Editors --- "Zen Pearls Pty Ltd v Great Barrier Reef Marine Park Authority - Case Summary" [2004] AUIndigLawRpr 8; (2004) 8(4) Australian Indigenous Law Reporter 32
Court and Tribunal Decisions - Australia
Zen Pearls Pty Ltd v Great Barrier Reef Marine Park Authority
Administrative Appeals Tribunal (Downes P and Member Christie)
15 March 2004
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
Facts:
The Great Barrier Reef Marine Park Authority (‘the Authority’) is authorised to make decisions permitting limited pearling operations in the waters of the Palm Islands Group in north Queensland. In June 1997 the Authority granted two associated companies (Zen Pearls Pty Ltd and Indian Pacific Pearls Pty Ltd) one year permits to undertake limited pearl farming operations in two 10-hectare areas within the Palm Islands.
In March 1998 the companies applied for further permits which included a substantial expansion of the area for a six-year period. The Authority refused the application by Zen Pearls to extend its pearling operations but issued a permit to Indian Pacific Pearls for 60 hectares valid for six years. The decision to grant a permit to Indian Pacific Pearls and refuse Zen Pearls’ application was reconsidered and affirmed in September 1999. Zen Pearls sought review by the Administrative Appeals Tribunal of the reconsideration in so far as it concerned the refusal of its application to continue its pearling operations. The Manbarra people, descendants of the original traditional inhabitants, opposed the application.
Held, setting aside the decision under review:
1. The matters set out in reg 18(4) of the Great Barrier Reef Marine Park Regulations 1983 (Cth) concerning the use of the park need to be evaluated in comparison with each other. Cultural and heritage values, the nature and scale of the proposed use in relating to existing use and amenity, and possible future uses and amenity must be evaluated against the policy of reasonable general use. It is not enough to show that cultural and heritage values are involved, rather, it is necessary to weigh their need for protection against the proposed use of the park [192]–[193]. Thompson v Enz 154b N.W.2 (US Supreme Court, Michigan) approved.
2. A use which interferes with cultural and heritage values may be unreasonable if it has never been present, but reasonable if it has been permitted for many years without opposition [195].
3. In determining whether a use is reasonable, it is relevant to consider the length of time it is to be engaged in [289].
4. Regulation 18(4) of the Great Barrier Reef Marine Park Regulations 1983 (Cth) requires consideration of cultural and heritage values regardless of whether such values are based upon Aboriginal tradition [281].
Case Extract:
Downes P and Member Christie
Part 1: The Facts
Part 1.1: The Geography
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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.
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Part 1.2: The Traditional Inhabitants
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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.
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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).
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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. ...
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.
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23. The Palm Island Community is a troubled community. This was recognised by Erykah Kyle [a respected member of the Palm Island community]. 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 1.4: 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. ...
Part 1.6: Impact of the Pearling Operations
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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.
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Part 1.6.3.1: General Use of the Bay by Traditional Inhabitants
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 [a respected member of the Palm Island Community] 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.
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[Mr Nullanjar went on to say that Fantome Island was used for camping by Palm Island People and their families, often for weeks or months at a time.]
75. There was evidence from Mr Crimp [who controlled Zen Pearls] 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.
Part 1.6.3.2: Importance of Juno Bay from a Traditional Perspective
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.
[Downes P and Member Christie outlined evidence which had been given regarding observable activities. Traditional foods and plants are found on Fantome Island, and it is possible that pearling operations pose a risk to native wildlife. The pearling farm was located in a traditional hunting area. Finally, the area in question was also used for initiation practices and the teaching of traditional practices.]
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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.
[Downes P and Member Christie outlined evidence which had been given about the presence of ancestral graves on Famtome Island, the importance of following traditional laws, the importance of consensual entry into the area and the need for permission to enter, and the beliefs of some witnesses that the pearl farms intruded upon traditions without consultation. It was also noted that it was important for the community to restore lost traditions and to introduce successive generations to the area. ]
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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 Two: The Legal Framework
Part 2.3: The Great Barrier Reef Marine Park Regulations 1983
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Part 2.3.2: Regulation 18(4)(b): Cultural and Heritage Values
* ‘Traditional inhabitants’
172. The term ‘traditional inhabitants’ is not defined in the Act. However, the Zoning Plan defines ‘traditional inhabitant’ to mean:
An Aboriginal or Islander who lives in an area or areas in accordance with Aboriginal or Islander tradition, respectively.
Definitions in the Zoning Plan are described as applying ‘in the Zoning Plan’.
* ‘Aboriginal Tradition’
173. In Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106; (2001) 123 FCR 62, Von Doussa J considered the notion of ‘Aboriginal tradition’ as defined in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in which ‘Aboriginal tradition’ means:
The body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
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[Downes P and Member Christie discussed Justice Von Doussa’s observations about the meaning of the words ‘traditions, observances, customs and beliefs’. They emphasised the conclusion of Von Doussa J, that:]
Taken in conjunction, the words in the expression `traditions, observances, customs or beliefs' carry with them the notion that there has been a handing down from generation to generation in accordance with the accepted understanding of the way in which Aboriginal history, laws, observances and practices have been transmitted through the aeons. ...
* ‘Aboriginal Tradition and Burial Sites’
174. ... [Downes P and Member Christie referred to the observations of Lockhart J in Re Wamba Wamba Land Council v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 23 FCR 239 at 172–73:]
Aboriginal tradition requires that burial places remain peaceful and tranquil and must not be walked upon or otherwise intruded upon by human beings. They are the places which Aboriginals believe are the place of the spirits waiting to be called back, and, if the spirits are disturbed, the Aboriginal people believe that they will suffer because of the failure to care for them. There is no doubt that the Aboriginal community is disturbed and distressed by the actions of the second respondent and will continue to be disturbed if the club house and bowling greens are constructed on their proposed sites even if the northern bowling green is moved to a different site or not constructed at all on any part of the land of the second respondent [emphasis added by Downes P and Member Christie].
* ‘Traditional Fishing’
175. Traditional fishing is defined in the Zoning Plan to mean:
fishing; otherwise than for purposes of recreation, sale or trade, in an area by a traditional inhabitant or a group of traditional inhabitants
A similar meaning is given to ‘traditional hunting and gathering’.
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177. Some of the cases have given a more limited meaning to expressions such as ‘traditional fishing’. In Sutton v Derschaw (1995) 82 A CrimR 318, a case dealing with Aboriginal fishing rights, Heenan J relied upon comments made by Gleeson CJ in Mason v Tritton (1994) 34 NSWLR 572 at 574 that:
Fishing is an activity which is so natural ... that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.
178. Justice Heenan (at 6,7) also relied upon comments by Kirby P in the Tritton case that a ‘right to fish’ based upon traditional laws and customs is a recognisable form of native title defended by the common law of Australia, but that its evidentiary requirements were exacting, and required:
(1) that traditional laws and customs extending the ´right to fish' were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory. ...;
(2) that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community;
(3) that the appellant and the intermediate descendants had, subject to the general
propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and
(4) that the appellant's activity or conduct in fishing for (the fish in question) was an exercise of those traditional laws and customs.
* ‘Other People’
179. The inclusion of ‘other people’ within the group to be protected by reg 18(4)(b) shows that the cultural and heritage values encompassed by the regulation are not confined to the values of traditional inhabitants. It follows that the cultural and heritage values of traditional inhabitants protected by the regulation are not confined to traditional cultural and heritage values. The protected cultural and heritage values of traditional inhabitants can include values with European or other origins provided they qualify to be described as cultural and heritage values.
* ‘Cultural and Heritage Values’
180. The term ‘cultural and heritage values’ is not defined in the Act. In Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409, French J made the following observations on ‘cultural heritage’ (at 437):
The contemporary Australian landscape is laced with the beautiful and intricate patterns of the Aboriginal Dreamtime mythology. That mythology is a priceless part of our national cultural heritage. Its fragility in conflict with the political imperatives of Commonwealth and State Governments is highlighted in this case.
The preservation of human cultural heritage as a public duty is recognised in the laws of many nations. The concept is said to have originated in nineteenth century France: Sax, `Heritage Preservation as Public Duty: The Abbe Gregoire and the Origins of an Idea' (1990) 88 Michigan Law Review 1142. The duty is recognised at international law by the Convention for the Protection of the World Cultural and Natural Heritage to which Australia is a party. The cultural heritage of any country extends to the language, traditions, customs, stories and religions of its peoples past and present. The drive to preserve that heritage sometimes conflicts with other perceived public interests which involve its destruction or impairment.’ (Our emphasis).
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Part 2.4: The Effects of the Legislative Provisions
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191. Most aspects of the matters described in the other paragraphs of reg 18(4) are negative matters or matters addressing indications which will usually be contrary to a proposal. Certainly, the principal matters for consideration here such as the need to protect cultural and heritage values and the assessment of the nature and scale of the proposed use in relation to existing use and amenity are such matters.
192. There is accordingly a tension between the matters to be considered. The items which must be addressed in accordance with reg 18(4) cannot be addressed discretely. What is necessary is a comparative evaluation. Cultural and heritage values and the nature and scale of the proposed use in relation to existing use and amenity, as well as future desirable use and amenity, must be comparatively evaluated against the policy of reasonable general use.
193. Accordingly, more is required than merely finding that cultural and heritage values are involved. The need to protect them must be set against the proposed use. The need to protect them must be set against the proposed use. More is required than finding that the proposed use will interfere with use and amenity. The nature and scale of the proposed use must be judged against existing use and amenity. All of this must be used to aid a determination of what is reasonable use in all the circumstances. In accordance with the United States authorities, in our view correctly, the concept of reasonable use alone requires a balancing of benefits and detriments.
194. In our opinion the joint requirements to consider ‘reasonableness’ and to value competing considerations of culture and heritage and the effects of changes in use and amenity against a policy of permitting the proposed uses in accordance with the zonings applying here requires a consideration of the actual conditions at the times relevant for consideration by the various decision-makers.
195. A use which interferes with cultural and heritage values may be unreasonable if it has never been present but reasonable if it has been permitted for many years without opposition.
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Part Three: Submissions
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Part 3.2: Regulation 18(4)(b): Cultural and Heritage Values
214. It was contended that the regulatory requirement for the need to protect cultural and heritage values at the Juno Bay site was the paramount issue for our consideration.
Part 3.2.1: Status of the Manbarra People
215. The first issue that arose in relation to traditional values was what standing the Manbarra People had to agitate the issue on behalf of the Palm Island Community. Counsel for the Manbarra People contended that the following issues were not in dispute between the parties:
(a) that the Manbarra People and the Bwgcolman People are Aboriginal people comprising ‘traditional inhabitants’ who hold cultural and heritage values in relation to the Park ; and
(b) that those people live in the Central Zone of the Park including living, for extended periods, on Fantome Island.
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[Downes P and Member Christie then outlined submissions which had been received from both the applicant and respondent parties.]
221. All of this went to whether it was appropriate for the Manbarra People to raise this issue before the Tribunal. It is also relevant to the impact of the pearling operations on the economic interests of the Palm Island Community and also to the consultation with the Palm Island Community.
Part 3.2.2: Cultural and Heritage Values Requiring Protection
222. We will begin considering the protection of cultural and heritage values by outlining the values which the Manbarra People claim must be protected by refusing to permit the pearling operations. Counsel for the Manbarra People submitted that the impact of Mr Crimp's activities would diminish a number of cultural and heritage values - values which, when combined with a richness of environment and a totality of experience derived from Aboriginal tradition, were not available anywhere else in the Palm Island Group. These values included values associated with:
(a) traditional marine foraging areas;
(b) places associated with culturally valued activities such as contemporary teaching/inculturation practices; and
(c) places immanent of and sacralized by ancestral presence and which were not governed by physical boundaries: for example, stopping at the reef.
223. The Authority made its own submissions on the ‘cultural and heritage values’ held by the traditional inhabitants of the area. In this regard, the area of Juno Bay was a traditional and favoured hunting and fishing ground as it was a relatively undisturbed protected shallow bay. Furthermore, Juno Bay had cultural values related to its proximity to the cemeteries and the former hospital site.
224. It is apparent from the submissions that the protection of the values of seeking permission to enter an area and of consulting with elders and making decisions with community consent were also at issue.
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Part Four: Consideration
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[Downes P and Member Christie noted that they accepted evidence concerning the presence and importance of traditional cultural and heritage values.]
273. ... 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.
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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.
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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.
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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.
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