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	Australian Indigenous Law Reporter

James Watts Taylor
(On Behalf Of The Kalkadoon People) V
North Queensland Electricity Commission & Anor

18 October 1996, Brisbane

Interlocutory Injunction -- Balance of convenience -- trespass -- arguable case conceded -- relevant considerations -- low risk of harm -- suffer very large financial loss -- delay as a relevant consideration

Native Title -- acquired by consent -- compulsory resumption -- impermissible future act -- permissible future act -- right to negotiate -- destruction of sites -- inadequate consultation -- compensation -- legislation applied correspondingly to native title holders as freehold title holders -- more disadvantageous position

Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) -- ss. 33, 56

Electricity Act 1994 (Qld) -- s. 101, 114, 116

Federal Court of Australia Act 1976 (Cth) -- s. 23

Native Title Act 1993 (Cth) -- ss. 22, 23, 26, 28, 31, 74, 79, 213, 227, 235, 236, 253

Held:

The court held that the Electricity Act 1994, under the authority of which the project was being built, was a "permissible future act" because the legislation applied correspondingly to native title holders as to freehold title holders, and the effect of the legislation on the native title would not render the applicants to be in a more disadvantageous position at law than they would have been if they held freehold title. His Honour stated that there can be no basis for an interlocutory injunction founded on a trespass as described, and held that damages were an adequate remedy if native title was established in the future.

The court made the following findings of facts: there was some uncertainty as to whether Mr Taylor had authority to bring proceedings on behalf of the Kalkadoon People; many of the sites in question were not located adequately; the applicant failed to show anything more than a low risk of harm from the project to the sites in question; there had been delay by the applicant in bringing the proceeding; five of the thirteen custodians named in Mr Taylor's affidavit had disassociated themselves from the relief he was claiming; NQEC, the Ernest Henry Mine and the power line contractor, would suffer very large financial loss if an injunction was granted; the town of Cloncurry would be inconvenienced by power blackouts; and NQEC had made extensive efforts to identify and consult with those members of the Kalkadoon community during the development of the project.

His Honour held that the balance of convenience favoured a refusal of the injunction.

NQEC made undertakings not to interfere, either directly or indirectly, with the conduct of the applicants' Dreaming Lines Ceremonies on the land affected provided that 24 hours notice was given and that the conduct of such ceremonies did not reasonably interrupt or interfere with the construction, operation or maintenance of the power transmission lines.

Drummond J:

This application is brought by the applicant as a representative action on behalf of the Kalkadoon People. It is ancillary to the native title application lodged with the National Native Title Tribunal by the applicant on behalf of the Kalkadoon People in May last in that the relief claimed includes a claim for a declaration that the Kalkadoon People are the owners of the land and waters claimed in the native title application and entitled to use and enjoyment of the land and waters claimed pursuant to their native title. The applicant also claims an interlocutory injunction restraining the North Queensland Electricity Commission (NQEC) from constructing a power transmission line "upon or over the land and waters claimed." It is that claim for interlocutory relief that is before me.

The application is expressed to be brought in this Court pursuant to s. 213(2) the Native Title Act 1993 (Cth) and s. 23 the Federal Court of Australia Act 1976 (Cth). Neither provision gives this Court jurisdiction to grant any of the relief claimed. The Court only has that jurisdiction pursuant to the cross-vesting legislation. The Supreme Court is therefore, prima facie, the proper Court to deal with this matter. However, given the possibility that the applicant's native title application may not be able to be resolved by the Tribunal and will, in that event, come to this Court pursuant to s. 74 the Native Title Act, and given the urgent need to deal with the claim for interlocutory relief and the absence of objection by the respondents to this Court dealing with that claim, it is appropriate for this Court to deal with the matter.

The applicant's native title application was accepted by the Registrar of the Tribunal on 28 August last. The Registrar has not yet further processed this application save that it appears that action may have been taken under s. 66 the Native Title Act to give the notice of the application there referred to: it further appears that persons wishing to contest the native title application have until 12 January 1997 to notify the Tribunal of their interest.

The Kalkadoon People is a well known tribal group whose traditional lands are in the Mt Isa region. The area the subject of the native title claim now before both the Tribunal and this Court consists of Timberu Pastoral Holding, ie, land over which pastoral leases have been granted by the Queensland Government. The current lease is for a term of 53 years commencing from 1 January 1967. The native title claim also includes a claim to the waters of certain rivers, creeks and lakes running through or located roughly in the area between Mt Isa, Cloncurry and Kajabby. This area is much more extensive than Timberu Pastoral Holding.

The power line now being constructed by a contractor engaged by NQEC will run roughly due east from Mt Isa to Chumvale, just west of Cloncurry. From there, one power line will run due east to Cloncurry and the second section of line roughly north-east to the Ernest Henry mine. The power line crosses a number of the waters the subject of the native title claim and it will run through Timberu Pastoral Holding. The line will be owned and operated by NQEC. The Ernest Henry mine and the township of Cloncurry are committed to taking power generated at Mt Isa to be supplied by this power line.

The evidence is that, save for a section less than 1 kilometre long on the outskirts of Mt Isa township where the power line runs across the Leichhardt River, through a small area of currently unallocated Crown land and over a road reserve, the rest of the 150 kilometre or so power line route is all within areas currently under various forms of pastoral tenure granted by the Queensland Government. The entire route is in lands that were the subject of now expired pastoral leases current between 1912 and 1968 and an area initially the subject of a miners' homestead perpetual lease granted in 1956 but now the subject of a special lease. The evidence is also to the effect that the lands on which the power line is being built were acquired by NQEC either by consent of the occupiers or by compulsory resumption. A 60 metre wired easement has been acquired by NQEC over the whole length of the line.

As I understand it, the applicant's case is that the Kalkadoon People have native title over the region in question and that title extends to areas and sites of cultural significance to the Kalkadoon People. It is said that such special areas and sites are likely to be destroyed or damaged or otherwise interfered with by the power line construction. It is thus said, in effect, that irreparable harm will be done to these components of the Kalkadoon People's native title rights: quia timet relief is claimed to restrain a threatened trespass likely to cause serious harm. The applicant also argued that the injunction should issue because both the enactment by the Queensland Government of the Electricity Act 1994, under the authority of which NQEC is having the power line built, and the construction of the power line itself are "impermissible future acts" within the meaning of that term in the Native Title Act, and each is invalid to the extent that it affects the Kalkadoon People's native title by extinguishing or detrimentally affecting the enjoyment of those native title rights: see ss. 22 and 227 the Native Title Act. The applicant further contends that the construction of the power line, if a "permissible future act", is within s. 26(2) the Native Title Act and is invalid because of the failure of the second respondent to comply with Subdivision B of Division 3 of Part 2 of the Native Title Act, which includes a failure to give the Kalkadoon People the right to negotiate provided for by s. 31 of that Act.

It is convenient to deal first with the issues that depend upon the impact of the Native Title Act provisions referred to on NQEC's activities. Section 236 the Native Title Act defines an "impermissible future act" as "any future act that is not a permissible future act". Section 235(2) defines the enactment of legislation as a "permissible future act" only if the legislation applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land affected, or if the effect of the legislation on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land. "Ordinary title", in this context, is defined in s. 253 to mean freehold title. In short, a permissible future act is an act that does not discriminate against native title holders by treating them to their disadvantage in ways that a person who held freehold title to the land, the subject of native title, could not be treated. The relevant provisions of the Native Title Act do not purport to put native title beyond the reach of the general law that applies to all Australians. In broad terms, they operate to ensure that holders of native title are recognised under the general law as owning interests in land and as entitled to the protection the general law confers on all owners of land.

As a general rule the holders of native title can be deprived of the entire enjoyment of their native title rights by permissible future acts, but they, in that event, are entitled by s. 23 the Native Title Act to compensation under Division 5 of Part 2. That is, subject to some qualifications, they are entitled to the same compensation for loss of enjoyment of native title rights that would be payable under the general law if the land in question were held under freehold title. It is said that the enactment of the Electricity Act, or rather s. 101 of that Act, the provision said by the applicant to have been relied upon by the respondents, cannot be a permissible future act because it denies holders of native title the rights that freehold owners have to refuse to permit their land so held to be used for the construction of a power line and it is said that s. 101 also prevents any right to compensation arising which would exist if, in the face of a freehold owner's refusal to consent, the land had to be compulsorily taken, something that could only be done under s. 116 the Electricity Act.

Section 101 confers an unconditional power on bodies such as NQEC to construct power lines on publicly controlled land. But the content of the native title the applicant claims on behalf of the Kalkadoon People, in so far as that appears from his native title application and his affidavit evidence, viz, rights of residence and use for foraging and religious purposes, is such as to show that the claim areas cannot be publicly controlled places within the meaning of that term as defined in Schedule 5 of the Electricity Act. Section 101 can never therefore lawfully authorise an electricity authority such as NQEC to carry out electricity supply works on land in which such native title rights exist. Section 101 the Electricity Act is, in my opinion, a permissible future act within s. 235(2) the Native Title Act because it does not apply or operate to expose persons who are native title owners of land to any greater disadvantage than a freehold owner of that same land would be exposed to by the section. The construction of the power line in the claim area is itself also, in my opinion, a permissible future act within s. 235(5)(b) the Native Title Act because it could be done in relation to that area if the Kalkadoon People, as native title holders of the area, instead held freehold title to the land: that is, it could be done either with their consent or by compulsory acquisition under s. 116 the Electricity Act, which would involve payment of compensation to them.

That the respondents have not accepted that the Kalkadoon People have the native title claimed and have not sought their consent and have not attempted to compulsorily acquire their interest in the land on which the power line is being built does not mean that construction of a power line is an impermissible future act. It only means that if native title is ultimately established, the respondents will have failed either to obtain the Kalkadoon People's consent or to compulsorily acquire their interests in the lands in question and so will be liable in damages for trespass to the Kalkadoon People. There can be no basis for an interlocutory injunction founded on such a trespass in my opinion. In such event, the loss that the native title owners suffer is measured by the compensation they would have received if their interests in the land had been compulsorily acquired, something the respondents could lawfully have done pursuant to s. 116 the Electricity Act. Damages are plainly an adequate remedy for such an infringement of native title rights, given the status of the respondents. No suggestion to the contrary was made.

Nor, in my opinion, is the construction of the power line made invalid by s. 28 the Native Title Act. Assuming that it is both a permissible future act and can be said to have been undertaken by the State of Queensland, the applicant relied only on s. 26(2)(d) the Native Title Act in contending that this activity is subject to Subdivision B of Division 3 of Part 2 of that Act. But the provisions of the Electricity Act relied on by the applicant are not a "Compulsory Acquisition Act", within the meaning of that term as defined in s. 253 the Native Title Act, because there is no provision of the Electricity Act that confers on a person whose interest in land is compulsorily acquired rights to the same effect as those provided for by s. 79 the Native Title Act, viz, non- monetary compensation. The Electricity Act, in so far as by s. 116 it provides for compulsory acquisition of native title and other interests in land, also limits compensation to monetary compensation: see s. 116(4) and (5). Neither of the other provisions relied on by the applicant, ss. 101 and 114(2), are within paragraph (a) of the definition of "Compulsory Acquisition Act" in s. 253 the Native Title Act.

I turn now to the applicant's claim for interlocutory relief based on the assertion that the Kalkadoon People have native title interests in areas through which the power line is being built, which interests are likely to be irreparably harmed by construction of the line.

The Kalkadoon People are well known, as I have mentioned: a University of Queensland anthropologist, Dr Memmott, wrote of them in a March 1995 report on a proposed Mt Isa to Karumba slurry pipeline:

"They comprised not only a language group (´Kalkatungu') but also a group with a well known social identity in both the Aboriginal and non-Aboriginal worlds. Primarily this was due to the effective guerilla war that was waged by the Kalkatungu on the north-west Queensland frontier during the late 1870s and 1880s against pastoral advancement and its accompanying para-military force, the Queensland Native Police."

The applicant, Mr Taylor, says:

"I am one of the chief law bosses of the Kalkadoon people. This means that I am the chief custodian of the sacred rites, ceremonies, customs, dances and ceremonial doctor for the Kalkadoon people. This is a role that was handed to me by elders of the Kalkadoon people in ceremonies in 1985 and 1989. I have been responsible for conducting ceremonies on Kalkadoon land to maintain the spiritual integrity of the land. The last such ceremony was conducted in January of 1996.

By the carrying out of such ceremonies and maintenance of sites I and other members of the Kalkadoon people have maintained a close connection with our land. In addition I and many other members of the Kalkadoon people have always lived and worked within the land claim. I am able to trace my family tree back for many generations and my family has always lived within the area claimed."

Mr Taylor also points to acceptance by the Registrar of the National Native Title Tribunal of his claim to native title, lodged on behalf of the Kalkadoon People.

Mr Hunt, an official of NQEC, has responsibility for, among other things, the environmental investigation and planning associated with the project. He said that these responsibilities included:

"... cultural heritage site clearance of the proposed transmission line route with respect to the supply of electricity from Mica Creek via Chumvale to the Ernest Henry mine ... The clearance is performed jointly by an archaeologist together with Aboriginal persons who can speak for the land affected. The process of cultural heritage site clearance involves comprehensive consultations with Aboriginal organisations and persons followed by field studies. The purpose is to identify sites of significance and to enable that information to be used for route selection."

Mr Hall, an environmental scientist, and Ms Bird, an archaeologist, were consultants to NQEC who were involved in this cultural heritage clearance work. Each of these three people identified and accepted that the Kalkadoon People were an Aboriginal group with cultural and heritage interests in the lands, including at least a substantial part of the power line route. They consulted and worked with people they identified as members and representatives of the Kalkadoon People in work they did to locate the power line route away from areas and sites of importance to the Kalkadoons.

It is not surprising, therefore, that the respondents did not, in the context of this application for interlocutory relief, dispute that there is an arguable case that the Kalkadoon People have native title over the claimed areas. As I have mentioned, the content of the native title claim is a wide one. However, although the respondents did not dispute that the applicant has made out an arguable case that the Kalkadoon People have native title, it should be noted that the respondents' case at trial will be that any native title that may once have existed over lands to be traversed by the power line was extinguished by current or earlier grants by the Queensland Government of various forms of pastoral tenure made prior to 1975 over the areas in question. But the respondents accepted that, in view of the uncertainty as to whether the grant of such tenures extinguishes native title that will remain until the reserved decision of the High Court in the Wik People's case is delivered, it is open to the applicant to argue that the Kalkadoons' native title is not extinguished by the grant of these pastoral tenures.

Mr Taylor says that the Kalkadoon People's native title interest will be detrimentally affected by power line construction in three respects, which are sufficient to justify the injunction now sought. Firstly, he says that a number of dreaming lines of the Kalkadoon People will be affected by the power line route, and he lists the various dreaming lines. He says that, in the culture and beliefs of the Kalkadoon People, the dreaming lines are routes travelled by the sacred totems of the tribe, and also comments:

"... there must be a ceremony if the dreaming lines are to be disturbed. If this is not done then our dreamings will be disturbed and the fellas who walk the country will get sick. This ceremony must be performed prior to any disturbance to our land."

Secondly, he says that there are specific sites, which he refers to in paragraphs 13 to 16 of his affidavit as sites of importance to the Kalkadoon People, which he says are so close to the power line as to be likely to be affected by it. Mr Hardie, the applicant's solicitor, in one of his affidavits filed by leave during Monday's hearing, also refers to very recent discussions with Mr Taylor in which the latter told him of going to the power line route in the Gorge Creek area. This is said by Mr Taylor to be an area of important cultural and religious significance to the Kalkadoon People. Mr Hardie exhibits 21 photographs taken by Mr Taylor of a number of such sites in this area. Mr Taylor generally identifies these sites photographed as being "near transmission line corridor". However, photograph 9.2 shows what Mr Taylor describes as stone clippings that appear to be very close to a power line survey marker, and a second photograph, 9.10, shows rock paintings, which Mr Taylor says are "in cave 50 yards from power line corridor". Mr Hardie says that the respondents' cultural survey material does not report identifying any sites of significance on the transmission line route at Gorge Creek. In material filed by leave during the hearing in reply to this last point, among others, a Crown Law solicitor reported that Ms Bird told him that Gorge Creek contained an area which was identified to her as being highly sensitive from an Aboriginal viewpoint and being a large rock shelter with a gallery of well-preserved paintings and etchings. The power line route originally ran within two to three hundred metres of this area. The evidence from the NQEC officer, Mr Hay, is that the line was moved, as shown on exhibit JAH3, to completely avoid the site. The marking on exhibit JAH3 suggests that this site is about 4 to 5 kilometres from Gorge Creek. The respondents say that they had not previously identified the location of this site, in the material filed in Court, because of its importance and because of the need to keep its location out of the public domain. At the end of the hearing, I gave leave to the applicant to file a further affidavit, although the respondents had no opportunity to deal with it. In this, he identifies a cave with paintings he describes as being of cultural and traditional significance to the Kalkadoon People in a hill, over the top of which he says the power line will be built. He also describes an Aboriginal camping ground and stone etchings and a stone axe quarry, which he says are "directly on the transmission line route". All are in the Gorge Creek area.

The third ground upon which Mr Taylor relies for the injunction is his express belief that there are many sites of significance to the Kalkadoon People which have not been identified along the power line route. He says:

"I believe that I am one of the only members of the Kalkadoon people who is able to identify certain sites, particularly on Timberu Station. Other members of my people who are custodians of our traditional law and land include Jumbo Frog who is my uncle, my cousins Sean Major, Lionel Major and Kenny Major, Clyve Sam, Richard Percey, Thelma Sullivan, Wally Dan, John Brodie, Janie Brodie, Jimmy Vonserden, Arnold Vonserden and my sister Pat Kyle. None of us have been asked by the Respondent to examine the route of the proposed transmission line. Therefore, I believe that not all of the relevant sites and dreaming lines could have been identified."

He also says:

"I believe that there are many more than 40 cultural heritage sites in the area and more than three sites which are near or under the proposed powerline" [that is, than those identified by NQEC's consultants].

As to the first basis on which Mr Taylor seeks the injunction, viz, the interference with dreaming lines, Mr Taylor does not suggest that power line construction will necessarily cause irreparable harm to Kalkadoon traditions and beliefs associated with these dreaming lines that may well form part of Kalkadoon native title rights. If protective ceremonies can be performed, Mr Taylor's evidence, in effect, is that the cultural integrity of these lines can be preserved. The respondents are prepared to give an undertaking that will permit Mr Taylor to carry out such ceremonies before the power line is built in the areas in question. It may be necessary to get others of the Kalkadoon People to accompany Mr Taylor. Provided an undertaking that will achieve the object Mr Taylor says will preserve the integrity of the dreaming lines is given, there is, on the evidence, no risk of harm from the power line to this element of Kalkadoon cultural tradition that could possibly justify the injunction now sought. There is evidence that puts in doubt Mr Taylor's authority to bring proceedings on behalf of the Kalkadoon People and which challenges what he says about these dreaming lines as being significant to the Kalkadoons, to which I will later refer. But I consider that, in the present state of uncertainty as to what the true facts are, it is appropriate to acquire an undertaking from the respondents to permit Mr Taylor to conduct these protective ceremonies.

Mr Taylor's second ground for the injunction is based on sites he identifies as of significance to the Kalkadoon People which he says "are located along or sufficiently near so as to be affected by the proposed transmission line".

In paragraphs 13, 14, 15, 16 and 25 of his affidavit he refers to a number of specific sites. Save for one group of sites, he does not further identify where in relation to the power line route each is located. Of this particular group, he says by way of description:

"At various sites underneath the powerlines located in Timburu and Brightlands Pastoral Holdings. I know the area around Timbaru and Brighton [sic] Stations particularly well."

The evidence indicates that Brightlands Station is not on the power line route, its closest boundary is about 2 kilometres to the south of the power line. Mr Taylor also refers to sites at Three Sisters Waterholes. The Three Sisters are a group of three small hills close to each other about 15 kilometres south of the power line route. From the maps in evidence, there does not appear to be any water feature that might be associated with the Three Sisters any closer to the power line route. Mr Taylor also refers to a ceremonial or bora ground near Lake Corrella. This lake appears to be about 5 kilometres south of the power line at its closest point to the line. He also refers to Kalkadoon graves on the top of a hill near Breakaway Creek. Exhibit JAH3 shows the arm of this creek closest to the power line rising in hilly country about 11/2 kilometres north of the power line, then flowing north for about 1 kilometre and thence north-west to Mt Isa, joining with other arms of the creek as it goes along. Mr Taylor does not say that these grave sites will be interfered with by the power line, only that they are in the area he described. It does not appear to be an area so close to the power line to be likely to be at risk of damage from power line construction work.

The apparent inaccuracy in Mr Taylor's evidence about there being significant sites underneath the power line on Brightlands Station puts a question mark against Mr Taylor's reliability in identifying sites that may be at risk from power line construction. But if that is put to one side, sufficient appears to show that Mr Taylor regards sites at very substantial distances from the power line as being, as he puts it, affected by the power line. He does not explain why he considers a site some kilometres away from the line, such as the Three Sisters Waterholes, will be affected by the building of the power line. No explanation was suggested in argument for why a site, a considerable distance from the power line, might possibly be at risk of physical damage or damage to its spiritual or cultural value from power line construction. Mr Taylor does not attempt to locate most of the sites he refers to in relation to the power line route other than in general terms. I am therefore not prepared to infer that the sites that Mr Taylor refers to, other than those the subject of photographs 9.2 and 9.10 and those at Gorge Creek, referred to in Mr Taylor's affidavit filed at the end of the hearing, are at any real risk of harm from power line construction activities.

The third basis on which Mr Taylor relies in seeking the injunction is his belief that the respondents and their consultants have not identified many of the sites of such significance to the Kalkadoon People that they form part of their native title and which sites will be at risk of harm from power line construction. As I have mentioned, Mr Taylor identifies himself and 13 others who he says are the "custodians of our traditional law and land" who should have been consulted. One of those persons, Thelma Sullivan, was one of the 12 members of a group described as the "Kalkadoon Tribal Council and Kalkadoon Elders Mount Isa" who took part in the archaeological field surveys carried out by Ms Bird. Mr Hall says that another of these 13 persons nominated by Mr Taylor, Sean Major, attended the meeting at the North Western Queensland Land Council (NWQLC) office on 12 February 1996 at which there was discussion of Kalkadoon Tribal Council involvement in the cultural heritage clearance work. The notes of this meeting prepared by Mr King of NWQLC confirms Sean Major's presence. Moreover, five of the 13 custodians of Kalkadoon tradition named by Mr Taylor have had access to Mr Taylor's affidavit material and disassociate themselves from the relief he is claiming allegedly on behalf of the Kalkadoon People. Mr Cain, a Crown Law solicitor acting for the respondents in the action, received a facsimile the day before the hearing in these terms: it is headed "Injunction James Watts Taylor against North Queensland Electricity Commission and State of Queensland". It continues:

"The Kalkadoon People listed below strongly protest and disassociate themselves from the above injunction listed for hearing tomorrow 14th October in Brisbane.

Our people have never been consulted concerning the above injunction, therefore we immediately wish to withdraw our names.

Paragraph 11 of the injunction [that is a reference to paragraph 11 of Mr Taylor's affidavit] concerning the dreaming tracks is completely untrue for our Kalkadoon tribal lands but concerns the Arrende peoples of the Harts Range Northern Territory. White Cockatoo Dreaming Mt Isa is also untrue, it should be Black Cockatoo Dreaming.

The whole injunction is full of lies and spelling errors.

Our Kalkadoon People strongly support North Queensland Electricity Commission and the State of Queensland in the new powerline project, Mt Isa to Ernest Henry.

Please see below a list of names to be taken off the injunction."

And then are set out the following names with the accompanying signatures:

"Clive Sam Richard Percy Thelma Sullivan Wally Dan John Brodie."

Thelma Sullivan's participation in the NQEC heritage field surveys and her and the other four people's rejection of Mr Taylor's claims must throw doubt on Mr Taylor's assertion that there are many as yet unidentified sites of significance to the Kalkadoon People along the power line. All five persons who signed the facsimile clearly know of Mr Taylor's claims in the present proceedings and are identified by Mr Taylor himself as persons not consulted by NQEC but who, with himself and eight other Kalkadoons, are the custodians of Kalkadoon culture and tradition. Their attitude to the power line is inconsistent with it being destructive of Kalkadoon traditional interests. Moreover, NQEC and its consultants have made what appear to be extensive efforts to identify those members of the Aboriginal communities in the Mt Isa- Cloncurry area who might be affected by the project and to identify persons who could speak for their interests. NQEC has also involved the persons so identified by it and its consultants in the cultural and heritage clearance work that I have referred to. Ms Bird worked with 12 Kalkadoon men and women in this regard. That NQEC adopted this process suggests, on the evidence available to me, that it is unlikely that sites of importance to Kalkadoon beliefs and traditions that are so close to the power line construction as to be at risk of harm have not been identified.

There may very well be sites of significance to the Kalkadoon People in the Mt Isa-Cloncurry-Kajabby region not identified or mentioned in the material produced by NQEC's consultants, which was the material taken into account by NQEC in planning the power line route. Mr Taylor may well know of such sites: in criticising Ms Bird's affidavit, he wrote:

"The spot check by helicopter was not done right and we have found evidence of stone chippings and stone axes and a camp site for the Kalkadoon tribe and paintings etc in a radius of 40 kms of Gorge Creek."

But I have already pointed to Mr Taylor's own evidence that suggests that he considers significant sites can be affected by a power line even though they appear to be remote from it, and I have mentioned the absence of any explanation from Mr Taylor as to why he holds this opinion. The position Mr Taylor had adopted also reinforces me in thinking that, subject to one qualification, there is a low risk only of there being sites of significance to the Kalkadoon People that may be harmed by the power line construction, but which have not been identified by NQEC and its consultants.

The qualification arises from Mr Taylor's evidence concerning the two photographs and his most recent evidence concerning the cave site and camp site at Gorge Creek. It would seem that this cave site is not Ms Bird's "site A", although she describes it as a large rock shelter at Gorge Creek. But there is little evidence by reference to which even a provisional judgment can be made as to the significance of each of the three sites in question to Kalkadoon beliefs. Without such evidence, I am not prepared to infer that the information as to these three sites which Mr Taylor has put before the Court shows that they are sites of importance to the Kalkadoon People.

The failure of the applicant to show anything more than a low risk of harm from power line construction to sites of importance to Kalkadoon beliefs and traditions goes a long way to resolving his claim for interlocutory relief.

If the injunction is refused but the applicant establishes that the Kalkadoon People have native title that extends to sites including the three at Gorge Creek, there is, on the evidence, a low risk only that sites of significance to the Kalkadoons will be destroyed, damaged or their cultural integrity otherwise impaired by power line construction. If any harm is done to sites of significance to the Kalkadoon People, I accept that adequate compensation cannot be provided by way of damages (or otherwise). On the other hand, the absence of any worthwhile undertaking as to damages shows that the first respondent will be left without any remedy for the loss it will suffer from the grant of an interlocutory injunction if the applicant fails at trial to establish that the Kalkadoon People's native title rights are such as to permit them to prevent the construction of the power line. The question of the balance of convenience must therefore be considered in relation to the applicant's entire claim for interlocutory relief.

Ernest Henry mine is a very large copper and gold mine presently being developed about 40 kilometres north-east of Cloncurry. Development work started in November 1995 and sales of ore are planned to commence in September 1997. To achieve this target, Mr Hairsine, a senior executive of Ernest Henry Mining Pty Ltd, says:

"...critical dates for Mine development and commissioning which are dependent on the Power Supply are:

* Power supply to site -- July 1997;

* Concentrator commissioning -- August 1997;"

NQEC is liable, on the evidence, to pay to the mine liquidated damages of $14,000 for each day supply of power to the mine is delayed from 15 July 1997 and it will, in addition, lose $8,400 in rentals each day. At the end of August about 190 persons were employed on the mine development work by the mine owner. The development workforce is planned to peak at about 530 persons in the first six months of 1997. The mine will have a 15 year life from 1997. The labour force at the mine, once operational, is expected to number about 200 in the first two years and 350 in each of the remaining 13 years. It is obviously a very large project of great importance to the economy of north-west Queensland, at the very least. Route selection and line design, including location and design of towers and foundations, was completed in August. The line of 151 kilometres is supported on about 370 steel towers. It appears that work started on the construction of the line in the first half of September. By the time of the hearing on Monday last, about 50 tower foundations had been built between Chumvale and the Ernest Henry mine site. Steel has been procured and tower manufacture is already under way in Sydney. Construction appears at the moment to be broadly in conformity with the fairly tight construction program.

It is plain that the grant of the interlocutory injunction sought by the applicant until the trial of the action (or earlier determination of the claim for native title, if that can be achieved by the National Native Title Tribunal) will expose NQEC to liability to very large damages to the Ernest Henry mine company. In addition, Mr Hunt, of NQEC, says that, if construction is delayed, NQEC will be liable to pay to the power line contractor its stand-down and prolongation costs during the period that work is delayed, together with acceleration costs, if the delay is temporary, to fund acceleration by the contractor of the construction program to overcome that delay. It is not, however, clear from the material before me that the delay imposed by the grant by the Court of an injunction would be an event that would expose NQEC to this monetary liability under its contract with the power line contractor. But if NQEC will not suffer such losses, those losses will inevitably fall on the power line contractor.

If the interlocutory injunction is granted, the evidence, including that of Mr Bulman, the NQEC engineer responsible for the power line design, shows that relocation of the line in an attempt to permit construction to proceed pending trial is likely to be a very costly exercise for NQEC.

If the interlocutory injunction is granted but the applicant fails at trial, third parties will be detrimentally affected and they will have no prospect of being compensated for any losses caused by the grant of the injunction. This is a relevant consideration in determining whether to grant an interlocutory injunction. See Spry, Equitable Remedies, 4th Ed, pp 393-394 and 464. If the injunction now sought is granted, the Ernest Henry mine company, as a third party, is likely to suffer substantial loss by way of increased costs of mine development and loss of income from the mine. The residents of Cloncurry will suffer from disruption of power supplies to the town for what is likely to be a significantly longer period than if power line construction proceeds without interruption. The evidence is that the Cloncurry township, presently with a population of about 3000 people and expanding, is in urgent need of a new power line that will make the township less susceptible to storm-caused blackouts that frequently affect the existing 34 year old line from Mount Isa. Mr Robertson, the Mayor of Cloncurry and a director of NQEC, says that:

"NQEC statistics for the last 3 years show a total of 55,400 customer hours of loss of electricity supply at Cloncurry due to failure of the 66 kV transmission line. This was five times the NQEC average."

If the injunction is refused, the sites that are of significance to Kalkadoon culture have probably been identified, as I have mentioned, and, where necessary, protected from power line activity. I note that action was taken by NQEC in relation to three important sites identified by Ms Bird with Kalkadoon assistance to ensure that they were not put at any risk by power line construction. This action involved two significant changes to the original route of the power line. There is only a low risk of irreparable harm to sites that may be of significance to the Kalkadoons. If the injunction is granted, on the other hand, the first respondent will be likely to suffer very large financial loss for which it will not be able to recover any compensation. Third parties, the Ernest Henry mine company and possibly the power line contractor, will be in a similar position. In addition, the residents of Cloncurry will also be inconvenienced by power blackouts. The balance of convenience favours refusal of the injunction.

There has also been delay on the part of the applicant in bringing the present proceedings, which delay is, I think, a relevant consideration that mitigates against the grant of the injunction. Mr Hall, NQEC's consultant, says he identified Mr Taylor as a Kalkadoon who should be contacted with respect to the cultural and heritage clearance work he was working on as a result of his own contact with the anthropologist, Dr Memmott, in late March 1996. He had initiated the exercise of identifying interested Aboriginals and groups in November 1995 and by March 1996 Mr Hall had dealt with persons associated with the Kalkadoon Tribal Council and the NWQLC in seeking to identify Kalkadoon cultural interests that needed to be taken into account in designing the power line route. There is no suggestion that NQEC or its consultants deliberately avoided contacting Mr Taylor earlier on, although there is a conflict of fact between Mr Hall and Mr King of NWQLC as to whether the latter drew Mr Hall's attention to Mr Taylor and the Kalkadoon Dancers' Association, with which Mr Taylor is associated, in February 1996. Mr Hall says that, having learned of Mr Taylor, in late March, he succeeded in contacting him in early April. He gave Mr Taylor details of the project. Mr Taylor referred to the native title claim he was in the process of preparing in respect of Timberu Station. Although Mr Taylor now gives different evidence, it appears, from a letter he wrote on 12 April 1996 to Mr Hall, that he was not then concerned to be involved in the cultural heritage clearance work with which Mr Hall was then, himself, concerned. Rather, did Mr Taylor seek information which he said he wanted to assist his native title claim. Mr Hunt, who was at this meeting with Mr Hall and Mr Taylor, replied responsively on 1 May 1996 to this and other requests then made by Mr Taylor.

Mr Taylor did not, thereafter, contact either Mr Hunt or Mr Hall. Instead, he says he complained to Mr King, of NWQLC, after calling a meeting of the Kalkadoon Dancers' Association, about his concerns at the inadequacy of the NQEC archaeological investigations. On 3 May 1996, Mr King wrote to Mr Hall criticising NQEC's reliance on Mr Isaacson of the Kalkadoon Tribal Council, calling for a halt to the archaeological study and immediate discussions with NWQLC "and other interested parties." Mr King did not, however, mention Mr Taylor or the Kalkadoon Dancers' Association, although a copy of his letter was sent to them as well as to the Kalkadoon Tribal Council. Mr Hall replied on 17 May to Mr King's letter saying, among other things:

"I am disappointed to receive this as the first communication from your office since Trevor Hunt and I met with you and Shereene Currie in early April. At that time, we described to you the organisations and Aboriginal people with whom we had made contact or were intending to make contact. It was our impression that you understood our coverage to be satisfactory. We understood at that time that you would indicate to us any other Aboriginal people with whom we should have made contact. Whilst at that time you were not able to do so, we understood that you would contact us in the very near future with the names of people we should contact. We then did not hear from you until your letter was received on Friday 10 May. In the interim, you certainly did not advise us of any further Aboriginal people whom you believed should be involved in the archaeological cultural heritage clearance processes.

At this stage, there have now been some thirty Aboriginal people directly involved in field investigations, all of whom have or will be paid at the rate of $250/day for their involvement in the field. This was negotiated with all parties prior to any field investigations being undertaken by Aboriginal people including: Directors of the Kalkadoon Tribal Council, the Maithakari Aboriginal Corporation and Kalkadoon elders. We have also held discussions with members of the Burke and Wills Aboriginal Co-operative Society Limited at Boulia and they intend to participate in field clearance investigations.

You have suggested that Mr Isaacson is a Waanyi descendant and therefore should not have entered particular lands. We were advised that Mr Isaacson has documentary evidence to substantiate that he is also of Kalkadoon descent.

We are still very keen to work closely with the North West Queensland Land Council in order to ensure that Aboriginal interests are met.

If you are now in a position to provide us with details of other Aboriginal individuals or organisations with whom you feel we should make contact, we would be very pleased to receive this information.

We look forward to your cooperation in meeting the needs of all parties involved. Please contact us again if you wish to discuss progressing the finalisation of the cultural heritage processes."

It appears common ground that Mr King did not take up this invitation and, in particular, did not respond with any reference to Mr Taylor or the Kalkadoon Dancers' Association. Mr Taylor, himself, says that, between his first meeting with NQEC representatives in early April and his second meeting on 11 September, he was in contact with Mr King and had concerns about NQEC's cultural heritage clearance activities. But he does not suggest he communicated these concerns to anyone connected with NQEC or to anyone other than Mr King and fellow members of the Kalkadoon Dancers' Association. Mr King says he had no contact with anyone associated with NQEC between sending his letter to Mr Hall on 3 May 1996 and a meeting at the NWQLC office, which he places in early July but which Mr Hunt suggests was at the end of June 1996. Mr Hall, however, does refer to a telephone conversation with Mr King in late May 1996. This meeting, held at the end of June or early July, was attended by Mr Hunt, members of NWQLC, Mr Taylor and Mr Perkins of Sancave Pty Ltd, who Mr King described as a consultant to NWQLC. Mr Hunt describes what took place. He said that Mr Perkins advised that:

"Sancave represented the interests of the applicant and all other Aboriginal groups in the area. Mr Perkins stated that he had established a new Aboriginal group, the Mitakoodi Juhnjlar Aboriginal Corporation, and that it was headed by Pearl Connolly. Mr Perkins stated that the Mitakoodi group had signed an agreement with Sancave to represent their interest in negotiating with Ernest Henry and NQEC. Mr Perkins stated that we had used the wrong persons for the cultural heritage site clearance but that his role was to negotiate compensation. Mr Perkins stated that he wanted to convene a meeting in the next week ... to discuss compensation and employment for the Aboriginal people in the area. He stated he did not wish to have the process bogged down like Century and said he would anticipate negotiations to be finalised by 9 July 1996."

Mr Hunt said he listened to Mr Perkins' statements "without providing any real comment". A letter followed from Sancave on 23 July 1996. NQEC replied on 26 July 1996. Nothing followed from this meeting or this exchange of correspondence. So far as the evidence reveals, the next thing that happened was a meeting that took place on
11 September 1996. Mr Taylor says he was the instigator of this meeting. Mr Taylor, representatives of NWQLC, Sancave and NQEC attended. The fullest account in evidence of what took place appears to be contained in the letter to Sancave of 13 September 1996 from the Crown Law solicitor, acting for NQEC, who attended the meeting. This letter includes the following:

"At Wednesday's meeting Mr Taylor and Mrs Connolly raised concerns about the effectiveness of the cultural heritage clearance that had been undertaken. They were concerned that they had not been part of the cultural heritage clearance.

... While NORQEB does not acknowledge that the wrong people conducted the cultural heritage clearance, consistent with NORQEB's approach its representatives attempted to allay your clients concerns by offering them the opportunity to participate in a further cultural heritage clearance of the proposed transmission line route."

The conditions of the offer then made on behalf of NQEC are set out in the letter, as is the counter-proposal put forward by Sancave at that meeting. The letter concludes with, what is in effect, a compromise offer of the terms on which NQEC is prepared to engage people nominated by Sancave to take part in additional cultural heritage clearance work. The letter concludes:

"As you are aware work is scheduled to commence in the next week and my client seeks to resolve the matter as quickly as possible."

Solicitors acting for NWQLC, Kalkadoon Dancers' Association, Sancave and the Mitakoodi Juhnjlar Aboriginal Corporation, who also act in these proceedings for the applicant, wrote, on 16 and 17 September, to the Crown Law officer foreshadowing an application to the Court for an injunction. Sancave, on 17 September, wrote to NQEC's solicitor with a further offer, following up that made on 13 September. Sancave, in this letter, confirmed that they acted for Mr Taylor, NWQLC, the Kalkadoon Dancers' Association, Kalkadoon Community, Mitakoodi Juhnjlar Aboriginal Corporation and Mitakoodi Community. The counter offer includes the following: "... clearance will be conducted immediately and will take approximately two weeks". Terms of payment are also proposed. This counter offer has not been accepted.

The Kalkadoon Tribal Council, on whom NQEC relied to represent Kalkadoon interests in the cultural heritage clearance work, and the Kalkadoon Dancers' Association, with which Mr Taylor is associated, each appear to represent substantial numbers of Kalkadoons. Both came into existence well prior to the initiation of the power line project. The NWQLC, which Mr Hall says he initially believed to represent all relevant Aboriginal interests, was involved by NQEC in cultural heritage clearance discussions from the outset back in November 1995. Mr King, of NWQLC, describes the Kalkadoon Dancers' Association as a client of the Land Council. There is no explanation why NWQLC did not draw to NQEC's attention the desirability of consulting the Kalkadoon Dancers' Association and Mr Taylor, at least prior to 12 February, when Mr King says in disputed evidence that he first mentioned them to NQEC. Mr Taylor initially indicated, in my view, that he did not wish to be involved in NQEC's cultural heritage clearance work in relation to the power line in the letter he wrote on 12 April last. It appears from that that he was concerned only with his native title application.

It also appears that he has never himself indicated concern at his or the Kalkadoon Dancers' Association's exclusion from NQEC's activities, at least until the meeting of 11 September, although he was present at the earlier meeting in June/July attended by Sancave, NWQLC and NQEC representatives. He could readily, in my opinion, have involved himself in the work of cultural heritage clearance if only he had indicated to NQEC earlier in the year a wish to do so, when, eg, he spoke with Mr Hall in early April. There appears to be no reason to doubt the repeatedly expressed willingness of NQEC to consult with all interested persons. Mr Taylor, as a spokesman for the Kalkadoon Dancers' Association, would very probably have been enlisted by NQEC, in my opinion, if only he had expressed interest.

It appears that, subject only to agreement on terms of remuneration, the sort of input that Mr Taylor could provide in identifying heritage sites can be done in about two weeks. NQEC's preliminary impact assessment listing identified heritage sites was not produced until about 18 April 1996. Mr Hay made changes to the proposed power line route to accommodate cultural heritage considerations after receiving the NQEC archaeologist's report on 15 May 1996. The contract for the power line survey was not let until 17 May 1996. Line design appears not to have been finalised until the survey was complete in August 1996. It would now be a costly exercise for NQEC, on the evidence, to change the power line route in anything other than minor respects. Although as recently as 13 September 1996 NQEC was asserting its willingness to consider that, should further significant sites be identified as a result of Mr Taylor's involvement in clearance work, it appears that it would have been much easier to make changes to the preliminary route prior to mid-May and even subsequent to that. Mr Taylor's delay in putting himself forward to be involved in cultural heritage clearance work has therefore prejudiced the first respondent, if an injunction were to be granted, in ways that would not have occurred if Mr Taylor had acted earlier in this respect, as he could have done. These considerations, in my opinion, reinforce the conclusion I have reached that the injunction should be refused.

I should mention that in closing argument counsel for Mr Taylor referred briefly to s. 56(2)(a) of the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld), which provides:

(a) if the item is one of which particulars are not entered in the register --

(i) the person does so under the authority of this Act; or

(ii) he person is the owner of the item or does so under the owner's authority."

The expression "Queensland Estate" is defined in question 5 to mean "evidence of human occupation of the areas comprising Queensland at any time that is at least 30 years in the past". By s 33(1)(a) of the Act, it is provided that:

"All parts of the Queensland Estate that constitute evidence of occupation of any part of Queensland by indigenous persons are and shall be deemed to have always been the property of the State."

Counsel pointed out that it is an offence to interfere with an Aboriginal site that is part of the Queensland Estate even if it is not culturally significant. The applicant, as a Kalkadoon, might be able to justify his claim to permanent and interlocutory injunctive relief, quite apart from any question of native title, if he could show that power line construction was likely to involve breaches of .s 56: of Onus v Alcoa of Australia Limited [1981] HCA 50; (1982) 149 CLR 27. But such a claim was not developed in argument and I am not prepared to consider granting an injunction on this basis: there may be a good argument that, because the second respondent is the owner of any relevant Kalkadoon sites or items, destruction of or interference with them by NQEC or its contractor may be authorised pursuant to s. 56(2)(a)(ii). In any event, for the reasons I think the claim for interlocutory relief based on interference with Kalkadoon native title rights fails, a claim for interlocutory relief based on s. 56 would very likely fail as well.

The order of the Court will be that upon the first respondent giving the undertaking in terms of exhibit 1 (annexed to this judgment), the application for interlocutory relief is dismissed. The respondents' costs of and incidental to the application for interlocutory relief are reserved.

JAMES WATTS TAYLOR v NORTH QUEENSLAND

The first respondent undertakes not to interfere, either directly or indirectly, with the conduct by Kalkadoon persons of Dreaming Lines Ceremonies on land affected by the construction of the power transmission line provided that the conduct of such ceremonies does not unreasonably interrupt or interfere with the construction, operation or maintenance of the power transmission lines and provided that the applicant or his solicitors gives at least 24 hours prior notice of intention to conduct any such ceremony to Mr Trevor Hunt of NQEC, Townsville.

See (1996) 913 FCA 1. l