Logan J
Logan J approved the interlocutory application of the Kaurareg Native Title Aboriginal Corporation RNTBC seeking to restrain the local government from proceeding with proposed public works on the Prince of Wales Island.
Background
This was an application brought by the Kaurareg RNTBC for an urgent interim injunction to restrain public works taking place over an area of land subject to a registered determination of native title and an ILUA.
The applicants brought the application on behalf of the Kaurareg people who are the determined native title holders for Apparrlu-Waubinin Mabauzi Lag above the high-water mark, which is the subject of the Kaurareg Mauralag determination in proceeding QCD2001/002. The applicants are also the native title claimants for the Apparrlu-Waubinin Malu below the high-water mark in matter QUD267/2008 (Kaurareg #2 Native Title Claim).
The land of concern for this proceeding is on Prince of Wales Island, also known as Muralag, located to the north of Cape York Peninsula in the Torres Straits. The area which is the subject of the claim is the sea and seabed below the high-water mark off that particular island.
Future Act
There are several Indigenous Land Use Agreements (ILUAs) subsisting over the determination area. In this proceeding the Kaurareg people asserted a breach of the ILUA by the Torres Shire Council who were planning on undertaking public works in the area.
The Torres Shire Council wished to undertake public works, roadworks and harbour works, on the Prince of Wales Island. The applicant argued that the undertaking of such works would constitute an invalid future act, whether in relation to the area where there is a native title determination or the area where there is a native title claim. Logan J noted at para [6] that the interim injunction application was of urgency as the local government proposed to commence undertaking aspects of the proposed public works in 3 days on 20 May 2019.
Undertaking as to damages
In considering the interim application his Honour noted at para [8] that ordinarily an applicant must give to the Court an undertaking as to damages. The applicants, upon inquiry, were not disposed of that undertaking. The applicants submitted that the strength of the prima facie case could mitigate the usual requirement for an undertaking as to damages. His Honour held at para [11] that in the time available it was not possible to form a settled view as to the strength of this claim. However, Logan J noted that there was a subsisting native title determination in respect of Prince of Wales Island, which suggested that the application for interim injunctive relief was far from frivolous. His Honour raised the possibility that the proposed public works could be on areas where native title had been extinguished, the urgency of the interim application and the disastrous consequences that could follow from a destruction of a determined native title right. In considering these, his Honour concluded that the absence of undertaking as to damages should not prevent the granting of the interim injunctive relief (at para [12]).
Adequacy of damages
Logan J held at para [10] that damages would not be an adequate remedy. He stated that when looking at that particular associations, and emotional and spiritual ties which underpin native title 'money may never be an adequate compensation for what may be...something that will be destructive of one or more of the bundle of rights that comprise native title.' This was particularly so in this case as one of the bundle of rights was the obligation to protect sacred site areas.
Delay
The local government argued that there had been a delay in the applicants seeking injunctive relief. His Honour found that when reviewing the exchanges between the applicant and the Torres Shire Council the ‘applicants had tried their very best to not have to come to court, and ha[d] been left, really with no other choice’ (para [15]). Additionally, Torres Shire Council advised that they would likely incur costs of $14,500 per day if the proposed works were delayed. However, his Honour held at para [16] that 'it was fraught always, in the absence of closure as to native title, to go ahead'.
Orders
Logan J ordered that when balancing the different public interests it was necessary to take into account the native title determination and the native title claim. His Honour reflected that he was not persuaded that the local government had taken these interests into account. His Honour ultimately held that there was an overwhelming need to grant interim injunctive relief.
Logan J made four orders:
until close of business on 3 June 2019, the Respondent was restrained from undertaking public works within the area identified in yellow in the first page of annexure SBR 7 to the affidavit of Mr Roberts. This order would not prevent a person from walking over or surveying the land, but it would prevent interference with the land or native title rights. Specifically, it prohibited roadworks, grading, steamrolling or earthworks of any kind;
the respondents are to provide the applicants with particulars as to the areas of land in respect of which it proposed to conduct public works and the nature of those public works;
the parties are instructed to attend mediation conducted by the Hon Stanley Jones AO or such other person as the court may appoint after consultation with the parties;
the case was to be adjourned until 3 June 2019 for case management and determination of whether or not and in what terms the restraint Order should be continued.
Costs were reserved.