Anderson v Director-General, Department of Environment and Conservation - [2006] NSWLEC 12

Reported Decision: 144 LGERA 43

Land and Environment Court

of New South Wales

CITATION: Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors [2006] NSWLEC 12

PARTIES: APPLICANTS:
Douglas Anderson
Susan Anderson
FIRST RESPONDENT:
The Director-General of the Department of Environment and Conservation
SECOND RESPONDENT:
Christopher Condon
THIRD RESPONDENT:
North Angels Beach Development (Ballina) Pty Limited
FOURTH RESPONDENT:
The Attorney-General of New South Wales

FILE NUMBER(S): 41501 of 2004

CORAM: Pain J

KEY ISSUES: Judicial Review :- whether decision to grant consent to destroy Aboriginal objects ultra vires - whether failure to consider relevant matters - whether decision to grant consent contrary to Racial Discrimination Act 1975 (Cth) s 10

LEGISLATION CITED: Aboriginal Land Rights Act 1983 s 51
Commonwealth of Australia Contitution Act 1900 (Imp) s 76, s 77, s 109
Heritage Act 1977 s 4, s 24, s 25, s 30, s 32, s 57, s 59, s 62, s 63, s 70, s 70A, s 139, s 141, s 142, s 146B, s 146C, s 156
Interpretation Act 1987 s 33
Judiciary Act 1903 (Cth) s 39, s 78A
National Parks and Wildlife Act 1974 s 2A, s 4, s 5, s 81, s 83, s 85, s 87, s 89, s 90, s 91A, s 91B, s 91C, s 91H, s 176A
National Parks and Wildlife Amendment Act 2001
Protection of the Environment Administration Act 1991 s 6(2)
Racial Discrimination Act 1975 (Cth) s 10

CASES CITED: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385;
Attorney-General (NSW) v Quin (1990) 170 CLR 1;
Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541;
Country Energy v Williams; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426;
Gerhardy v Brown (1985) 159 CLR 70;
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24;
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323;
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27;
Packham v Minister for the Environment (1993) 31 NSWLR 65;
Price v Elder (2000) 97 FCR 218;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363;
Western Australia v Ward (2002) 231 CLR 1;
Williams v Director-General Department of Environment and Conservation & Ors [2005] NSWLEC 165;
Williams v Director-General National Parks and Wildlife Service & Ors (2003) 127 LGERA 354;
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

DATES OF HEARING: 16/08/2005
17/08/2005
18/08/2005
25/08/2005 (written submissions)
06/10/2005 (written submissions)
07/10/2005 (written submissions)
11/10/2005 (written submissions)

DATE OF JUDGMENT:
01/17/2006

LEGAL REPRESENTATIVES: APPLICANT:
Mr T Robertson SC and Ms L Byrne (barrister)
SOLICITORS:
Environmental Defenders Office
FIRST AND FOURTH RESPONDENTS:
Mr S Gageler SC and Mr N Perram (barrister)
SOLICITORS:
State Crown Solicitor's Office
SECOND AND THIRD RESPONDENTS:
Mr N Williams SC and Mr D Wilson (barrister)
SOLICITORS:
Bourke Love McCartney Young

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

17 January 2006

41501 of 2004 Douglas and Susan Anderson v Director- General of the Department of Environment and Conservation and Christopher Condon and North Angels Beach Development (Ballina) Pty Ltd and Attorney-General of New South Wales
JUDGMENT

1 Her Honour: These are Class 4 proceedings brought by the Applicants against the Director-General of the Department of Environment and Conservation (“the Director-General”), Mr Christopher Brian Lee Condon, and North Angels Beach Development (Ballina) Pty Limited (“North Angels”). The Attorney-General of New South Wales (“the Attorney-General”), has intervened in these proceedings pursuant to s 78A of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) in relation to one issue.

Background

2 North Angels owns land at Lot 208 DP 851318, Angels Beach Drive, East Ballina (“the site”). The Second Respondent, Mr Condon is a director of North Angels. The First Applicant, Mr Douglas Anderson, is an Aboriginal elder and a senior traditional owner of the Numbahjing Clan within the Bundjalung Nation. He is the former Chair and current member of the cultural heritage committee of the Jali Local Aboriginal Land Council (“the Jali LALC”). The Second Applicant, Ms Susan Anderson, is a traditional owner of the Numbahjing Clan within the Bundjalung Nation and a member of the cultural heritage committee of the Jali LALC.

3 There are four locations on the site registered on the Department of Environment and Conservation’s (formerly the National Parks and Wildlife Service, hereafter referred to as the “NPWS”) Aboriginal Heritage Information Management System. The NPWS Aboriginal Heritage Information Management System maintains a database of over 44,000 registered Aboriginal sites for New South Wales. The system holds all records of Aboriginal sites registered by consultants, NPWS officers, Aboriginal community members and the general public. The registration cards record that shell middens are identified in the four locations. Identification of a site on the register does not entitle it to any particular protection under the National Parks and Wildlife Act 1974 (“the NPW Act”).

4 On 4 March 2003, North Angels submitted an application pursuant to s 90 of the NPW Act to carry out the destruction of Aboriginal objects for the purpose of constructing a residential estate on the site. The application stated that the aim was to develop the site as a residential estate, infrastructure would be constructed and installed involving the excavation of trenches to a depth of about one metre but the application did not specify where such excavation would take place. On 29 May 2003, Mr Hilton Max Naden, a representative of the Director-General with delegated responsibility for granting s 90 consents, granted consent #1667 (“the s 90 consent”):

FOR CONSENT to destroy those Aboriginal objects in the course of:

All works including, but not restricted to, infrastructure development and installation, roading and general construction activities associated with residential subdivision

5 The s 90 consent granted by Mr Naden contained a number of conditions, including the following:

6 The effect of these conditions is that the majority of the site is able to be used for residential subdivision development. The conservation area does not overlap with any of the midden sites registered on the NPWS Aboriginal Heritage Information Management System.

7 On or about 4 August 2004, North Angels lodged a development application with the Minister for Infrastructure, Planning and Natural Resources for development consent to subdivide land and build infrastructure on the site for the purposes of a 63 lot residential development.

8 There is no time frame set out in the NPW Act in which a s 90 consent must be issued. The Director-General has stated as part of her service “charter” that consents will be processed within three months of receipt.

Issues

9 In their Amended Application Class 4 the Applicants seek the following declaration and orders:

1. A declaration that the National Parks and Wildlife Act 1974 s 90 Consent #1667 granted by the First Respondent to the Second Respondent on the 29th of May 2003, in respect of land described as Lot 208 DP 851318, Angels Beach Drive, East Ballina, NSW is invalid and of no effect.
2. An order that the Second and Third Respondents, their servants, agents and contractors, be restrained from carrying out any work involving clearing of vegetation, movement of soil and construction of infrastructure on the said land.
3. Alternatively, an order that the Second and Third Respondents, their servants, agents and contractors, be restrained from locating, identifying and recording Aboriginal objects on the said land without the involvement of the representatives of the Applicants along with their consulting archaeologist(s) and/or Aboriginal Site Officer(s).
4. Costs.

10 The Second Further Amended Points of Claim (“SFAPOC”) dated 21 September 2005 outlined five challenges to the s 90 consent granted by the Director-General as follows:

(1) The Director-General’s decision to grant the s 90 consent was ultra vires and the decision was therefore void because the decision in not applying the objects of the NPW Act was made for an improper purpose;

(2) In the alternative, the Director-General failed to take into account a relevant consideration because the power to destroy objects of significance to Aboriginal people can only be exercised for the purpose of conservation;

(“the RD Act”):

(a) If the Director-General does have power to grant consent pursuant to s 90 of the NPW Act, the s 90 consent is invalid because it is contrary to s 10 of the RD Act;

(b) In the alternative, the Director-General was bound to exercise her discretion in a manner consistent with the RD Act or failed to take into account the extensive purpose to be accorded to Aboriginal objects under the NPW Act.

(4) The Applicants had a legitimate expectation that the Director-General would consult with interested parties in relation to applications for s 87 and s 90 consents under the NPW Act and failed to do so adequately;

(5) The Director-General failed to consider relevant matters in granting the s 90 consent, namely:

11 The Applicants amended their pleadings and arguments after the hearing to take into account the Court of Appeal decision in Country Energy v Williams; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426 dated 15 September 2005 in relation to issues (1) and (4) in the SFAPOC.

Evidence

12 The Applicants relied on the affidavits of:

(i) Mr Douglas Anderson – the First Applicant, affirmed 6 June 2005;

(ii) Ms Susan Anderson – the Second Applicant, affirmed 6 June 2005; and

(iii) Mr Troy Anderson – chairperson of the Jali LALC during the period the s 90 consent was granted, affirmed 29 April 2005.

(iv) Ms Frances Paden – convenor of Jali LALC during the period the s 90 consent was granted, affirmed 29 April 2005.

13 The affidavit of Mr Douglas Anderson provides evidence of the history of the Numbahjing Clan and his predecessors as the traditional owners and custodians of the Angels Beach area. In his affidavit Mr Douglas Anderson sets out of his knowledge of historical events occurring in the Angels Beach area and the history of Jali LALC. The affidavit also outlines his role within the Jali LALC as part of the cultural heritage committee and his interaction with the NPWS in relation to the s 87 and s 90 consents granted in relation to the site.

14 The affidavit of Ms Susan Anderson confirms the information set out in the affidavit of Mr Douglas Anderson in relation to the history of the Numbahjing Clan as the traditional owners and custodians of the Angels Beach area and provides evidence of her knowledge of historical events occurring in the Angels Beach area. Her affidavit also outlines her role within the Jali LALC as part of the cultural heritage committee and her interaction with the NPWS in relation to the s 87 and s 90 consents granted in relation to the site.

15 The affidavit of Mr Troy Anderson outlines his role as the chairperson of the Jali LALC at the time the s 87 and s 90 consents were granted in relation to the site and the sequence of events leading up to the grants of consent.

16 The affidavit of Ms Paden outlines her role as the convenor of the Jali LALC at the time the s 87 and s 90 consents were granted in relation to the site and the sequence of events that occurred at a meeting with officers of the NPWS on 11 April 2003.

17 The Director-General relied on the affidavit Mr Hilton Max Naden, Manager of the Northern Aboriginal Heritage Unit of the NPWS, affirmed 8 April 2005. Mr Naden had delegated power from the Director-General to grant consents under s 87 and s 90 of the NPW Act. In his affidavit, Mr Naden outlines the sequence of events that occurred in the exercise of his delegation in relation to the s 87 and s 90 consents granted in relation to the site. Mr Naden also gave oral evidence.

18 Numerous documents drawn substantially from the parties’ respective files and correspondence in the matter were also tendered.

Issue 1 - The s 90 consent was ultra vires because the decision was contrary to the objects of the NPW Act (SFAPOC 15-29)

19 Section 2A of the NPW Act outlines the objects of the Act and states:

(1) The objects of the Act are as follows:

…

(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:

(i) places, objects and features of significance to Aboriginal people, and

(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.

(a) the objects of the Act,

…

20 Pursuant to s 2A(3)(a) of the NPW Act the Director-General, in carrying out functions under the Act, is required to give effect to the objects of the Act. The functions of the Director-General in respect of Aboriginal objects and places are expressed at s 8(4) and s 8(5) of the NPW Act as follows:

The Director-General may promote such educational activities, and undertake such scientific research, in respect of Aboriginal objects and Aboriginal places as the Director-General thinks fit, either separately or in conjunction with other persons or bodies.

As soon as practicable after an Aboriginal object is discovered on any land reserved under this Act, the Director-General, after such consultation with the Australian Museum Trust as appears necessary or expedient, is required to assess the scientific importance of the Aboriginal object.

21 The powers of the NPWS in relation to Aboriginal objects and places are expressed in s 12(d) and (h) of the NPW Act as including:

(d) the identification, conservation and protection of, and prevention of damage to, Aboriginal objects and Aboriginal places,

(h) the conduct of research into and the monitoring of any of the matters referred to in paragraphs (a) – (e)

22 Pursuant to s 85(1) of the NPW Act the Director-General is the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.

23 Pursuant to s 85(2) of the NPW Act the Director-General is responsible:

(a) for the proper care, preservation and protection of any Aboriginal object or Aboriginal place on any land reserved under this Act, and

(b) subject to s 87, for the proper restoration of any such land that has been disturbed or excavated for the purpose of discovering an Aboriginal object.

24 Section 87 of the NPW Act states:

(1) Subject to section 88, the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e).

(2) Terms and conditions imposed by the Director-General under subsection (1) may include terms and conditions relating to the proper restoration of land disturbed or excavated.

(3) A failure to comply with a term or condition authorised by subsection (2) shall be deemed to be a contravention of section 86.

(4) The Director-General may, at any time:

(a) revoke a permit issued under this section, or

(b) vary the terms and conditions of such a permit.

25 Section 90 of the NPW Act states:

…

(1A) Subsection (1) does not apply with respect to an Aboriginal object that is dealt with in accordance with Aboriginal tradition pursuant to section 85A.

(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

26 The Aboriginal objects located on the site have been the subject of several archaeological and anthropological studies prepared over several years before the s 90 consent was granted. These reports include:

Angels Beach Development Area Traditional and Contemporary Aboriginal Significance

North Angels Beach Estate, Ballina, NSW: options for heritage management

Archaeological Test Excavations at Lot 208 (DP 851318) Angels Beach Drive, East Ballina, Northern New South Wales – Draft Report

Documentation in relation to section 90 Consent for Lot 208 DP 851318 Angels Beach Drive, East Ballina

Anthropological Assessment of Aboriginal Significance of Lot 208, North Angels Beach Development Area, Draft Report

“North Angels Beach Lot 208, Provisional Conclusions and Recommendations”

Applicants’ submissions

27 The Applicants originally argued that the Director-General did not have power under the NPW Act to consent to the destruction of Aboriginal objects for a purpose not identified in the NPW Act, in particular for the purpose of facilitating land development. Having regard to the Court of Appeal decision in Country Energy the Applicants accepted that the Director-General could grant a consent to destroy Aboriginal objects pursuant to s 90 of the NPW Act for the purpose of permitting land development. The Applicants also accepted that the exercise of the Director-General’s power is not restricted solely to the proper care, preservation and protection of any Aboriginal object.

28 However, the Applicants submitted that the power of the Director-General must be exercised having regard to the objects contained in s 2A of the NPW Act. In exercising the power pursuant to s 90 of the NPW Act the Director-General was required to be objectively satisfied as to whether the Aboriginal objects on the site were of cultural value or significance to Aboriginal people. Having regard to the archaeological and anthropological studies before the Director-General as set out in par 26 above the Applicants argued that the Director-General could not have been objectively satisfied that the Aboriginal objects on the site were of no cultural significance, and in the circumstances the Director-General’s decision to grant consent to destroy the Aboriginal objects was ultra vires.

29 This requirement was emphasised by the reference to ecologically sustainable development (“ESD”) in the objects of the NPW Act. The Applicants argued that implementation of the precautionary principle and the principle of inter-generational equity supports the Applicants’ arguments that there is no power within the NPW Act to allow the destruction of significant Aboriginal objects to facilitate land development. Contrary to the submissions of the Director-General, the reference to ESD in s 2A of the NPW Act does not establish that land development is a legitimate purpose for the exercise of the Director-General’s power in s 90 of the NPW Act where consent is being granted to destroy objects of cultural value or significance.

Director-General’s submissions

30 The Director-General argued that she did have power to issue consent pursuant to s 90 by virtue of the objects in s 2A(2) of the NPW Act. While s 2A states that one of the objects of the NPW Act is conservation it also provides that the objects are to be achieved by applying principles of ESD. As the NPW Act explicitly contemplates the occurrence of development, it is wrong to suggest that s 2A requires that no decision made under the NPW Act can be made for purposes which include economic or development purposes.

31 The Director-General argued that in any event the Applicants’ arguments failed at a factual level. It is clear from the conditions imposed in relation to the provisions of an Aboriginal Heritage Conservation Area that the s 90 consent was directed at conservation and that the purposes included conservation (see par 5).

32 The Director-General put forward four further arguments prior to the decision of the Court of Appeal in Country Energy which are still relevant. Firstly, the Director-General noted that while s 2A(2) specified how the objects are to be achieved, s 2A(3) only required the Director-General to give effect to the objects of the NPW Act. Accordingly, s 2A(2) specified the outcomes to be achieved, where as s 2A(3) did not. Secondly, the principle invoked in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710, where it was held that a lease could not be granted over national parklands for the purpose of conducting a private university because such a purpose did not advance the objects of the NPW Act, does not apply here on its facts. In Woollahra the activity did not have any purpose which advanced the objects of the NPW Act. Thirdly, the effect of an objects clause on an unconfined discretion does not operate to circumscribe the power as the Applicants contend. Fourthly, the Director-General noted that s 2A related to objects and features of significance to Aboriginal people, whereas s 90 of the NPW Act related to Aboriginal objects, which is wider in definition. It is therefore logically incorrect to apply the purposes of s 2A(1), which apply only to a limited subclass of Aboriginal objects, to the whole class of Aboriginal objects.

33 The Director-General adopted the submissions of Mr Condon and North Angels in relation to the effect of Country Energy.

Mr Condon’s and North Angels’ submissions

34 Mr Condon and North Angels submitted that Country Energy did not support the proposition that a consent may not be given to destroy an Aboriginal object that is of cultural value or significance to Aboriginal people. While the Director-General was required to take into account the actual or potential significance of an Aboriginal object for Aboriginal people under s 90 of the NPW Act, Country Energy does not suggest that a consent to destroy issued pursuant to s 90 of the NPW Act cannot be granted for an Aboriginal object that is considered to be significant.

35 Secondly, Mr Condon and North Angels submitted that the objects of the NPW Act were not limited in the way the Applicants contended. The objects of the NPW contained in s 2A demonstrate that the scheme of the Act does not provide any presumption against development, or any unqualified protection of Aboriginal objects, whether significant or not. The scheme of the NPW Act in relation to Aboriginal objects is to provide wide prohibitions, combined with wide relieving discretionary powers in the Director-General, including the discretionary power to consent to the destruction of objects. That power is necessarily inconsistent with their conservation. Accordingly, having regard to the scheme created by the NPW Act Mr Condon and North Angels submitted that the s 90 consent granted by the Director-General was within power.

36 Mr Condon and North Angels submitted that even if the Applicants’ construction of s 90 was preferred, the argument would still fail. Mr Condon and North Angels argued that Mr Naden did consider whether the objects were significant and reached an objective conclusion about the significance of Aboriginal objects on the site.

Finding on issue 1

37 The objects contained in s 2A of the NPW Act were introduced in 2001 by the National Parks and Wildlife Amendment Act 2001 (“the NPW Amendment Act”). In his Second Reading Speech (New South Wales, Legislative Assembly, Hansard, 16 November 2001 at 18762), the Minister stated that:

Presently, the National Parks and Wildlife Act does not contain an objects clause. This is essential to establish a clear framework for the functions of the Minister for the Environment, the Director-General of National Parks and Wildlife, and the National Parks and Wildlife Service itself. Accordingly, the bill has a proposed set of objects for the Act. These are consistent with the present role of the National Parks and Wildlife Service and will better guide the Act's administration. This amendment will provide an unambiguous statement of the legislation's intent, as well as assist in legislative interpretation. Importantly, the objects will serve to reinforce the fundamental importance of the conservation of nature, including the conservation of ecosystems, biodiversity and significant landforms under the Act. They will also focus the Act on the conservation of our cultural heritage, both Aboriginal and historic.

38 In Williams v Director-General National Parks and Wildlife Service & Ors (2003) 127 LGERA 354 Bignold J stated at 363 to 365 that:

The texts of s 87 and s 90 do not compel the conclusion that the Director-General is vested with a power or discretion in contradistinction to a duty or function. Nor, properly analysed in the context of Part 6 of the NP&W Act , is it appropriate to classify the Director-General’s role under s 87 or s 90 as merely a power or discretion. If resort to such terminology be sought, then I would conclude that the Director-General is vested with a power or discretion coupled with a duty . That duty is founded upon the plain terms of s 85 …

In my judgment, s 85 read in the light of the declared objects of the Act ( s 2A ) and the statutory functions conferred upon the Director-General ( s 8 ) is a pivotal and foundational provision of Part 6 of the NP&W Act which deals with “Aboriginal objects” and “Aboriginal places”, and gives colour and content to other specific functions conferred upon the Director-General by Part 6 , including the functions conferred by s 87 and s 90 …

Accordingly, I conclude that the duty imposed by

s 2A(3)(a)

to give effect to the objects of the Act applies to the role of the Director-General in issuing a permit under

s 87

or a consent under

s 90

However, Bignold J held at 372 that the s 90 consent granted in that case was not invalid, on the basis that the significance of Aboriginal objects at the subject site had been properly considered by the first respondent.

39 In Williams v Director-General Department of Environment and Conservation & Ors [2005] NSWLEC 165, Bignold J at [26] relied on his reasons in Williams v Director-General National Parks and Wildlife Service& Ors (2003) 127 LGERA 354 to hold in similar factual circumstances that the respondent was not bound by the objects of the NPW Act in a fashion that precluded the issue of a consent under s 90 of the NPW Act.

40 The Court of Appeal in Country Energy v Williams; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426 upheld the decision of Bignold J in Williams v Director-General Department of Environment and Conservation & Ors [2005] NSWLEC 165. Basten JA (with whom Spigelman CJ and Giles JA agreed) stated at [62] – [67] that:

There are a number of reasons for concluding that the obligations of the Director-General with respect to the protection of Aboriginal objects cannot be interpreted in an absolute way so as to preclude, for all practical purposes, the grant of consent to destroy objects. No doubt it is true to say that such a restrictive construction would not read the power to grant consent entirely out of the Act. Appropriate protection for a midden, for example, may require survey and research work which would have the effect of damaging the midden. A consent to conduct such research would, as was pointed out on behalf of Mr Williams, require consent and consent could properly be given consistently with the protective responsibility of the Director-General.

However, there are reasons to think that the power to consent is not so limited. First, if it were intended to operate in that way Parliament could have said so… neither s 2A nor s 85 imposes an express requirement that the only considerations that the Director-General may have regard to in giving a consent under s 90 are “the proper care, preservation and protection of” the relevant Aboriginal objects. Indeed, this language, which is taken from s 85(2)(a), identifies a function of the Director-General in respect of objects and places “on any land reserved under this Act”. There does not appear to be any reason to apply the geographical qualification to Aboriginal places only and not to Aboriginal objects…

Secondly, it is possible to read too much into the obligation imposed on the Director-General, pursuant to s 2A(3), to “give effect to” the objects of the Act, in carrying out her functions under the Act. As was pointed out on behalf of the Director-General, s 2A(2) prescribes that the objects of the Act “are to be achieved” by applying the principles of ecologically sustainable development, being principles identified in s 6(2) of the

1991. According to that provision, “ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes”. These principles may not have direct application to the conservation of Aboriginal objects, but the reference to them in s 2A(2) provides an explicit recognition that the NP&W Act is but one piece of legislation which must operate in conformity with other legislation governing land development activities.

…

No doubt these provisions merely reflect the obvious, namely that there will often be a tension between development activities and environmental protection. Where, in the public interest, protection considerations prevail, the land will usually be set aside for public purposes or any absolute constraint on development of private land will be made explicit. Aboriginal objects may be found on land throughout the State, including private land, especially in rural areas where there has not been intensive development. The breadth of the definition of Aboriginal objects demonstrates that almost any land which has not been the subject of intensive development is likely to be affected. If the presence of such objects was to be a bar to the development of private land in any manner which might lead to damage, defacement or destruction of the objects, one would expect the statute to make that explicit and unambiguously clear. Whilst the NP&W Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the Director-General to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction, which would prevent the power being exercised in relation to development of private land.

41 In light of these findings the Applicants now argue, in the SFAPOC filed after Country Energy was handed down, that the Director-General’s decision to grant the s 90 consent was contrary to the objects of the NPW Act because she could not have objectively been satisfied that the objects to be destroyed were of no cultural value or significance. The Applicants submitted that Country Energy does not preclude an argument that the Director-General is required to objectively determine the significance of Aboriginal objects before making a decision to grant consent. If her finding is that the objects do have cultural value or significance to Aboriginal people then a decision to grant a consent to destroy would be contrary to the object expressed in s 2A(1)(b)(i) of the NPW Act of conserving those significant objects. The Aboriginal Heritage Conservation Area set aside as a condition of the s 90 consent does not overlap at all with the four midden sites identified on the Aboriginal Heritage Information Management System. As a result of the s 90 consent being issued the majority of the site will be available to be developed for residential subdivision and all of the midden sites destroyed. Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 was relied on by the Applicant to argue that the objects clause should be given substantive efficacy. In Allianz McHugh J held at [48] that:

… a construction that would promote the object of the Act is to be preferred to a construction that would not promote that object.

42 The Applicants maintained the argument that because the only purpose for which the s 90 consent was granted was for the facilitation of the residential subdivision of the land where the objects to be destroyed were identified as having cultural value and significance, then the power was exercised for an improper purpose.

43 In their submissions in reply the Applicants argued that while the principles of ESD are to be applied in order to achieve the objects of the NPW Act, their inclusion does not establish that land development is a legitimate purpose for the exercise of the Director-General’s powers in s 87 and s 90 of the NPW Act where consent is being granted to destroy objects of cultural value or significance. The Applicants argued that Basten JA’s findings at [65] do not detract from this submission but that is debatable in my view. In his judgment Basten JA notes that while the Director-General is required to give effect to the objects of the NPW Act this is to be done by applying the principles of ESD. Section 2A(2) of the NPW Act provides “the objects of the Act are to be achieved by applying the principles of ecologically sustainable development”. He states that:

These principles may not have direct application to the conservation of Aboriginal objects, but the reference to them in s 2A(2) provides an explicit recognition that the NPW Act is but one piece of legislation which must operate in conformity with other legislation governing land development activities

44 In Country Energy at [64] Basten JA states that s 2A does not impose an express requirement that the Director-General have regard only to the proper care, preservation and protection of Aboriginal objects when granting a consent to destroy under s 90.

45 In Country Energy at [67] Basten JA held that:

Whilst the NPW Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the DG to consent to their destruction should not be understood as subject to an implied restriction.

46 The NPW Act confers wide discretion on the Director-General in relation to the issue of s 90 consents to destroy. Country Energy is binding authority for the proposition that the Director-General and her delegates are able to grant consent to destroy Aboriginal objects under s 90 in the context of land development. This case is an extension of the legal issue considered in Country Energy which dealt with the issue of whether the Director-General can issue a s 90 consent at all in the context of land development. The Applicants are seeking to argue that if the Director-General or her delegate is aware that objects have significance for Aboriginal people she cannot consent to their destruction because of the objects of the NPW Act to which she must give effect. Reliance was placed on Basten JA at [52] in Country Energy where he states:

For reasons which will appear below, the Director-General can consent to the destruction of Aboriginal objects where the destruction takes place in the course of development and is reasonably necessary for the purposes of the development. Nevertheless, the legality of a consent in those circumstances may depend upon the Director-General taking into account the actual or potential significance of the Aboriginal object for Aboriginal people, in accordance with s.2A of the NP&W Act. Accordingly, it would be arguable that a consent which permitted the destruction of an unknown object, regardless of whether it has no significance or high significance might well involve an error of law. However, that question will depend in part upon factual considerations as, for example, whether on the material before her, the Director-General was entitled to form the view that there was no realistic chance of any object of significance to Aboriginal people being at risk. In that case, the omission to take account of the theoretical possibility might not constitute a legal error.

47 It is accepted by the Director-General’s delegate that he has responsibility to consider the conservation of Aboriginal objects when granting a s 90 consent to destroy. His argument is that he has done so by issuing the s 90 consent subject to the conditions set out at par 5 above. While the s 90 consent does have conditions said by the Director-General to be for conservation purposes, namely, the requirement for the defined special purpose Aboriginal Heritage Conservation Area, the Applicant argued that this condition did not advance a conservation or protective purpose because there were no known Aboriginal objects in the area and it was designated because it was the most suitable location to facilitate residential subdivision development. It is Mr Naden’s evidence however that this area was identified early in the process of considering the s 90 consent because it was an area identified by members of the local Aboriginal community, including the Applicants, as a significant site as there was likely to be someone buried there. There is no evidence to suggest that the conservation measures imposed under the s 90 consent have any purpose other than conservation.

48 The Applicants relied on Packham v Minister for the Environment (1993) 31 NSWLR 65 and Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 to support their argument that the power of the Director-General pursuant to s 90 of the NPW Act could only be used to advance the objects and purpose of the NPW Act. The Court of Appeal in Packham, and in Woollahra, found the decision of the Minister was beyond power because the purpose underlying the exercise of the Minister’s discretion did not advance the objects the NPW Act. However, in those cases the purpose underlying the exercise of the Minister’s discretion was held to be inconsistent with particular purposes relating to national parks in the NPW Act. In this case, the grant of the s 90 consent did impose conditions which included measures for the conservation of Aboriginal objects to some extent, as is evidenced by the conditions set out at par 5. I therefore do not consider that these cases apply in this situation.

49 The Applicants’ argument is that the Director-General or her delegate cannot exercise the discretion to allow the destruction of Aboriginal objects of cultural significance when measured objectively. In other words, if the Director-General’s delegate receives an archaeologist’s report which finds that there is an object or objects of cultural significance and/or the recognised traditional custodians tell her that the objects have cultural significance, she cannot exercise her discretion to allow their destruction in the context of land development.

50 Given the findings in Country Energy, I do not consider it is open for me to find that her discretion is so constrained. In this case the s 90 consent granted does have conservation conditions imposed. It cannot be said in light of Country Energy that the Director-General’s delegate has acted on the basis of an improper purpose in issuing the s 90 consent and the decision to issue it is not void on this ground. The Applicants are unsuccessful on this ground.

51 Given that issues 2 and 5 both raise arguments concerning the failure to take into account certain matters I will deal with these together in the last section of this judgment.

Issue 3(a) - Section 90 of the NPW Act is contrary to s 10 of the RD Act (SFAPOC 31-35)

52 Section 10 of the RD Act states:

…

53 Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERDS”) states:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

…

(e) Economic, social and cultural rights, in particular:

…

(vi) The right to equal participation in cultural activities;

…

54 Other rights also identified in the SFAPOC (par 32) are:

…

(ii) Article 15 of the international Covenant on Economic, Social and Cultural Rights (“ICESCR”) recognises the right of everyone to take part in cultural life.

(iii) Article 27 of the International Covenant on Civil and Political Rights (“ICCPR”) affirms that “members of cultural minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.

(iv) Principle 22 of the Rio Declaration on the Environment and Development stated that “Indigenous people … have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their participation in the achievement of sustainable development.”

Applicants’ submissions

55 The Applicants submitted that the operation of s 90 was contrary to s 10 of the RD Act. The Applicants compared the regime for the protection of Aboriginal relics under the NPW Act and the regime for protection of buildings, works and relics under the Heritage Act 1977 (“the Heritage Act”). The Applicants argued that there were lesser rights conferred on indigenous persons for the protection of indigenous cultural heritage under the NPW Act compared to rights conferred on non-indigenous persons for the protection of non-indigenous cultural heritage pursuant to the Heritage Act. Therefore s 10 of the RD Act operated so as to read down or invalidate the operation of s 90 of the NPW Act by virtue of s 109 of the Commonwealth of Australia Constitution Act 1900 (Imp) (“the Constitution Act”).

Attorney-General’s submissions

56 The Attorney-General intervened in the proceedings under s 78A of the Judiciary Act to oppose the Applicants’ submissions. The Attorney-General submitted that in comparing the degree of protection afforded by the NPW Act on the one hand and the Heritage Act on the other hand, it could not be said that Aboriginal persons enjoyed a more limited right to protect cultural objects. The Attorney-General argued that a greater degree of protection was afforded to the preservation of indigenous cultural objects under the NPW Act than that afforded to non-indigenous cultural heritage under the more piecemeal regime in the Heritage Act.

57 If the Court did find that the degree of protection afforded to relics by the NPW Act was less than that afforded under the Heritage Act, it did not necessarily follow that Aboriginal persons thereby enjoyed their right to participate in cultural activities unequally with non-Aboriginal persons. Rather, it is necessary to look to the practical effect of the different degrees of protection and make an assessment of the social and cultural impact of the different legislative regimes on the enjoyment of the right to equal participation in cultural activities.

58 In any event, the Attorney-General submitted that the effect of the RD Act was not the invalidity of s 90 of the NPW Act. Section 10 of the RD Act operated to confer a Commonwealth right for persons of a particular race equivalent to the right conferred as a matter of State law on persons of the other race. The Attorney-General argued, accordingly, that s 10 of the RD Act did not render s 90 of the NPW Act invalid and the Applicants were not entitled to the relief that they sought. The Director-General adopted these submissions.

Mr Condon’s and North Angels’ submissions

59 Mr Condon and North Angels submitted, firstly, that neither the NPW Act nor the Heritage Act conferred rights to participate in cultural activities of the kind described in par 32(i) – (iv) of the SFAPOC. Secondly, the protection provided for in the NPW Act was “blanket” protection under s 90. It did not depend upon identification and listing protection conferred under the Heritage Act. Consequently Aboriginal objects had greater protection than was conferred for non-indigenous relics, objects and places under the Heritage Act. Thirdly, even if the Applicants' contention that the Heritage Act confers greater protection were correct, the effect of s 10(1) of the RD Act would be to confer a right to seek the protection of specified Aboriginal objects under the Heritage Act.

Finding on issue 3(a) – application of the RD Act

60 The Applicants’ submission that this Court is vested with the necessary jurisdiction to determine this issue by virtue of s 39(2) of the Judiciary Act and s 76(i) and (ii) of the Constitution Act as authorised by s 77(iii) was not disputed by the Director-General or the Attorney-General.

(i) Operation and effect of s 10 of the RD Act

61 The effect of s 10 of the RD Act is to guarantee equality before the law in circumstances where inequality is occasioned to persons of a particular race. In Gerhardy v Brown (1985) 159 CLR 70, Mason J stated at 94 that:

Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention. Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discriminatory law shall enjoy the same rights under that law as other persons.

62 Mason J then considered at 98 – 99 the two types of cases in which s 10 of the RD Act may operate:

If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, i.e. by failing to confer it on persons of a particular race, then s 10 operates to confer that right on persons of that particular race. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law. Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected.

… When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law. But, the important question which would then arise is: would the invalidity of the prohibition under s 109 of the Constitution result in the other provisions of the State law also becoming inoperative, notwithstanding a manifest Commonwealth legislative intention that so much of the State law as conferred the relevant right on the persons of the privileged race should remain on foot? Although it is unnecessary to pursue this question to a conclusion, I should mention that total inconsistency of the State law would only ensue in the unlikely event that it appeared that the provisions conferring a benefit on the privileged race were intended to operate if, and only if, the prohibition took effect. In that unlikely event the prohibition and the other provisions of the State law would be interdependent with the result that the provisions could not be severed.

63 The consequences of the operation of s 10 of the RD Act as stated by Mason J in Gerhardy were approved in similar terms by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward (2002) 213 CLR 1 at [107] – [108]. Their Honours stated at [115]:

In determining whether a law is in breach of s 10(1), it is necessary to bear in mind that the sub-section is directed at the enjoyment of a right; it does not require that the relevant law, or an act authorised by that law, be “aimed at” native title, nor does it require that the law, in terms, makes distinction based on race. Section 19(1) is directed at “the practical operation and effect” of the impugned legislation and is “concerned not merely with matters of form but with matters of substance”. Mason J in

put the matter this way:

“[Section] 10 is expressed to operate where persons of a particular race, colour or origin, or

a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent.” (Original emphasis.)

64 I agree with the Applicants’ submission that the right for Aboriginal people to enjoy objects of Aboriginal heritage is a right recognised by Article 5 of CERDS and consequently s 10(1) and (2) of the RD Act. For Aboriginal people, participation in cultural activities is associated with those places and objects that are of cultural value or significance. If Aboriginal heritage is destroyed, their ability to participate and enjoy participation in associated cultural activities is diminished.

65 The Attorney-General argued that if the Applicants were successful the result was that the Heritage Act would apply to Aboriginal objects, not that s 90 of the NPW Act would be struck down as the Applicants argued. The terms of s 10 of the RD Act and cases such as Gerhardy and Ward suggest this interpretation is correct. Applying the passage of Mason J quoted above and a reading of s 10 of the RD Act strongly suggests that if there is a right conferred by the Heritage Act which is not able to be enjoyed by Aboriginal people, and that results in discrimination on the basis of race, the legal answer is that the right under the Heritage Act would also be able to be applied to Aboriginal people. It does not follow that the legal response to the application of s 10 of the RD Act in relation to s 90 of the NPW Act is that it is struck down, assuming there is any discriminatory operation on the basis of race found. As will become clear in the next section, a comparison between the two different heritage protection regimes does not provide a clear cut conclusion that s 90 itself operates in such a way that it results in discriminatory practices adverse to Aboriginal heritage in a way inferior to protective measures available to non-Aboriginal heritage items or buildings.

Comparison of the NPW Act and Heritage Act

66 The Applicants argued that if inequality of Aboriginal persons is the result of the operation and effect of a State law the State law is inconsistent with a law of the Commonwealth and is therefore invalid. The comparison the Applicants’ counsel seeks to make is between two different schemes, one under the Heritage Act and one under the NPW Act. The Applicants’ case did not focus on one section in each of these respective Acts, that is s 90 of the NPW Act and an equivalent section or sections in the Heritage Act, but asked the Court to examine the general operation of both Acts. While on one view there is not a direct equivalent provision of s 90 of the NPW Act in the Heritage Act against which to compare s 90, the point I am seeking to emphasise is that it was the operation of the two statutory schemes which the Applicants argued showed the relevant discriminatory practice under the NPW Act.

67 The SFAPOC at par 33 identified the following broad areas as demonstrating the lesser protection afforded to Aboriginal objects under the NPW Act when compared to the Heritage Act:

(a) The Heritage Act affords a greater protection to heritage items through the approval process under Part 4 Div 1, 2 & 3 of the Heritage Act than the approval process for the damage/destruction of aboriginal objects under Pt 6 of the NPW Act;

(b) The Heritage Act affords public consultation in respect of approvals/consents to destroy that is not provided for under the NPW Act;

(c) The NPW Act requires a higher standard of proof for criminal liability for destruction of items of aboriginal heritage (s90) compared to the equivalent provision of the Heritage Act for non-indigenous relics and objects (s139);

(d) The NPW Act provides for a penalty regime for offences committed in relation to the destruction and damage of Aboriginal objects that is vastly inferior to that afforded to non-indigenous relics and objects under the Heritage Act;

(e) The power to issue a stop-work order under the NPW Act is much narrower than under the Heritage Act;

(f) The Heritage Act provides greater prospective protection measures for non-indigenous objects than those provided for under the NPW Act for Aboriginal objects;

(g) Differences in the ownership of Aboriginal objects and non-indigenous objects under the respective statutory regimes operate to grant a lesser degree of protection to Aboriginal objects;

(h) The Heritage Act provides greater access to information by the provision of a State Heritage Register under Pt 3A of the Heritage Act than the NPW Act which has no statutory Register of aboriginal cultural objects and places.

68 The Applicants’ submissions essentially went through the provisions of each of the NPW and Heritage Acts in some detail and sought to highlight differences between them. A lengthy 24 page table was provided which purported to compare the two regimes. This was used as the basis for submissions from the Applicants that the regime for protection of Aboriginal heritage under the NPW Act is inferior to that afforded to non-Aboriginal heritage under the Heritage Act. I will not traverse all that material here as it is arguably not relevant to the question of whether s 90 operates in a discriminatory way. An examination of the matters in (c), (d) and (e) appear to be of little use in analysing the matters relevant to an assessment of s 90 and its operation and I will not consider these. Key provisions relating to the extent of interim and permanent protection of Aboriginal and non-Aboriginal heritage and the level of public participation afforded in the relevant regimes are considered (SFAPOC (a), (b) and (f)).

69 As emphasised in Ward it is necessary to look at the practical operation of the respective laws. Given that the two schemes are not identical and there is very little or no evidence before me about their general operation, any such comparison is difficult in this case.

70 Under s 83 of the NPW Act, ownership of Aboriginal objects is deemed to be, and deemed to have always been, vested in the Crown. “Aboriginal object” is defined in s 5 of the NPW Act as:

any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

71 The Applicants argued that the relevant comparison for the purposes of the present case was between the protection afforded to “Aboriginal objects” under the NPW Act, as the focal point of indigenous cultural heritage, and “buildings” or “works” under the Heritage Act, as the focal points of non-indigenous cultural heritage. The Attorney-General submitted that the relevant comparison for the purposes of the present case was between the protection afforded to “Aboriginal objects” under the NPW Act and “relics” under the Heritage Act. The relevant provisions in relation to “relics” and “buildings” or “works” under the Heritage Act are set out.

(i) The protection afforded to “Aboriginal objects” under the NPW Act

72 Under Pt 6 of the NPW Act the Director-General is vested with powers for the transfer and preservation of Aboriginal objects and places. Under s 85 of the NPW Act, the Director-General is the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales. Pursuant to s 89, the Director-General may enter into an agreement for the preservation or exhibition of an Aboriginal object. Under s 90 of the NPW Act there is a prohibition on the destruction of an Aboriginal object without a permit. The prohibition applies in respect of all Aboriginal objects irrespective of any assessment of their significance. The grant of a consent under s 90 to destroy Aboriginal objects is a discretionary decision of the Director-General. Pursuant to s 90(3) of the NPW Act, appeal rights are limited to the person whose application for consent is refused or is dissatisfied with any condition or restriction under which the consent is given. No appeal rights for consent granted under s 90 are available to other parties.

73 Under s 91A of the NPW Act the Director-General may recommend to the Minister the making of an interim protection order in respect of an area of land which in the Director-General’s opinion has natural, scientific or cultural significance. Under s 91B, the Minister may, after considering a recommendation made under s 91A, make an interim protection order in respect of the area of land the subject of the recommendation. Pursuant to s 91C, the Minister is not required, before making an interim protection order, to notify any person who will be affected by the order of the intention to make the order. Pursuant to s 91H, an owner or occupier of an area subject to an interim protection order may appeal to the Court.

74 Pursuant to s 176A(1) of the NPW Act any person may bring proceedings in this Court for an order to remedy or restrain a breach of the NPW Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(ii) The protection afforded to “relics” under the Heritage Act

75 “Relic” is defined in s 4 of the Heritage Act as:

any deposit, object or material evidence:

(a) which relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and

(b) which is 50 or more years old.

76 Under s 32 of the Heritage Act a relic may be listed on the State Heritage Register if the Minister is of the opinion that the relic is of State heritage significance. Under s 24 of the Heritage Act a relic may be subject to an interim heritage order if the Minister considers that on further investigation it may be found to be of State or local heritage significance. Under s 25 of the Heritage Act a relic may be subject to an interim heritage order if a council authorised by the Minister considers that on further investigation it may be found to be of State or local heritage significance. Pursuant to s 30 of the Heritage Act an affected owner or occupier may appeal to the Court against the making of an interim heritage order by a council. Where an interim heritage order or listing on the State Heritage Register or permanent heritage order applies to a relic, there is a prohibition on moving, damaging, destroying, altering or carrying out development in relation to that relic without approval under s 57(1). The Minister may grant an exemption to s 57(1) under s 57(2).

77 Applications can be made for approval to move, damage, destroy, alter or carry out development in relation to relics listed on the State Heritage Register or subject to an interim heritage order under s 59 of the Heritage Act. In determining such applications, the approval body must have regard to the considerations listed in s 62 of the Heritage Act:

(a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage,

(b) the representations, if any, made with respect to that application under section 61(3),

(c) such matters relating to the conservation of that item or land as to it seem relevant, and

(d) such other matters as to it seem relevant.

78 Under s 70 of the Heritage Act, an applicant dissatisfied with the decision of the Heritage Council with respect to an approval may appeal to the Minister. Under s 70A of the Heritage Act, an applicant dissatisfied with the decision of a council with respect to an approval may appeal to the Court.

79 Section 139(1) of the Heritage Act provides that a person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit. Section 139(2) of the Heritage Act provides that a person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit. The Heritage Council has a discretion to grant a permit pursuant to s 141 of the Heritage Act. Pursuant to s 142 of the Heritage Act an applicant dissatisfied with a determination of the Heritage Council with respect to his or her application for a permit may appeal to the Minister. No appeal rights are available to other parties.

80 Pursuant to s 146B of the Heritage Act, a relic may be directed to be delivered to specified bodies or persons who have the facilities and expertise to conserve the relic. A relic that is the subject of a direction under s 146B is to be forfeited to the Crown under s 146C of the Heritage Act.

81 Under s 156 of the Heritage Act a person must not contravene or fail to comply with an interim heritage order, heritage listing or other order made in respect of a relic under the Heritage Act.

(iii) The protection afforded to “buildings” or “works” under the Heritage Act

82 “Building” is defined in s 4 of the Heritage Act as including “part of a building, a structure or a part of a structure”. “Work” is not defined in the Heritage Act.

83 Under s 32 of the Heritage Act a building or work may be listed on the State Heritage Register if the Minister is of the opinion that the building or work is of State heritage significance. Under s 24 of the Heritage Act a building or work may be the subject of an interim heritage order if the Minister considers that on further investigation it may be found to be of State or local heritage significance. Under s 25 of the Heritage Act a building or work may be subject to an interim heritage order if a council authorised by the Minister considers that on further investigation it may be found to be of State or local heritage significance. Pursuant to s 30 of the Heritage Act an affected owner or occupier may appeal to the Court against the making of an interim heritage order by a council. Where an interim heritage order or State Heritage Register listing applies to a building or work, there is a prohibition on moving, damaging, destroying, altering or carrying out development in relation to that building or work without approval pursuant to s 57(1)(c) of the Heritage Act. The Minister may grant an exemption to s 57(1) under s 57(2).

84 Applications can be made for approval to move, damage, destroy, alter or carry out development in relation to buildings or works listed on the State Heritage Register or subject to an interim heritage order under s 59 of the Heritage Act. In determining such applications, the approval body must have regard to the considerations listed in s 62 of the Heritage Act. Where an application for approval is made to demolish the whole of a building or work the approval body shall determine the application by refusal pursuant to s 63(2) of the Heritage Act. Under s 70 of the Heritage Act, an applicant dissatisfied with the decision of the Heritage Council with respect to an approval may appeal to the Minister. Under s 70A of the Heritage Act, an applicant dissatisfied with the decision of a council with respect to an approval may appeal to the Court.

85 Comparing these regimes is problematic because, as submitted by the Attorney-General’s counsel, it is necessary to consider their practical operation to determine if in fact there is any inequality of protection in practice. While there are some procedural and substantive differences, there are also broad similarities in that both Acts provide for interim protection orders as well as permanent protection albeit in different ways, require approvals before protected items can be damaged or destroyed and provide for appeals against the making of protection orders and approvals.

Finding on whether s 90 of the NPW Act is contrary to s 10 of the RD Act

86 On its face the prohibition on the destruction of Aboriginal objects in s 90 appears to provide wider protection than is the case with relics and buildings under the Heritage Act which do not enjoy such blanket protection. The fundamental underpinning of the Applicants’ counsel’s argument that the NPW Act provides less protection than the Heritage Act was that the legal protection of all Aboriginal objects regardless of their significance under s 90 was of little value because it could be removed by the exercise of the Director-General’s broad discretion to allow destruction of such objects.

87 In considering whether s 90 of the NPW Act is contrary to s 10 of the RD Act, I agree with the approach of the Director-General as to the effect of Country Energy. The decision in Country Energy does not hold that s 90 is an untrammelled power unconfined by conservation and protective purposes. Rather, Country Energy at [52] explicitly holds that the actual or potential conservation of the relevant Aboriginal object is to be taken into account. It is this interpretation of s 90 which is to be utilised when considering whether s 90 of the NPW Act is inconsistent with s 10 of the RD Act.

88 In terms of considering the practical operation of this section, there is only a small amount of evidence about the general approach of this delegate to the grant of s 90 consents to consider in relation to whether, as a practical matter, the regime under the NPW Act is inferior to the Heritage Act. Mr Naden’s oral evidence is that he has undertaken his current job of Manager of the Northern Aboriginal Heritage Unit in NPWS for eight years and has received about 30 applications per year under s 90 for consents to destroy. He has approved all of these, except one application which was refused and one deferred. The Court has no information about these numerous consents such as the areas or objects they relate to and any conditions imposed such as conservation measures, so that it is difficult to draw any conclusions about the extent to which Aboriginal heritage in the northern area of New South Wales is protected under the regime for issuing s 90 consents. As the level of significance or scarcity of the objects the subject of these applications is unknown I am unable to draw any conclusion on the impact of the high rate of approval of s 90 consents by this delegate on the conservation of Aboriginal heritage generally in the northern area of New South Wales for which he is responsible.

89 I do not therefore agree that the Applicants have demonstrated that s 90 of the NPW Act operates in a way which is discriminatory on the basis of race and no breach of s 10 of the RD Act has been demonstrated. The ultimate result is that the Applicants fail in their application that s 90 should be declared void in these proceedings.

Areas of difference

90 There are some differences that can be identified between the two Acts. Under the Heritage Act, the Minister has a discretion to place relics, buildings or works on the State Heritage Register. However, no such register is available for Aboriginal objects under the NPW Act, although they are subject to a general requirement for protection under s 90 of the NPW Act. Obtaining interim or permanent protection for relics or buildings under the Heritage Act is not automatic but rather subject to the exercise of discretion. Whether that protection is ultimately provided under the mechanisms specified in the Heritage Act depends on the exercise of the Minister’s discretion. Part 3A of the Heritage Act specifies the process for the listing of items on the State Heritage Register. Under s 32(1) of the Heritage Act the Minister may list an item on the State Heritage Register that the Minister considers is of State heritage significance, but only if the Heritage Council recommends the listing. Under s 33(1) of the Heritage Act, before recommending an item be listed on the State Heritage Register, the Heritage Council is required to give each person that it considers to be an affected owner or occupier written notice that it is going to consider whether or not to recommend the listing of the item concerned, and cause a notice of intention to consider listing to be published in a newspaper circulating in the area in which the item is situated, inviting submissions to be made with respect to the listing. The Heritage Council is then required to consider any submissions made before making a decision to recommend to the Minister that an item be listed on the State Heritage Register.

91 There are also differences in respect to the level of public consultation under the two Acts. Under s 61 of the Heritage Act, where an application for approval is made in respect of an item of environmental heritage and that application, if approved, would, in the opinion of the approval body, materially affect the significance of that item as an item of environmental heritage, the approval body must give public notice of that application in a daily newspaper circulating throughout the State. Pursuant to s 62, in determining an application, the approval body must consider any representations received within 21 days of the public notice. The NPW Act does not provide for a statutory public consultation process in respect of approvals or consent for activities in relation to, or the destruction of, Aboriginal objects or places.

92 I consider there may be issues as to whether there should be a remedy afforded to the Applicants in relation to the ability to utilise some mechanisms under the Heritage Act, but this falls outside the Applicants’ case, requires further argument and evidence in any event, and is not a matter in relation to which relief is sought. The Applicants are unsuccessful on this ground.

Issue 3(b) – The Director-General was bound to exercise her discretion in a manner consistent with the RD Act or failed to take into account the conservationist purpose to be accorded to Aboriginal objects under the NPW Act (SFAPOC 35A)

Applicants’ submissions

93 The Applicants argued that, in the alternative, the Director-General was bound to exercise her discretion in accordance with the provisions of the RD Act which required her to ensure that items of indigenous cultural heritage were treated in an equal fashion to non-indigenous items of cultural heritage. In the further alternative, the Director-General failed to take into account the protectionist purpose of the NPW Act.

Director-General’s submissions

94 The Director-General submitted that there was no additional constraint imposed on the Director-General to exercise her power pursuant to s 90 in accordance with the RD Act. In addition, there was no evidence that the Director-General failed to take into account the conservationist purpose to be accorded to Aboriginal objects under the NPW Act.

95 Mr Condon and North Angels adopted the submissions of the Director-General on this issue.

Finding on issue 3(b)

96 It is not required that the Director-General’s delegates specifically consider s 10 of the RD Act when exercising a discretion to grant a consent to destroy under s 90. There is evidence that the Director-General’s delegate did consider the cultural significance of the Aboriginal objects on the site. Given my earlier finding that s 90 is not void by virtue of s 10 of the RD Act, it is difficult to see how the Director-General’s discretion is somehow “fettered” by s 10 in the context of the NPW Act. The Applicants are unsuccessful on this ground.

Issue 4 - Legitimate expectation/Procedural fairness (SFAPOC 36-54)

97 It is necessary to set out in detail the background surrounding the grant of the s 90 consent and the earlier s 87 consent issued over the site. The site has been cleared at an earlier time and again in 1972 and 1983. Prior to 2002 the site was the subject of a number of archaeological surveys which were associated with, or in response to, various development proposals. It is apparent from each of those reports that the site contains Aboriginal objects.

98 On 4 September 2002, North Angels lodged an application for a consent under s 87 of the NPW Act to conduct an archaeological survey for preliminary research purposes on the site. After receiving the application, the relevant NPWS officers attended two meetings with North Angels and Jali LALC representatives, and sought submissions from Jali LALC in relation to the application.

99 On 13 November 2002 Mr Naden and Ms Susan Davies, an archaeologist, met with Jali LALC to discuss the s 87 application. Present at the meeting were both Applicants, their son the Chair of Jali LALC, Mr Troy Anderson, Mr Darryl Creighton, coordinator of Jali LALC, and Ms Paden, convenor of Jali LALC. According to the NPWS file note Mr Naden was informed that:

100 On 21 November 2002, Mr Naden received a letter from Mr Creighton, the coordinator of the Jali LALC. The letter requested that Mr Naden issue a statement in writing that stated that no further consents would be granted to allow any future development to proceed at the site. The letter also stated that if development proceeded an interim protection order would be requested over the site under s 91A of the NPW Act.

101 On 22 November 2002, Mr Douglas Anderson attended a meeting with Mr Naden and Ms Rebecca Edwards-Booth, an NPWS archaeologist, in relation to the s 87 application. At the meeting the NPWS officers informed Mr Douglas Anderson that they were considering granting a permit under s 87. Mr Douglas Anderson told the NPWS officers that he did not want any of the site to be disturbed because he was worried that it would affect the remains of his ancestors which he knew to be buried there and that there was a bora ring in the northern part of the site. Subsequently, Mr Douglas Anderson informed the NPWS officers that he did not support the issue of a consent under s 87 that would allow disturbance of the site.

102 On 9 December 2002, Mr Naden wrote to the Jali LALC seeking comments in relation to the s 87 consent. The letter stated:

The National Parks and Wildlife Service (NPWS) are in receipt of a request for us to issue a Preliminary Research Permit for the above proposed development area. The NPWS are now seeking written comments from Jali LALC and the Aboriginal community regarding any concerns or objections you may have.

…

It is there requested that a written response be forthcoming within the next fourteen days (ie 23 December 2002) for NPWS to finalise this matter.

103 On 20 December 2002, Mr Troy Anderson wrote to Mr Naden expressing concerns that some digging on the site had commenced and that feedback from the community gave a strong suggestion of objection to any kind of development on the site given its extreme cultural significance.

104 On 23 December 2002 a consent was issued pursuant to s 87 of the NPW Act to carry out an archaeological survey for preliminary research purposes on the site subject to several conditions. Ms Davies, on behalf of North Angels, commenced the survey on 8 January 2003.

105 On 24 January 2003, Ms Edwards-Booth wrote to North Angels outlining the terms of reference for an anthropological investigation, as the NPWS was of the view that the Angels Beach site retained anthropological value, with a copy sent to Jali LALC. The letter stated:

Aboriginal Community Involvement

· All research and investigation is to be conducted wherever possible in consultation with relevant Aboriginal community members.

· All knowledge-holders are to and persons having information relevant to the study area are to be listed and their links to the study area are to be discussed

· The issue of intellectual property rights is to be discussed with the participants in the project and appropriate agreements are to be entered into with participants regarding the use and distribution of their information

· Visits to the study area should be encouraged and facilitated as far as possible and conducted either singly or in groups at the discretion of the consultant and in accordance with the wishes of the project contributors.

… The timing of the project is also at the discretion of your company, but should be organised to ensure that the Aboriginal participants in the study do not feel pressured to provide information within an overly short or constrained timeframe.

106 On 7 February 2003, Ms Edwards-Booth sent a facsimile to Jali LALC in relation to the submission of Ms Davies’ archaeological report. The facsimile states:

NPWS will await the submission of the final archaeological report… We would expect that the final report would incorporate the views of the Land Council.

We look forward to seeing Jali’s response to the results of the investigations.

107 On 12 February 2003 a meeting involving Mr Condon, Mr Artie Ferguson, described as the “Jali LALC Sites Officer”, and Ms Davies, as well as several others, took place at the Jali LALC office. The minutes of that meeting state:

3. Mr Condon confirmed that following the meeting held at Jali on 9 December it had been decided to undertake the archaeological and anthropological studies and that JALI (and other interested Aboriginal people) would be given the opportunity to have input into that report.

108 On 26 February 2003, Mr Condon wrote a letter to Jali LALC in relation to the draft report of Ms Davies. Mr Condon stated:

As promised, JALI will be provided with a copy of the first draft, as will National Park & Wildlife Service in Coffs Harbour. For obvious reasons it would be preferable for JALI to have their comments and suggestions included.

109 On 27 February 2003, Mr Condon wrote a letter to Jali LALC in relation to the reports of Ms Davies and Dr Weiner. Mr Condon reiterated his availability to meet with Jali LALC and discuss the matter.

110 On 4 March 2003 North Angels lodged an application for a consent to destroy Aboriginal objects under s 90 of the NPW Act. The application contained a letter of support from the Jali LALC sites officer Mr Ferguson.

Director-General’s submissions

186 While the SFAPOC refer to the cultural significance of the land, what is in issue is the significance of the Aboriginal objects on the site. The Director-General submitted that her delegate did not fail to consider the cultural significance of the Aboriginal objects on the site. The Director-General argued that her delegate took into account the February 2003 report and the draft supplementary report which summarised the pending final supplementary report. Further, Mr Naden gave evidence of a telephone call with Dr Weiner immediately prior to issuing the consent and in which he was made aware of the conclusions of the final supplementary report. In any case, the Director-General submitted that there was nothing in Dr Weiner’s final supplementary report that altered the conclusions of his supplementary report which was taken into account.

Mr Condon’s and North Angels’ submissions

187 Mr Condon and North Angels submitted that the cultural significance of the land was not a matter that the Director-General was obliged to have regard to, and accordingly, that any failure to consider the matter did not amount to an error. The s 90 application concerned Aboriginal objects, not an Aboriginal place as defined, nor land reserved as an Aboriginal area under s 30K of the NPW Act. While the significance of Aboriginal objects was a matter to which the Director-General’s delegate had to have regard, as a matter of law, Dr Weiner’s final supplementary report was not a matter to which Mr Naden was obliged to have regard. In any event, the substance of Dr Weiner’s conclusions were considered, both by way of a lengthy conversation between Mr Naden and Dr Weiner and by Dr Weiner’s draft report, which apart from interview transcripts, sets out virtually all the substantive matters contained in the final supplementary report.

188 Further, Mr Condon and North Angels submitted that the Director-General did have regard to the cultural significance of the site. This was clear from the terms of the consent itself which provide for the protection and salvage of significant objects, and the special condition attached to the consent requiring reservation and dedication of the land as a special purpose Aboriginal Heritage Conservation Area. The whole course of correspondence, as well as the decision-maker’s affidavit, shows that the decision-maker was aware from the outset of the claims of significance, set out to evaluate them, and reached a conclusion that was clearly open on the evidence, even having regard to the material contained in the Davies report, and the Weiner reports.

Findings on issue 5(i)

189 I have set out already in the finding on issue 2 the pertinent case law to consider in determining whether a relevant consideration has been ignored where the statute does not provide for any mandatory matters to be considered; see Sean Investments, Peko. The context of the NPW Act and the objects of the NPW Act clearly suggest that cultural significance is a relevant consideration for the Director-General’s delegate to consider in any assessment of a s 90 consent. This is particularly clear from s 2A(1)(b)(i) of the NPW Act.

190 Dr Weiner compiled three reports detailing the anthropological significance of the site: (i) the February 2003 Report (see par 111 above), (ii) the draft supplementary report (see par 125 above). Following the submission of the draft supplementary report, the NPWS requested further information from Dr Weiner as stated in par 126 – 128 above and the final supplementary report (see par 131 above) was then provided after the s 90 consent was issued.

191 The Respondents submitted that the Applicants were attempting to elevate to a mandatory level the consideration of all matters about which Mr Naden considered he should be informed, relying on Price v Elder (2000) 97 FCR 218. That case dealt with whether there is an obligation to make further inquiry because an applicant raised material which, had the inquiry been made based on that material, further relevant information would have been forthcoming. The Full Federal Court held that there was no such obligation. I consider the circumstances here are different in that the test of relevance must be determined by a consideration of the scope and purpose of the legislation and the role that Dr Weiner’s report played in advising Mr Naden of matters relating to cultural significance about which he was required to be informed in order to discharge his obligation under the NPW Act.

192 The evidence and submissions about the significance of the Aboriginal objects relied on by the Applicants and their counsel has included the reliance on the presence of the objects at the particular Angels Beach site because of the cultural associations of the Bandjalung people to the site. The pleadings and the Applicants’ arguments refer to the failure to take into account the significance of the land rather than just the objects, a matter about which the Respondents criticised the Applicants’ case. The Applicants’ evidence deals with the use of the land and events at the site over many generations, inter alia, as one reason why the objects are significant. I do not consider the Applicants’ evidence and submissions in relation to the significance of the objects as evidence of that use of the land should be discounted as the Respondents suggest. This is made clear in Dr Weiner’s final supplementary report at p 15, where he states that Aboriginal objects have substantial significance for their traditional owners because they are associated with human activity.

193 The connection between the land and the Aboriginal objects is recognised in the anthropological reports of Dr Weiner where he holds that the site was a site of significance for the local Bandjalung custodians. The final supplementary report was specifically requested by NPWS as part of the processing of the s 90 consent in order to ensure the delegate was properly informed about relevant matters. I accept the Applicants’ submissions that in the context of this application Dr Weiner’s final supplementary report did contain material which was relevant to the question of the significance of the objects on the land as is made clear by the comparative table relied on in the Applicants’ submissions in reply. Cultural significance of the site was a relevant consideration, and it is important that that consideration is based upon the most recent and accurate information the decision-make has on hand. In Peko, Mason J stated at 45 that:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

194 There were several matters addressed in Dr Weiner’s final supplementary report that were not addressed in his draft supplementary report. The final supplementary report includes transcripts of interviews with a number of Aboriginal people who are traditional owners of the site, including Mr Douglas Anderson which are not contained in the draft supplementary report. The final supplementary report also attaches several documents, which are not attached to the draft supplementary report, such as a copy of a written story depicting the local history of the site, notes of an audio tape owned by Mr Ferguson, notes on a video tape owned by the Andersons, and a hand drawn map of the site showing “sleeping goanna”.

195 While the overall conclusions of the report were known to Mr Naden, as the Respondents sought to emphasise, he could not have been aware of all the detail contained in the report given the lengthy interviews enclosed with it including two interviews with one of the Applicants, Mr Douglas Anderson.

196 In relation to the oral evidence of a phone call made by Mr Naden to Dr Weiner on 27 or 28 of May 2003, which was omitted from his affidavit despite it purporting at par 20 to include all relevant matters, I have trouble accepting that all of the detailed material identified in the final supplementary report was communicated in that telephone discussion. I also note that under cross-examination Mr Naden had difficulty recalling which day he had the phone call with Dr Weiner and it is not clear that he did in fact have that discussion before or after he issued the s 90 consent.

197 Accordingly, in the context of the NPW Act and the purpose manifest in the objects of the Act to which Mr Naden is bound to give effect I consider that his failure to review the final supplementary report of Dr Weiner prior to granting the s 90 consent resulted in a failure to take into account relevant mandatory material. Mr Naden was required to consider the most recent and comprehensive information, being the final supplementary report, which was known by him to be in preparation. Without considering the final supplementary report of Dr Weiner, Mr Naden could not have fully appreciated the extent of the cultural significance of the site. The Applicants are successful on this ground.

198 In addition, I should note that it is the evidence of the Applicants that as a result of the issue of this s 90 consent one of the last intact areas of their ancestors would be destroyed. Regarding the Angels Beach site, the southern half of Angels Beach has already had a consent to destroy issued in 1990 in relation to it and a residential subdivision has been built there. The affidavits of the Applicants, Mr Douglas Anderson and Ms Susan Anderson, both state that the issuing of the s 90 consent in this case will lead to “one of the last areas of my ancestors that is still intact being destroyed” suggesting that this land and the objects in it has considerable significance for them.

199 There is no reference in Mr Naden’s affidavit or oral evidence to the principles of ESD which he is required to apply under s 2A(2) in achieving the objects of the Act. One of the principles of ESD is that of inter-generational equity. He is not literally required by the NPW Act to refer to these but in the circumstances of this case it is striking that he has not referred to issues relevant to an assessment of significance from an inter-generational perspective. This is particularly so in light of the Applicants’ claim that the reason this site was so important to them was because of the destruction on the other half of Angels Beach of Aboriginal objects significant to the Bandjalung people. A subdivision was built on that site in the early 1990s at which time a consent to destroy under s 90 was also issued. Inter-generational equity is the principle whereby the present generation should ensure that the health, diversity and productivity of the environment be maintained or enhanced for the benefit of future generations (Protection of the Environment Administration Act 1991 s 6(2)). A key matter attested to in the Applicants’ affidavits and evidence in the case is the importance to Aboriginal people of sites where their ancestors have been present demonstrated by, inter alia, the presence of objects which they consider significant by virtue of that association. Obviously the fewer of these sites that remain the less opportunity there will be for future generations of Aboriginal people to enjoy the cultural benefits of those sites.

200 I have set out at par 173 the relevant parts of Mr Naden’s affidavit dealing with midden sites where he states there are 126 registered midden sites for the Ballina, Byron and Tweed Local Government Areas. In cross-examination he said he was unaware of how many of these may have been the subject of a s 90 consent to destroy. In order for an essential analysis of significance to be undertaken as required by the ESD principles, Mr Naden should have undertaken or ensured was undertaken an analysis of how many intact middens relevant to the Bandjalung people remained in the immediate area. It would appear that a consideration of the cumulative impact of destruction of Aboriginal objects of significance to Aboriginal traditional owners is relevant to the assessment of significance of particular objects in any s 90 consent application. I consider there has been a failure on Mr Naden’s part to take into account the significance of the objects in this context and that this is a relevant consideration to which he should have had regard before issuing the s 90 consent.

201 The Applicants are successful on this ground.

Issue 5(ii) The nature of any proposed development

Applicants’ submissions

202 The Applicants submitted (SFAPOC 59-62) that in order to properly carry out her functions under the NPW Act, the Director-General was required to consider the full extent of the development proposed in order to determine whether the grant of the s 90 consent would be consistent with the objects and purposes of the NPW Act. The Applicants argued that in the absence of any documents detailing the proposed development being before the Director-General’s delegate, this matter could not have been given due consideration.

Director-General’s submissions

203 The Director-General submitted that her delegate was fully aware of and took into account the fact that the development was going to be for residential purposes. Accordingly, the Director-General did not fail to consider the likely future development on the site.

Mr Condon’s and North Angels’ submissions

204 Mr Condon and North Angels submitted that the likely future development of the land was not a matter that the Director-General was obliged to have regard to and, accordingly, that any failure to consider the matter did not amount to an error. Reliance was placed on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds for judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

Finding on issue 5 (ii)

205 There is no specific requirement in the NPW Act that the nature of the development proposed be taken into account. However, it must be axiomatic that as part of the process of determining whether a s 90 consent to destroy ought be issued, the nature of the development intended to be undertaken must be considered otherwise it would be impossible to determine what, if any, conditions should be imposed to ensure the conservation of Aboriginal objects of significance to Aboriginal people as required by s 2A(1)(b)(i) of the NPW Act. The application for the s 90 consent identified the intended development for the site was residential subdivision. For the Applicants to succeed I have to find that obtaining further detail of the proposed subdivision was a mandatory relevant consideration before Mr Naden could issue the s 90 consent. The Applicants did not make any written submissions on this issue and I am not entirely clear on what basis it is argued beyond what is in the SFAPOC.

206 The primary relevant evidence could be considered to be the memorandum of Ms Edwards-Booth objecting to the grant of the s 90 consent. In her memorandum dated 28 May 2003 to Mr Naden stating her opposition to the grant of the s 90 consent, Ms Edwards-Booth stated that while NPWS policy in regard to processing s 87 and s 90 consents does not require that the applicant have an approved development consent prior to lodging an application, in her view it was NPWS best practice to await evidence of approval of the relevant development or building plans prior to processing s 90 applications. In Ms Edwards-Booth’s view, the grant of a s 87 or s 90 consent prior to the grant of an approved development application, placed the NPWS in a weakened position with regard to the management and protection of Aboriginal objects if, for example, a developer chose to substantially change its proposal and the proposed impacts on the site. Accordingly, in her memorandum, Ms Edwards-Booth concluded that the s 90 application should be refused or resubmitted at a later date when a development application had been approved.

207 While there would appear to be sound policy reasons for Ms Edwards-Booth’s views in her memorandum the fact that she disagreed with Mr Naden’s approach in issuing the s 90 consent before development consent was granted on the basis of plans which would then be available to the NPWS, does not render those plans or similar information a relevant consideration. The Applicants are unsuccessful on this ground.

(iii) The opinions of the Applicants
Applicants’ submissions

208 The Applicants submitted that as the Director-General failed to consider detailed comments provided by the Applicants in determining the s 90 application, the consent was invalid and of no effect. The Applicants argued that prior to the grant of consent, the Director-General failed to consider a centrally relevant matter, being the opinions of the Applicants and Jali LALC. Rather, the Director-General relied on letters in support of the s 90 consent from Mr Lewis Cook, the cousin of Mr Douglas Anderson, and Mr Ferguson, neither of whom represented the views of Jali LALC. On 12 May 2003, Ms Paden wrote to Mr Naden raising concerns about the adequacy of the archaeological surveys and the need for further detailed investigation. In the absence of consideration of any further detailed comments from the Applicants, the Director-General erred.

Director-General’s submissions

209 On the facts, the Director-General argued that the opinions of the Applicants were considered by the Director-General. Many attempts were made to obtain the views of representatives of Jali LALC, but these representatives generally did not attend the scheduled meetings. The Director-General argued that a proper reading of the evidence discloses that her delegate was at pains to involve the Jali LALC, including the Applicants, and that these efforts were ignored.

Mr Condon’s and North Angels’ submissions

210 Mr Condon and North Angels submitted that contrary to the Applicants’ contentions, the Director-General did take into account their opinions in determining to grant the s 90 consent.

Finding on (iii)

211 It is clear from the evidence that the Director-General’s delegate did make substantial efforts to seek the views of the Applicants and the Jali LALC and was aware of their views. On 21 November 2002, Mr Naden received a letter from Mr Creighton, the coordinator of the Jali LALC requesting a statement in writing that stated that no further consents would be granted to allow any future development to proceed at the site. The letter also stated that if development proceeded, an interim protection order would be requested over the site under s 91A of the NPW Act. In his affidavit, Mr Douglas Anderson states that he attended a meeting with Mr Naden and Ms Edwards-Booth on 22 November 2002 where he told the NPWS officers that he did not want any of the site to be disturbed because he was worried that it would affect the remains of his ancestors which he knew to be buried there. Subsequently, Mr Douglas Anderson informed the NPWS officers that he did not support the issue of a licence that would allow disturbance of the site.

212 In the affidavit of Mr Troy Anderson, he stated that in a letter dated 20 December 2002 he wrote to Mr Naden expressing concerns that some digging on the site had commenced and that feedback from the community gave a strong suggestion of objection to any kind of development on the site given its extreme cultural significance. On 12 February 2003 a meeting took place between NPWS officers and Mr Ferguson at the Jali LALC office (see par 107 above) and on 11 April 2003 a further meeting took place between Jali LALC, including the Applicants, and members of the NPWS. Mr Naden was also provided with information of an interview conducted by Dr Weiner with Mr Douglas Anderson in Dr Weiner’s draft supplementary report.

213 In addition, in his affidavit Mr Naden gave evidence of letters of support from Mr Ferguson and Mr Cook, the cousin of Mr Douglas Anderson, attached to the s 90 application dated 4 March 2003. Neither Mr Ferguson nor Mr Cook had objections to the grant of the s 90 consent. While the Applicants argued that Mr Ferguson did not represent the views of Jali LALC, on the evidence I do not consider that it was unreasonable for the NPWS to consider he was the Jali LALC sites officer. While on 20 May 2003 Mr Ferguson’s employment as a sites officer of the Jali LALC was terminated, as outlined at par 156 above, Mr Ferguson was previously described as a sites officer of Jali LALC for the period during which the s 90 consent was proposed.

214 On the evidence it appears that the Applicants never asserted an interest separate to Jali LALC. They participated in meetings as representatives of Jali LALC, including on 11 April 2003. The Applicants were aware that the they had until 12 May 2003 to provide comments to Mr Naden, and on 12 May 2003, Mr Naden was sent a letter by Jali LALC indicating that in its view further archaeological work was needed to be done.

215 I consider the Applicants’ views were broadly known to the delegate at the time this decision was made. The Applicants are therefore unsuccessful on this ground.

Orders

216 For the reasons stated above in issue 5(i) I intend to make declaratory order 1 in the Amended Application Class 4. However, it is not clear to me that I need to make the consequential orders sought in prayers 2 and 3 of the Amended Application Class 4. If the Applicants wish to seek further orders pursuant to prayers 2 and 3 of the Amended Application Class 4 they should arrange for the matter to be placed back in the list. The Court makes the following orders:

1. A declaration that the National Parks and Wildlife Act 1974 s 90 Consent #1667 granted by the Director-General to the Second Respondent on the 29 May 2003, in respect of land described as Lot 208 DP 851318, Angels Beach Drive, East Ballina, New South Wales is invalid and of no effect;

2. Costs are reserved.

CITATION:	Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors [2006] NSWLEC 12
PARTIES:	APPLICANTS: Douglas Anderson Susan Anderson FIRST RESPONDENT: The Director-General of the Department of Environment and Conservation SECOND RESPONDENT: Christopher Condon THIRD RESPONDENT: North Angels Beach Development (Ballina) Pty Limited FOURTH RESPONDENT: The Attorney-General of New South Wales
FILE NUMBER(S):	41501 of 2004
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- whether decision to grant consent to destroy Aboriginal objects ultra vires - whether failure to consider relevant matters - whether decision to grant consent contrary to Racial Discrimination Act 1975 (Cth) s 10
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 s 51 Commonwealth of Australia Contitution Act 1900 (Imp) s 76, s 77, s 109 Heritage Act 1977 s 4, s 24, s 25, s 30, s 32, s 57, s 59, s 62, s 63, s 70, s 70A, s 139, s 141, s 142, s 146B, s 146C, s 156 Interpretation Act 1987 s 33 Judiciary Act 1903 (Cth) s 39, s 78A National Parks and Wildlife Act 1974 s 2A, s 4, s 5, s 81, s 83, s 85, s 87, s 89, s 90, s 91A, s 91B, s 91C, s 91H, s 176A National Parks and Wildlife Amendment Act 2001 Protection of the Environment Administration Act 1991 s 6(2) Racial Discrimination Act 1975 (Cth) s 10
CASES CITED:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541; Country Energy v Williams; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426; Gerhardy v Brown (1985) 159 CLR 70; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Packham v Minister for the Environment (1993) 31 NSWLR 65; Price v Elder (2000) 97 FCR 218; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363; Western Australia v Ward (2002) 231 CLR 1; Williams v Director-General Department of Environment and Conservation & Ors [2005] NSWLEC 165; Williams v Director-General National Parks and Wildlife Service & Ors (2003) 127 LGERA 354; Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710
DATES OF HEARING:	16/08/2005 17/08/2005 18/08/2005 25/08/2005 (written submissions) 06/10/2005 (written submissions) 07/10/2005 (written submissions) 11/10/2005 (written submissions)
DATE OF JUDGMENT:	01/17/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Robertson SC and Ms L Byrne (barrister) SOLICITORS: Environmental Defenders Office FIRST AND FOURTH RESPONDENTS: Mr S Gageler SC and Mr N Perram (barrister) SOLICITORS: State Crown Solicitor's Office SECOND AND THIRD RESPONDENTS: Mr N Williams SC and Mr D Wilson (barrister) SOLICITORS: Bourke Love McCartney Young