Davidson v Stockland Development Pty Ltd; Bunda v Stockland Development Pty Ltd

[2022] QLC 19

LAND COURT OF QUEENSLAND

CITATION:

Davidson v Stockland Development Pty Ltd & Ors; Bunda v Stockland Development Pty Ltd & Ors [2022] QLC 19

PARTIES:

Jill Davidson
(applicant)

v

Stockland Development Pty Ltd
(respondent)

Deebing Heights Land Partners Pty Ltd
(respondent)

Deebing Heights Development Pty Ltd
(respondent)

Moremac Investments (Deebing Heights) Pty Ltd
(respondent)

FILE NO:

LCA289-22

PARTIES:

Kris Bunda
(applicant)

v

Stockland Development Pty Ltd
(respondent)

Deebing Heights Land Partners Pty Ltd
(respondent)

Deebing Heights Development Pty Ltd
(respondent)

Moremac Investments (Deebing Heights) Pty Ltd
(respondent)

FILE NO:

LCA290-22

PROCEEDING:

Application for injunction

DELIVERED ON:

1 November 2022 [ex tempore]

DELIVERED AT:

Brisbane

HEARD ON:

1 November 2022

HEARD AT:

Brisbane

MEMBER:

PG Stilgoe OAM

ORDER/S:

1.     The following parties are substituted as respondents instead of the Moremac Property Group:

a.    Deebing Heights Land Partners Pty Ltd;

b.   Deebing Heights Development Pty Ltd;

c.    Moremac Investments (Deebing Heights) Pty Ltd.

2.     The originating application filed by Jill Davidson on 31 October 2022 is dismissed.

3.     The originating application filed by Kris Bunda on 31 October 2022 is dismissed.

CATCHWORDS:

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where it was uncontested that the applicants have an interest in the cultural heritage – where the respondents were acting under the authority of a cultural heritage management plan – where there was no evidence of the harm being unlawful – where the act was not a relevant act

Land Court Act 2000 s 32H
Aboriginal Cultural Heritage Act 2003 s 24, s 25

APPEARANCES:

J Davidson, the applicant (self-represented)
K Bunda, the applicant (self-represented)
G Scott (solicitor), Norton Rose Fulbright, for the first respondent
L O’Neill (solicitor), Cooper Grace Ward, for the second, third, and fourth respondent

1. When you try to push a square peg into a round hole, there are pieces that don’t fit. Even if you knock off the edges, you are left with gaps that cannot be filled. The same thing happens when white law tries to address First Nations lore. There are pieces that don’t fit and people like Ms Davidson and Ms Bunda fall into the gaps.

1. Ms Davidson and Ms Bunda want to stop Stockland and a trio of companies that I will refer to as ‘Moremac’ from bulldozing bushland at Deebing Creek.

1. Section 32H of the Land Court Act gives the Court jurisdiction. The elements are, firstly, that a group or a member of a group has a traditional, historical or custodial interest in a relevant act. No one suggests that Ms Davidson or Ms Bunda do not have a traditional, historical or custodial interest in the relevant act.

1. The second element is that a relevant act is a contravention of a cultural heritage protection provision. ‘Cultural heritage protection provision’ is defined by the Aboriginal Cultural Heritage Act. Section 24 of that Act refers to unlawful harm to cultural heritage. Section 25 refers to prohibited excavation, relocation and taking away of cultural heritage. The act complained of, which is the bulldozing of bushland, in Ms Davidson and Ms Bunda’s submissions certainly amounts to harm to cultural heritage and is also probably excavation or relocation of cultural heritage.

1. But I can only grant an injunction if the harm is unlawful. And the harm is not unlawful if the action is being undertaken under the authority of a cultural heritage management plan (CHMP). I refer in particular to sections 24(2) and 25(2). Stockland and Moremac say that these activities are being undertaken pursuant to a CHMP and there is no evidence to suggest that that is not the case.

1. I understand that the applicants have no access to the terms of the CHMP so they cannot verify the truth of that assertion. I acknowledge their deep frustration. I acknowledge their sense that they have been disrespected, that they are dislocated, that they are dispossessed. I acknowledge their connection to Country and ancestors. I acknowledge their deep concern for the koalas and parrots whose homes are being bulldozed. But the Court cannot change the shape of a round hole which is set by legislation so that Ms Bunda and Ms Davidson no longer fall into the gaps created by the intersection of law and lore. In those circumstances, I have no option but to refuse the application for injunction and dismiss both originating applications.

Orders

1. The following parties are substituted as respondents instead of the Moremac Property Group:

   a.   Deebing Heights Land Partners Pty Ltd;

   b.   Deebing Heights Development Pty Ltd;

   c.   Moremac Investments (Deebing Heights) Pty Ltd.

2. The originating application filed by Jill Davidson on 31 October 2022 is dismissed.

3. The originating application filed by Kris Bunda on 31 October 2022 is dismissed.