The Manbarra People and Great Barrier Reef Marine Park Authority and Anor
[2004] AATA 268
•15 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/728
GENERAL ADMINISTRATIVE DIVISION ) Re THE MANBARRA PEOPLE
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And INDIAN PACIFIC PEARLS PTY LTD
Joined Parties
DECISION
Tribunal Justice G Downes, President
Dr E Christie, MemberDate15 March 2004
PlaceSydney
Decision 1. The decision under review is set aside.
2. In substitution for that decision the Tribunal decides:
(a) A permit covering ten hectares in the form of the permit granted to Indian Pacific Pearls Pty Limited from 7 August 2000 to 1 September 2005 (T060) including reference to the deed in its form attached to that permit is to be issued to Indian Pacific Pearls Pty Limited.
(b) The permit is to expire at midnight at the end of 1 December 2005.
(c) The area of the permit is to be described as in the draft permit prepared by the Authority and furnished to the Tribunal with a letter dated 5 February 2004 but that permit is otherwise not to be used.
(d) The permit is to contain the following condition:
Notwithstanding anything to the contrary in any part of this permit or the attached deed:
(a) the applicant shall be permitted to maintain its lines, ropes, chains, anchors and panels where they are at present;
(b) the operations to be carried on pursuant to this permit shall not include any expansion of the pearl farming operations currently being carried out.
........(sgd Garry Downes).......
President
REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/716
GENERAL ADMINISTRATIVE DIVISION ) Re ZEN PEARLS PTY LTD
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And WALTER PALM ISLAND
VIOLET SIRRIS
ALLAN BULLERJoined Parties
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/728
GENERAL ADMINISTRATIVE DIVISION ) Re THE MANBARRA PEOPLE
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And INDIAN PACIFIC PEARLS PTY LTD
Joined Parties
ENVIRONMENT – Parks and reserves – Great Barrier Reef Marine Park – Application for review of decision concerning grant of further permit – permit to conduct pearl oyster farming operations – requirement to consider protection of “cultural and heritage values” held by “traditional inhabitants and other people” and the “use and amenity” of the area – opposition by indigenous residents of Palm Island Group – original permit should not have been granted – term of permit extended – considered a “reasonable general-use” under Zoning Plan – limited right to continue under existing conditions – cessation of pearling operations after harvest – Great Barrier Reef Marine Park Act 1975 (Cth) ss 5, 32, 33 and 36 – Great Barrier Reef Marine Park Regulations 1983 (Cth) reg 18(4)
Great Barrier Reef Marine Park Act 1975 (Cth)
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Environment, Sport and Territories Legislation Amendment Act 1995 (Cth)
Land Act 1962 (Qld)
Community Services (Aborigines) Act 1984 (Qld)Great Barrier Reef Marine Park Regulations 1983 (Cth)
Great Barrier Reef Marine Park Central Section Zoning Plan (1984)Ashton v Commonwealth Government of Australia [2003] FCA 92
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Broad v Brisbane City Council and Baptist Union of Queensland [1986] 2 Qd.R. 317; (1986) 59 LGRA 296
Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Humby v. Woollahra Municipal Council (1964) 10 LGRA 56
Jebb v Repatriation Commission (1988) 80 ALR 329
Mason v Tritton (1994) 34 NSWLR 572
Melbourne City Council v Silver Top Taxi Service Ltd (1994) 89 LGERA 387
R v Toohey & Anor Ex Parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327
Re Wamba Wamba Land Council & Anor v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 & Anor (1989) 23 FCR 239
Stupak-Thrall v United States (89 F.3d 1269) (6th Cir July 23, 1996) 27 ELR 20001
Sutton v Derschaw (1995) ACrimR 318
Thompson v Enz 154b N.W.2 d473Tickner v Bropho (1993) 114 ALR 409
Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8
REASONS FOR DECISION
Justice G Downes, President
Dr E Christie, MemberINTRODUCTION & SUMMARY............................................. Error! Bookmark not defined.
PART ONE: THE FACTS..................................................... Error! Bookmark not defined.
Part 1.1: THE GEOGRAPHY.................................................... Error! Bookmark not defined.
Part 1.2: THE TRADITIONAL INHABITANTS............................ Error! Bookmark not defined.
Part 1.3: THE PERMITS........................................................... Error! Bookmark not defined.
Part 1.4: THE APPLICATIONS................................................. Error! Bookmark not defined.
Part 1.5: THE PEARLING OPERATIONS.................................. Error! Bookmark not defined.
Part 1.5.1: The Operations at Present...................................... Error! Bookmark not defined.
Part 1.5.2: Intended Future Developments............................... Error! Bookmark not defined.
Part 1.6: IMPACT OF THE PEARLING OPERATIONS............... Error! Bookmark not defined.
Part 1.6.1: Natural Impacts....................................................... Error! Bookmark not defined.
Part 1.6.1.1: Movement...................................................................................... Error! Bookmark not defined.
Part 1.6.1.2: Site.................................................................................................. Error! Bookmark not defined.
Part 1.6.1.3: Noise............................................................................................... Error! Bookmark not defined.
Part 1.6.2: Specific Impact on Local Persons Generally.......... Error! Bookmark not defined.
Part 1.6.3: Impact on Traditional Inhabitants........................... Error! Bookmark not defined.
Part 1.6.3.1: General Use of the Bay by Traditional Inhabitants............ Error! Bookmark not defined.
Part 1.6.3.2: Importance of Juno Bay from a Traditional Perspective.. Error! Bookmark not defined.
Part 1.6.3.2.1: Observable Activities........................................................... Error! Bookmark not defined.
Part 1.6.3.2.2: Subjective Practices and Sensibilities............................ Error! Bookmark not defined.
(a) Grave Sites and Spirits.................................................................. Error! Bookmark not defined.
(b) Importance of Following Traditional Laws............................... Error! Bookmark not defined.
(c) Importance of Consensual Entry into an Area........................ Error! Bookmark not defined.
(i) The Need for Permission When Entering an Area.......... Error! Bookmark not defined.
(ii) The Sense of Intruding Upon Traditions Without Consultation Error! Bookmark not defined.
(d) Importance of Allowing Community to Restore Lost Traditions Error! Bookmark not defined.
(e) Importance of Introducing Successive Generations to the Area Error! Bookmark not defined.
Part 1.7: HISTORY OF OPPOSITION TO PEARL FARMS.......... Error! Bookmark not defined.
Part 1.8: Consultation WITH the Palm Island Community Error! Bookmark not defined.
PART TWO: THE LEGAL FRAMEWORK............................. Error! Bookmark not defined.
Part 2.1: The Central Section Zoning Plan.................. Error! Bookmark not defined.
Part 2.3: The Great Barrier Reef Marine Park Regulations 1983 Error! Bookmark not defined.
Part 2.3.1: Regulation 18(4)(a): Objective of the Zone.............. Error! Bookmark not defined.
· “Reasonable Use”........................................................................................... Error! Bookmark not defined.
Part 2.3.2: Regulation 18(4)(b): Cultural and Heritage Values.... Error! Bookmark not defined.
· “Traditional inhabitants”............................................................................... Error! Bookmark not defined.
· “Aboriginal Tradition”.................................................................................... Error! Bookmark not defined.
· “Aboriginal Tradition and Burial Sites”..................................................... Error! Bookmark not defined.
· “Traditional Fishing”...................................................................................... Error! Bookmark not defined.
· “Other People”................................................................................................. Error! Bookmark not defined.
· “Cultural and Heritage Values”.................................................................... Error! Bookmark not defined.
Part 2.3.3: Regulation 18(4)(e): Use and Amenity...................... Error! Bookmark not defined.
· “Amenity”.......................................................................................................... Error! Bookmark not defined.
Part 2.4: The Effects of the Legislative Provisions Error! Bookmark not defined.
Part 2.5: Joint Management and the Park................... Error! Bookmark not defined.
PART THREE: SUBMISSIONS............................................. Error! Bookmark not defined.
Part 3.1: Regulation 18(4)(a): Objective of the Zone................ Error! Bookmark not defined.
Part 3.2: Regulation 18(4)(b): Cultural and Heritage Values..... Error! Bookmark not defined.
Part 3.2.1: Status of the Manbarra People................................................... Error! Bookmark not defined.
Part 3.2.2: Cultural and Heritage Values Requiring Protection.............. Error! Bookmark not defined.
Part 3.2.3: Uniqueness of Juno Bay.............................................................. Error! Bookmark not defined.
Part 3.2.4: Impact of Future Development on Traditional Values.......... Error! Bookmark not defined.
Part 3.3: Regulation 18(4)(c): Future Options for the Park........ Error! Bookmark not defined.
Part 3.4: Regulation 18(4)(e): Use and Amenity....................... Error! Bookmark not defined.
Part 3.5: Regulation 18(4)(f): Adjoining and Adjacent Areas and the Environment Error! Bookmark not defined.
Part 3.6: Other Considerations................................................. Error! Bookmark not defined.
Part 3.6.1: The Australian Heritage Commission Act 1975...................... Error! Bookmark not defined.
Part 3.6.2: Applicants’ Financial Interests.................................................... Error! Bookmark not defined.
Part 3.6.3: Traditional Inhabitants Economic Interests............................. Error! Bookmark not defined.
PART FOUR: CONSIDERATION......................................... Error! Bookmark not defined.
PART FIVE: CONCLUSIONS................................................ Error! Bookmark not defined.
INTRODUCTION & SUMMARY
1.The Great Barrier Reef Marine Park Authority has made decisions permitting limited pearling operations in the waters of the Palm Islands Group in North Queensland. There are two decisions. Zen Pearls Pty Ltd seeks review of one decision refusing to extend its existing permission to conduct pearling operations. This application is opposed by members of an Aboriginal group from the Palm Islands, the Manbarra People. They also seek review of the other decision that permits a company associated with Zen Pearls, Indian Pacific Pearls Pty Ltd, to continue to conduct pearling operations on an enlarged permit area.
2.We have decided to grant permits which will permit Zen Pearls and Indian Pacific Pearls to continue their existing pearling operations for a further two years approximately but on the basis that there will be no further extension.
PART ONE: THE FACTS
Part 1.1: THE GEOGRAPHY
3.The Great Barrier Reef extends along more than 2,000 km of the Queensland coast from approximately Bundaberg in the south to the Torres Strait in the north. The Reef was inscribed on the World Heritage List in 1981 as a place of outstanding universal value being a natural “site of remarkable variety and beauty.” The Great Barrier Reef Marine Park, the world’s largest marine park, encompasses the reefs, islands and waters of the Reef. The Park is established under the Great Barrier Reef Marine Park Act 1975. The Park covers approximately 95% of the Great Barrier Reef World Heritage Area.
4.The Park is divided into four sections to facilitate management. The sections are the Far Northern, Cairns, Central and Mackay/Capricorn Sections. The Park is managed by the Authority. The Authority was established by the Act. To assist in meeting the objects of the Act, zoning plans and regulations have been prepared.
5.The Palm Islands are a group of twelve continental islands in the Coral Sea 25km to the east of Ingham and 50km north of Townsville. They are located in the Central Section of the Park. The major islands in the Group are Great Palm Island (the largest) and Fantome (or Eumilli), Orpheus (or Goolboddi), Curacoa (or Noogoo) and Pelorus (or Yanooa) Islands. The islands were inhabited by Aborigines at the time Captain Cook navigated through the Reef area. No doubt the Aborigines had lived there for a very long time. Early in the last century the Aborigines of the Palm Islands were removed to the mainland. However, in 1918 they were resettled on Palm Island along with other aborigines. The settlement then established continues to this day.
6.Orpheus Island and Fantome Island are long, relatively narrow, islands aligned north/south. Fantome Island is slightly east of Orpheus Island. Its northern end is north of the southern tip of Orpheus Island. Fantome Island has an hourglass shape. The indentation on its western side is called Juno Bay. A fringing reef occupies the whole of the western shore of Fantome Island from the southern extremity of Juno Bay. At its north-west extremity the fringing reef is opposite the southern end of Orpheus Island where there is also a fringing reef. The channel between these two reefs is narrow and shallow. The proximity of Fantome Island and Orpheus Island at their respective northern and southern ends creates a much larger protected bay than would be established by the indentation of Juno Bay alone. The greater bay is some 2 kilometres in length. It is protected from the east and the ocean as well as from the north. Juno Bay is only exposed to the west and a little to the south. The southern end of Orpheus Island is known as Harrier Point. The line bearing south-east between Harrier Point and the western extremity of Fantome Island in the southern half of the hourglass, represents the outer limit of the greater Juno Bay. The waters south of Harrier Point are much less protected than the waters within this line. The waters become progressively calmer to the east of the line.
7.The following map, prepared for the Authority, illustrates the position:
8.The map identifies zones within the Park. The light area extending to the edges of the map is part of the “General Use ‘A’ Zone”.. The darker area that links the islands is part of the “General Use ‘B’ Zone”.
Part 1.2: THE TRADITIONAL INHABITANTS
9.The bulk of the islands in the Group are the subject of an Aboriginal Deed of Grant in Trust (Grant in Trust) under the Land Act 1962 (Qld). Orpheus Island is not included in the Grant. It has been a Queensland National Park since 1973. Pelorus Island is also not included.
10.The Palm Islands’ Aboriginal community is comprised of two substantial groups. The first is made up of the descendants of the original traditional inhabitants. They are the traditional owners. They are known as the Manbarra People. The other group represents Aborigines who were settled on the island at and after 1918 and their descendants. They are known as the Bwgcolman People. The Manbarra People, as the traditional owners, are parties to these proceedings. Representatives of the Bwgcolman People gave evidence before us but they are not parties to the proceedings.
11.There is no doubt that there were Aborigines on the Palm Islands before any European arrived. Their existence was recorded by Captain Cook who gave the islands their name. At the time of Captain Cook’s visit there were probably about 200 natives on Palm Island. By the late 19th Century the Aboriginal population had been reduced to about 50, apparently because many had left the islands to go fishing for bêche-de-mer with Europeans.
12.Great Palm Island was gazetted as a “reserve for the use of the Aboriginal people of the State” on 20 June 1914. The remaining islands of the Palm Islands Group, except Orpheus and Pelorus Islands, were added to the reserve in later years. Palm Island was intended to be used for the resettlement of Aborigines brought from remote parts of Queensland. The Queensland Chief Protector of Aboriginals was intended, under the provisions of The Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), to use the Palm Islands to intern people who had been removed from the northern regions of Queensland.
13.The Hull River mission settlement at Mission Beach near Tully was also gazetted as a reserve in 1914. Mission Beach was intended to be used to resettle local Aborigines including the aborigines of Palm Island. Twenty-two people are listed as having been removed from Palm Island and sent to Mission Beach in 1916. The Hull River Mission was destroyed by a cyclone in 1918. Many Aborigines escaped but many were removed to Palm Island and the Mission was closed. Thereafter Aborigines from all over Queensland were taken to Palm Island. It is likely that Aborigines coming from Palm Island were returned to Palm Island from Mission Beach. It is also likely that some native Palm Island Aborigines had remained on Palm Island notwithstanding the removal of 22 of them to Mission Beach.
14.The Palm Island reserve was partly intended to be a penal settlement for recalcitrant individuals. Many Aborigines were transported to Palm Island. Records indicate that between 1918 and 1971 at least 5,000 people were transported there from all parts of Queensland, the islands of the Torres Strait and other Melanesian Islands. The Palm Island People trace their descent from 43 different tribal groups.
15.The Palm Island Community today has origins in many Aboriginal communities. The majority trace descent from the region between Bowen and Tully, from North Western Queensland and from Cape York. The community has a population of about 2000 people. It is largely located on Great Palm Island near Challenger Bay about 8 km south-east from Juno Bay on Fantome Island. The islands are administered by a local government Aboriginal council, the Palm Island Community Council, under the Community Services (Aborigines) Act 1984 (Qld).
16.Fantome Island was added to the Palm Islands reserve in 1927. In 1937 an isolation hospital and lazarette were established on Fantome Island for the treatment of Hansen’s disease (leprosy) and other infectious diseases. From 1944, until its closure in 1973, the Franciscan Missionaries of Mary operated the hospital. Successive Queensland administrations followed a policy of transferring all Aboriginal Hansen’s disease patients to Fantome Island. During the first decades of its operation the hospital cared for a population of over 200 patients; in later years this dropped to around 60. There is evidence that there were two hospital locations on the island. The first was at the northern end of Juno Bay. The second was on the east coast in the middle of the island. The hospital closed in 1973 and the patients were transferred to Palm Island Hospital.
17.Two cemeteries were established on Fantome Island. Those dying on the island were buried there. The cemeteries are the last resting places for deceased relatives of many current residents of Palm Island. One cemetery is in the northern part of the island close to the western coast. The second cemetery is further south on the coast.
18.On 14 June 1913 a man named Dick Palm Island wrote to the Inspector of Police in Townsville on behalf of “all the Natives of Palm Island”.. He complained about two Europeans on the island. The removal, shortly after, of the Aborigines of Palm Island suggests that this letter was counter-productive. Earlier, there was a person named George Palm Island who worked with one of these Europeans around the turn of the century.
19.The Manbarra People were first referred to in 1933 in a paper by Ernest Gribble. He called them “Mumbarah”. Oral history shows that George Palm Island was a Manbarra. This is also shown by genealogical records kept by Norman Trindale. These records also show the existence of one Mick Palm Island whose traditional name was Korukulungu and who was from the generation before George Palm Island.
20.The name Palm Island is still in use today. Walter Palm Island is an applicant and gave evidence before us. His father was also Walter Palm Island and he has an uncle called Reggie Palm Island who has a son also called Reggie Palm Island. Walter Palm Island is recognised today as one of the traditional owners of the Palm Islands. This is demonstrated by his having been selected to be an applicant and by his being recognised as such by Palm Island residents giving evidence before us. Nicholaas Heijm, an anthropologist, gave evidence before us that he was recognised as such by the Palm Island Community. Neither Walter nor Reggie Palm island are directly descended from George Palm Island. However, Dick Palm Island was Walter Palm Island’s grandfather.
21.The above facts are largely drawn from evidence of Nicolaas Heijm, an anthropologist responsible for a report entitled “The Cultural and Heritage Values held by Palm Islands People in relation to the Indian Pacific Pearls and Zen Pearls Pearl Farm Operations at Juno Bay, Fantome Island”.. The facts are supplemented by evidence given by Mr Walter Palm Island, a Manbarra Elder. We accept this evidence. The result is that it is established that there is a group of Aborigines living on or associated with the Palm Islands who are known as the Manbarra and who are the direct descendants of Aborigines living on the Palm Islands before European settlement and who can be regarded, for the purposes of these proceedings, as the traditional owners.
22.The residents of the Palm Islands who take their descent from Aborigines brought to the Palm Islands from other parts of Australia are known as Bwgcolman. From this group evidence was given before us by Edward Nullanjar, Erykah Kyle and Ralph Norman who are all highly respected members of the Palm Island Community.
23.The Palm Island Community is a troubled community. This was recognised by Erykah Kyle. Superficially it does not impress as a community functioning along traditional aboriginal lines. However, the evidence of the aborigines and Mr Heijm satisfies us that beneath the turbulent surface presented by the community there lie deeper, calmer values rooted in aboriginal tradition. As Ms Kyle said, these values may be important in helping to remove some of the turbulence from the picture of life on Palm Island which is so often presented nowadays.
Part 1.3: THE PERMITS
24.Zen Pearls and Indian Pacific Pearls, which are companies controlled by Michael Crimp, currently carry on pearl oyster farming at sites respectively in Juno Bay and near Harrier Point. These operations were originally authorised under twelve-month permits granted by the Authority. These proceedings relate to applications for review of decisions of the Authority concerning the grant of further permits.
25.The original applications were made on 4 April 1996. An initial permit was issued to Zen Pearls for a 10-hectare site at Juno Bay on 26 June 1997 for a twelve-month period commencing 30 June 1997. This area was approximately 1750m south of the northern tip of Fantome Island and about 750m or more from the western coast. It was 500m long from north to south and 200m wide from east to west. It was entirely within the General Use ‘B’ Zone. A similar permit was issued to Indian Pacific Pearls for a 10-hectare site at Harrier Point on 19 August 1997. This area was 1000m south of Harrier Point and from there extended 500m south and 200m east. The area is in the General Use ‘A’ Zone although some plans before us suggest that a part of it might be in the General Use ‘B’ Zone. On 15 March 1998, Zen Pearls and Indian Pacific Pearls applied for further permits, this time for 60 hectares. In both cases the maximum period was sought. The application forms noted that “existing permittees [would] normally [be] granted a permit for six years”. It is the decisions on these applications which are before us for review.
26.After more than a year, a permit to farm the 60-hectare Harrier Point site was granted to Indian Pacific Pearls on 12 May 1999, expiring on 12 May 2004. No further permit was granted to Zen Pearls for the Juno Bay site. The decision to grant a permit to Indian Pacific Pearls but to refuse Zen Pearls’ application was reconsidered and affirmed on 1 September 1999. A permit for 60 hectares was issued to Indian Pacific Pearls in or around May 2000, commencing on 7 August 2000 and expiring on 1 September 2005, six years after the reconsideration decision was given.
27.The applicant companies began operations on both sites shortly after the original permits commenced. They have continued those operations until now. We note that on 17 September 2001 Senior Member Beddoe, in the proceedings relating to the Juno Bay site, ordered “that the operation and implementation of the decision under review be stayed until further order.” It is not clear how a stay of a decision to refuse to grant a permit can amount to the grant of a permission to carry out operations when the only permit to carry out those operations had expired more than three years earlier (cf. Shi v Migration Institute of Australia Ltd [2003] FCA 1304). However, all parties have sensibly proceeded as if the applicant companies are entitled to continue their operations until the Tribunal has completed its review.
28.Mr Crimp gave evidence that when the initial permits were granted by the Authority he had been assured by the Authority that the permits would be renewed. However, this evidence was given in the most general terms. During the hearing we informed Mr Crimp that we could not act on this evidence unless it was given in detail. No such detailed evidence was given. Nevertheless the parties accepted that it was known that a pearl farming operation could not be made commercially viable in one year so that one-year initial permits would be followed by applications for further permits. They accepted that it was known that further permits would usually be granted, particularly in the absence of emergent opposition or environmental damage.
Part 1.4: THE APPLICATIONS
29.Zen Pearls seeks review of the reconsideration decision made on 1 September 1999 in so far as it confirmed the Authority’s decision of 12 May 1999 to refuse to issue a permit for Zen Pearls to farm pearl oysters in the waters of Juno Bay. The Manbarra People seek review of the same reconsideration in so far as it confirmed the grant of a permit to Indian Pacific Pearls to farm a 60-hectare site south of Harrier Point for a period of six years.
30.The reconsideration delegate concluded that the following factors led to the conclusion that the Juno Bay permit should be refused and the Harrier Point permit should be granted:
“(a)the need to protect the cultural and heritage values held in relation to the Marine Park by traditional inhabitants;
“(b) the likely effect on future options for the Marine Park; and
“(c)the nature and scale of the proposed use in relation to existing use and amenity of the area and nearby areas.”
These grounds reflect three matters to which the Authority was required to have regard pursuant to the Great Barrier Reef Marine Park Regulations 1983.
31.Indian Pacific Pearls originally applied to the Tribunal for review of a condition of the grant of the Harrier Point permit. This application was subsequently withdrawn. In the application for review of the decision to refuse the Juno Bay permit Zen Pearls sought a permit of 60 hectares for six years but this was subsequently amended to reduce the area to 10 hectares Three persons, namely Walter Palm Island, Violet Sirriss and Allan Buller, were made representative parties to the proceedings in the name of the Manbarra People.
32.At the hearing, the applicant companies were represented by Mr Michael Crimp (a director of both companies), the Authority was represented by Mr Michael Fellows of counsel and the Manbarra People were represented by Mr Andrew Preston of counsel.
33.Evidence on behalf of the applicant companies was given by Mr Crimp. Mr Nicolaas Heijm was called to give evidence by the Authority. Walter Palm Island, Edward Nullanjar, Erykah Kyle and Ralph Norman gave evidence on behalf of the Manbarra People.
Part 1.5: THE PEARLING OPERATIONS
34.Methods for pearl production differ. The following is an account of how Mr Crimp carries out his operations. It is drawn from evidence of Mr Crimp which we accept.
35.The pearl oysters commence life as spats which have been cultured in special hatchery farms. The spats are brought to the pearl farm site where they need to be grown out for approximately two years. Expert technicians then seed the pearls. It takes another two years before a commercial pearl is produced.
36.The shells are suspended from long lines. Some of these lines are on the surface. Others are below the surface or ‘midwater’.. The lines are held in place by rope, chain and anchors on the sea bed. The surface lines are kept on the surface by 20 litre buoys. The lines are approximately 100 metres long. There are approximately 30 to 45 buoys for each line. The midwater lines are also held in place by rope, chain and anchor. The lines are held midwater by star pickets driven into the sea bed operating against below-surface buoys pulling on the lines. There are three buoys on the surface for each midwater line. This is to show the location of the line. Each line, whether on the surface or midwater, has vertical lines dropping from it at one metre intervals. Each drop has an attached panel containing six to eight shells.
Part 1.5.1: The Operations at Present
37.The applicants established their operation between January and June 1998. Thirteen lines were laid out at Juno Bay and 10 lines at Harrier Point. The position is still much the same. The Juno Bay site is 500 metres by 200 metres. The area can be divided into northern and southern halves. In the northern half there are presently 6 lines. One line is midwater and the others are on the surface. In the southern half there are 4 lines, one of which is a midwater line. Although the Harrier Point permit, subject to this review, is now 60 hectares, the applicants presently use only the same area as in Juno Bay. There are five lines in the northern half and five lines in the southern half. One of the northern lines is a surface line. The remainder are midwater lines.
38.In their first three months the shells require frequent inspection and cleaning. This requires each panel to be lifted out of the water. Cleaning is required less frequently as the shells mature but it continues to be required throughout the commercial life of the oysters. There is a time when the shells are laid on the bed of the sea and frequently turned. This and other activities require diving operations. Mr Crimp also has a site in the Hinchinbrook Channel, leased from the State Government, where he occasionally moves young shell in winter.
39.The applicants have had three vessels in the area. The first is a 15 metre vessel – an old tug. There is also an 8.5 metre jet boat and a 6 metre open fibreglass long boat. The tug has been there since 1998. The tug is usually moored on the Juno Bay site.
40.Mr Crimp tries to be permanently on the site living on the old tug. He has had permanent employees working on the site but now gets by with casual labour. The ideal arrangement from Mr Crimp’s point of view would be to have employees permanently on the site with him making weekly visits. However, that has not been possible to date. Mr Crimp would like to be running a seven day operation. If he had the approval he now seeks he would have three to four employees on site increasing to 10 or 12, or even 14.
41.The seeding is presently done on shore. However, Mr Crimp would prefer it to be done on site by two technicians. This would require a vessel of 25 to 30 metres. The shells are cleaned at least every four to six weeks throughout their life. As they approach maturity the shells need to be tested and the growing pearls examined so that the correct time for harvesting can be judged.
42.When the shells are ready to be harvested the pearls are removed and the shells reseeded. This is two to three years after the first seeding. A new pearl will grow. The second pearl will be bigger than the first. The shells will grow normally for about seven or eight years. Thereafter they will grow more slowly. Shells have a commercial production life of about 10 to 12 years.
43.It takes four or five years before a first pearl is produced. Thereafter a pearl will be produced roughly every two years. A shell will produce three and sometimes four pearls throughout its life. The shell itself is then marketable. Mr Crimp would sell the shells to buyers in the Torres Strait who specialise in this activity.
44.It should not be thought that Juno Bay is otherwise unoccupied. It is used by pleasure craft which moor there, sometimes for a number of days. It is frequently visited by people fishing from open boats with outboard motors. These visitors are mostly from Palm Island. Mr Crimp said that the uses of Juno Bay ranged between bare boating, commercial tourism, chartering, jet skiing, water skiing and general fishing and boating. He said it would need to be a really foul day before the bay was completely empty. However, these activities are passing even if frequent. The pearling operations proposed would be permanent.
Part 1.5.2: Intended Future Developments
45.Mr Crimp produced a site development plan for the Tribunal which outlined the projected developments of his pearling operations for the next six years and beyond. His budget for 2003-2015 was based on pearl farm operations at a 10 ha site at Juno Bay and a 60 ha site at Harrier Point. Operations at the Harrier Point site would utilise the entire 60 ha, although not at the same time. At full development, there would be 15 long lines at Juno Bay and 90 at Harrier Point.
46.Mr Crimp said that the first harvest at the Juno Bay site would be in 2004 with a second harvest in 2005. The same, re-seeded shells would be used for succeeding harvests in 2006, 2008 and 2010. Successive harvests would be associated with larger pearls having a higher commercial value. Mr Crimp accepted that, if he were granted a permit for both sites Juno Bay would become the hatchery and Harrier Point would become the farm. All mature pearls would ultimately be grown at Harrier Point and it would be this site from which they would be harvested.
47.Indian Pacific Pearls’ current permit for the Harrier Point site permits the operation of an “accommodation/laboratory vessel” of up to 35m. There is no current permit to moor a vessel in Juno Bay. Mr Crimp’s site development plan foresees the need for a 25 to 30m vessel. Mr Crimp agreed that if the vessel could be located at Juno Bay it would not be located at Harrier Point. Indeed, he said that because the vessel would be used for accommodation it would not be possible for it to be moored anywhere other than in Juno Bay. The whole of the Harrier Point site was too exposed and too deep. Mr Crimp acknowledged that as the level of his operations expanded over time the work would require a vessel that was capable of accommodating up to 14 people. Accommodation would be required for 8 full-time staff increasing to 14 staff during periods of seeding and harvesting.
48.Mr Crimp gave evidence as to the consequences of granting or refusing him permits. He said that in the event that a permit was not granted for the Juno Bay site, subject to some qualifications, it was possible for the lines of growing pearls at Juno Bay, scheduled to be harvested in 2004/2005, to be towed off site to the Harrier Point site. The qualifications related to penguin shells because of problems in movement associated with the way they are kept. Unlike round pearls, penguin shells are not kept in panels. Moving these shells may cause them to fall off the rope to which they are attached because of the way individual penguin shells are tied after being seeded.
Part 1.6: IMPACT OF THE PEARLING OPERATIONS
49.Before turning to the statutory context in which we must deal with these applications it seems appropriate to look at the natural and observable impact of the present and proposed future pearling operations.
Part 1.6.1: Natural Impacts
50.The pearl farming can be said to have impacts in three areas: movement, site and sound. It is accepted by all parties that there are no ecological impacts of concern.
Part 1.6.1.1: Movement
51.General navigation through the Palm Islands Group will not be affected. All effects on movement will be local. For practical purposes navigation will virtually be precluded in two areas more than 60 hectares and 10 hectares each. We say more than 60 and 10 hectares because that is the limit of the sites. Navigation to avoid the sites will require the boundaries to be given a wide berth. We note, however, that the whole 60 hectares may not be in use. Only 10 hectares is currently in use. The 10 hectare area restriction will be more inhibiting to navigation than the 60 hectare area because it is close to the shore and will particularly affect fishing. The Juno Bay site provides good fishing off the edge of the fringing reef.
52.It is true that smaller vessels can be navigated through the lines but most casual boat users in the area will have no idea what is below and it would be a hardy navigator who attempted to pass through the lines. Most navigators would feel compelled to give the area a wide berth. That is not to say, however, that people fishing, especially from Palm Island, would not come to learn where the lines are and how to navigate and fish between them.
Part 1.6.1.2: Site
53.A significant impact will be the visual effect. The most troubling aspect of this will be the constant presence of three vessels one of which, in due course, will be approximately 30 to 35 metres in length. The vessel will usually be in Juno Bay. The impact is made more noticeable because the whole surrounding area is undeveloped. The tutored observer in the Bay will be able to see the remains of hospital buildings but the first impact of seeing the bay and Fantome and Orpheus Islands around it is of untouched nature. The visual impact of the proposed operations would be much less if located in a port. There it would hardly be noticed. The contrast is what matters here. The fact that there are occasional recreational activities, including visits by yachts and motor cruisers which anchor overnight, does not alter this impact. It is not permanent. The visual impact of the proposed pearling operations, in their context, is a serious adverse impact.
54.The waters of Juno Bay are naturally the dominant view westward from the shore and the fringing reef in Juno Bay. Much of the western side of the island appears to be covered by a range of hills higher in the north and south with a saddle in the middle. The view west from this landscape is also dominated by the waters of the Bay. Juno Bay must be plainly visible from the hospital and cemetery sites.
55.While Juno Bay is the dominant site from the west of Fantome Island the Harrier Point site is also plainly visible from anywhere on the western side of the island. At its closest point the Juno Bay site is about 850 metres from the shore and 200 metres from the edge of the fringing reef. The Harrier Point site is two kilometres from the shore.
56.The most significant visual impact of the operations at present is the old tug less than one kilometre from the shore. It is there virtually permanently. When replaced by a vessel approximately twice its length and much higher the impact will be considerably greater. The evidence is that because the vessels are used for accommodation they must be moored in the Juno Bay site. It follows that one consequence of the proposed pearling venture will be the permanent presence of a highly visible and substantial vessel in a bay which has previously only sheltered yachts and motor vessels moored for relatively short periods.
57.Buoys will be visible on the water. Of course, the scene will not be static. People will be working. Boats will be moving, panels will be being lifted in and out of the water.
Part 1.6.1.3: Noise
58.Associated with the visual impact of the operations is the noise they will make. Inevitably this will be greater as the operations expand. We recognise, however, that little was made of noise in the submissions before us.
59.In addition to the large vessel there will be at least two smaller boats on the site and up to a dozen workers. The activities of raising and lowering panels, cleaning them (which involves high pressure pumps for hosing them), and diving operations will add to the impact.
60.It is to be noted that Mr Crimp instructs his staff that they must respect the rights of others in the area. They are not to go on the land nor to otherwise be intrusive. Nevertheless, the activities will still be noticeable and will be accompanied by noise.
Part 1.6.2: Specific Impact on Local Persons Generally
61.Challenger Bay on Palm Island is hidden from view from Juno Bay. Yet it is easily accessible by boat. The southern tip of Fantome Island is only six kilometres from the shores of Challenger Bay and the heart of Juno Bay is only three to four kilometres more. We have no doubt that local Palm Islanders use Juno Bay for fishing and recreation in just the same way as Australians of European origin use enclosed waters for fishing and recreation.
62.We accordingly begin with the proposition that for the majority of Australians the current and proposed future pearling operations in Juno Bay will have an adverse impact.. The permanent presence of what amounts to a light industrial operation in an unspoilt natural area is simply an affront to the eye. If the hills of Fantome Island and Orpheus Island overlooking Juno Bay were the site of a number of expensive houses, or a tourist resort, we have no doubt that the opposition to the pearling operations would be very substantial – and this notwithstanding the fact that the on shore developments would themselves adversely impact on the area. The main claim of the residents would be that the pearling operations spoiled the visual beauty of the bay.
Part 1.6.3: Impact on Traditional Inhabitants
63.We turn to the particular impact which the pearling operations have so far as the Manbarra and Bwgcolman People are concerned. The pearling operations impact on the traditional inhabitants in several ways. They are, like any users of the Bay, affected by the impacts outlined above. However the pearling operations also impact upon them in more specific ways.
64.We were assisted in assessing this impact by oral evidence from one Manbarra person, namely Walter Palm Island, three Bwgcolman People, namely Edward Nullanjar, Ralph Norman and Erykah Kyle, and the anthropologist, Nicolaas Heijm.
65.Walter Palm Island told us that his father followed Manbarra laws and customs taught to him by his Elders, especially laws and customs about the sea country and how to use it; the land and the sea were considered as one.
66.Edward Nullanjar gave evidence as a representative of the Bwgcolman People. He said that he was taught about Manbarra tradition by Walter Palm Island Senior and Reggie Palm Island Senior whom he recognised were among the traditional owners for Juno Bay and Fantome Island.
67.We also heard from Ralph Norman, who has lived on Palm Island for 50 years. He is also a Bwgcolman. He acknowledged the Manbarra as the traditional owners of the Palm Islands and the waters around them.
68.Eyrkah Kyle said that she was a Bwgcolman or “historical person” and not a traditional owner. Just as her family had done, she respected the Manbarra as the traditional owners of the islands and waters. She told us that the Bwgcolman People do not speak for the Manbarra People.
69.We also heard from Mr Nicolaas Heijm, the consultant anthropologist. He has had a long history of association with the Aboriginal people on Palm Island. He has lived on the island, carried out observations and research there, interviewed families to obtain genealogical histories and been involved in island affairs.
70.We had three reports before us bearing on this issue. There is the report by Nicolaas Heijm entitled “The Cultural and Heritage Values held by Palm Islands People in relation to the Indian Pacific Pearls and Zen Pearls Pearl Farm Operations at Juno Bay, Fantome Island”. There is a report by Mr Michael Baer, a marine biologist and environmental consultant, entitled “Aboriginal Co-management of Marine Park Permits in Ancestral Waters: a Pilot Study”.. There is also a report by Mr Adrian Pryor, a person of aboriginal descent, born on Palm Island and with close ties with the Bwgcolman People, entitled “Report on Consultation with Ancestral Owners and Palm Island Community Members about the Proposed Pearl Farms at Juno Bay and Yanks Jetty” made in October 1996. Mr Heijm and Mr Baer had acted as consultants to the Authority. Mr Pryor had assisted Mr Crimp with his submissions to the Authority.
General Use of the Bay by Traditional InhabitantsPart 1.6.3.1:
71.Not all of the evidence given by the inhabitants of the Palm Islands related to cultural or spiritual impacts. It is important to recognise the impacts that the pearling operations have on the contemporary culture of the Palm Island Community, as distinct from the traditional values held by many of them.
72.Mr Nullanjar stated that Juno Bay was their “best asset”. It was a safe place because of its location. It was a wonderful place to camp, to hunt and to safely anchor a boat. It was like a “supermarket” with the available foods on land and sea. It was easily the best place in the Palm Islands Group. There was no other place other than Juno Bay for these activities.
73.Mr Nullanjar considered the pearl farm operations to be a barrier to waters that were previously empty and open. Fishing was now associated with the risk of interfering with the pearl farm operations.
74.There was evidence that Fantome Island was used for camping by Palm Island People and their families. Mr Nullanjar stated that he went there twenty times a year with other families who could often be seen there. When possible he would stay for days at a time. He went there to camp, hunt and fish for his family. He said that some families camped on Fantome Island for up to a month at a time. Two of his brothers go there to fish and camp and live off the land. Ms Kyle stated that she also camped on Fantome Island with friends for a few days at a time. In a statement Mr Bunn said that there are many camping sites on Fantome Island. He said that people from Palm Island camp there for weeks at a time.
75.There was evidence from Mr Crimp that there were school excursions to Juno Bay from Palm Island. Staff of the pearl farms had conducted “pearling seminars” for two such excursions and rescued a school excursion vessel that had run out of fuel. They had also assisted other vessels and people in the area, some of whom may well have been members of the Palm Island Community.
Importance of Juno Bay from a Traditional PerspectivePart 1.6.3.2:
76.We turn now from the general impacts to the particular cultural impacts of the pearling operations. It is convenient to divide these impacts between those relating to observable traditional activities and those with a more subjective basis.
Part 1.6.3.2.1: Observable Activities
77.Mr Norman explained that Fantome Island was a place where traditional foods and plants were found. In addition, medicinal plants and special woods, including woods used to make didgeridoos, clap sticks and boomerangs were found there. Mr Norman expressed concerns that if a turtle or dugong were to be speared close to the pearl farm area, the turtle or dugong could get tangled up in the pearl farm equipment and damage something.
78.Since the pearl farm operations had commenced at Juno Bay and Harrier Point, Mr Norman thought that the degree of freedom they had had in the past to use these areas to hunt and to fish had been reduced. Mr Norman expressed concern that increased interference in these waters would arise from the pearl farm operations because the pearl farm would further restrict their access to these waters as it developed. Mr Norman concluded by saying that the pearl farm was located in a traditional hunting area.
79.There was also evidence of use of the area for initiation practices. Mr Heijm refers in his report to “[t]raditional use of Juno Bay as a traditional hunting and fishing ground, and as an initiation area for young people”. Walter Palm Island stated that “[d]uring initiation, young men had to go on a walk around the island and could only take a spear with them and had to feed themselves. They had to go to certain sacred places around the island.” He stated “[t]hese days we still initiate young people but not in the same way as in the old days.”
80.There was evidence that Juno Bay was used as an area in which young people could be inculturated with traditional practices. Mr Bunn stated that the “Juno Bay area is used to teach young people to fish and hunt. It is the best place to do so.” Mr Norman explained that children go to Juno Bay with their parents to learn how to hunt and fish and gather traditional foods”.. Ms Kyle stated that she had “taken children over to Juno Bay to teach them about traditional foods and our traditional ways. Because food is plentiful and the place is very sheltered it is a good place for teaching ... It is crucial to the survival of [traditional ways] that these ways can be handed down to the young people.”
Part 1.6.3.2.2: Subjective Practices and Sensibilities
81.Before asking how the pearling operations impact upon the subjective values of the traditional inhabitants of the Palm Islands, it is useful to ask what those values are. Mr Heijm considered that the primary difference between traditional inhabitants and European communities in terms of the use and enjoyment of the environment was that traditional inhabitants prized living off the land by hunting and fishing (for example on Fantome Island), as well as their spiritual observances. It was Mr Heijm’s opinion that the concept of tradition required an assessment of understandings, conventions and values that were expressed by a broad range of people. From his association with Palm Island People over time, he stated that they lived according to traditions, observances, customs and beliefs relating to that particular Aboriginal Community. Underpinning these traditions, Mr Heijm recognised:
(a)an identity with country that had spiritual and intellectual dimensions;
(b)a concept of ownership of the country on Palm Island, that the Palm Islands were the traditional estate of the Manbarra People and that the Bwgcolman People shared in that under Manbarra tradition;
(c)the need to ask permission to go to a place in someone else’s country; and
(d)the existence of localised traditions and rituals such as introducing people to country or knowing what should be done about ancestors and burial sites.
82.There are at least five main values that are impacted by the pearl farms:
(a)the importance of respect for burial sites and the spirits attaching to those sites.
(b)the importance of following traditional laws and customs.
(c)the importance of gaining consent to enter country belonging to others (including ancestors).
(d)the importance of going outside the contemporary community to get in touch with tradition.
(e)the importance of introducing successive generations to the same land and traditions.
83.We will deal with each of these in turn.
(a) Grave Sites and Spirits
84.Walter Palm Island regarded Fantome Island as a special place because of the ancestral graves. When at Fantome Island, he felt at peace because of the spiritual presence of ancestors.. Juno Bay was a quiet, peaceful place. Whilst he fished at Juno Bay the spirits were on his mind. He said that when he went to Fantome Island, he always called out to the spirits to let them know who he was, why he was there and to seek permission to hunt and to fish in the Bay and on the Island. The pearl farm operations adversely affected the spiritual values because it obstructed and intruded upon traditional hunting and fishing.
85.Mr Palm Island stated that Fantome Island was a special place because it brought him close to, and connected him with, his ancestors spiritually; it was also special as a place where culture and beliefs could be practised. In addition, the cemetery on Fantome Island was treated with great respect because of the presence of spirits of the dead. A sense of presence of the spirits on Fantome Island was felt even when fishing on the reef. Any disturbance to this area disturbed the soul.
86.Mr Norman said that Juno Bay was as important as a spiritual place for the Bwgcolman People as it was for the Manbarra People, because of the presence of dead ancestors, as well as the need to carry on their traditions passed on to them from Elders. Mr Norman believed that Fantome Island was of great spiritual significance to the Manbarra People and was important to the Bwgcolman People. They always paid respect to the people buried there before hunting or fishing.
87.Eryka Kyle said that the biggest concern with the pearl farm related to concerns associated with the burial sites at Fantome Island. She said that she felt that the area was sacred to them. Being present on Fantome Island made her feel close to the old people and to be able to pay respect to them. She said that the pearl farm proposal should have seriously considered the burial sites on the land as they were affected by what was out at sea. The traditional way for showing respect was to talk to ancestors and to acknowledge that they were in the area when they passed through Juno Bay. Respect for their ancestors’ previous lives was reflected in the need for quiet.
88.Mr Heijm explained that according to the Aboriginal concept of spirits, as used by the Aboriginal people of Palm Island, and their association with Juno Bay and Fantome Island, ancestral spirits and forces were located in parts of the landscape, such as Juno Bay. The spirits were generally benign and helpful and the people talked to the spirits. Sometimes, the spirits spoke to the people.
89.Mr Heijm described graves as being places of “special ancestral presence” for Palm Islanders, because the spirits of the deceased remained in their country. He said that an ancestral presence existed at the two cemeteries on Fantome Island. While the spirits may have a domain or range, the boundaries were not well defined. For example, spirits could be found at a significant distance from the graves at Fantome Island. Virtually every member of the Manbarra People and the Bwgcolman People would have more than one family member buried at Fantome Island. The majority of the people who had died at the hospital on Fantome Island were buried in the cemetery.
90.Mr Heijm stated that the Manbarra and Bwgcolman Peoples had a great respect for the interests and feelings of those buried on Fantome Island.
(b) Importance of Following Traditional Laws
91.Walter Palm Island said that as he grew up on Palm Island he had learnt the rules on how to hunt, as well as the need to follow these rules, because they were a part of their laws. If, at any time, these rules were not followed, then “bad things” could happen. Mr Palm Island stated that he now teaches young people the things that his father taught him. This had to be done to ensure that both the knowledge and the laws were passed on.
92.Mr Palm Island stated that a very important rule for Aboriginal people to follow was the way to follow the laws about country. The permission of the Traditional Owner was required before coming on to someone else’s country; for example, to take their fish, turtle and dugong. Under their law, the Manbarra should be asked permission by people who wished to use the land and waters of the Palm Islands. If these laws were not followed, then bad things could occur at any time.
93.Mr Palm Island acknowledged the Bwgcolman People, who were desert and fresh water people, had been taken from many other areas of Queensland and brought to Palm Island. He said that the Manbarra People, like his grandfather and father, had taught them how to live in salt-water areas. They had also taught them about the laws of the Manbarra country.. Whilst Manbarra and Bwgcolman lived side by side on Palm Island, the Manbarra were the traditional owners and so were the only ones who had the right to speak for the land and waters of the Palm Islands.
(c) Importance of Consensual Entry into an Area
94.The idea of seeking permission to enter an area is important in two related ways. First, it is a law or custom between Palm Island People to seek permission when entering an area. Even the permission of ancestral spirits is sought. Secondly, the granting of a permit in accordance with non-indigenous law is felt to be invasive where indigenous law is not respected and, in particular, where the consent of the Palm Island community is not given. Evidence relating to this second aspect, namely consultation with the Palm Island community, is not only relevant to the impact of the pearling operations on the traditional inhabitants but also to the circumstances surrounding the grant of the permits to Zen Pearls and Indian Pacific Pearls.
(i) The Need for Permission When Entering an Area
95.The emphasis on asking permission before entering land may be effected by the unique history of the Palm Island community. This is a community in which members from diverse tribes were thrust into an area which had previously been occupied by only one tribe. The Bwgcolman People depended on the Manbarra People to introduce them to the country and waters and the salt-water ways.
96.Mr Nullanjar said that permission had to be sought to be in someone else’s country. Traditional laws had to be followed. If the traditional laws were not followed then you could become sick – or people for whom you were responsible might become sick.
97.Mr Heijm said that Aboriginal tradition required permission to enter and to use another’s country, and to introduce strangers to the spirits of the country. If this was not done the visitor could be hurt or the senior people held responsible for not following the law properly. Where problems occurred for the Palm Island they were often attributed to failures to follow the law.
(ii) The Sense of Intruding Upon Traditions Without Consultation
98.Mr Palm Island believed that the presence of the pearl farm sites caused a strong feeling of intrusion and disturbance as they had contributed to a situation where areas they once enjoyed were now being closed off, piece by piece, over time. For example, he could no longer fish close to the pearl farm in order to avoid his catch being caught up by and damaging the pearl farm equipment. He considered the disturbance to Juno Bay by the pearl farm as a form of invasion.
99.Eryka Kyle said she had always respected the right of the Manbarra, as traditional owners, to speak for the islands and waters. These rights of the Manbarra needed to be respected by seeking their approval before anything happened to the land and waters because they were the traditional owners.
100.Ms Kyle asserted that the majority of Palm Island People were not consulted about the pearl farm proposal. Nor was information disseminated sufficiently through the Palm Island Community. She stated that whilst it may be easy to travel around the pearl farm, it represented a barrier that would change their way of life.
101.Mr Heijm stated:
“…the underlying problem with the pearl farm being there is – in addition to the things we’ve discussed, is the fact that it’s there without the community feeling they’ve given their consent for it to be there. That’s what’s made people angry. And I think that’s – well, I think that’s quite logical because if the marine park can simply decide to allow something – an infrastructure to be built within the traditional waters of the Manbarra and Bwgcolman People, and that community doesn’t – the Elders do not give their consent, every time it does that it undermines the system of traditional law.
And in a sense that explains the sense of outrage that was quite evident at the community meeting we had in 1998. That was the real issue…
But even so, I think it’s perfectly logical that people will object to it and will continue to object to it because it does undermine their sense of who they are …”
(d) Importance of Allowing Community to Restore Lost Traditions
102.Another important matter is the sense of optimism which the evidence suggests at least some members of the Palm Island community have that Juno Bay can form an area in which traditional values can be fostered in young people. This is coupled with a sense that this might lead to a better future for the Community.
103.Juno Bay was described as an area away from the Palm Island Community, and away from European influences, where it was possible to get in touch with tradition. This, combined with the spiritual importance attaching to the grave sites and the prime fishing conditions, makes Juno Bay a unique place for members to visit to recover and reinforce traditional values in the younger people in the community.
104.Mr Heijm said that the people on Palm Island still commune with their ancestors when they go out of the community – particularly to places like Fantome Island or some of the more remote areas of Great Palm Island. In these places they are given the opportunity to get back in touch with traditions. No such opportunity occurs on the settled part of Great Palm Island because of the nature of life in the community and the distractions there. Nevertheless, the Palm Islanders, in Mr Heijm’s opinion, were still able to address their ancestors in the proper traditional way on Fantome Island. The pearl farm, to date, had not materially interfered with this.
105.When asked whether there were any other places in the region where the Palm Island Community could go to practice traditional activities currently practised at Juno Bay, Mr Heijm said:
“No, I wouldn’t say the range of things that people can do on Fantome Island is not really available anywhere else. In a sense it’s the totality of the experience over there, isn’t it? The whole. The entire value system. The entire range of values that people experience on Fantome really isn’t available anywhere else. That’s not to say of course that they can’t get away from the community anywhere else, but the combination of spiritual importance and the richness of the environment there for traditional hunting and foraging, the – you know, the isolation from the community combines on Fantome Island to create what is probably yes, a unique place within the Palms.”
106.Mr Palm Island regarded the waters of Juno Bay and Harrier Point as their most important fishing places. As well, they were the best places to teach their children the skills to be good salt-water people as well as the rules for fishing in sea country. The waters of Juno Bay were also a source of sea medicines. However, this knowledge was secret business and was only known by certain people.
107.Ms Kyle said that there were no other areas in the Palm Island Group of Islands that could be used in the same way as Juno Bay. This was because Juno Bay was a very spiritual area that provided a different kind of enjoyment from other places associated with their culture. It was “about who we are and the connection with our ancestors and land”. The spiritual values associated with Fantome Island and Juno Bay were “a symbol of what we want for our future”:a strong place that gives us that part of our culture that is very important – a deep respect for one another. Ms Kyle thought this was very important in the context of the troubles which existed on Palm Island.
(e) Importance of Introducing Successive Generations to the Area
108.The traditions associated with introducing people to an area have a particular significance in the Palm Island context. Because the Bwgcolman People were desert and freshwater people, they had to be introduced to the area by the Manbarra salt-water people who were the traditional owners of the country. Walter Palm Island said that Manbarra People, like his grandfather and father, had taught the Bwgcolman how to live in salt-water areas and about the laws of their country.
109.The importance of the area as a means of introducing young people to traditional laws takes on a particular significance in the context of the future of the Palm Island community.
110.Mr Palm Island described the waters of Juno Bay as the best places to teach their children the skills to be good salt-water people as well as the rules for fishing in sea country. He said the waters were a source of sea medicines, knowledge of which was secret business and only known by certain people.
111.Growing up, Mr Norman had learnt from the Manbarra what he had to respect. He had learnt from Manbarra Elders, such as Walter Palm Island Senior, traditional ways including how to hunt and to fish. As he grew up, Mr Norman had gained acceptance by the Manbarra, acknowledging that he was taught about the Islands by them.
112.Mr Norman regarded Juno Bay as a very good fishing spot where the young people gathered with their parents to learn how to hunt and to fish and to gather traditional foods.
113.Mr Nullanjar said that he continued to teach his children and grandchildren about the Aboriginal laws that he had learned. He also taught them how to live off the land and the sea.
114.When asked to what extent the view that traditional law ‘was always there’ applied to the young people on Palm Island, Mr Heijm stated:
“People – like elders will speak of young people but they’re really talking about often people who are in their 30s and 40s. They’re the young people who should be taking over, you know…
And the crucial value perhaps that seems to me that seem inculturated in children is not to question elders. Well, at least the crucial value in respect to this question is not to question elders, and that’s to do with that respect for elders. So you wait until you are ready to take on more mature roles and you will be told when that is when that time comes. And I think that is still – I think obviously that is possibly very widespread, if not universal on Palm, yes.”
115.Mr Heijm said he thought that the young people of Palm Island continue to adhere to the traditional values that they had been told about by their parents. Mr Heijm stated that he did not think they would have been abandoned as they were core values. Whilst he acknowledged that there would be some young people on Palm Island who may possibly find traditional values not to be to their liking, he said that a good number of people in their 20’s still continued to take traditional values “quite seriously”.
116.Mr Heijm considered that the younger people on Palm Island might tend to the view that it would be all right to have the pearl farm proposal provided that it was a shared project: that is, if the Palm Island community had some participation in management.
Part 1.7: HISTORY OF OPPOSITION TO PEARL FARMS
117.The pearl farms at Juno Bay and Harrier Point have been operating for about six years now. There has been some opposition to the farms since they were proposed about seven years ago. It is important to understand the way that the aboriginal community was consulted about the proposals.
118.Juno Bay and Harrier Point were not the locations initially chosen by Mr Crimp. Originally, on 4 April 1996, Indian Pacific Pearls applied for a deepwater site near Yanks Jetty (off Orpheus Island) and Zen Pearls applied for a shallow water site at Hazard Bay (also off Orpheus Island). Two other sites were listed as alternatives to the Hazard Bay site, namely Juno Bay and Pioneer Bay (off Orpheus Island). On 2 May 1996 Jan Forbes, Project Manager in the Impact Assessment Unit of the Authority, wrote to Jeff Warner of the Palm Island Aboriginal Council about the proposals, inviting the Council to write to the Authority regarding any matters of concern by 30 May 1996. On or around 3 June 1996, Mr Warner wrote back to say that the Council had “approved the Pearl Farm Proposal for Orpheus Island and Juno Bay which was tabled at the Council General Meeting held 15th May 1996.” The letter continued: “The Council has no objection to this Proposal.”
119.While this correspondence was occurring between the Authority and the Council, responses were being received to public advertising of the proposal. The advertising commenced in April 1996. Based on the responses, Mr Crimp decided that he preferred Juno Bay as the shallow water site. Mr Crimp met Ms Forbes on 18 June 1996 and wrote to her the following day to confirm that “due to public concerns raised during the public consultation period ... we would like to alter our preferred site in the Zen Pearls P/L application from Hazard Bay to the Juno Bay alternative location.” Ms Forbes wrote to Mr Warner about this on 15 July 1996 and enclosed information about the Juno Bay proposal issued by Zen Pearls. Ms Forbes wanted clarification of the community’s views on the Juno Bay site and also on the Yanks Jetty site, which was not mentioned in Mr Warner’s June letter.
120.On 16 July 1996, coincidentally the following day, Michael Baer wrote a four-page letter to Ms Forbes on behalf of 34 named people of Palm Island attaching a map indicating “local knowledge of the area”, copied to Mr Clive Cook, Manager of the Impact Assessment Unit of the Authority, and Mark Burnham, the District Ranger. Mr Baer happened to have been consulting with the Palm Island Community in the course of a study aimed at ‘progressing’ the application of the legislative predecessor to reg 18(4)(b). The proposals by Zen Pearls and Indian Pacific Pearls were discussed as part of the consultation and, according to Mr Baer, “met on the whole with overwhelming opposition”.. Of course, the understanding of the proposals described in the letter differs from the more accurate picture of the pearling operations that has emerged in the course of this hearing. The letter also raises grounds of opposition, such as environmental concerns, that were not relied upon in these proceedings. The final paragraph of the letter said “I submit this report” on behalf of 34 named people of Palm Island.
121.On Monday 22 July 1996 there was a telephone conversation between Ms Forbes and Mr Warner. It seems from a file note of that conversation that Mr Warner had spoken to Mr Baer the previous Thursday 18 July 1996 and had previously only considered the Yanks Jetty proposal. That clearly conflicts with the position stated in his June letter. Mr Warner thought that all consultations had been carried out but had since come to understand that Mr Crimp and a man possibly named ‘Richard Prior’ had only spoken to one Councillor. Mr Warner requested a copy of the Juno Bay proposal and said he would discuss it with Eric Bunn and others before presenting it to the whole Council. He would then provide a written response to the Authority.
122.On 23 July 1996 Michael Baer wrote a letter to Jenny Baer in the ‘Impact Assessment Unit’ of the Authority. Like his letter of 16 July, this letter also submitted the report. Emma Flanigan of the Authority has deposed that neither this letter nor Mr Baer’s final October 1997 “Pilot Study” report were considered by the Authority when making its decisions in these applications.
123.On Friday 2 August 1996 Mr Crimp met with Eric Bunn and Mr Baer for five hours. Mr Crimp said he prepared notes of that meeting “within 4 hours of the meeting”.. The typed version of the notes annexed to his statement is headed “4 August 1996”. Mr Bunn and Mr Baer had concerns that centred on Juno Bay, although Mr Bunn said that the Yanks Jetty site was also considered to be within ancestral waters and might raise similar concerns as those applying to Juno Bay. Mr Crimp said that he “strongly believe[d] that because of the type of questions posed by Mr Bunn ... he had been misled by someone about the project”.
124.Mr Crimp arranged to meet Ms Forbes at the Authority’s premises with Clive Cook and Mr Crimp’s brother on Friday 1 November 1996 to discuss the progress of his application. Presumably Mr Pryor’s report was discussed. Mr Crimp cancelled this meeting on 8 October 1996. He spoke with Ms Forbes by telephone and said that he was making erratic progress with the Palm Island community. He said that if it could not be resolved he would withdraw his application and make a new application for a different location. Ms Forbes reminded Mr Crimp that “time is passing” and that she expected him to have resolved the issue and set a new meeting date prior to her going on leave on 29 November 1996. Mr Crimp agreed to give it his best.
125.In the latter half of 1996, Mr Crimp commissioned a consultant Mr Adrian Pryor to consult with the Palm Islands community. Mr Pryor was born and raised on Palm Island. He died in 2001. Mr Pryor’s consultation was done in late September and early October 1996. Mr Pryor consulted with 29 people on Palm Island, 21 of whom had been consulted by Mr Baer. Mr Pryor’s report was received by the Authority on 22 October 1996. It found “OVERWHELMING SUPPORT for the proposals ... NOT overwhelming opposition”. We have it from Mr Crimp that Mr Pryor “strongly claimed that many of the people named in a previous community consultation report by Michael Baer said that they had not been interviewed by Michael Baer”.
126.Adrian Pryor’s report directly contradicted Mr Baer’s report. On 4 November 1996 Mr Baer wrote again to the Authority responding to the “comments submitted ... by Adrian Pryor” which Mr Baer felt “challenge[d] [his] credibility and professional integrity”.
127.Perhaps urged on by the positive report by Mr Pryor, Mr Crimp sought to change Indian Pacific Pearls’ application so that the deepwater site would move from Yanks Jetty to Harrier Point, where it is now located. He was able to do so without having to re-advertise. Mr Crimp and Ms Forbes had a site inspection on 19 November 1996 and Mr Crimp wrote three days later. His letter is headed “Juno Bay site” but it clearly refers to the Harrier Point site. It seems that the Authority’s agreement not to require re-advertisement was given in exchange for an agreement by Indian Pacific Pearls to “move the site South 500 metres and West 200 metres”.. Presumably Mr Crimp had sought an area closer to Juno Bay. The letter says that the “re positioning [was] requested by David Savage of the Queensland Department of Environment and agreed by all parties”. It is not clear whether the “re positioning” refers to the small shift “South 500 metres and West 200 metres” or to the variation in location from Yanks Jetty to Harrier Point. Nor is it clear whom “all parties” refers to.
128.Indian Pacific Pearls had a naval architect’s submission prepared on 19 February 1997. The Authority received the submission on 21 February 1997. The submission contains particulars of a mooring arrangement for a pearl farm “in Juno Bay at Orpheus Island”.. Despite the reference to Orpheus Island, it is clear that the submission refers to the Juno Bay site and not to the Harrier Point site.
129.Mr Crimp sent salvage quotes to the Authority on 13 March and 20 March 1997 from Pacific Marine Group and Coral Coast Oceaneering Pty Ltd. Salvage estimates were given for three sites: Juno Bay, Yanks Jetty and Hinchinbrook. It is not clear why an estimate was given for Yanks Jetty when Mr Crimp had four months earlier sought to relocate this site to Harrier Point. Mr Crimp’s Hinchinbrook site is not relevant to these proceedings.
130.On 17 June 1997, Mr Cook advised Mr Michael Crimp by telephone that he felt alright about the Juno Bay proposal but was still a little uncomfortable about the “Yanks Jetty site”. It is not clear why the Yanks Jetty site was still being considered given that Mr Crimp had sought on 21 November 1996 to change its location to Harrier Point. Mr Cook said he needed to visit the site prior to making a final decision. Mr Cook also received a call from Mr Glen Crimp, who noted that “they could relocate the Yanks [Jetty] site if necessary”. Again, this is hard to understand given the application for relocation dated 21 November 1996.
131.On 12 June 1997, about two weeks before the Juno Bay permit was granted, there was a meeting between Mr Cook of the Authority and Mr Peter Whalley, an anthropologist working for the Central Queensland Land Council Aboriginal Corporation. On 23 June 1997, the Land Council received a letter from Mr Cook inviting comments by the end of June.
132.On 26 June 1997 the Juno Bay permit was granted. Mr Cook of the Authority explained this to Mr Crimp by telephone and wrote the following day. According to a letter from Mr Cook to Mr Whalley dated 1 September 1997, notice of the decision was gazetted on 1 August 1997.
133.On 27 June 1997, the day after the permit was granted, Mr Whalley of the Land Council wrote to Mr Cook of the Authority expressing a number of concerns. The first main concern of the Land Council, as the Native Title Representative body for the region, was that native title rights might be impaired by the proposed pearl farms. The second main concern was the timing of the consultation. Mr Cook had asked for comments by the end of June, but Mr Whalley’s office only received Mr Cook’s letter on 23 August 1997 and Mr Whalley only returned to his office on 27 August 1997. Mr Whalley said this was inappropriate and noted that the two consultancy reports attached to the Authority’s letter had been received by the Authority in July and October 1996 and had been inconsistent with one another.
241.Mr Crimp’s position is that, after six years presence, the pearl farm operations have not violated the integrity of the land and seascape of Fantome Island - there have been no incidents and he has not been asked to mitigate any impact on traditional values.
242.The position of the Authority was that at this time, there was no evidence that the site of the pearl farm in Juno Bay had caused practical difficulties for the use of the Bay by indigenous or other people.
243.However, on behalf of the Manbarra, Mr Preston’s position was that the quiet, peacefulness, solitude, tranquillity and escape offered by Fantome Island and its adjacent and surrounding waters for the Manbarra and Bwgcolman People have been impaired and compromised. As a consequence, the pearl farming operations at Juno Bay affect the amenity of existing, traditional activities at Juno Bay.
244.Mr Crimp acknowledged that an additional source of conflict may arise in the future through the need to moor a 12 m and a 25-30 m vessel, together with staff, as well as necessary security at the site. Nevertheless he contended that the visual impact would not significantly increase notwithstanding the need to introduce a large accommodation laboratory boat.
245.The Manbarra People submitted that future amenity and use of the area would be further impaired and compromised by the proposed new vessels, staff and security. They submitted that the presence of fifteen longlines (some surface, some midwater) at the 10 ha Juno Bay site would make traverses across the site impossible and thereby exclude users from the area. Moreover, it was their submission that the value of the pearl crop would require physical and human presence on site to ensure security. They contended that the security on site would result in Palm Islanders having to significantly modify the extent of their present activities in the area of the Marine Park where Mr Crimp carried out his pearling operations.
246.The Authority agreed with Mr Crimp that the nature and scale of Indian Pacific Pearls’ proposed activity was acceptable. However, it said that Zen Pearls’ proposed use of the shallow waters of Juno Bay was not acceptable.
Part 3.5: Regulation 18(4)(f): Adjoining and Adjacent Areas and the Environment
247.The Manbarra submit that this regulation, in its context, should be taken to include “social, economic and cultural aspects” and repeat their other submissions.
Part 3.6: Other Considerations
Part 3.6.1:The Australian Heritage Commission Act 1975
248.The Manbarra submitted that the decision-maker may not “take an action that adversely affects, as part of the national estate, a place that is in the Register unless [the decision-maker] is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action...” (subs 30(2) Australian Heritage Commission Act 1975).
249.Mr Crimp contended that neither proposal would affect a place that is in the Register of the National Estate to a significant extent for the purpose of subs 30(2). Mr Crimp disputed the claim that no reasonable measures could be taken to minimise any alleged adverse effect of the proposal on the physical and cultural environment of the places.
250.The Authority conceded that the Indian Pacific Pearls proposal was unlikely to affect a place on the Register to a significant extent. However, it said that the Zen Pearls proposal was likely to affect such a place and that no reasonable measures could be taken to minimise the adverse effect of the proposal.
251.There was no evidence before us as to what National Estate values represented in Juno Bay or at Harrier Point led to that part of the Reef area being placed on the Register of the National Estate. This matter was only given slight attention by the parties. It is accordingly difficult for us to address the issue.
Part 3.6.2:Applicants’ Financial Interests
252.The Manbarra submitted that an applicant’s financial interests or commercial opportunities are not relevant considerations. The Authority did not dispute this except with the qualification that General Use “A” and “B” Zones clearly recognise that commercial activity may, with a relevant permission, take place in such Zones.
253.Mr Fellows contended that the applicant was aware of the commercial risks associated with the ongoing needs for their pearl farm operations in the Marine Park, but had chosen not to make any contingency plans in the event that a renewal permit was not granted by the Authority.
254.Mr Fellows submitted that in the event we decided to grant a renewal permit at the Juno Bay site that it should be given for the same time period as the Harrier Point site; the Harrier Point permit applied to 1 September 2005. He contended that such an arrangement, with both permits running in tandem, would be effective for ensuring consistency in administrative decision-making as it would mean that the renewal of each permit could be assessed, consistently, by taking into account the experiences of taking small harvests in 2004 and 2005. Furthermore, Mr Fellows contended that there was a need to recognise that there was no evidence before the Tribunal, including any Statement of Issues, that had considered the question of a lengthier permit.
255.Mr Fellows concluded with the submission that the delay in the hearing of this application for review had arisen from actions by the applicants as much as by others. However, it was his contention that had Mr Crimp acknowledged much earlier than at the hearing before this Tribunal, the existence of the Manbarra and Bwgcolman People, including that they held cultural and heritage values, his application for review could have been heard much earlier and confined to fewer disputed issues.
256.Mr Crimp said that without the Juno Bay site, the pearl farm operations at Harrier Point would not be viable as there was no way to work at the latter site under all weather conditions. He said that in these circumstances he would have no other option than “to pack up and go”.. Mr Crimp said that he had no contingency plans for the pearls should this situation arise.
Part 3.6.3:Traditional Inhabitants Economic Interests
257.An issue that arose which relates to the interests of the traditional inhabitants but which does not easily fall within reg 18(4)(b) is encroachment upon the economic resources of the Palm Island community. Mr Crimp suggested that the pearling operations could not be represented as part of any continued encroachment on economic development. He submitted that after six years of operations, the pearl farm did not appear to have impaired community aspirations for Fantome Island that were dependent on maintaining the integrity of the sea. He said the Baer Report demonstrated that activities of spiritual importance and traditional foraging and hunting could be conducted elsewhere in the Palm Island Group.
PART FOUR: CONSIDERATION
258.We have taken the matters specified in reg 18(4) (a), (b), (c), (e) and (f) into account, but we have also had regard to all of the other matters specified in reg 18(4). We have done so on the basis of all the material before the Tribunal. We accept the evidence of the indigenous witnesses. Where we have not expressly rejected it we accept all the evidence given before us which we have set out above. We have not interrupted the flow of our account of the facts by making references to findings. It may be taken that references to facts or evidence in these reasons amount to findings of fact unless we have stated otherwise. In this section, however, we will make more specific findings of fact. Facts and matters referred to in this section are accepted by us.
259.We will first address traditional cultural and heritage values as required by reg 18(4)(b).
260.We find that Aboriginal people – the Manbarra and Bwgcolman Peoples live in the Palm Island Group. Furthermore, the evidence of Walter Palm Island, Edward Nullanjar and Ralph Norman makes it quite clear that the Manbarra and Bwgcolman Peoples use Fantome Island for traditional purposes and to pursue traditional values – as well as living there for periods throughout the year.
261.We accept the opinion evidence of Nicolaas Heijm that the Palm Islands are the traditional jurisdiction of a contemporary traditional owner group who are the “original people” of the Palm Islands in Aboriginal law and tradition in the region and that these “original people” are descended from the antecedent traditional owners. In recent times, this group has been known as “the Manbarra tribe or Manbarra People”. The home country of the Manbarra People includes the Island group, the adjacent reefs and the intervening and surrounding seas. We accept that the Palm Island concept of “country” makes no distinction between the islands and the seas.
262.We accept the opinion of Nicolaas Heijm that, in addition to Manbarra People, other Aboriginal people live in the Palm Island Group of Islands. Since the 1930s, these Aboriginal people have been known as the Bwgcolman People. The Bwgcolman People are descended from at least 5000 people transported to the Palm Island Reserve, between 1918 and 1971, from all parts of Queensland, the Torres Strait and Melanesian Islands.
263.Ralph Norman’s evidence was that he had been taught about Manbarra tradition by successive Manbarra Elders over time. Erykah Kyle’s evidence makes it quite clear that the Manbarra People were the Traditional Owners of the land and the seas and that Bwgcolman People did not speak for Manbarra. Edward Nullanjar and Ralph Norman, as members of the Bwgcolman People, also acknowledged the Manbarra as the Traditional Owners of the Palm Islands and the waters of Juno Bay.
264.Based on the evidence of Erykah Kyle, Edward Nullanjar, Ralph Norman and Nicolaas Heijm, we conclude that, in contrast to the Manbarra People, the Bwgcolman People cannot, and do not, claim traditional ownership of Palm Island; but trace their origin and peoples to the moment their social identity became part of Palm Island. Furthermore, we accept that the indigenous evidence before the Tribunal is consistent with the expert opinion evidence in the following regard: that the expression of Bwgcolman identity is partly based on the sea and its products reflecting the teaching of the ways of the sea to Bwgcolman People as an essential part of Manbarra tradition.
265.In its consideration of the Park regulatory controls imposed by reg 18(4)(b) with respect to “cultural and heritage values” we have relied on the meaning of “cultural heritage” as applied in Tickner v Bropho to mean the language, traditions, customs, stories and religions of peoples past and present. In addition, we have applied the reasoning in Chapman v Luminis Pty Ltd with respect to the notice of Aboriginal tradition, and in particular, the meaning of “tradition, observances, customs or beliefs”. We specifically rely upon the notion that it involves a handing down from generation to generation in accordance with the accepted way in which Aboriginal history, laws, observances and practices are transmitted over time.
266.The evidence of Erykah Kyle, Ralph Norman and Edward Nullanjar makes it clear that the country on Palm Island was the traditional estate of the Manbarra People and that the Bwgcolman share in that Estate according to Manbarra tradition. We accept Walter Palm Island’s evidence that there are localised traditions, customs, beliefs and rules that are handed down throughout the community to ensure knowledge and laws are passed on. Furthermore, we find the indigenous evidence that, under traditional law, the Manbarra should be asked permission by people who wish to use the waters of the Palm Islands, to be consistent with the traditions. We accept it.
267.We accept the opinion evidence of Nicolaas Heijm that the Manbarra and Bwgcolman Peoples live according to traditions, observances, customs and beliefs that are underpinned by specific characteristics such as:
(a) an identity with country that has spiritual and intellectual dimensions;
(b)that the country on Palm Island was the traditional estate of the Manbarra People;
(c)that the Bwgcolman share in the traditional estate under Manbarra tradition;
(d)the need to ask permission to go to another’s country; and
(e) the existence of a range of localised traditions and rituals.
268.We accept Mr Heijm’s opinion evidence that these traditions, observances, customs and beliefs have been handed down from generation to generation throughout the community of Palm Island (including to young people) in accordance with Aboriginal history, laws, practices and observations.
269.We find that the observations made by Lockhart J in Wamba Wamba Land Council with respect to burial sites, Aboriginal tradition and the requirements for peace and tranquillity together with the need to be free from intrusion by humans, are consistent with the evidence of Walter Palm Island, Erykah Kyle, Edward Nullanjar and Ralph Norman. We refer specifically to their evidence with respect to the sacred value of Fantome Island, as well as the presence of ancestral spirits and forces in the landscape of Fantome Island. We accept their evidence that this place is sacred to them because of the spiritual presence of ancestors. In addition, we accept that the traditional way for showing respect to ancestors is to talk to them and to acknowledge that they are in the area when passing through. Moreover, we find that respect for their ancestors’ previous lives is reflected in the need for quiet and to be free of unnecessary noise.
270.We find the graves on Fantome Island to be places of “special ancestral presence” and that the domain or range of the spirits could carry some distance from the land on Fantome Island.
271.Based, in part, on the evidence of Erykah Kyle and Nicolaas Heijm we conclude that the sacred values associated with the presence of ancestral spirits and forces on Fantome Island make it a unique place in the Palm Island Group because of:
(a)the “totality of experience for traditional inhabitants” providing them with spiritual experiences about who they were and their connection with ancestors and the land;
(b) the existence of an “entire range of traditional values”; and
(c)the absence of any other equivalent site for the traditional inhabitants of the Palm Island Group where the totality of experience or range of values could be experienced.
272.We find the evidence of Walter Palm Island, Edward Nullanjar and Ralph Norman to state consistently that the waters of Juno Bay were a favoured fishing ground. Their evidence was corroborated by the research of Nicolaas Heijm as contained in his Report.
273.Next we have considered the evidence of Walter Palm Island, Edward Nullanjar and Ralph Norman and the legal principles in Mason v Tritton in regard to traditional fishing rights and conclude that fishing is a traditional activity for the Manbarra and Bwgcolman People based upon traditional laws and customs. We find that the traditional inhabitants’ laws and customs extend to the right to fish. The Palm Islanders have continued to observe the relevant laws and customs and their conduct or activity in fishing in Juno Bay is an exercise of those traditional laws and customs.
274.However, the significance of this finding of fact is that there is no evidence before us that traditional fishing rights have been adversely affected by the pearl farm operations at the Juno Bay site at this stage. Accordingly, we simply find that the presence of the pearl farm in Juno Bay may have potential to interfere with traditional rights to hunt and to fish in Juno Bay.
275.We recognise that Mr Crimp has taken steps with staff employed at his pearl farm to ensure that operations at the pearl farm do not conflict or compete with traditional activities undertaken in the Juno Bay area. However, Mr Crimp has acknowledged that there is no co-management plan in place between his companies and the local community in order to protect “cultural and heritage values”.
276.Based on the above findings and, in the context of the absence of any form of mutually agreed plan of co-management for cultural and heritage values between the Manbarra and Bwgcolman Peoples and the applicant companies for pearl farm operations, in our evaluation of reg 18(4)(b) we find that there is a need to protect the cultural and heritage values held by traditional inhabitants in relation to the pearl farm sites.
277.The next issue for us to deal with relates to the nature and scale of the pearl farm operations at Juno Bay in relation to existing use and amenity – as well as the future or desirable use and amenity of Juno Bay and nearby areas (reg 18(4)(e)).
278.We consider that the meaning of “amenity” reflects the qualities or characteristics of a place which make it pleasant and agreeable (Broad’s case) as well as the need for the preservation of these qualities and characteristics (Humby’s case). These qualities or characteristics extend to non-marketable or intangible benefits such as beauty and tranquillity.
279.The existing use and amenity can be contrasted to the impacts on amenity and future use, as the scale of pearl farm operations expands to full production. As operations expand, Mr Crimp will require a much larger accommodation/laboratory boat which he states can only be moored at Juno Bay. Such a vessel would be up to 35m and would need to accommodate 8 full-time staff, increasing to 14 staff during periods of seeding and harvesting. Mr Crimp’s evidence is that it would not be practicable to moor such a vessel at the off-shore pearl farm at Harrier Point because exposure at this deep water site would not make it possible to live and work at the site. In addition, surface lines with accompanying buoys would be used – rather than sub-surface lines as originally intended. Moreover, the increasing value of the pearl crop over time would necessitate full time physical presence to ensure security on site – a fact acknowledged by Mr Crimp.
PART FIVE: CONCLUSIONS
280.We find that the inhabitants of Great Palm Island hold cultural and heritage values in relation to Fantome Island including the waters of Juno bay and off Harrier Point which will be affected by continued pearl farming by Indian Pacific Pearls and Zen Pearls. These values are held by the inhabitants of Great Palm Island as traditional inhabitants and involve aboriginal traditions. The values relate both to beliefs and practices. The beliefs involve spiritual beliefs such as the need to respect deceased ancestors buried on Fantome Island and the need to seek the consent of traditional owners before entering upon another’s country. The practices involve fishing, gathering and hunting, including traditional fishing, gathering and hunting. We have already made our detailed findings on this. These cultural and heritage values require consideration under reg 18(4).
281.Even if the cultural and heritage values were not held as part of aboriginal tradition, and even if we are wrong in considering the inhabitants of Great Palm Island to be traditional inhabitants, the cultural and heritage values we have found the inhabitants to hold would still require consideration under reg 18(4) because the regulation applies equally to other people as it does to traditional inhabitants and it does not require even the cultural and heritage values of traditional inhabitants to be based upon aboriginal tradition.
282.We also find that the nature and scale of the present pearl farming as well as its proposed expansion affects the existing use and amenity as well as the future and desirable use and amenity of Juno Bay and the waters off Harrier Point. This affectation relates to the impact on movement, site and sound. The visual impact of the pearl farming is the major impact, but noise and interference with movement are also involved. This impact is substantial from any point of view but is especially adverse from the point of view of aboriginal inhabitants in accordance with aboriginal traditions.
283.To our minds both the effect on the cultural and traditional values we have found and the effect on existing use and amenity viewed both from an ordinary perspective and from the perspective of the traditional inhabitants should each have been enough to result in the original applications for permits to use the two sites for pearl farming to be refused. The cultural and heritage values present in the area before any pearl farming took place required protection to the extent of the refusal of permission. The nature and scale of even the pearl farming as it was first proposed in relation to the then existing use and amenity required the same result. On both grounds the use proposed at the time of the original applications was not reasonable general-use, notwithstanding that it was a permitted use under the Zoning Plan.
284.So far we have not distinguished the Juno Bay site from the Harrier Point site. The differences between the two seem to us to be differences of degree. Undoubtedly, the Juno Bay site attracts all the considerations we have addressed in much stronger terms than the Harrier Point site. The case against the use of Juno Bay for pearl farming is stronger than the case against Harrier Point. But virtually all the elements present for Juno Bay are, to some extent, present for Harrier Point. Whether one looks at cultural and heritage values or existing use and amenity the relevant elements, including activities or beliefs, are all tied to the matters of movement, view and noise to which we have referred. All these are present for Harrier Point as they are for Juno Bay. The only difference is distance. We do not think that it can be said that pearl farming at Juno Bay is not reasonable general use although it is reasonable at Harrier Point. In any event, Mr Crimp has unequivocally informed us that he would not attempt to continue pearl farming at Harrier Point alone if he were prevented from using Juno Bay. Accordingly, this matter is largely academic.
285.It follows that the original permits should not have been granted. However, we are not considering initial applications for permits. Those applications were successful although only with permits for twelve months. We are considering applications for permits which are, in effect, to continue an existing pearl farming operation which proceeded with consent. It is true that the Manbarra people made applications for review, in this Tribunal, of the decision to grant the original permits but they did not pursue those applications. It may be that they believed that precisely the same issues would arise in applications for review of the decisions currently before us but the legal and practical consequences of not pursuing the original applications cannot be ignored. The legal consequence is that permits to farm at both sites were granted and that the applicant companies commenced pearl farming pursuant to the permits. The practical consequence is that the applicant companies have been allowed to carry on their pearl farming for a longer period of time than if the original applications for review had not been discontinued. The applications for review of the original permits would have been heard and determined long ago. In fact the applicant companies have now been farming the areas for six years with only a maximum of two years remaining under the one current permit under review, unless we grant an extension of that permit.
286.The delay in these proceedings coming on for hearing has been the doing of the parties. While the applicant companies may have encouraged delay with the hope that some agreement may be reached it cannot be said that neither the Authority nor the Manbarra people bear no share of the responsibility. They could have applied to the Tribunal for the matter to be brought quickly on for hearing at any time.
287.Nor is it entirely irrelevant that at the time the original permits were granted and when the applications for review of those permits were on foot it was clear that the applicant companies proposals were long term and could not be viable or produce any commercial return unless the original permits were extended for up to twelve years. Against this it must be said that Mr Crimp was always aware of the risk. We do not accept that he was promised by the Authority that the original permits would be extended. In any event he knew that the ultimate decision was always going to be the decision of the Tribunal.
288.It seems to us that the circumstances occurring since the grant of the original permits are capable of affecting the question of whether permits could be granted for pearl farming which would amount to reasonable general use. In particular we think that the fact that the pearl farming has been taking place now for six years without significant trouble is relevant. We refer to Jebb’s case and the cases referred to with it, above. We say this knowing that the pearl farming at Juno Bay has not been formally authorised other than by a stay of proceedings. We know that the pearl companies’ unauthorised conduct cannot itself provide a base for them to be permitted to continue that conduct. We recognise, however, that the parties knew that the consequence of the grant of the stay would be that the pearl farming would continue. We are also aware that the applicant companies are not complying with the terms of either the original permits or the permit under review because their principal vessel used on the pearl farm is moored at Juno Bay and not Harrier Point and because many of the long lines are surface lines and not midwater lines.
289.We think that in all the circumstances, including the matters we have discussed in earlier sections of these reasons, a limited right to continue the existing pearl farming which is now being carried out by the applicant companies will be a reasonable general use of the areas in question. The lawful pearl farming that has so far taken place has reduced the effect on cultural and heritage values and has reduced the impact on existing use and amenity. This reduction does not justify any long term pearl farming operations but it does justify limited further permits. We see no reason why the reasonableness of a use cannot be determined, in part, by the length of time it is to be engaged in. In our opinion what would be reasonable would be to allow continuation of the existing level of pearl farming activity to enable some commercial return on the activity to the applicants without permitting the activity to continue longer, or substantially longer, than the approximately two years which remain of the permit for Harrier Point.
290.We do not think that it is appropriate to separate Harrier Point and Juno Bay. Mr Crimp has given evidence, which we accept, that Harrier Point alone is not viable even if some attempt might be made to transfer shells there for the remainder of the Harrier Point licence. Since we have not considered Harrier Point to be a separate case in considering the merits of Mr Crimp’s substantial claim we do not consider it appropriate to so consider it for the purposes we are now considering.
291.On the material before us we cannot uphold any claim directly under the Australian Heritage Commission Act even assuming we have jurisdiction to do so. However, we have taken into account where appropriate in our reasoning the fact that the Reef area is part of the National Estate.
292.We are conscious that what we are proposing is tantamount to approving both applications. However, the permits will each be for 10 hectares only. More importantly, we are in this position because less than two of six years remain of the one current permit and the applicant companies have been allowed to conduct their pearl farm as if there were a permit for Juno Bay.
293.We cannot, of course, preclude the applicant companies from making application for further permits in the future. That would be the position whatever is the result in these matters. Nor can we seek to direct how the Authority should consider any fresh application. However, the circumstances peculiar to this case which have prompted us to permit the extension which we propose cannot exist in the future. To our minds the permits to be granted pursuant to these decisions are the limit of any reasonable general use which can flow from the pearl farming commenced under the one year permits.
294.In coming to the decision at which we have arrived we have taken into account evidence that the applicant companies will be able to harvest pearls in 2004 and 2005. We have in mind that the terms of the permits will include those two harvests. We do not propose to specify a termination date in these reasons. We will ask the parties to see if agreement can be reached. The parties may wish to put particular submissions to us. Mr Crimp may wish to argue for a longer term. We would be prepared to hear argument on that provided it did not involve any expansion of the current operation and provided that the further extension was very limited. We have indicated broadly the extent of any permit which we could find amounted to reasonable general use. The permits we propose will permit the existing vessel to moor in Juno Bay and will permit the existing surface lines.
295.We will hold a telephone directions hearing on Friday 19 December 2003. If the parties are agreed then as to the precise terms of the decision we should make it may be possible to finally dispose of the matters before us. Even if the parties cannot agree we may be able to make a final decision at that time. Alternatively, we may have to adjourn the matters for further consideration early in 2004.
I certify that the 295 preceding paragraphs are a true copy of the reasons for the decision herein of Justice G Downes, President and Dr E Christie, Member
Signed: .......(sgd A. Edington).......
AssociateDates of hearing 4, 5, 6, 7, 12 and 13 August 2003
Date of decision 15 December 2003For the applicant in
Q2001/716 and joined
party in Q2001/728 M Crimp, director of both companies
Counsel for the applicant
in Q2001/728 and joined
parties in Q2001/716 A Preston
Solicitor for the applicant
in Q2001/728 and joined
parties in Q2001/716 Chalk & Fitzgerald
Counsel for the respondent
in both applications M Fellows
Solicitor for the respondent
in both applications Great Barrier Reef Marine Park Authority
FURTHER REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/716
GENERAL ADMINISTRATIVE DIVISION ) Re ZEN PEARLS PTY LTD
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And WALTER PALM ISLAND
VIOLET SIRRIS
ALLAN BULLERJoined Parties
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/728
GENERAL ADMINISTRATIVE DIVISION ) Re THE MANBARRA PEOPLE
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And INDIAN PACIFIC PEARLS PTY LTD
Joined Parties
FURTHER REASONS FOR DECISION
Justice G Downes, President
Dr E Christie, Member1.We published reasons for decision in this matter on 15 December 2003. We decided that the applicants should have limited rights to continue the existing pearl farming they are now carrying on. We left open the length of time for which permits should be granted, indicating that we had in mind a period of about two years. Since publishing our reasons we have held one telephone directions hearing and one telephone hearing.
2.Two permits should be granted covering ten hectares each including the two areas currently farmed. The permits are to be in the form of the permit granted to Indian Pacific Pearls Pty Limited from 7 August 2000 to 1 September 2005 (T060) including reference to the deed in its form attached to that permit. Both permits are to expire at midnight at the end of 1 December 2005.
3.The areas of the permits are to be described as in the draft permits prepared by the Authority and furnished to the Tribunal with a letter dated 5 February 2004 but that permit is otherwise not to be used. In clause 5.1 of the Deed to be executed by Zen Pearls Pty Limited, the sum of $7,500.00 is to be substituted for $50,000.
4.We note that the applicants have agreed to lower surface lines which do not comply with the permits as granted by the Authority. However, consistently with our earlier reasons we have decided not to require the applicants to do this. Whether they do or not will be a matter for them.
5.Accordingly, both permits will contain the following condition:
Notwithstanding anything to the contrary in any part of this permit or the attached deed:
(a)the applicant shall be permitted to maintain its lines, ropes, chains, anchors and panels where they are at present.
6.Consistent with our earlier reasons the following sub-clause should be added to the above condition:
(b)the operations to be carried on pursuant to this permit shall not include any expansion of the pearl farming operations currently being carried out.
7.The following sub-clause is to be inserted in the Juno Bay site permit:
(c)the applicant shall be permitted to continue to moor on the site vessels of approximately the same dimensions as are there now provided that the number of vessels does not increase.
8.We do not think it is necessary or appropriate to be more precise with respect to vacating and restoring the site than in the form of permit we have adopted.
9.Because the terms of the permits we propose will need to be perfected by the granting of permits in accordance with our directions and because the form we now propose is different to the form prepared by the Authority, we will delay making our final decision for 14 days from the day of publication of these further reasons. During that period the parties can, if they wish, make written submissions to us related to the form of the permits proposed by us. In the absence of any submissions we will make our decision in accordance with these reasons.
10.Finally, we note that our final decision will not be a decision made by consent in any respect. We have valued the parties’ submissions but the decision is our own. Any party wishing to challenge the decision will not be precluded from doing so by having made submissions concerning the form of the decision or by having agreed to proposals relating to the decision.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Justice G Downes, President and Dr E Christie, Member
Signed: ........(sgd S. Toomey).......
AssociateDates of hearing 16 February 2004
Date of decision 1 March 2004For the applicant in
Q2001/716 and joined
party in Q2001/728 M Crimp, director of both companies
Counsel for the applicant
in Q2001/728 and joined
parties in Q2001/716 L Whelan
Solicitor for the applicant
in Q2001/728 and joined
parties in Q2001/716 Chalk & Fitzgerald
Counsel for the respondent
in both applications M Fellows
Solicitor for the respondent
in both applications Great Barrier Reef Marine Park Authority
FURTHER REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/716
GENERAL ADMINISTRATIVE DIVISION ) Re ZEN PEARLS PTY LTD
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And WALTER PALM ISLAND
VIOLET SIRRIS
ALLAN BULLERJoined Parties
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/728
GENERAL ADMINISTRATIVE DIVISION ) Re THE MANBARRA PEOPLE
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And INDIAN PACIFIC PEARLS PTY LTD
Joined Parties
FURTHER REASONS FOR DECISION
Justice G Downes, President
Dr E Christie, Member1.In our further reasons for decision dated 1 March 2004 we foreshadowed the decisions we proposed to make but invited further submissions.
2.The Manbarra People have informed us that they do not propose to make any further submissions.
3.Zen Pearls has said that it cannot increase the bond it has already put up from $7,500 to $50,000. However, we have not suggested that it should. A careful reading of our reasons shows that we intended a bond of $7,500 from Zen Pearls and a bond of $50,000 from Indian Pacific Pearls. As we understand it these bonds are already in place. They will satisfy the obligations created by the granting of the permits.
4.The Authority has accepted that the total of the bonds will not be more than $57,000 but has asked us to adjust the way they are apportioned. We do not propose to do this.
5.Our final decisions will be as proposed in our last reasons.
I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Justice G Downes, President and Dr E Christie, Member
Signed: ........(sgd S. Toomey).......
AssociateDate of decision 15 March 2004
For the applicant in
Q2001/716 and joined
party in Q2001/728 M Crimp, director of both companies
Counsel for the applicant
in Q2001/728 and joined
parties in Q2001/716 L Whelan
Solicitor for the applicant
in Q2001/728 and joined
parties in Q2001/716 Chalk & Fitzgerald
Counsel for the respondent
in both applications M Fellows
Solicitor for the respondent
in both applications Great Barrier Reef Marine Park Authority
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11
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