Turrbal People v State of Queensland [2002] FCA 1082 | Case summary

The motion be dismissed. 2. The costs of the State of Queensland of and incidental to the motion be paid by the applicant, to be taxed if not agreed.
Otherwise there be no order as to costs.

REASONS FOR JUDGMENT 1 There are two notices of motion before the Court filed on 23 August 2002. The applicant in each is Connie Isaacs on behalf of the Turrbal People. The first notice of motion has the State of Queensland, Brisbane City Council ("BCC") and Richard Kirk Architect Pty Ltd ("Kirk") as respondents. By that notice of motion the applicant seeks orders: "(1) That the applicant be granted leave to seek an injunctionon [sic] the proposed Cultural Centre at Musgrave Park, 91 & 121 Cordelia Street, South Brisbane, by the State of Queensland and the Brisbane City Council - Lots 1 & 3 on SP 1105638, as the pieces of land in question are identified on the registered native title claim QG6196/98. (2) That the Turrbal People, as the registered native title claimants over the pieces of land in question Lots 1 & 3 on SP 110538, have never consented to the construction of a Cultural Centre at Musgrave Park. (3) That the Turrbal people, as the registered native title claimants over the pieces of land in question, have their own aspirations for Lots 1 & 3 on SP 110538." 2 The affidavit of the applicant in support says: "… 3. The granting of the Deed of Grant in Trust (DOGIT) by the State of Queensland to the Brisbane City Council in 1999 was racially discriminatory because the Turrbal Traditional Land Owners, whose native title claim had already been lodged in May 1998, over Lots 1 & 3 on SP 110538, were neither consulted nor negotiated with by the State of Queensland prior to the granting of the Deed. Musgrave Park was specifically identified in the Turrbal native title claim (QG 6196/98). 4. Under the Turrbal Customary Law, Aboriginal customary practices, within the Turrbal ancestral homeland, are not the jurisdiction of the State of Queensland and Brisbane City Council. 5. The granting of the DOGIT (for aboriginal purposes only) by the State of Queensland to the Brisbane City Council under section 59(1) of the Land Act 1994 is inconsistent with the Objects of the Native Title Act 1993. 6. The granting of a lease by the Brisbane City Council to the Musgrave Park Cultural Centre Inc (a non-Turrbal organisation), without the consent and blessings of the Turrbal people, is in violation of the Turrbal Customary Law." 3 The second notice of motion by Connie Isaacs on behalf of the Turrbal People has five respondents: the State of Queensland, BCC, Council of the Shire of Pine Rivers, Logan City Council and Redland Shire Council. In that notice of motion the applicant seeks an order: "1. That the applicant to be granted leave to seek an injunction on [sic] all current and future acts occurring on lands and waters which have been identified in the registered native title claim QG 6196/98, except those acts to which the Turrbal people have consented in writing." The affidavit in support of that motion relevantly says: "… 3. That the Turrbal people have experienced, and continue to experience contemptuous acts by the State of Queensland and the Brisbane City Council, which attempt to deny the Turrbal people of their rights and interests as claimed in the registered native title application QG 6196/98. For example, the Howard Smith Wharves (Lot 4 RP 41821, Lots 21 & 22 on RP 8614, Lot 2 on RP 44680, Lot 2 on B3333, Lot 4 on CP 890874, Lot 3 on RP 52849, Lot 6 on RP 8569, Lot 2 on RP 40998, Lot 400 on SL 1404, which were identified as Unallocated State Lands (USL) on the Turrbal native title application, are in the process of being swapped by the State of Queensland with the Brisbane City Council for another piece of land at Kurilpa Park, South Brisbane. At no time were the Turrbal people informed of this proposed transaction, until it was in the newspaper. Several efforts were made by the Turrbal representative to bring their concerns to the attention of the State of Queensland, all to no avail. The Turrbal people hold contemporaneous evidence on file to support these allegations." 4 The third respondent did not appear on the hearing of the second notice of motion. It is to be noted that there is no reference to any conduct of the third, fourth and fifth respondents to that notice of motion in the affidavit of the applicant on the second notice of motion. 5 That is the evidence on which the applicant relies. However, there were submissions filed in respect of each notice of motion on behalf of the applicant. Each outline of submissions sets out, as facts, material which is not the subject of evidence in the proceedings. I have proceeded on the basis that the matters set out in the submissions are properly to be considered in relation to whether or not to grant the relief claimed by the two notices of motion. 6 In addition to that material, the outline of submissions by the applicant in respect of the first notice of motion relevantly submits: "(i) The granting of the Deed of Grant in Trust (DOGIT) by the State of Queensland to the Brisbane City Council on 29 July 1999 was racially discriminatory because the Turrbal Traditional Land Owners, whose native title claim had already been lodged in May 1998, over Lots 1 & 3 on SP 110538, were never consulted nor negotiated with by the State of Queensland prior to the granting of the Deed. Musgrave Park was specifically identified in the Turrbal native title claim (QG 6196/98). (ii) Under the Turrbal Customary Law, Aboriginal customary practices, within the Turrbal ancestral homeland, are not the jurisdiction of the State of Queensland and Brisbane City Council ... The establishment of a cultural presence by non-Turrbal Aboriginals within Turrbal ancestral homeland, without the express permission or invitation from the appropriate Turrbal authority, is a violation of the Turrbal Customary Law. The proponents of the cultural centre at Musgrave Park have never sought permission from the Turrbal people. They continue to demonstrate a flagrant disregard for the Turrbal laws and customs. (iii) The granting of the DOGIT (for aboriginal purposes only) by the State of Queensland to the Brisbane City Council under section 59(1) of the Land Act 1994 is inconsistent with the Objects of the Native Title Act 1993 and Aboriginal customary practices. … … (v) Under section 61 of the Aboriginal Land Act 1991, Aboriginal groups with historical association must not be favoured over those with traditional associations in land claims. In view of the fact that the Turrbal People have a registered native title claim over the area of land in question, the arrangement between the BCC (the Lessor) and the MPCC (the Lessee) should be rendered null and void abinitio." (Emphasis in the original.) 7 The outline of submissions in respect of the second notice of motion relevantly provides: "(i) The proposed land swap between the State of Queensland and the Brisbane City Council circa. 30 September 1999 was racially discriminatory because the Turrbal Traditional Land Owners, whose native title claim had already been lodged on 13 May 1998, over Lot 4 on RP 41821, Lots 21 and 22 on RP 8614, Lot 2 RP 44680, Lot 2 on B 3333, Lot 4 on CP 890874, Lot 3 on RP 52849, Lot 6 on RP 8569, Lot 2 on RP 40998 and Lot 400 on SL 1404, were never consulted nor negotiated with by the State of Queensland prior to the swap. Howard Smith wharves was specifically identified in the Turrbal native title claim (QG 6196/98). (ii) Under the Turrbal Customary Law, the New Farm area (including the area where Howard Smith Wharves is located) is culturally significant within the Turrbal ancestral homeland … The establishment of a cultural presence by the Turrbal people within this area is an integral part of the overall Turrbal Cultural Reclamation Strategy. The State Government continue to demonstrate a flagrant disregard for the Turrbal laws and customs. (iii) The proposed land swap between the State of Queensland and the Brisbane City Council is inconsistent with the objects of the Native Title Act 1993 and Aboriginal customary practices. … … With reference to Nudgee Water Hole/Bora Ring, Roma Street Parklands and Gona Barracks (now known as Kelvin Grove Urban Village), the Turrbal representative(s) would like to bring these matters up at the hearing which is set down for 30 August 2002. It is the Turrbal representatives' understanding that the injunction sought in respect of the Notice of Motion filed at the Queensland District Registry on 23 August 2002 applies to all current and future acts occurring on lands and waters which have been identified in the registered native title claim QG 6196/98, except those acts to which the Turrbal people have consented in writing." (Emphasis in the original.) 8 As is apparent from that outline, it is by no means clear precisely what it is that the applicant seeks. In some respects, the material claims that there has been a breach of Turrbal customary law. That matter, whether it be the case or not, is not a relevant factor in proceedings in this court. In Walker v State of New South Wales (1994) 182 CLR 45, Sir Anthony Mason rejected the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. His Honour said at 49-50: "It is a basic principle that all people should stand equal before the law ... The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters ... just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose." 9 I will deal first with matters which relate to the first notice of motion. On 7 April 1884 the Crown, pursuant to Deed of Grant 54999 Volume 498 Folio 9, granted to Andrew Joseph Thynne and others a parcel of land in the County of Stanley, Parish of South Brisbane and the City of Brisbane, to be held on trust as a reserve for the recreation, convenience, health and amusement of the inhabitants of the City of Brisbane. The Andrew Joseph Thynne to whom, with others, that deed of grant was granted was the founder of the firm Thynne & Macartney, which continues today as a firm of solicitors under that name. 10 On 26 August 1941 the Deed of Grant, following its surrender, was replaced by Certificate of Title Volume 2155 Folio 97. The Certificate of Title provided that the parcel of land situated in the County of Stanley, Parish of South Brisbane and the City of Brisbane, described as resubdivision 1 of subdivision 2 of portion 218 on Plan Catalogue Number 44805 and being part of portion 218 originally granted by Deed of Grant Number 54999, was held upon trust by BCC as a reserve for the recreation, convenience, health and amusement of the inhabitants of the City of Brisbane and for no other use or purpose whatsoever. 11 On 28 January 1965 the Crown, pursuant to Deed of Grant 13725112, Volume 3725 Folio 112, granted to BCC as trustee a parcel of land situated in the County of Stanley, Parish of South Brisbane, described as resubdivision 1 of subdivision 2 of portion 218 as delineated on plan of survey catalogue number S1.4619, to be held upon trust as a reserve for recreational purposes and for no other purpose. The land the subject of the Deed of Grant was subdivided into Lots 1 to 3 by Plan Catalogue Number 112830 on 15 May 1967. 12 On 15 August 1967, Certificate of Title Volume 4063 Folio 212 was issued in favour of BCC over Lot 1 on Registered Plan 122830. That Certificate of Title provided that BCC held this land as a reserve for recreation purposes. On or about 3 March 1999, Lot 1 on that plan was subdivided into Lots 1 and 3 by Survey Plan 110538. More relevantly to the present matter, on 3 March 1999 a new title was issued to BCC over Lot 1 on Survey Plan 110538 (Title Reference 50257790) which held the land on trust as a reserve for recreation purposes. 13 On 3 August 1999 the Crown, pursuant to a Deed of Grant in Trust (DOGIT), granted to BCC an estate in fee simple over Lot 3 on Survey Plan 110538, to be held on trust for Aboriginal and for no other purposes whatsoever. On 24 January 2002 BCC, pursuant to Lease Number 704552000, leased to the State of Queensland part of Lot 3 on Survey Plan 110538 for a period of thirty years, being the whole of Lease A on Survey Plan 126286 for the purpose of the construction and operation of an Aboriginal cultural centre. 14 Prior to the issue of that lease, notification of a proposal to construct an Aboriginal cultural centre was provided to the applicant pursuant to s 24JA of the Native Title Act 1993 (Cth) ("the NTA"). 15 Selwyn Bowman Johnson is the President of the Board of the Musgrave Park Cultural Centre Inc ("MPCC"), having been elected to that position in November 2001. The MPCC is an incorporated association under the Associations Incorporation Act 1981 (Qld). The objects of the MPCC primarily relate to the establishment of a community indigenous cultural centre at Musgrave Park which, Selwyn Johnson deposes, is a place that features prominently in local history as a meeting place for many different Aboriginal and Islander groups to provide a focus point culturally, politically and socially for indigenous people in south-east Queensland by preserving historical records and providing information services and promoting indigenous culture. Selwyn Johnson says that: "MPCC is the product of almost 20 years of lobbying and negotiating with government, consulting the Brisbane indigenous community and dreaming by many people. Most indigenous people in Brisbane share the desire to establish an Aboriginal and Islander cultural centre at Musgrave Park and eagerly await its opening." 16 The predecessor to MPCC, the Musgrave Park Aboriginal Corporation, first made a formal proposal to BCC for the establishment of an Aboriginal cultural centre at Musgrave Park in 1985. In 1994 BCC commissioned a community consultation of indigenous and non-indigenous peoples in the area, which involved consulting elders of various family groups around the Brisbane area about the viability of a general indigenous cultural centre at Musgrave Park. BCC released a report in 1996 that indicated overall support for the project. 17 As I have indicated, on 29 July 1999, a DOGIT was sealed in respect of land described as Lot 3 SP 110538, County of Stanley, Parish of South Brisbane which gave freehold title to BCC: "… to hold the land in trust for Aboriginal and for no other purpose whatsoever." 18 In September 1999 the State Government, through its Arts Queensland branch, granted funding of $5,000,000 for the construction of the cultural centre. MPCC began to operate from Jagerra Arts, a building on the site of the proposed cultural centre. On 28 March 2002, MPCC entered into an agreement to sublease the land the subject of the DOGIT. Selwyn Johnson stated: "MPCC has sought to encourage the applicant's involvement in the development of the cultural centre, including the holding of several meetings to which the applicant was specifically invited and attended. The Turrbal people have expressed that they do not wish to discourage the proposed cultural centre but have not otherwise sought to participate in the project, despite invitations to do so." 19 In relation to the cultural centre, a development application for the purposes of the centre was lodged with BCC on 7 June 2002. The schematic design of the centre was accepted by the Board of MPCC on 21 March 2002, and a developed design of the centre was accepted by that Board on 15 August 2002. To date, the State of Queensland has expended $251,148.12 with respect to the centre, mainly for professional fees for architects and sub-consultants. 20 In relation to the claims the applicant has put before the court, Kathryn Houston, a solicitor employed by BCC, deposes that BCC has not granted a lease of Lots 1 and 3 on SP1105638 to MPCC at any time and there is no intention of doing so. On 23 January 2001, BCC leased that land to the State of Queensland to facilitate the grant of a sub-lease by the State of Queensland to MPCC. 21 The evidence establishes that there are other buildings located within the vicinity of the leased area and, in particular, on land described as Lot 3 on SP110538 in DOGIT (Title Reference 50275625). These include Jagerra Hall used by MPCC for administration offices and meetings, the Randal Art Studio, the Queensland Croquet Club, South Brisbane Federal Band Rooms, a toilet block, and public seating. There are two road or pavement areas which have been constructed within Musgrave Park and another located along the boundary of the leased area. 22 The claim contained in the affidavit of Allan Kenneth Best is that the indigenous community has high expectations that the centre will reflect the importance that Musgrave Park plays as an Aboriginal place. It will provide space for indigenous artists to develop and display their skills, and it will provide jobs and training for indigenous people. The centre is proposed to have indoor and outdoor performance areas, separate meeting places for men, women and children, an exhibition gallery, including an outdoor exhibition space providing display areas for permanent and travelling exhibitions, a workshop space, conference and training facilities and an administration area. Mr Best says that the centre, once constructed, will be available for use by all indigenous people and groups. 23 Richard Kirk, the architect whose company was successful in the tender for the provision of architectural and project management services for the construction of the centre, says that if an injunction is granted there will be an escalation of building construction costs caused by the delay. The rate of increase in the last twelve months of 4.5% is expected to increase to between 5.5% and 6% in the ensuing twelve months. The total construction cost is currently estimated at $3,400,000. If there were to be an injunction granted, there would be an escalation in consultancy costs. A delay of three months would, by this account, cost an extra $15,000, in addition to further costs associated with project managers dealing with the delay. Mr Kirk says: "These sort of substantial increases in costs are likely to jeopardise firstly the ambit of the project and/or whether it actually proceeds because of a grant cap of $5M from Arts Queensland. The limited funding has already caused the cutting of one third of the original brief and been the subject of additional submissions to government for an increased grant. The project is really proceeding on a bottom line expenditure presently and any increased building costs will bring the project to the cusp of viability." 24 Importantly, because Mr Kirk's company is a respondent to the first notice of motion, he says: "My firm's sole involvement in this project is on a professional retainer to provide professional services. I wish to make application to be removed as a third respondent accordingly." It is to be noted that no relief is sought against the third respondent. 25 In Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1, five members of the the High Court, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, said at [33]: "The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked." 26 That statement immediately raises the question of what jurisdiction the applicant seeks to invoke. There is a dearth of material by the applicant indicating the basis upon which she or any member of the Turrbal People has an interest in the land upon which the proposed development is to occur, save the fact that there is a registered native title claim made in respect of the land. 27 In any event, it is clear that Kirk should not have been joined as a party. Kirk holds no interest in any land that is subject to the current proceedings and there is no cause of action available against Kirk, with the result that any order against it would be lacking in utility. Similarly, MPCC should be a party to these proceedings. It has a significant interest in the proposed development and thus the outcome of the present application. 28 Whilst there is strictly no evidence before the Court in these proceedings in respect of the assertion of the native title claim, it is not disputed by the parties that the Turrbal People's claim was accepted for registration by the Native Title Registrar on or about 5 November 1999. Registration, however, does not put the question of title beyond debate on an application by a registered native title claimant for an injunction: see Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 125 and 126 and The Lardil Peoples v State of Queensland (2001) 108 FCR 453. In Lardil Peoples (supra) an applicant sought a final injunction to stop the establishment of a buoy mooring. French J, at [3], questioned the procedure of bringing a notice of motion seeking injunctive relief in a native title proceeding. In the same case, Dowsett J said at [107]: "… it follows that on an application for a final injunction, an applicant must demonstrate that he or she has native title." French and Merkel JJ essentially agreed with that proposition. 29 The applicant's motions do not identify whether interlocutory or final injunctions are sought. The relief sought does not express any contingency or future event. The fact is that the claim for native title is likely to take several more years to determine, either by mediation or litigation. 30 If in fact the applicant is seeking final relief, the claims suffer from the fatal flaw that native title is not demonstrated and accordingly the motions should be dismissed for that reason. However, accepting for the moment that the applications are for interlocutory relief pending the determination of the claim of native title, there are a number of important observations which might be made. 31 The most important of those flows from the judgment of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Proprietary Limited (2001) 76 ALJR 1. That case concerned an application for an interlocutory injunction by a company seeking to restrain the publication by the Australian Broadcasting Corporation of a film showing operations in its possum processing facility. The High Court, by majority, allowed an appeal against the grant of an interlocutory injunction, holding that there is no basis for the grant of an interlocutory injunction where there is no underlying cause of action to be tried. 32 There can be no justification in principle for granting an interlocutory injunction other than to preserve the subject matter of a dispute or to maintain the status quo pending the determination of the rights of the parties. What are the rights which have to be determined in this matter and which the interlocutory injunction seeks to preserve or maintain? It seems to me that there has been no equitable or legal right claimed to have been infringed. There has been no identification of a right that an injunction against the construction of the cultural centre would preserve, or which access to the site for the purpose of constructing a cultural centre would infringe. 33 For an interlocutory injunction to be granted, the applicant must show that there is a serious question to be tried and that the balance of convenience favours the granting of an injunction: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (No 1) (1982) 46 ALR 398; Castlemaine Tooheys v South Australia (1986) 161 CLR 148. In this particular case, the procedural rights given by Part 2, Division 3 of the NTAonly arise where an act or proposed act is or would constitute a future act as defined by s 233 of the NTA. 34 The applicant asserts in her written submissions that the act of sealing the DOGIT was "racially discriminatory". To succeed in that argument, the DOGIT must be shown to be a future act within the definition of s 233 of the NTA, which has not been shown. No assessment could properly be made upon the material presently before the Court about the merits of the applicant's claim for native title. There is reason to think that grave difficulties at the least confront the application for native title, having regard to the recent judgment of the High Court in Western Australia v Ben Ward [2002] HCA 28, a judgment given on 8 August this year. 35 Having regard to the observations by the High Court in Ben Ward (supra) at [224] to [249], there is, in this case, a very real question as to whether the Deed of Grant in 1965 had the effect of extinguishing native title. That Deed of Grant pre-dates the Racial Discrimination Act 1975 (Cth) ("RDA"), but even accepting for the moment that the registration of the native title claim provides the applicant with sufficient standing to bring an application for an injunction, a fatal deficiency exists in that the right in respect of which the injunction is sought has not been identified. 36 In respect of the claim that the DOGIT by the State of Queensland to BCC on 3 August 1999 was "racially discriminatory" because the Turrbal People, whose claim had been lodged in May 1998, were "not consulted or negotiated with" by the State of Queensland prior to the granting of the DOGIT, it is not shown why any such lack of consultation or negotiation is racially discriminatory and unlawful. The provisions of the RDA, insofar as they may be relied upon by the applicant, yield to the specific provisions of the NTA: Western Australia v Commonwealth (1995) 183 CLR 373. 37 I have already indicated that the law of Queensland applies to Aboriginal customs and practices carried out within the traditional lands of the Turrbal People. Consequently, in relation to the claim that the grant of a lease by BCC to MPCC without the consent and blessings of the Turrbal People is a violation of Turrbal Customary Law, there is no evidence that such customary law prohibits or affects the granting of any such lease, even if Turrbal customary law was applicable. In respect of the claim that the granting of the DOGIT by the State of Queensland to BCC under s 59(1) of the Land Act 1994 (Qld) is inconsistent with the objects of the NTA, that claim provides no basis for the grant of an injunction. The applicant has not shown a breach of any specific provision of the NTA. 38 It has not been shown that there is a serious question to be tried, and for that reason also the first notice of motion should be dismissed. Even if there were, the balance of convenience is overwhelmingly in favour of the rejection of any relief. In Patrick Stevedores (supra) the majority of the High Court said at [65] - [66]: "In applications to grant interlocutory injunctions, the court is concerned to examine and in appropriate cases to protect, pending the trial, the moving party's right to relief against that party's opponent. But the rights of plaintiff and defendant are not the only rights considered in determining where the balance of convenience lies. In Wood v Sutcliffe (1851) 2 Sim (NS) 163 at 165-6; 61 ER 303 at 303-4 Sir Richard Kindersley V-C said: 'Whenever a Court of Equity is asked for an injunction in cases of such a nature as this, it must have regard not only to the dry strict rights of the plaintiff and defendant, but also to the surrounding circumstances, to the rights or interests of other persons which may be more or less involved: it must, I say, have regard to those circumstances before it exercises its jurisdiction (which is unquestionably a strong one), of granting an injunction.' The principle in Wood v Sutcliffe was approved by Cumming-Bruce LJ in Miller v Jackson [1977] QB 966 at 988: 'Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the court.' His Lordship cited with approval a passage from Dr Spry's Equitable Remedies (5th ed (1997) pp 402-3). We too adopt the author's statement: 'the interests of the public and of third persons are relevant and have more or less weight according to the other material circumstances. So it has been said that courts of equity 'upon principle, will not ordinarily and without special necessity interfere by injunction, where the injunction will have the effect of very materially injuring the rights of third persons not before the courts.' Regard must be had 'not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved'. So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.)' Miller v Jackson has been approved and applied on a number of occasions in Australian courts. However, the weight to be given to third party interests varies according to the circumstances." 39 Also of relevance in determining where the balance of convenience lies is the fact that the DOGIT was granted on 3 August 1999. These proceedings are brought more than three years after that, despite the fact that the applicant received notice pursuant to s 24JA of the NTAon or about 24 October 2000. There has been no explanation provided by the applicant for the substantial delay in bringing the injunction. There is, it seems to me, force in the submission that the expressed desire by the applicant to be consulted or to provide permission seems less than genuine, if not merely obstructionist. It is clear that MPCC will suffer material financial disadvantage if the injunction is granted, to the extent that there is a risk that the development might not proceed, within the ambit of the current financial grant from Government, if the development is delayed for any substantial period. 40 A further factor to be weighed in considering the balance of convenience is that if, contrary to every one of my previous conclusions, the applicant is successful, there is provision for compensation under the NTA. If the Turrbal People establish their native title rights and interests, they may be entitled to compensation pursuant to s 24JB(4) and (5) of the NTA. It is not irrelevant to note, as I indicated earlier, that the land has been developed in other ways and the MPCC is to be built on a site that is presently run-down tennis courts. 41 For all of these reasons, the first notice of motion must be dismissed. 42 I turn now to the second notice of motion. Everything I have said in relation to the first motion is similarly applicable to this motion, and the breadth and lack of specificity in relation to the matters sought to be enjoined in the latter motion compounds the difficulties faced by the applicant. 43 In relation to the Howard Smith Wharves aspect of that claim John Scrivens, the Director, Legal and Contractual, of the Department of Public Works swears, on the basis of information and belief, that discussions have been had between representatives of the State of Queensland and BCC concerning the proposed sale of land to BCC concurrently with the sale of certain BCC land to the State, and whilst no agreement has been reached in relation to this matter, any necessary requirements of the NTAwith respect to these properties will be complied with. 44 Kathryn Houston, a solicitor employed by BCC, says that the proposed land swap in relation to the Howard Smith Wharves and Kurilpa Park has progressed no further than a draft memorandum of understanding, which contains a clause designed to protect the interests of any relevant native title claimant. She also deposes that Lot 1207 SL845462 does not appear on the Turrbal People's native title claim, and it is on that land that the Nudgee Waterhole/Bora Ring is situated. 45 Marisa Menin, a Project Officer with BCC, says that under the procedures of BCC, if the land swap proposal proceeds a point will be reached in which procedures giving native title claimants an opportunity to exercise their rights under the NTA in relation to the contemplated acts will be triggered, and that that point has not yet been reached. 46 The evidence generally is to the effect that compliance with the requirements of the NTA will be honoured in any future acts in which BCC is involved. For the further reason that the scope of the relief sought in the second notice of motion is unspecific and uncertain, relief ought not be granted in respect of that motion. 47 I note that so far as the Logan City Council and Redland Shire Council is concerned, there is no material before the Court to suggest that any future acts will occur in land of those Councils which is a part of the registered native title claim of the Turrbal People, which merely underlines the width and hypothetical nature of the relief sought by that motion. 48 Costs are not sought by BCC, the Logan City Council and the Redland Shire Council. The State of Queensland and Kirk seek their costs. In accordance with the usual principle that a successful party is entitled to its costs, I order that:

Each motion be dismissed.
The costs of the State of Queensland of and incidental to each motion be paid by the applicant, to be taxed if not agreed.

Turrbal People v State of Queensland

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