Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v Director-General Department of Environment and Climate Change

[2007] NSWLEC 463

Land and Environment Court

of New South Wales

CITATION:

Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v Director-General Department of Environment and Climate Change [2007] NSWLEC 463

PARTIES:

APPLICANTS:
Douglas Anderson and Susan Anderson on behalf of Numbahjing Clan within the Bundjalung Nation

FIRST RESPONDENT:
Director-General of the Department of Environment and Climate Change

SECOND RESPONDENTS:
Christopher Brian Lee Condon on behalf of North Angels Beach Development (Ballina) Pty Ltd

FILE NUMBER(S):

40582 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Injunctions and Declarations :- application for declaration of invalidity of permit and consent to destroy Aboriginal objects under ss 87 and 90 of the National Parks and Wildlife Act 1974 – application for interim injunction for a few weeks to restrain carrying out of work on land - whether serious issue to be tried – balance of convenience.

DATES OF HEARING:

18 July 2007

EX TEMPORE JUDGMENT DATE:

18 July 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A

FIRST RESPONDENT:
N/A

SECOND RESPONDENT:
Mr M Young, solicitor
SOLICITORS
Bourke Love McCartney Young

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

18 July 2007

40582 of 2007

DOUGLAS ANDERSON & ANOR ON BEHALF OF NUMBAHJING CLAN v THE DIRECTOR GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE; CHRISTOPHER BRIAN LEE CONDON ON BEHALF OF NORTH ANGELS BEACH DEVELOPMENT (BALLINA) PTY LTD

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a motion by the applicants for an interim injunction. Douglas and Susan Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation of Aboriginal people seek the following relief in their Application filed on 22 June 2007 in class 4 of the Court’s jurisdiction in which the respondents are The Director General of the Department of Environment and Climate Change and Christopher Brian Lee Condon on behalf of North Angel’s Beach Development (Ballina) Pty Ltd.

1. A declaration that the National Parks and Wildlife Act 1974 (the NPWA) ss 87 and 90 Permit/Consent 2551, (the consent) granted by the First Respondent to the Second Respondent on the 23rd of April, 2007 in respect to land described as Lot 208 DP 851318, Angels Beach Drive, East Ballina, NSW, is invalid and thereby void and of no effect.

2. A declaration that the First Respondent denied to the Applicants natural justice and failed to afford them procedural fairness in reaching its decision to issue the consent.

3. A declaration that any activity undertaken by the Second Respondent in purported reliance upon the authority granted by the consent would be in breach of section 86 and/or 90 of the NPWA.

4. An order restraining the Second Respondent, their employees, servants and contractors from carrying out any work involving, clearing of vegetation, movement of soil and construction of infrastructure on the land that seeks reliance on the authority of the consent.

5. Costs.

6. Any such further order and direction the court deems appropriate.

2 Before me is a notice of motion by the applicants seeking an interlocutory or interim injunction against the second respondent, Mr Condon, as follows:

1. An urgent interlocutory order until further order restraining the Second Respondent its servants, employees, contractors or agents from carrying out any work or activity including vegetation removal, soil disturbance, road work and soil testing on land described as Lot 208 DP 851318 (The Land).

2. Further or in the alternative the Second Respondent its servants, employee and/or agents be restrained from carrying out any work or activity on the land that seeks reliance on the authority of National Parks and Wildlife Act section 87 permit and section 90 consent 2551 issued by the First Respondent to the Second Respondent on the 23rd of April 2007.

3. An interim order expartie [sic] in terms of paragraph 1 until the motion is heard.

4. any further order or direction the Court deems appropriate.

5. Costs.

3 The second respondent has indicated that he is unavailable through his legal representatives to fully contest the notice of motion before 30 July 2007. The relief sought today is in terms of paragraph 3 of the notice of motion, for an interim injunction in terms of paragraph 1 of the notice of motion until 30 July 2007 or as soon thereafter as the notice of motion can be further heard.

4 The evidence in support of the notice of motion comprises two affidavits of 17 July 2007 by each of the applicants, Douglas Anderson and Susan Anderson and three letters. The second respondent has not gone into evidence on this occasion.

5 The affidavits of the applicants depose to their being traditional owners and upholders of knowledge in relation to the land known as lot 208 North Angel’s Beach. They are very upset that a consent to carry out the destruction of Aboriginal objects on Lot 208 has been granted by the Department of Conservation and Climate Change earlier in 2007. It appears that this is the third such consent that has been issued. The main basis of their concern arises, according to their evidence, from the fact that the site is part of the area where a massacre of Aboriginal people occurred in the 19th century. That massacre has been referred to in earlier judgments of this Court in proceedings brought by the applicants. Their evidence indicates that in May of 2004 Susan Anderson attended a meeting with Department officers in which they informed them that the site was part of the massacre area and in which they provided them with other information, including that there were burials and sacred trees in the area.

6 Concern is expressed in their evidence that nearly all significant sites in Ballina have been “destroyed”, as they put it, by the council and developers. They express concern at what they see is lack of respect or recognition of their culture, and as to whether they have been treated fairly by the Department.

7 It appears from the correspondence in evidence that the first notification by the respondents to the applicants, or anyone on their behalf, of the granting of consent to carry out the destruction of Aboriginal objects was in a letter dated 13 June 2007 from Mr Diocono of the Department of Environment and Conservation (NSW) to Mr Alan Oshlack of the Indigenous Justice Advocacy Network who is representing the applicants.

8 A further letter from Mr Diocono to Mr Oshlack provided further clarification. The letter stated that it is recognised that the development referred to in the consent has been declared void by the Land and Environment Court and that currently another development application is being considered by the Department of Planning.

9 In response to an enquiry by Mr Oshlack as to what work was being carried out, the second respondent’s solicitors wrote a letter to him on 16 July 2007 as to their instructions. The letter relevantly stated:

1. My client intends to remove trees from the site in a manner consistent with the Master Plan that has been approved by the Minister for Planning.

2. My client intends to undertake the investigations for the bulk earthworks which will in turn lead to the construction of at least the following items:

(a) roads

(b) areas set aside for residential purposes

(c) dedicated open space.

3. Please note my client does not intend to actually undertake the bulk earthworks. However the investigation referred to in paragraph 2 above will include at least the following work:

(a) Survey work on the surface of the land, including the taking of measurements, the marking of survey points and otherwise mapping the surface of the land.

(b) Investigation of soil quality and ground profile.

4. The work noted above will include at least soil and other ground samples, being samples taken on the ground at the site.

5. The work identified above is proposed to be undertaken across the entire site.

6. My client has spoken to a number of consultants that will be retained if a development consent is ultimately issued for the proposal. Those consultants may commence their preparatory investigations of the site, consistent with their areas of expertise, in the near future.

The work as outlined above is being – and will be – undertaken in anticipation of a development consent. It is conceded that a development consent has not yet been obtained by my client. However none of the work proposed above is believed to be in breach of the Environmental Planning & Assessment Act 1979 (including Section 76A).

If your clients propose to seek injunctive relief in these proceedings my client will oppose that injunctive relief. You do not have my client’s consent to seek that relief on an ex parte basis. That is, my client requests that sufficient time be allowed for him to arrange adequate representation and to present the evidence that he believes is necessary for the Court to make a full and proper assessment of the bona fides of your client’s claim.

10 During the course of the hearing this morning, it was indicated by Mr Oshlack that the applicants had no objection to survey work being carried out on the subject land provided that it does not involve the removal of vegetation or significant disturbance of soil. Otherwise the applicants seek to restrain on an interim basis any work being carried out on the land.

11 It is necessary for the applicants to establish that there is a serious issue to be tried and that the balance of convenience favours the grant of the interim injunction sought. Mr Oshlack submits that there is a serious issue to be tried as to the validity of the consent under ss 87 and 90 of the National Parks and Wildlife Act 1974 on the following bases. First, denial of natural justice and procedural fairness to the applicants. It is said that they have never been consulted in relation to the granting of the current consent or permit. It is said that they should have been, given their standing within the Numbahjing clan of the Bundjalung Nation and given the history of the massacre of Aboriginal people on this site and the importance of the site to Aboriginal people in that area. Secondly, it is said that there is a serious issue to be tried in relation to the validity as to whether the principles of ecologically sustainable development have been properly taken into consideration. In particular, it is said that the principle of intergenerational equity, which is one of the principles that support the notion of ecologically sustainable development, has not been adequately considered. It is pointed out that if the Aboriginal objects are destroyed then they will be lost forever to future generations.

12 There is a suggestion by Mr Oshlack of what he calls fabrication of evidence by the Department concerning whether this was a massacre site. He says that there were notices to produce issued to the Department which went to that issue and that the documents produced in response were insufficient. He indicates that it is intended or likely that further notices to produce be issued. There is no evidence before me to support the suggestion of fabrication and I therefore do not propose to take it into account.

13 In relation to the balance of convenience, it is submitted for the applicants that Aboriginal people believe that this is a serious matter going to their fundamental beliefs and that if Aboriginal objects are destroyed before the matter can be finally tried, then to that extent the applicant’s claim will be frustrated if they are ultimately found to be successful.

14 The second respondent confined his submissions to the following. First, it is said that the applicants’ real point may be not that there was failure to consult them by the Department but that there was a failure to take seriously what they had to say. Reference was made to documents and correspondence that are not in evidence before me. Second, in relation to the principle of intergenerational equity, it is said that the second respondent’s solicitors had on instructions provided the applicants with several lever arch folders of documents which included a report which refers to the principle of intergenerational equity. Again, this material is not before me. Third, it is accepted that the applicants genuinely hold the belief to which they depose but it is submitted that that is insufficient of itself to obtain the substantive relief which they seek. Fourth, in relation to the suggestion of fabrication of evidence by the Department, it is said that that is a matter of which the second respondent or at least its legal representatives have no knowledge.

15 It is indicated on behalf of the second respondent that if I am minded to grant the interim relief sought, then the second respondent would not require the applicants to give the usual undertaking as to damages.

16 On the evidence before me and having regard to the respondent’s submissions, I am prepared to accept the applicant’s submissions that there is a serious issue to be tried and that the balance of convenience favours the grant of an interim injunction for the relatively short period for which it is sought.

17 Accordingly, I grant the following relief:

(1) Order that until 30 July 2007 or as soon thereafter as the applicants’ notice of motion dated 17 July 2007 is heard, the second respondent, by himself and his servants, employees, contractors and agents, is restrained from carrying out any work or activity including vegetation removal, soil disturbance, roadwork and soil testing on land described as lot 208 DP 851318 save for survey work which does not involve significant soil disturbance or removal of vegetation.
(2) Costs reserved.
(3) Direct as follows:
(a) the parties are to approach the Registrar today to obtain a hearing date for the notice of motion on 30 July 2007 or as soon thereafter as possible.
(b) the applicants are to file and serve any further evidence in support of their notice of motion on or before 24 July 2007.
(c) the respondents are to file and serve any evidence upon which they intend to rely on or before 27 July 2007.
(d) liberty to apply on 24 hours’ notice.