Indigenous Law Bulletin
New South Wales Supreme Court
 NSWSC 239
Application for injunction
10 March 2000
By Susan Phillips
Justice Young’s recent decision in Carriage v Duke Australia Operations Pty Ltd to grant an injunction against an international energy company in favour of two Indigenous plaintiffs is the first time an injunction has been awarded to protect rights acquired through the exercise of the right to negotiate under the Native Title Act 1993 (Cth), (‘the NTA’).
On 4 April 1995 Duke Australia’s predecessor, the Eastern Gas Pipeline Company (‘EGP’), comprising BHP Petroleum and its Canadian partner Westcoast Energy, announced a project to construct a gas pipeline from Melbourne to Sydney. After two years of at times difficult negotiations with EGP and with the assistance of the native title representative bodies of NSW and Victoria, the seven native title groups whose traditional land would be affected by the construction, entered into a binding agreement with EGP in mid-August 1997. The agreement allowed the grant of the interests in land needed by EGP in order to commence construction of the pipeline and provided benefits to the native title parties - the Wadi Wadi people, the Dariwul people, the Jerrinja/Wandi Wandian people, the Ngunnawal people, the Monaro/Ngarigo people, the Bidawal people and the Gunai/Kurnai people - that went beyond purely financial compensation for the grant of the interests in their traditional lands.
The heads of agreement were: ‘Cultural Heritage Protection and Management’; ‘Employment’; ‘Financial Benefits’ and ‘Public Relations’. The issue of what measures provided culturally appropriate heritage protection occupied most of the negotiations. In contrast to the limited protection afforded by legislation in NSW and Victoria for indigenous cultural heritage, the lack of restriction on negotiable topics under the NTA meant that any agreement had the potential to provide the traditional owners of the land with greater cultural heritage protection than was otherwise available. A primary goal of the agreement was to ensure the identification of areas of significance prior to construction so that those areas could either be avoided or protected during construction. The agreement also provided for thorough monitoring of earth disturbance by local Aboriginal people nominated by the relevant traditional owners of each area during construction. This ensured that any previously undetected remains or artefacts discovered could be dealt with in a culturally appropriate manner. Monitoring also provided for the presence of traditional owners on country during any disturbance.
In late 1998 Duke Australia Operations Pty Ltd (‘Duke’) took over the construction project from EGP, and work started on the pipeline in mid 1999. In December 1999 and again in January 2000, Duke announced to the nominated monitors that trenching in solid rock would not be monitored, stating that there could be no recovery of artefacts from solid rock and that monitoring was therefore unnecessary. Furthermore, Duke refused to allow monitoring of the back-filling of the trenches, arguing that all artefact recovery was achieved during monitoring of excavation, therefore monitoring of backfilling was superfluous.
The traditional owners of the area in which there would be a great deal of trenching through solid rock, the head waters of the Shoalhaven River and the Illawarra escarpment, stated that this was not only a breach of the provisions of the Agreement but that Duke was misconstruing the role of the monitors.
Amongst the many reasons for rock formations to be significant to the traditional owners, solid rock shelfs were important burial sites, where the bones of the deceased would be wedged in the crevasses after other mourning rites (often spanning years) had been carried out. For the traditional owners, monitoring the construction was not merely about artefact recovery or associated archaeological activity but an important opportunity to be present and participate in the introduction of a new energy into their country.
Construction of the pipeline damaged their land, all of which remains culturally significant and forms part of the stories kept by the land’s owners. Monitoring allowed the custodians of the law and the creation stories to be present at and to participate in a significant period of change for their land. The traditional owners argued that the ability to be present as well as to monitor the construction, for the discovery of cultural material and for wider cultural purposes, was an irreplaceable right under the Agreement, for which financial compensation was an inadequate remedy. The gulf between the attitudes of the traditional owners and Duke’s representatives as to what was capable or deserving of protection under the cultural heritage protection measures in the Agreement led to disagreement and finally to litigation.
The plaintiffs who brought the case were both signatories to the Agreement on behalf of their peoples: Allan Carriage for the Wadi Wadi people and Nancy Campbell for the Jerrinja/Wandi Wandian people. They brought the case as individuals, bound by traditional responsibilites to their people and land, seeking an interlocutary injunction against Duke that would restrain conduct allegedly in breach of the Agreement. In order to succeed the plainitiffs had to demonstrate three things: that they had a prima facie case; that damages were not an adequate remedy; and that the balance of convenience favoured the grant of an injunction.
The Agreement provided for monitoring ‘at all stages of construction involving land disturbance (clearing, grading and trenching)’. Although 'land' and 'disturbance' were not defined in the Agreement, Justice Young held that they were capable of wide construction. According to His Honour, there was a ‘strong’ argument that land disturbance included the work involved in backfilling a trench, and that therefore the plaintiffs had a prima facie case.
Justice Young stated it was ‘clear’ that financial compensation for the lost opportunity to monitor the land disturbance was not an adequate remedy. The opportunity to identify and protect items of cultural heritage value, and exercise a culturally important role while traditional land was being significantly disturbed, could not be measured in financial terms, and therefore the traditional owners could not be compensated in money for its loss.
The difficulty for the plaintiffs lay with the ‘balance of convenience’ requirement: ie whether the balance of convenience favours the grant rather than the refusal of an injunction. Whilst it was possible to devise a way in which the monitoring of the rock trenching and backfilling could be safely performed without causing further inconvenience to the project, the question of ‘who should pay’ for the monitoring was a difficult one.
Normally, parties secure an injunction by giving an undertaking that, if they are unsuccessful at the final hearing of the matter they will pay for any damage suffered by the party against whom the injunction was awarded. But the plaintiffs in this case could not make the usual undertaking as to damages because they were without financial assets and did not wish to expose their communities to the liability to pay damages if they were unsuccessful at the final hearing.
In considering this matter, Justice Young took notice of two Canadian cases in which the Supreme Court of British Columbia granted injunctions in similar circumstances. Ordering an arrangement which appears to be an Australian first, His Honour found the positions of the parties could be protected by the payment into a trust of the money that would normally have been used to pay for the monitoring of the rock trenching and back-filling. In the event that the plaintiffs were successful at the final hearing, then the wages of the monitors would be recoverable from the trust. If the plaintiffs were unsuccessful, then the company could recover those funds from the trust. This arrangement solved what has hitherto been a significant barrier for many Indigenous people wishing to bring an action of this kind.
Beyond its obvious importance in opening up new legal avenues of protection to under resourced Indigenous plaintiffs against hugely resourced sectors such as the mining industry, redress of the kind sought and awarded in Carriage v Duke Australia Operations Pty Ltd is important for its recognition of the continuing existence of Indigenous culture and heritage. Agreements reached under the right to negotiate regime can fill some of the voids which exist in the legislative processes designed to afford protection to Indigenous cultural heritage, reminding all parties that cultural heritage exists in the present not simply as ‘archaeological’ remnants of a past long gone.
Susan Phillips is a Sydney barrister practicing primarily in the field of native title.
  NSWSC 239 (Unreported, Young J, 10 March 2000).
 In NSW, the New South Wales Aboriginal Land Council, and in Victoria, the Mirimbiak Nations Aboriginal Corporation.
 Though the Agreement also established a Trust intended to administer the financial benefits that would be acquired by the traditional owners under the Agreement.
 Both the National Parks and Wildlife Act 1974 (NSW) and the Heritage Act 1977 (NSW) have been criticised for their limited scope and lack of vision. For example, if an area is not of State significance or rare and unique, the Heritage Act cannot be relied upon; if NPWS has not listed an area, or has approved damage mitigation measures or has given a consent to destroy - often required by large resource projects - then the National Parks and Wildlife Act cannot further assist a particular group in relation to areas which are of cultural concern rather than of cultural significance in a manner that reaches the standard set by the Act.
 Pipeline construction involves clearing then grading the surface area then digging the trench into which the pipe will be laid. Material extracted is laid to the side of the trench for use in the back-filling and rehabilitation phase. Special equipment creates the trench, which is then lined with padding material into which the pipe is laid. The pipe is sealed and finely ground material from the excavation pile is then placed over the pipe. The trench is then back filled with the excavated material and the area is re-graded and then rehabilitated.
 Above n 1, .
 American Cynamid Co v Ethicon Ltd  UKHL 1;  AC 396, 408; see also Desmond Sweeney, 'Interlocutory Injunctions to Restrain Interference with Aboriginal Title - The Balance of Convenience'  UQLawJl 1; (1992) 17 UQLJ 141.
 MacMillon Bloedel Ltd v Mullin (1985) 61 BCLR 145 and Pascoe v Canadian National Railway Company (1986) 69 BCLR 76.