim injunctive relief for a short period.

19    The order that I propose to make will restrain the undertaking of public works in the area identified in yellow on the first page of annexure SBR7 to the affidavit of Mr Roberts, filed today, until 3 June 2019 or further earlier order. “Public works” means what it says. It does not prevent a person from walking over the land in question. It would not, as I see it, prevent a surveyor from engaging in surveying works of a kind which would not interfere with the land or the native title rights asserted. What it most emphatically would prevent - and I not intending in any way to be exhaustive - are roadworks, grading, steamrolling or earthworks of any kind.

20    The other necessity related to a need for precision as to an alleged intersection between the site of public works and native title, determined or claimed, is for the local government to provide forthwith particulars as to the area and the works. It may be that that is readily done just by reference to what is already annexed in SBR7, but there should be no doubt about the subject of the works or their precise location(s). That, in turn, will enable meaningful mediation, in my view, to occur. That, too, is something which needs to be undertaken as soon as possible.

21    As to a mediator, it is within my experience that the Honourable Stanley Jones, AO, a retired judge of the Supreme Court of Queensland, has much experience in the mediation of native title cases and is also well respected in Far North Queensland. I therefore propose also to make an order requiring that the parties attend a mediation to be conducted by the Hon Stanley Jones or such other person as the Court may appoint after consultation with the parties, on such date as the Court appoints. It is necessary to have a degree of flexibility built in at the moment, as I have indicated, in the mediation requirement, because it is not precisely known as to when Mr Jones will be available. There is also a question in relation to the costs of mediation, but that is a question which, in my view, is best addressed when this case next comes back before the Court, so as to enable parties to take instructions in a measured way on that subject, and to discuss the subject as between themselves in a way the Court expects of responsible legal practitioners.

22    Apart from the injunctive relief identified and the preliminary discovery and mediation, it is also necessary for the case to come back for consideration as to whether to extend the interim relief granted and for case management. The matter will, therefore, be adjourned for that purpose to 3 June 2019 at 10.15 am. Assuming the link is available and workable, an appearance by video link from Far North Queensland will be permitted on that date.

23    I shall, for the moment, reserve costs, if only out of an abundance of caution, being aware that there are particular provisions in the Native Title Act which may be relevant on the subject of costs in any event. The orders should be passed and entered forthwith.

Associate:

Dated:    23 May 2019