Editors --- "Smith on behalf of The Gunggari People v. Tenneco Energy Queensland Pty. Ltd and The State of Queensland and Goolburri Aboriginal Corporation Land Council - Case Summary" [1996] AUIndigLawRpr 96; (1996) 1(4) Australian Indigenous Law Reporter 594

Smith on behalf of The Gunggari People v.
Tenneco Energy Queensland Pty. Ltd and
The State of Queensland and
Goolburri Aboriginal Corporation Land Council

Federal Court Of Australia (Drummond J)

Brisbane: 3 May, 1996

Interlocutory injunction - application to prevent construction of a pipeline across claimed native title area - Invalidity of pipeline licence - balance of convenience - pipeline causes significant harm to native title claimants - relevance of claimant's previous support for and participation in the pipeline construction project - security for costs

Aboriginal and Torres Strait Islander - Native Title - 'Creation of a right to mine' - grant of a licence to carry gas - compulsory acquisition of native title interests under the Native Title Act 1993 (Cth).

Words and Phrases - 'creation of a right to mine' -'compulsory acquisition' -'balance of convenience'.

Native Title Act 1993 (Cth) - ss. 23(2), 23(4), 26(2)(a), 26(2)(d), 29, 79, 235 (5), 253

Petroleum Act 1923 (Qld) - ss. 2, 69, 75(1), 75(2), 75(4), 75(5), 76, 76(2), 76(3), 76(6), 76(7), 97, 98, 99

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This case involved an application by the Gunggari People for an interlocutory injunction to prevent the construction of a pipeline by Tenneco Energy Queensland, under licence granted by the Queensland government pursuant to section 69 of the Petroleum Act 1923 (Qld).

Tenneco Energy engaged in a consultation process, via Goolburri Aboriginal Corporation Land Council, with all Aboriginal groups who would be potentially affected by the pipeline construction. The Land Council had originally identified three groups as traditional owners: the Gunggaris, Mandandanji and Bidjarra. Arrangements were made between Tenneco and the Land Council for Tenneco to pay traditional owners to monitor construction work along the pipeline.

Drummond J considered that the Gunggaris had changed their attitude about the pipeline after the Land Council decided that another Aboriginal group, the Bidjarras, had traditional interests within an area that the Gunggaris considered was their traditional land. The Court had to determine whether the Gunggaris claim was frivolous.

The Gunggaris claimed that the pipeline licence was invalid as the licence granted was not a 'permissible future act' as defined in subs. 235(5) of the Native Title Act (1993) Cth ('the NTA'), validated by subs. 23(2)(a). Rather, it was a future act to which the 'right to negotiate' provisions of the NTA applied, within s. 23(2)(a), 'the creation of a right to mine' and also within subs. 26(2)(d) 'the compulsory acquisition of native title rights and interests under a compulsory acquisition act'. If this was the case the State had failed to give notices required by s. 29, and the Gunggaris were denied their right to negotiate. Hence the licence would be invalid.

Tenneco disputed this argument, it also argued that the 'balance of convenience' was against the Gungarris and that the construction of the pipeline would only temporarily disturb the carrying out of traditional activities by the Gunggaris because extensive consultations between the parties had taken place before work began.

Interlocutory relief was also sought by the Gunggaris with regards to the pipeline monitoring work done by traditional owners. They requested that the Land Council pay all monies received from Tenneco into the court.

Held:

1. The court held that the Gunggaris had demonstrated that their claim to at least a substantial part of the area cannot be dismissed as a frivolous claim. His Honour said that there was an arguable case before him that the Gunggaris are a recognised Aboriginal group and that they could have a substantial native and possessory title to the area.

2. The Court held that the grant of a licence to carry gas from a gas well to consumers is not the creation of a right to mine within the definition of the NTA.

3. The Petroleum Act is not a law that permits compulsory acquisition of native title interests or any interests in land. It is merely the grant of a licence to construct and operate a pipeline after the licensee has acquired all rights over land necessary to permit the line's construction and operation. The provisions of compulsory acquisition in the Petroleum Act did not have the same effect as s. 79 of the NTA because compensation payable to those under the Petroleum Act is limited to monetary compensation.

4. Under subs. 75(2) of the Petroleum Act a pipeline lease may be granted over land that is 'unallocated State land'. This provision does not allow the acquisition of interests other than native title interests. Therefore subs. 75(2) cannot be a law within s. 253 of the NTA.

5. Subsection 23(4) of the NTA cannot operate to invalidate the pipeline licence only to give the applicant compensation and therefore subs. 23(4) cannot support a claim for injunctive relief.

6. The court followed the reasoning in Miriuwung and Gajerrong People v. the State of WA (unreported, 21 December 1995) determining that there was no evidence to suggest that the completion of the pipeline will harm, in any significant way, the interests of the Gunggaris, if they are able to establish that they are in truth the Native Title owners. Alternatively if the pipeline was stopped Tenneco would suffer massive losses with no prospect of recovering compensation from the Gunggaris.

7. Interlocutory relief with regards to money paid to traditional owners for pipeline monitoring work was refused. The Court held that the money paid to the Bidjarras was being accounted for, and if the Gunggaris native title claim succeeds, the amount could be identified and paid to them in due course.

Drummond J:

In this action, Mr Smith sues on behalf of the Gunggari People for a declaration that they are the owners under native title and possessory title of an area in South-West Queensland between Roma and Charleville. In December last, the State of Queensland granted a licence under s. 69 the Petroleum Act 1923 (Qld) to Tenneco Energy Queensland Pty Ltd for the purpose of constructing a natural gas pipeline. This will carry gas from the Ballera gas field in far South-West Queensland to serve Brisbane and other east coast centres. It is due to come into operation at the start of next year.

I have before me the applicant's claim for interlocutory relief which, if granted, will, among other things, prohibit, until the hearing of the action, further work on the pipeline within the area of the Gunggaris' native title claim. Throughout 1995, the State of Queensland and Tenneco Energy engaged in an extensive consultation process with representatives of Aboriginal groups, including the Gunggari, whose members live in the area through which this pipeline is to be constructed.

In the course of this consultation process, all the Aboriginal clans or groups, including the Gunggari, with members living in the area of the pipeline route, agreed to the third respondent, the Goolburri Aboriginal Corporation Land Council, acting as their representative for the purpose of dealing with both the State of Queensland and Tenneco Energy. Various Gunggaris, including Mr Smith, have from time to time participated in activities of the Land Council directed to this end. The Gunggaris' involvement with Tenneco Energy was co-ordinated by the Land Council. It appears that Tenneco Energy has relied on the Land Council to identify who are the Aboriginal clan groups with traditional interests in the various areas through which the pipeline is to be constructed.

Each clan group so identified has been involved by Tenneco Energy in both the planning and construction phases of the pipeline development. Each clan group has provided information to Tenneco Energy as to the location of sites of cultural and heritage significance to the particular group and Tenneco Energy has planned the pipeline route to avoid conflict with such sites.

Mr Cheatham, the General Manager of the Tenneco Energy pipeline project, says that the applicant, Mr Smith, and three other elders of the Gunggari People performed what he calls this work of 'the cultural heritage clearance of the pipeline route on behalf of the Gunggari'.

So far as I can gather from the evidence, the Gunggaris' interest was originally limited to the section of the pipeline to be constructed between about Morven and Amby, which is near Mitchell, ie, to about the central third of the pipeline that is now within the area the subject of their native title claim. They appear originally to have accepted that the eastern third of the pipeline in their claim area was in land with respect to which the Mandandanji clan were the traditional owners, while the western third was in Bidjarra land.

The Gunggaris now claim native title over the whole of an area of about 70,000 square kilometres from roughly Injune in the north to Bollon in the south, and between Roma in the east and Charleville in the west. This area includes all three of these sections of the pipeline.

According to Mr Cheatham and Mr Wetherall, a manager with the Land Council responsible for supervising its involvement in the pipeline project, Tenneco Energy also agreed with the Land Council on a cultural heritage management plan, the object of which is to establish procedures governing Aboriginal involvement in the construction of the pipeline, as well as the continued protection of Aboriginal cultural and heritage interests. The final draft of this plan was approved by representatives of all the clan groups, including the Gunggari People, in February 1996. Mr Smith does not dispute what Mr Cheatham and Mr Weatherall say.

It was not until April that Mr Smith commenced the present action and claimed an interlocutory order that would prohibit completion of that part of the pipeline within the area of the Gunggaris' claim that remains to be done.

This is plainly not a case in which native title claimants seek orders to prevent threatened action which is likely to extinguish their native title. Rather, it is a case in which the native title claimants seek an order that will prevent completion of a pipeline being built under a licence granted by the State Government as long ago as December last, in circumstances in which the now native title claimants supported and participated in the pipeline project both prior to and subsequent to the grant of that licence, but have only recently changed their attitude to it.

On the material before me, the native title claim lodged by Mr Smith on behalf of the Gunggari People appears to have its genesis in a dispute that has only fairly recently arisen and which involves the Land Council and the Bidjarras. In January of this year, the Land Council advised Tenneco Energy of what it considered to be the traditional owner boundaries along the pipeline route. This advice indicated that it was not the Gunggaris who were the traditional owners of the lands between Morven and Amby, but rather the Bidjarras.

As I read the affidavit of the expert anthropologist retained by the Gunggaris, Ms Eckermann, there appears to be some anthropological evidence that tends to support the Bidjarras' claim to the segment of the area the subject of the Gunggaris' native title claim to the west of Morven, ie, between Morven and Charleville. Ms Eckermann locates the western limits of the Gunggaris' area in the region of Morven, although she does comment on evidence suggesting that the Gunggaris may once have occupied territory much further west, from which they were displaced by a process of colonisation to the east. I understand colonisation in this context to mean colonisation by competing Aboriginal clan groups, such as the Bidjarras.

But the Land Council decision has had an immediate detrimental impact on the Gunggaris' interest in the pipeline project. Following settlement of the Cultural Heritage Management Plan in March 1996, the Land Council entered into what is called a retainer agreement with Tenneco Energy. It appears that, under this agreement, the Aboriginal clan groups with interests in lands along the pipeline route are involved in the construction process, in the capacity of what are called 'traditional monitors' of construction work. Tenneco Energy, under the retainer agreement, funds the Land Council for this work. The Land Council, in turn, disburses these funds to members of the Aboriginal clan groups who perform the monitoring work.

While members of some of the Aboriginal clan groups appear to have received substantial payments for this work so far, little to date has been received by members of the Gunggari People. The Land Council's decision, to identify the Bidjarras as the clan group with traditional interests in the area within the Gunggaris' native title claim lying between Morven and Amby, appears to be the source of the Gunggaris' disenchantment with the project in which, up until then, they had participated. It is this Land Council decision which appears to have provoked the Gunggari People into making their recent native title claim, which includes the lands which they had previously been content to leave to the Bidjarra and Mandandanji Peoples.

Pipeline construction commenced outside the Gunggaris' claim area in December 1995. It appears that construction work was commenced and carried through to completion in the eastern third of the area, now the subject of the Gunggaris' native title claim, ie, the section they were originally content to leave to the Mandandanjis, without any objection from the Gunggaris. The first Gunggari objection to the pipeline project came in early February, ie, soon after the Land Council decision in favour of the Bidjarras. In early February, Tenneco Energy was about to commence construction in the central part of the Gunggaris' native title claim area, which has become the subject of the dispute between them and the Bidjarras. The Land Council, at that point, arranged for monitoring of the pipeline construction to be handed by Tenneco Energy from the Mandandanji Aboriginal clan group to the Bidjarras, rather than to the Gunggaris. This produced bitter protests from Mr Smith on behalf of the Gunggari Peoples. They established a protest camp on the pipeline route.

This protest was, however, directed at the Bidjarras and the Land Council, not at Tenneco Energy. The Gunggaris indicated to Tenneco Energy that they did not object to the pipeline construction continuing. The pipeline construction work in this central third section of the pipeline now within the Gunggaris' native title claim area proceeded thereafter for a time, with the consent of the Gunggaris. Relations between the Land Council and the Gunggaris, however, broke down and the Gunggaris, in late February, withdrew the authority of the Land Council to deal with Tenneco Energy on their behalf.

Tenneco Energy then decided to leapfrog the section of pipeline crossing the land in dispute between the Gunggaris and the Bidjarras. Tenneco Energy does not intend to resume work in this disputed area until August next. However, it did resume and complete construction work, again apparently without any objection from the Gunggaris, in the western third section of the pipeline that is now within the Gunggaris' native title claim area, prior to the native title claim being filed.

Despite this longstanding support for and participation in Tenneco Energy's pipeline project, the avowed purpose of the Gunggaris' native title claim is to seek a determination from the Court that the grant by the State of Queensland to Tenneco Energy of the pipeline licence back in December 1995 was invalid. I have to determine whether the Gunggaris are entitled to an interlocutory order, which will prohibit the laying of the line in the leapfrogged section, ie, about 108 kilometres of pipeline, until the hearing of the Gunggaris' action and determination of their claim for a final injunction that is designed to permanently prevent the completion of that section of the pipeline within the area claimed, that remains unfinished.

The first issue for my determination is whether the Gunggaris have shown that they have an arguable case that the grant of the pipeline licence was invalid.

There is a good deal of evidence that the Gunggaris are recognised as an Aboriginal clan or group and that they have long lived in a substantial part at least of the lands in respect of which they now claim Aboriginal and possessory title. Moreover, the Gunggaris have been recognised by all three respondents as having a sufficient interest in at least part of the area now claimed to entitle them to be involved in the planning of the project to ensure that the pipeline is located away from lands of significance to the Gunggaris. It follows, in my opinion, that their claim to be the native title owners of at least a substantial part of the area claimed cannot be dismissed as frivolous.

However, also central to their claim is their contention that the pipeline licence granted to Tenneco Energy in December last is invalid. It is on this issue that I think the Gunggaris have failed to establish they have an arguable case.

It is common ground that the pipeline route within the claim area runs through lands that comprise three classes: freehold lands, lands under various forms of pastoral lease, and lands that have been declared to be reserves for road or other public purposes while remaining in Crown ownership.

In view of the pendency of the appeal to the High Court in the Wik People v. State of Queensland (Drummond J, unreported, 29 January 1996), the second respondent, the State of Queensland, does not contend that it is not open to the Gunggari to argue, in the context of this application for interlocutory relief, that any native title rights they may have had have necessarily been extinguished by the grant of the pastoral leases I have referred to. That seems to me to be the correct approach. I reject Tenneco Energy's submission to the contrary. However, both Tenneco Energy and the State of Queensland submit that the Gunggaris have failed to show an arguable case that the grant of the pipeline licence was invalid by force of the Native Title Act 1993 (Cth).

The Gunggaris argue that the grant of the licence was not a 'permissible future act' as defined in s. 235(5), made valid by s. 23(2), because it was a future act to which Subdivision B of Division 3 of Part 2 the Native Title Act 1993 (Cth) applies. It was said by the Gunggaris that the grant of the pipeline licence was an act within Subdivision B, ie, within s. 26(2)(a), 'the creation of a right to mine', and also an act within s. 26(2)(d), 'the compulsory acquisition of native title rights and interests under a Compulsory Acquisition Act ...'. It followed, so it was said, that the State of Queensland's admitted failure to give the notices required by s. 29 invalidated the grant, a failure which, in turn, deprived the Gunggaris of their statutory right to negotiate, conferred by Subdivision B.

The grant under s. 69 the Petroleum Act 1923 (Qld) is a licence to construct and operate a pipeline, ie, a system of pipes used for conveying gas, but which term does not include pipelines at wells being drilled for the production of gas: see s. 2 the Petroleum Act 1923 (Qld). The term 'mine' is defined in s. 253 the Native Title Act 1993 (Cth) to include prospecting for things that can be mined, extracting petroleum or gas from land and quarrying. The grant of a licence to carry gas many hundreds of kilometres from the gas well to consumers is not, in my opinion, the creation of a right to mine within s. 26(2)(a) the Native Title Act 1993 (Cth).

Section 26(2)(d) catches only acts of compulsory acquisition of native title interests done under a Compulsory Acquisition Act, a term defined in s. 253 the Native Title Act 1993 (Cth) to mean, among other things, a law of the State of Queensland that:

(a) permits both the compulsory acquisition by the State of native title rights and interests, and the compulsory acquisition by the State of other interests in relation to land, and which,

(b) provides for compensation for the acquisition of any native title rights and interests, and which,

(c) contains provisions to the same effect as s. 79 the Native Title Act 1993 (Cth) in relation to the determination of compensation.

It is clear from the evidence that the acquisition by Tenneco Energy of rights of user of the lands within the pipeline corridor cannot be said to have involved the compulsory acquisition of any native title rights. All the rights acquired by Tenneco Energy, with a few immaterial exceptions, were acquired under consensual arrangements with the freehold and leasehold owners or from the State of Queensland pursuant to s. 75(2) the Petroleum Act 1923 (Qld). But that is not the issue; it is the character of the law under which the act in question was done that is the critical thing.

Section 69 the Petroleum Act 1923 (Qld) under which the licence was granted is not a law that permits the compulsory acquisition of native title interests or any other interests in land. It is merely the grant of a licence to construct and operate a pipeline. Before such a licence so granted can be put to any use, the licensee must first acquire all rights over land that are necessary to permit the line's construction and operation. Only once the licensee has done that does s. 75(4) the Petroleum Act 1923 (Qld) give him the right of access to the lands in question to construct and operate the pipeline.

Section 75(1) obliges the licensee to attempt to acquire all necessary interests in land by agreement with the relevant landowners and occupiers. There is no mention of compensation being required. Section 75(2) gives the Governor in Council power to grant to a pipeline licensee a lease or an easement or a right of way required for the pipeline over 'unallocated State land', ie, land other than freehold land, a road or reserve or land the subject of a lease, licence or permit issued by the State. See s. 2 the Petroleum Act 1923 (Qld).

While s. 75(2) of that Act may permit the State to grant a lease to a pipeline licensee over land to the detriment of native title rights in that land, it is not a law of the State that also permits the acquisition of interests other than native title interests with respect to such unallocated lands. No one, apart from native title owners and the State itself, can, by definition, have any interests in unallocated State lands. For that reason alone s 75(2) cannot be a law within s. 253 the Native Title Act 1993 (Cth).

Section 75(5), however, empowers a pipeline licensee to construct and operate his pipeline on land with respect to which he has not acquired any right from the person owning or holding an interest in that land, provided he first obtains the approval of the Governor in Council. Section 76(2) and (6) empower the Governor in Council and the Minister, between them, to compulsorily acquire lands, or the interests in lands of others, that are subject to an approval under s. 75(5) and the licensee is required, by ss. 76(3) and (7), to pay to the Governor in Council and to the Minister the compensation they are required to pay to the persons whose lands have been compulsorily acquired.

Section 76 may therefore possibly provide for the compulsory acquisition by the State of native title rights and interests in return for compensation, in so far as such rights would appear to be capable of existing in some classes of land, not being 'unallocated State lands', eg, in land that is a national park or land that is the subject only of a licence or permit granted by the State and which does not extinguish native title rights. It is plainly a law that also provides for the compulsory acquisition of other interests in land.

However, neither the Petroleum Act 1923 (Qld) nor any provision of it falls, in my opinion, within the definition in s. 253 the Native Title Act 1993 (Cth) of a Compulsory Acquisition Act because it does not contain provisions of the same effect as s. 79 the Native Title Act 1993 (Cth). Unlike s. 79, compensation payable under the Petroleum Act 1923 (Qld) is limited to the payment of monetary compensation: see ss. 97, 98 and 99 of that Act.

Even if the grant of the licence could be said to involve the compulsory acquisition of the native title rights of the Gunggari People, it was not an acquisition within s. 26(2)(d) because the acquisition of those rights could not be said to have been under a Compulsory Acquisition Act, within the meaning given to that expression in s. 253 the Native Title Act 1993 (Cth).

In so far as the applicant sought to rely on s. 23(4) the Native Title Act 1993 (Cth), that provision cannot operate to invalidate the pipeline licence, only to give the applicant compensation: s. 23(4), even if applicable, cannot support the claim for the injunctive relief now sought.

I am therefore not satisfied that the Gunggari People have an arguable case that the grant of a pipeline licence was invalid.

Even if I am wrong in reaching this conclusion, the balance of convenience, in my opinion, very much favours dismissal of the claim for injunctive relief.

If interlocutory relief is refused, but the Gunggaris establish at the hearing their native title and the invalidity of the pipeline licence, on the evidence before me, I am far from satisfied that they will, as a result of the completion of that portion of the pipeline within the claimed lands that remains to be built, suffer any damage that cannot be fully compensated by an award of monetary damages.

There is, in my view, no acceptable evidence before me capable of suggesting that the activities of Tenneco Energy, in constructing that part of the pipeline that has been completed in the lands now claimed by the Gunggaris, has caused any significant harm to any of the rights or interests of the Gunggaris as native title owners of those lands. Nor is there anything to suggest that harm to those interests will result from completion of the pipeline within the claimed lands.

There is no evidence that there are any cultural sites within the pipeline corridor that are of any significance to the Gunggaris. It would be surprising, if that were the case. Mr Smith and other Gunggaris, as representatives of the Gunggaris, worked with Tenneco Energy to select a pipeline route through the area in question which would ensure that just such conflicts would be avoided.

The pipeline was located with that in mind. Mr Smith says that the claimed area as very great traditional significance to the Gunggaris and that:

'The whole area derives a continuous support from the passage through it of dreaming tracks which the disturbance of the construction of the pipeline would lead to devastating social and other consequences to The Gunggari People.'

He does not, however, offer any further evidence identifying what those consequences might possibly be or how the completion of construction of the pipeline in the claimed area would have these consequences.

Construction, to date, of a pipeline in other parts of the claimed area appears not to have provoked concern by, or opposition from, the Gunggaris. They consented for a time, in February, to Tenneco Energy performing some construction work in the area Tenneco Energy later leapfrogged, as I have mentioned.

In evaluating the probative value of Mr Smith's bare assertion as evidence capable of showing that the balance of convenience favours the Gunggaris, I cannot ignore their support for, and participation in, the project, both during the planning and construction phases, including construction of the pipeline through a large part of the claimed area, tha was completed without protest from them.

If they now wish to contend that very significant cultural harm will follow from completion of the pipeline in the claimed area, they have, in my opinion, an evidentiary onus to discharge, which is not satisfied by the bare assertion of such harm.

There is substantial evidence before me indicating that the Gunggaris' real complaint is not concerned with damage to their native title interests from pipeline construction, but rather their dispute with the Bidjarras, a dispute over being excluded from pipeline monitoring work in the leapfrogged section of the line. Exclusion from this work will deprive the Gunggaris of what they consider to be their just entitlement to share in the funds generated by the pipeline project for the benefit of Aboriginal clan groups with interests in the project area.

The evidence of Messrs Cheatham and Weatherall is unchallenged. Given this, in the absence of no evidence other than Mr Smith's bare assertion of significant cultural harm from construction or from completion of the pipeline, and in view of the evidence showing long-term support for it by the Gunggaris until their dispute with the Bidjarras erupted, I accept that the pipeline route through the claimed area was planned in conjunction with the Gunggaris to avoid harm to areas of cultural and other significance to the Gunggaris and that the route selected was accepted by them as one which protected their cultural and heritage interests.

I also accept what Mr Cheatham says to the effect that construction has limited impact on the land and that impact is quite temporary in so far as it is likely to disturb the Gunggaris in carrying on their traditional activities on the claimed lands. There is, in my opinion, no evidence sufficient to suggest that completion of the partly built pipeline will harm, in any significant way, the interests of the Gunggaris, if they are able to establish that they are in truth the native title owners of the whole or any part of the claimed lands.

Even if at the hearing the Gunggaris are able to make out their claim of native title and also the contention that the grant of the pipeline licence was invalid, they are not, in my view, assured of obtaining a mandatory injunction directed to removal of a pipeline, should they seek such an order. They consented to the construction of the pipeline in the eastern and western thirds of their claim area and also to construction proceeding in the central section, until Tenneco Energy decided to abandon work there for a time. There is no reason to think, on the evidence before me, that the Gunggaris may be able to show at the hearing that the enjoyment of their spiritual beliefs and traditional rights, if established, will be disturbed by the presence of the pipeline and associated structures in the land. The evidence before me indicates that the physical disturbance caused by construction activities is transient. If interlocutory relief is refused but the Gunggaris succeed at the hearing, they may therefore very well be limited to relief by way of damages for continuing trespass constituted by the existence of a pipeline in the lands. Those damages would, I think, probably be measured by something equivalent to a licence fee in respect of the presence of the pipeline in their traditional lands.

It would also seem that, in view of the prior support by the Gunggaris for the project, they could, at most, claim damages for trespass suffered prior to final judgment only in respect of construction of the pipeline carried out within their claimed area from about the date of commencement of the action.

For the reasons given, any damage that the Gunggaris may suffer as a result of the completion of the pipeline through their claimed area is likely to be readily compensable by a monetary award of damages.

On the other hand, if interlocutory relief is granted but Tenneco Energy succeeds at the hearing, it will suffer, on the evidence, massive losses for which there will simply be no prospect of recovering any compensation from the Gunggaris.

The Gunggaris do not offer the usual undertaking by way of damages and even if it were offered, there is no reason to think it would be capable of providing anything approaching the sort of compensation to which Tenneco Energy would be entitled, if the injunction is now granted but the Gunggaris' action ultimately fails. I accept that the absence of a worthwhile undertaking is not decisive of a claim to interlocutory relief by a native title claimant. But it is, as Nicholson J said in the Miriuwung and Gajerrong People v. The State of Western Australia (unreported, 21 December 1995), a matter which weighs against relief, especially where refusal of interlocutory relief will not prevent the applicants prosecuting the claims they have made for damages for trespass and compensation for extinguishment of their native title rights, as is the case here.

I also note the evidence to the effect that changing the route of the pipeline, until recently acceptable to the Gunggari, to avoid the Gunggari claim area is now wholly impractical. The evidence is also that Tenneco Energy plans to resume work on the remaining area of pipeline that lies within the lands now claimed by the Gunggaris in August next. It is highly unlikely that a hearing and probable appeals will be finalised prior to then. Tenneco Energy has a legally binding commitment to the State of Queensland to bring the pipeline into operation by the end of this year. The evidence indicates that the construction schedule is tight. It is highly probable that this litigation will not be finalised until long after that. If the interlocutory injunction is granted, it will not be known, until long after, whether the Gunggaris were entitled to put a stop to the completion of the pipeline that interlocutory relief would involve.

The evidence also indicates that Tenneco Energy will suffer massive costs of many millions of dollars if the injunction is granted and it is unable to complete the project on time. Under its licence from the State Government, Tenneco Energy is liable to what appears to be liquidated damages of $ 1.5M for each month completion is delayed beyond 1 January 1997, up to a total of $ 10M.

In addition, Tenneco Energy, on the evidence, is exposed to damages claims if completion of the pipeline does not take place on time under contracts it has already entered into with various gas producers for access by them to the new pipeline which is to commence from 1 January next.

There is also evidence that the importance of the pipeline coming into operation at the beginning of 1997 lies in the fact that existing supplies of natural gas from other gas fields to Brisbane, the Gold Coast and Gladstone areas are likely to start to fall off in the last quarter of the current year. It is therefore possible that any significant delay to construction of the pipeline may cause widespread economic and social disruption to a large number of commercial and private consumers of gas.

For these reasons, I have no doubt that the balance of convenience very heavily favours the refusal of the injunction now sought against Tenneco Energy.

Counsel did not make any submissions in support of the Gunggaris' claims for interlocutory relief against the Land Council.

The only loss that they may be able to recover from the Land Council, if they succeed at the hearing over what can be anticipated as the opposition of the Bidjarras to their current native title claim, is the loss to them of payments generated by the project for the monitoring work to which I have referred. The Land Council has and will no doubt continue to make those payments to the Bidjarra representatives, payments which should have gone to the Gunggaris, if they can establish their rights at the hearing. This is the basis of the claims made against the Land Council, including the claim for interlocutory relief. The Land Council is bound to keep proper records of its receipts from Tenneco Energy, pursuant to the retainer agreement, and of its disbursements to Bidjarra representatives in respect of work that has been, and will continue to be, done by them in relation to construction of the pipeline through the area claimed by the Gunggaris. In my opinion, since the Land Council is prepared to undertake to keep, in a readily identifiable form, records of payments to the Bidjarras for that work in respect of the construction of the pipeline through the whole of the area the subject of the Gunggaris' claim, there should be no difficulty at all in the Gunggaris identifying the amounts paid to the Bidjarras which should have been paid to them, if their native title claim ultimately succeeds in full.

I will therefore not grant the interlocutory relief sought against the Land Council requiring it to pay all the moneys received by the Land Council from Tenneco Energy into Court.

Although interlocutory relief is also sought against the State of Queensland from making any further grants of interests which could impair the applicant's native title, there is no evidentiary basis at all for the grant of interlocutory relief against the State of Queensland.

The applicant's claims for relief against both the State of Queensland and the Land Council are also dismissed.

The Following Ruling was made on Costs

The first and second respondents have sought costs of these interlocutory proceedings. The third respondent indicates it does not wish to seek costs.

There are substantial grounds for thinking that the bringing of the claim for interlocutory relief against the first respondent was not dictated by any genuine concern that completion of the pipeline would damage such native title interests as the Gunggaris may have, but that the reason for the interlocutory application being brought was in response to the dispute that has arisen between the Gunggaris and the Bidjarras, ie, in response to the Land Council's decision to allow the Bidjarras to have the payments that will be due under the Tenneco Energy retainer agreement with the Land Council, if construction of the leapfrogged section of the line resumes, which the Gunggaris believe should be theirs.

However, notwithstanding that, I think that, given what I had to say about the prospects the Gunggaris have of establishing that they are native title owners of at least part of the land, it is appropriate, as between the first respondent and the applicant, to order that the costs of and incidental to the interlocutory proceedings be costs in the proceedings.

So far as the State of Queensland is concerned, the position is rather different. The only claim for interlocutory relief made against that respondent was an interlocutory order in terms of paragraph 3(b) of the statement of claim, ie, an interlocutory restraint to be placed upon the State of Queensland from, in effect, taking any action to grant further interests in respect of the claim area which could impair any native title that the Gunggaris may presently have. No attempt, however, was made to adduce any evidence in support of that claim for interlocutory relief against the second respondent; no submissions were made supporting that particular claim.

I am conscious of the fact that the disputants are very much unequal in power; on the one side, there is the State of Queensland, with all the resources that it can command, and on the other side, there is Mr Smith representing the Gunggari People. The resources of these two litigants are very unequal. But, notwithstanding that, it seems to me that if a litigant chooses to bring and pursue a claim for interlocutory relief against anyone, be they weak or powerful, but then makes no attempt at all to justify that claim, while still maintaining it, it is proper to order that the successful respondent to such interlocutory proceedings should have its costs of those proceedings. It is on that special basis that I will order that the applicant pay the second respondent's costs of and incidental to the interlocutory proceedings.