State of Queensland (represented by Department of Health) v Wesley Aird
[2008] QLC 208
•21 November 2008
LAND COURT OF QUEENSLAND
CITATION:State of Queensland (represented by Department of Health) v Wesley Aird & Ors [2008] QLC 0208
PARTIES:State of Queensland (represented by Department of Health)
(applicant)
v
Wesley Aird
Michael Aird
Kombumerri Aboriginal Corporation for Culture ICN 421
Anthony Dillon
Ngarang Wal Gold Coast Aboriginal Association
Hague Best
Rory O’Connor
Eileen Williams
Early Sandy
Kevin Slabb
Jackie McDonald
Chief Executive, Department of Natural Resources and Water
(respondents)
FILE NO:ACH2008/0872
DIVISION:Land Court of Queensland – Cultural Heritage Division
PROCEEDING: An application pursuant to s.113 of the Aboriginal Cultural Heritage Act 2003 seeking a recommendation from the Land Court that the draft cultural heritage management plan (“CHMP”) for the proposed Gold Coast University Hospital be approved
DELIVERED ON: 21 November 2008
DELIVERED AT: Brisbane
HEARD AT:Brisbane
MEMBER:Mr PA Smith
ORDER:1. Attachment “A”, save for its inclusion as an attachment to this decision to be provided to the Minister and the parties, it otherwise be sealed, marked confidential, and not opened except under order of the Court.
2.It is recommended to the Minister for Natural Resources and Water that the draft cultural heritage management plan (“CHMP”) for the proposed Gold Coast University Hospital as set out in Attachment “A” be approved.
CATCHWORDS: Cultural Heritage Management Plan – not all parties in agreement with draft before Court – Court ruling on several discrete issues including presence of archaeologist on site – agreement by parties to amended draft – Court recommendation to include confidentiality provision
APPEARANCES: Ms H Bowskill of Counsel on behalf of the applicant
Mr J Moss, Legal Officer, Department of Natural Resources and Water, on behalf of the Chief Executive
Ms P O’Connor, with her Ms D Gorring, on behalf of Kombumerri Aboriginal Corporation for Culture ICN 421
Mr R O’Connor on his own behalf
Mr A Oshlack of the Indigenous Justice Advocacy Network on behalf of Ms McDonald an Aboriginal party, Mr Michael Aird an Aboriginal party and Mr K Slabb an Aboriginal party
Mr H Best on his own behalf
On 18 September 2008 the State of Queensland filed an application in the Land Court pursuant to section 113 of the Aboriginal Cultural Heritage Act 2003 (the ACHA) seeking a recommendation from the Court that a draft cultural heritage management plan (CHMP) be approved. The CHMP relates to the proposed construction by the State of a new 750 bed hospital at Southport, which is to be known as the Gold Coast University Hospital.
Pursuant to the provisions of the ACHA, the State has been in prolonged discussions with various indigenous parties with a view to formulating an approved CHMP. As agreement with all aboriginal parties was not able to be reached, an agreed CHMP was not signed and accordingly the State referred the draft CHMP to the Court for approval.
Following a directions hearing, the parties were ordered to mediation before the Land Court. Unfortunately, that mediation failed to resolve the issues in dispute, and the matter was set down for hearing in Brisbane on 20 and 21 November 2008.
A number of the indigenous parties to this matter have indicated, both in submissions to the Land Court and in previous correspondence to the State, that they are in agreement with the draft CHMP filed by the State on 18 September 2008. Other indigenous parties have indicated their consent to the said draft CHMP, provided that some minor amendments were made to the CHMP to which the State was agreeable. Other indigenous parties, however, were not in agreement with the terms of the draft CHMP and, in light of such failure to reach agreement, the hearing of the application by the State proceeded.
At the outset of the hearing, Mr Moss requested that his client be excused from the hearing. All parties present consented to his request. Accordingly, the Chief Executive, Department of Natural Resources and Water was excused from further attendance at the hearing but remained a party to the proceedings.
Late in the first day of the hearing, after the State closed its case, Mr Oshlack, who appeared as agent on behalf of Mr Michael Aird, Mr Kevin Slabb and Ms Jackie McDonald, requested an adjournment. The basis for Mr Oshlack’s adjournment request was that Mr Oshlack believed that, in light of evidence made available to the Court during cross-examination of the State’s witnesses, there was a real possibility that agreement could be reached between the various aboriginal parties and the State. As all parties present in Court were content with Mr Oshlack’s application, an adjournment was granted until 10:00am on 21 November 2008.
At 10:00am on 21 November 2008, Counsel for the State, Ms Bowskill sent a message to Chambers advising that fruitful discussions between the parties were progressing well. She requested extra time for those negotiations to proceed. Ultimately, later that morning, the matter came back on for hearing. Mr Oshlack advised that his clients had, in the main, reached an agreement with the State of Queensland regarding proposed amendments to the CHMP. However, Mr Hague Best and Mr Rory O’Connor indicated to the Court that they were not happy that the original draft CHMP was proposed to be amended, save for those amendments already agreed with the State, and they indicated strongly that they wished the CHMP to proceed without the amendments proposed to accommodate Mr Oshlack’s clients.
Ms Bowskill, for the State, advised the Court that the agreement with the parties represented by Mr Oshlack had been reached on the basis of a way of moving the matter forward. Although Ms Bowskill did not specifically join with the submissions made by Mr Best and Mr O’Connor, it was clear to me that the State was concerned about losing the support of Mr Best and Mr O’Connor in what had, up until that point, been a lengthy, but fruitful, negotiation process between the State and Mr Best and Mr O’Connor and like minded indigenous parties to the original CHMP.
Having heard important evidence in this matter during the case as put by the State of Queensland and significant cross-examination by Mr Oshlack, and after being advised by all indigenous parties present that none of them intended calling any evidence, I determined that the best way to proceed, given the amount of time and expense that all of the parties had incurred in the matter to date, together with the urgent need for resolution of the CHMP in order to allow the construction of the new Gold Coast University Hospital to proceed, was by way of making discrete rulings on certain issues in dispute. I made those discrete rulings ex-tempore following oral submissions by each of the parties present in Court.
I am required by s. 117 of the ACHA to make a recommendation to the Minister. In making such recommendation, I am to fully take into account those matters set out in s. 118 of the ACHA. Accordingly, to fully inform the Minister of my reasons for making amendment to the original draft CHMP as submitted by the State, set out below is a transcript of my ex-tempore rulings on discrete issues as made before the parties today.
Ex-Tempore Reasons on discrete issues
Presence of archaeologist on site
It is always difficult for a court, particularly a European based court, to properly identify, come to grips with and take proper account of indigenous cultural heritage particularly when a court is put into a decision-making role of matters of fundamental cultural importance to various parties and I find myself in that position now. I have received quite impassioned pleas by Mr Best and Mr O’Connor for recognition and protection of indigenous cultural heritage to be held as much as possible in the hands of indigenous people as a cornerstone of the ACHA. The difficulty as I see it is that the sponsor has reached a compromise with respect to a number of the indigenous parties who see it as important for an archaeologist to be on site. They contend that the archaeologist should be there for the full 39 days of site disturbance (for want of a better term) of the initial pre construction phase, but have been prepared to compromise that back to 10 days during disturbance of vegetated areas.
My view of the matter is formed somewhat by my extensive involvement with indigenous parties throughout the 1990s and in the early formulation of the ACHA. Perception can be greater than reality and the perception by Mr Best and Mr O’Connor is one that is real and will have a significant impact upon them. I do not think it appropriate that the CHMP be formulated in any way which is worded so as to be taken as a disempowering of Aboriginal cultural heritage monitors or the important role that they play in the process. In my view the CHMP should be formulated to ensure that that is stated upfront as one of the principal components of the CHMP.
That said, on the specific issue of the work of the archaeologist, I do understand that at the end of the day the involvement of the archaeologist can be looked at in purely financial terms and it is in the nature of a purely financial decision that I now approach it and not on a matter of indigenous cultural heritage. On a purely financial perspective, having heard the evidence in this matter, I can indicate that had the matter proceeded to a formal decision at the end of the day after hearing all evidence, on the evidence I’ve heard today I would not have been minded to have amended the Cultural Heritage Management Plan to allow for the presence of an archaeologist for the full 39 days contemplated. However, the fact that two items of cultural heritage have been already found to date on site do raise in my mind the possibility that additional items of indigenous cultural heritage may be found by the experienced monitors who will be working on the site, particularly in those areas of significant vegetation, and if those finds do occur there will be by the terms of the agreement as previously cast a delay of some day or days to the project in having the archaeologist come to site. I accept that any delay in those circumstances to machinery, manpower etc. on site can have very significant financial consequences, so therefore balancing the cost of the archaeologist against the likelihood which I place probably higher than others that additional indigenous cultural heritage will be found, I find the proposal for the archaeologist to be present for 10 days on site to be a wise investment from a financial perspective and therefore I allow that amendment but only subject to the comments I have made regarding the pre-eminence of indigenous parties as the cultural heritage monitors and the archaeologist being present following a cost benefit analysis and given the likelihood of future finds of indigenous cultural heritage on site.
Insurance for Aboriginal monitors
As regards the strict drafting of the CHMP, it is done in such a way as to create not a position of employment of indigenous monitors by the sponsor, but by way of a contractual basis of independent contractors. Set up in that fashion and, particularly given that each individual contractor will be required to hold their own ABN, it would appear appropriate that any matters of insurance fall as an individual responsibility or a responsibility between the contractor and contractee rather than one to be dealt with under the CHMP, so in effect I do not see it as necessary or appropriate for this court to make any specific determinations regarding insurance for the CHMP.
Attendance at induction sessions
For the inductions, my view is that notification be given to all of the endorsed parties of when the inductions are to take place and they have the opportunity to attend an induction session, but that it not be necessary for all endorsed parties to attend all induction sessions. I think that’s just simply too onerous provided that all induction sessions are the same or substantially the same.
Inclusion of broader definition of monitors
Mr Best (and for Mr O’Connor in his absence), I note your comments particularly in relation to the proposed amendments. I appreciate that a lot of people put a lot of time into the development of the CHMP. From the court’s perspective, I don’t know what happens in the background regarding the various indigenous endorsed parties and the various relationships that do or don’t exist in that regard, but the court has an obligation to ensure that indigenous cultural heritage is protected and my particular element in looking at that is always to ensure as broad a coverage as possible without being onerous or past the point of any logical way of dealing with things from the point of view of a sponsor. When I see a group of indigenous people who have disputes, but that at the end of the day following mediation, meetings and other things, a sponsor can reach an accommodation that is inclusive of indigenous parties, not exclusive, I think for the purposes of the empowering of indigenous people as a whole it’s a better thing given that in past years it was the case where a developer, an agency, anybody would pick and choose a favourite and say they’ve consulted with indigenous parties. Now I’m not saying at all that’s the case now. I believe that times have changed but that’s why I and the court have to view a CHMP as inclusively as possible because it could have been in the past Mr Best that you for instance would have been the one who was left out and wanting to be included in a process, so for that reason alone I am content with the amendments put forward by the State in this regard.
Following my determination of the above discrete issues, I sought from all parties present at the hearing their submissions as to whether or not, in light of my rulings, they were prepared to consent to the balance of the CHMP as presented to the Court by Ms Bowskill for the State in its latest amended form. All parties present indicated their agreement with the latest version of the draft CHMP as amended in light of my rulings.
As all Aboriginal parties have not attended the formal hearing of this matter, and as it is considered likely that it would take a considerable amount of time for the State to obtain formal consent of all aboriginal parties to the CHMP formulated in light of my rulings on discrete issues, the State sought a formal determination and recommendation by the Court to the Minister. No parties present objected to such course of action.
Ms Bowskill, for the State of Queensland, later on 21 November 2008 provided to the Land Court a fresh version of the draft CHMP duly amended to include all relevant amendments in accordance with my rulings on discrete issues as well as other amendments as agreed between the parties.
A copy of the draft CHMP of 21 November 2008 as presented to the Court by Ms Bowskill is attachment “A”. As attachment “A” quite properly contains confidentiality provisions, I order that, save for its inclusion as an attachment to this decision to be provided to the Minister and the parties, it otherwise be sealed, marked confidential, and not opened except under order of the Court.
As it is my view that the draft CHMP set out in attachment “A” has been produced in accordance with my rulings on discrete issues and consistent with matters as agreed between the State and various aboriginal parties, it is my view that the draft CHMP as set out in attachment “A” meets all the requirements of s. 118 of the ACHA and I accordingly recommend to the Honourable the Minister for Natural Resources and Water that the CHMP as set out in attachment “A” to these reasons be approved.
It would be remiss of me not to acknowledge the considerable efforts of all parties to this matter in reaching the amicable conclusion to this long, difficult and protracted matter.
Order
1.Attachment “A”, save for its inclusion as an attachment to this decision to be provided to the Minister and the parties, it otherwise be sealed, marked confidential, and not opened except under order of the Court.
2.It is recommended to the Minister for Natural Resources and Water that the draft cultural heritage management plan (“CHMP”) for the proposed Gold Coast University Hospital as set out in Attachment “A” hereto be approved.
PA SMITH
MEMBER OF THE LAND COURT
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