Anderson v Director-General of the Department of Environment and Climate Change - [2008] NSWCA 337

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337

FILE NUMBER(S):
40274/08

HEARING DATE(S):
12 November 2008

JUDGMENT DATE:
4 December 2008

PARTIES:
Douglas and Susan Anderson on behalf of the Numbahjin Clan within the Bundjalung Nation
Director General of the Department of Environmental and Climate Change
North Angels Beach Development (Ballina) Pty Ltd

JUDGMENT OF:
Spigelman CJ Tobias JA Macfarlan JA

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LC 40257/08

LOWER COURT JUDICIAL OFFICER:
Lloyd J

LOWER COURT DATE OF DECISION:
3 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Anderson & Anor v Director-General of the Department of Environment and Climate Change & Anor [2008] NSWLEC 182

COUNSEL:
A: C J Leggat / B K Nolan
1R: R Pepper
2R: M J Williams SC / A M Mitchelmore

SOLICITORS:
A: Environmental Defenders Office, Sydney
1R: Department of Environment and Climate Change, Sydney
2R: Bourke Love McCartney Young, Lismore

CATCHWORDS:
ABORIGINALS – Protection of Aboriginal heritage – Director-General of National Parks and Wildlife – Proposed residential development – Issue of consent to destroy, deface or damage Aboriginal objects – Meaning of ‘Aboriginal objects’ – Whether cultural significance of land enhanced by asserted relation between objects and spiritual beliefs or historical events
ADMINISTRATIVE LAW – Environmental law – Judicial review – Grounds of review – Relevant consideration – Whether test of ‘proper, genuine and realistic consideration’ of relevant issue appropriate – Inter-generational equity – Whether decision maker misdirected self in relation to meaning of inter-generational equity – Cumulative impact of development on local Aboriginal heritage – Relevant matters considered and not merely adverted to – Dangers of impermissible merits review
.

LEGISLATION CITED:
National Parks and Wildlife Act 1974 (NSW)
Protection of the Environment Administration Act 1991 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Anderson & Anor v Director-General of the Department of Environment and Climate Change & Anor [2008] NSWLEC 182
Anderson & Anor v Director-General of the Department of Environment & Conservation & Ors [2006] NSWLEC 12; (2006) 144 LGERA 43
Azriel v NSW Land & Housing Corporation [2006] NSWCA 372
Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450
Broad Henry v Director-General Department of Environment and Conservation & Anor [2007] NSWLEC 722; (2007) 159 LGERA 172
Bruce v Cole (1998) 45 NSWLR 163
Country Energy v Williams [2005] NSWCA 318; (2005) 63 NSWLR 699
Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253
Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
LEK v Minister for Immigration, Local Government & Ethnic Affairs (1993) 117 ALR 455
Mendoza v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 405
Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
Notaras v Waverley Council & Anor [2007] NSWCA 333
Turner v Minister for Immigration & Ethnic Affairs (1981) 55 FLR 180
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181

TEXTS CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40274/08
SPIGELMAN CJ
TOBIAS JA
MACFARLAN JA
Thursday 4 December 2008

DOUGLAS AND SUSAN ANDERSON ON BEHALF OF THE NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION v DIRECTOR GENERAL OF THE DEPARTMENT OF ENVIRONMENT & CLIMATE CHANGE & ANOR

Judgment

SPIGELMAN CJ: I agree with Tobias JA.
TOBIAS JA: The second respondent is the owner of a parcel of land known as Lot 208 in Deposited Plan 851318 (Lot 208) situated on the northern side of Angels Beach Drive, Ballina. It has an area of 10.52 hectares. Located upon Lot 208 are shells and artefacts each of which fall within the definition of an “Aboriginal object” in s 5(1) of the National Parks and Wildlife Act 1974 (NSW) (the NPW Act).
The second respondent wishes to develop Lot 208 as a residential subdivision comprising 63 lots. Any earthworks associated with such a development will result in the destruction of, or damage to, the Aboriginal objects. Such destruction or damage is prohibited by s 90(1) of the NPW Act unless the consent of the first respondent, the Director-General of the Department of Environment & Climate Change, is first obtained.
Thus on 4 March 2003 an application was made by the second respondent to the first respondent for a consent under s 90 of the NPW Act which was relevantly granted by the first respondent’s delegate on 3 October 2007 subject to conditions (the Permit). On 14 March 2008 the appellants filed an application in the Land and Environment Court seeking, relevantly, a declaration that the granting of the Permit was invalid and that it was therefore void and of no effect.
That application was heard by Lloyd J who on 3 June 2008 ordered that it be dismissed: Anderson & Anor v Director-General of the Department of Environment and Climate Change & Anor [2008] NSWLEC 182. It is from that decision that the appellants now appeal to this Court.
History of the litigation
The second respondent purchased Lot 208 in 2002. On 29 May 2003, in response to the s 90 application of 4 March 2003, the first respondent’s delegate issued a consent under s 90(2) of the NPW Act to destroy, deface or damage Aboriginal objects on the majority of the land for the purpose of constructing the subdivision. On 17 January 2006 Pain J declared that consent invalid on two grounds. The first was the failure of the delegate to consider a final report of Dr James Weiner, an anthropologist, with respect to the cultural value of Lot 208 including the anthropological significance of the Aboriginal objects therein. The second was the lack of consideration by the delegate of the cumulative impacts of the proposed development on Aboriginal objects in the region as required under the ecologically sustainable development principle of inter-generational equity: Anderson & Anor v Director-General of the Department of Environment & Conservation & Ors [2006] NSWLEC 12; (2006) 144 LGERA 43 (Anderson No 1).
On 16 October 2006 the first respondent reconsidered the second respondent’s application for a s 90 consent and issued a fresh consent. For reasons not presently relevant, on 28 November 2006 that consent, at the first respondent’s request, was declared to be void and of no effect by the Land and Environment Court.
On 29 December 2006 the appellants advised the first respondent that they had withdrawn their objections to the second respondent’s s 90 application. Accordingly, on 23 April 2007 the first respondent again reconsidered the application and re-issued the consent. However, the appellants then changed their minds, withdrew their support for the application and reinstated their objections. On 15 August 2007 the Land and Environment Court made orders by consent allowing the first respondent to withdraw the re-issued consent.
The challenge by the appellants to the Permit was the fourth in response to the original application submitted by the second respondent on 4 March 2003 for the grant of a consent under s 90. Their Points of Claim filed on 2 April 2008 identified five grounds of challenge:

“(a)First Ground – the decision maker failed to take into account a relevant consideration, namely, they did not give proper, genuine and realistic consideration to the cultural significance of the land in Lot 208 and Aboriginal objects;
(b)Second Ground – the decision maker failed to take into account a relevant consideration, namely, they did not give proper, genuine and realistic consideration to the opinions of the [appellants];
(c)Third Ground – the decision maker failed to make enquiries and the decision is therefore manifestly unreasonable and/or illogical and irrational;
(d)Fourth Ground – the decision maker was affected by bias;
(e)Fifth Ground – the decision maker failed to consider a relevant consideration by failing to give proper, genuine and realistic consideration to inter-generational equity.”

The primary judge found against the appellants with respect to all five grounds. Only the fifth ground is sought to be agitated on the appeal. However, it is framed somewhat differently in the appellants’ Notice of Appeal, namely,
“The first respondent failed to take into account a consideration made relevant by the Act, namely:
i.The first respondent misdirected itself and/or asked itself the wrong questions as to what was required of it in its consideration of the principles of ecologically sustainable development, namely inter-generational equity as it is correctly understood in the context of the Act;
and/or in the alternative,
ii.By failing to construe the Act correctly as it pertained to giving effect to the conservation of objects, places or features of significance to Aboriginal people by applying the principles or ecologically sustainable development, namely inter-generational equity, the first respondent, so misdirected, formed an opinion not reasonably open to it.”
The statutory provisions relevant to inter-generational equity
Section 2A(3) of the NPW Act obligates the first respondent when carrying out his functions, which would include the determination of an application for a s 90 consent, to give effect to the objects of the Act. Relevantly, s 2A(1) provides that the objects of the Act are, inter alia,
“(b)The conservation of objects, places or features … of cultural value within the landscape including, but not limited to:
(i)places, objects and features of significance to Aboriginal people …”
Section 2A(2) provides as follows:
“The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.”
It was common ground that the principles of ecologically sustainable development were those referred to in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). That provision is relevantly in the following terms:
“(2)… Ecologically sustainable development requires the effective integration of the economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through implementation of the following principles…:
(a) …
(b)inter-generational equity – namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.”
The response of the second respondent to Anderson No 1
In their Points of Claim filed in the Land and Environment Court on 2 April 2008, the appellants pleaded their fifth ground of challenge by setting out in paras 35, 36 and 37 the statutory provisions to which I have referred above and then alleging the following:
“38.The First Respondent failed to consider inter-generational equity by not properly considering the cumulative impacts of the destruction of the site, and its substantial significance to the [appellants].”
Paragraph 38 of the Points of Claim was, I would infer, founded upon the second ground of invalidity articulated by Pain J in Anderson No 1. To put it in context, it is necessary to cite the following paragraphs of her Honour’s judgment (at 91-92):
“198In 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.
199There 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.
200I 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.” (Emphasis added)
In response to that part of [200] of Pain J’s judgment which I have emphasised, the second respondent engaged Ms Susan Davies, Archaeologist, a director of Davies Heritage Consultants Pty Limited, (Ms Davies) to prepare a Cumulative Impact Assessment in accordance with Terms of Reference prepared by the Manager Planning & Aboriginal Heritage (North East) of the Department of Environment and Conservation (NSW). Those Terms of Reference required identification and assessment of the Aboriginal heritage values on Lot 208; the identification and assessment of Aboriginal heritage values in the study area (which was defined in the Terms of Reference to be the land surrounding Lot 208 and likely to have similar Aboriginal objects to the sites described in the application made under s 90 of the NPW Act) and to map the number and location of other relevant sites in the study area
“as part of considering any cumulative and inter-generational impacts of the development on Aboriginal heritage values in the study area compared to Lot 208”.
Further, the Terms of Reference required discussion as to
“how the proposal considers inter-generational equity, including in relation to the number, type and significance of the Aboriginal objects that are the subject of the present application.”
There was no challenge by the appellants to the adequacy of the Terms of Reference.
In response to the Terms of Reference, Ms Davies produced a Cumulative Impact Assessment (the CIA) dated 12 September 2006. The text of the CIA (excluding attachments) extended over 55 pages. Again, there was no suggestion by the appellants that the CIA did not adequately address the Terms of Reference.
The relevant context of the CIA
Ms Davies had previously assessed the heritage values on Lot 208 in 2003 but noted at the outset of Part 5 of the CIA that that assessment had been updated with additional information in relation to the archaeological significance (representativeness value) of the Aboriginal objects on Lot 208 as well as additional information in relation to the cultural significance of that land provided by the Jali Local Aboriginal Land Council (Jali LALC). The assessment of heritage values was divided into two sections, the first being the scientific or archaeological significance of the material located on Lot 208 and the second being their cultural significance.
As to the former, Ms Davies concluded that the archaeological material on Lot 208 had been severely compromised and was considered to offer very low research potential. Based on the information now available, it was considered unlikely that that material had high representative value. She concluded:
“…It is not a good example of this particular type of site primarily as a result of the extensive disturbance that has occurred (including the unauthorised collection of stone artefacts). Additionally, there are at least 21 (and possibly more) of 47 potentially similar sites that are better examples of this particular site type.”
Under the heading “Cultural Significance”, Ms Davies noted the conclusions of various studies including that of Dr Weiner that Lot 208 had a high heritage value. However, as a result of consultation undertaken for the present study, the Jali LALC had provided a letter which noted that following discussion with the Jali Cultural and Heritage Sub-committee,
“[i]t was the collective opinion of the committee that, having regard to the several documents and tabulations presented and noting the relatively low significance afforded Lot 208 in the context of higher rating for other sites, the likelihood of significant Indigenous values being uncovered on that Lot was low and further, the process of evaluation of that Lot was considered appropriate.”
It would appear that the Jali LALC is the incorporated body responsible for Aboriginal issues within the area formerly inhabited by the tribal group known as the Bundjalung Nation. The latter comprised a number of tribes or clans including the Numbahjing Clan to which the appellants belonged and of which the first appellant was an Elder and thus one of the traditional owners of the Clan’s land which included Lot 208.
In Part 6 of the CIA, Ms Davies identified and assessed the Aboriginal heritage values in the study area. In her summary in para 6.6 she said:
“A total of seven (7) sites are recorded on the AHIMS(DEC) [Aboriginal Heritage Information Management System] database for Lot 208 … Based on archaeological work undertaken within Lot 208 it is considered that these are in fact one site that has been extensively disturbed and dispersed. Overall, the archaeological material on Lot 208 was considered to have generally low archaeological significance values. Recent information provided by the Jali LALC indicates that the cultural significance values of Lot 208 are not high.
A total of 128 Indigenous sites are recorded within the defined study area; of these, 54 contain or have the potential to contain relatively similar features to those sites on Lot 208. This number is reduced, however, as 17 of the total number and 7 of the similar sites have been the subject of a s 90 Consent. Hence, 47 sites have similar or possible similar features to Lot 208. It is considered that the majority of these 47 sites have the potential [to] have higher or similar significance values to those sites within lot 208.”

Part 7 of the CIA discusses cumulative impacts, conservation of heritage values and inter-generational equity. With respect to cumulative impacts within the study area, Ms Davies concluded that
“… it would appear that only a low percentage of the total number of recorded sites in the study area have been negatively affected [since non-indigenous settlement] by cultural impacts [such as quarrying, land clearing and erosion].”
As to Lot 208 itself, Ms Davies concluded that the area which included that lot had apparently been cleared three times but that the cumulative impacts of clearing had not occurred consistently over the entire Lot. In particular, the timbered area along the northern and western boundaries between certain grids (and which generally comprised the north-western corner of Lot 208) had not been subjected to cumulative impacts to the same extent as the remaining area of the Lot. I pause to note that there was general agreement between all parties that this area should be conserved and thus left intact.
With respect to the conservation of heritage values within the study area, the CIA stated:
“Once again, there is very little documentation in relation to sites within the study area where heritage values have been conserved. It could be assumed that there has been a conservation of heritage values for the 104 sites within the study area that have not been subjected to the impacts of a s 90 Consent (i.e. 111 less the 7 sites within Lot 208). …
Section 90 Consents are not an adequate measure of whether heritage values have been lost. The material salvaged from sites are often placed in a ‘Keeping Place’ – these items generally have heritage values; the documentation containing the analysis of salvage material provides a significant amount of information about the site and hence would have value; the site location per se although disturbed and/or developed, may still retain value. The items in the ‘Keeping Place’, the documentation and the area of the site would be available and known to future generations.” (Emphasis added)
The CIA then dealt with the conservation of heritage values with respect to Lot 208. I have already referred to the proposal to provide a conservation area (comprising 6,055m²) in the north-western corner of Lot 208 as it was the least disturbed portion of that land and was regarded as a possible burial site. As to that proposal the CIA stated:
“The conservation of a portion of the study area has been voiced by the Indigenous community since initial consultation began when Ballina Shire Council owned Lot 208 … This conservation area was identified as the northwestern portion of the study area encompassed by grids C10 … It is considered that the northwestern portion was selected due to the belief raised by an Indigenous representative at the initial consultation meetings that a burial was located within this corner. The northwestern corner is also the only portion of the study area where ground surface disturbance activities (cumulative impacts) have not been as extensive as in the remaining area of Lot 208 … As a result, it could be postulated that any archaeological material present within this corner may not be as disturbed as the archaeological material within the remainder of Lot 208. Hence, it is considered that the northwestern corner of Lot 208 is not only the most appropriate location of the conservation area in relation to requests by the Indigenous community but also in relation to archaeological significance (conservation of heritage values). Additionally, by conserving a portion of the study area the relationships/links between sites/areas is not completely lost. That is, the connections, which comprise the cultural landscape, are maintained (see subsection 5.1.1).
An important aspect of conserving a portion of the study area is providing access to this area for the Indigenous community. …
Davies (2003a) also noted that the Indigenous community requested that all archaeological material remain on site (i.e. within Lot 208). Hence it was proposed that the conservation area could also be used as a ‘keeping place’ for any items that are uncovered during construction within the remaining portion of Lot 208.
Lot 208 has a total area of 10.52ha. It is estimated that the archaeological material within Lot 208 is contained within an area of approximately 4.397ha. The archaeological material within the 4.397ha is not continuous …; the estimated area is only a calculation; it has been estimated by using the 25m contour as a rough guide – the majority of archaeological material is located above this contour line. This estimate includes the northwestern corner (conservation area) … It is assumed that the archaeological material extends into this area. Tentatively therefore, around 41% of Lot 208 contains archaeological material. The extent of the proposed conservation area is 6055m².”
Part 7.3 of the CIA is headed “Inter-generational Equity”. It was relevantly in the following terms:
“The proposal for development of Lot 208 has included since 2002 the allocation of a conservation area in the northwestern corner …
The Conservation Area, which comprises approximately 14% of the archaeological site area, provides a location where Indigenous people now and in the future can visit. The Conservation Area will also contain signage which will provide information about the site. A copy of the report detailing the analysis of archaeological material recovered from lot 208 during the archaeological test excavations is held by Jali LALC. This report is therefore available for Indigenous people now and in the future to provide information about the subsistence activities undertaken at this site. Hence, not only will a portion of the site be conserved but also information about the site may be used for teaching purposes.”
Part 7.4 of the CIA is headed “CONCLUSION”. It stated as follows:
“Based on information contained within previous sections of the report, it is considered that the development of Lot 208 has addressed inter-generational equity issues since 2002 when [the second respondent] purchased the property. Approximately 14% of the site area will be conserved. This 14% covers that portion of the site area which has had relative to the remaining portion of Lot 208, the least amount of cumulative impacts.
Although part of the site will be destroyed, a portion will be conserved in a dedicated area. Sites that have been affected less by cumulative impacts are located within the study area. Hence, it is considered that there is sufficient sites recorded on the database to not only allow for future research questions to be addressed but also for Indigenous people to research and have access to their heritage.”
The Determination Report
The first respondent’s delegate was provided with a Determination Report dated 27 September 2007 (the Report) of Mr Michael Hood, Manager, Planning and Aboriginal Heritage (South) of the Climate Change and Environment Protection Group within the office of the first respondent. It extends over 24 pages and has many annexures and attachments including the final report of Dr Weiner and the CIA.
It was suggested before this Court that Mr Hood’s report was somehow defective in that he had no qualifications either as an archaeologist or an anthropologist. How this could be relevant to the fifth ground of challenge and, in particular, to the constraints of judicial review, is not readily apparent. In any event, Mr Hood noted in the Report that he had been assisted by Mr Harvey Johnston, Archaeologist, and Mr Steve Free, Senior Aboriginal Heritage Officer (who was also an archaeologist), in his consideration of the application. Both were officers of the Department of the Environment and Climate Change.
At this point it is convenient to note that the appellants, in asserting that Lot 208 was of high cultural significance to the traditional Aboriginal custodians of the area which included Lot 208, placed particular reliance upon their belief that Lot 208 was part of an area where a massacre of Aboriginal people had taken place at East Ballina in 1853-54 (the massacre). Dr Weiner supported that belief (at least in part) in his 2003 report. He stated that local Aboriginal people had fled across the land at Angels Beach (to which Lot 208 is adjacent) and undoubtedly died there. He also said:
“Whether their remains can still be found at these sites is not the point – from the Koori point of view, the ground has been sacralised by the spilling of blood of Koori ancestors.”
In 2000 the then National Parks & Wildlife Service commissioned a report to assess whether a proposed Aboriginal place at Angels Beach should be declared under s 84 of the NPW Act. That section provides, relevantly, that the Minister may declare any place that in his or her opinion is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of the Act. Lot 208 was excluded from that assessment according to Mr Hood, as the then owner, Ballina Shire Council, would not agree to its inclusion.
The report assessed the significance of the area as high, both on the basis of a link to tradition and, more significantly, as a link to an historical event, namely, the massacre. It recommended that the area assessed be declared an Aboriginal place. However, in August 2006 the then Minister for the Environment endorsed a recommendation from the then Department of Environment & Conservation that the Angels Beach area not be declared an Aboriginal place on the basis that there was no evidence to support a direct link between the area and the massacre (which was thought to have occurred further south at Shaw’s Bay) and that there was also insufficient justification for a declaration on the basis of traditional Aboriginal culture. The Minister considered that the cultural significance of the area between Black Head and Shaw’s Bay, some 1.5 to 2km south of Lot 208, should be further investigated for declaration as an Aboriginal place.
Mr Hood concluded that the evidence (reviewed by him in Attachment H of his Report) pointed to the location of the massacre as being well to the south of Lot 208. However, the appellants asserted that even if this was so, Aboriginal people fleeing the massacre would have passed over Lot 208 and some might have died there. As to this the Report stated:
“Although there is no direct evidence as to where people fled to, it is possible to speculate. It would appear likely that people who escaped the massacre, including those wounded but able to walk or run, would have fled to the north and/or north-west where they would have been less likely to be captured or hunted down. Depending on whether they stayed within the lowland vegetation draining towards Chickaba Creek or moved onto the higher dune system towards the coast would influence the likelihood that they crossed the land now known as Lot 208. It is possible, although I think less likely than so, that an individual or several individuals died on Lot 208 whilst fleeing the massacre. I believe it is equally or more possible that such an event occurred to the east, west, north or south of Lot 208. In reaching this conclusion I note the comment of Weiner (2003c) that ‘during the well-documented massacres that occurred in 1853-54 in Ballina, local Aboriginal people fled across the land of Angels Beach and undoubtedly died there’, however I am of the view his conclusion lacks any corroborating evidence.
…
Given the above, I believe it is difficult to draw the conclusion that Lot 208 is directly related to the massacre of Aboriginal people that took place in East Ballina in 1853-54, certainly no more so than any other undeveloped site in the East Ballina/Skenners Head area. On this basis I don’t believe that concerns regarding the massacre should dictate the outcomes of the application for s.90 consent.”
The Report referred to the CIA and concluded that it demonstrated that the sites of Aboriginal objects on Lot 208 were not unique and were represented elsewhere in the study area. It considered the archaeological significance of those objects to be “low-medium at best”.
The Report then addressed the issue of “Cultural Significance”. Reference was made to Dr Weiner’s 2003 judgment that Lot 208 was of high significance and his reasons for so concluding. Riebe’s 2000 opinion that Lot 208 was of importance to the Aboriginal community because its “commemorative and heritage value is still intact despite some damage to [its] scientific value” was also noted.
Reference was then made to the submissions and affidavits of the appellants including the following comments:
“¦‘The sites on Lot 208 are recognised by us as one of the last areas remaining in East Ballina where the massacre of our Old People took place in 1845 (sic). The whole site is very special to us as it contains many artefacts and other sacred things from our Old People.’
¦‘North Angels Beach is one of the last places where we have knowledge of the massacre and where there are still artefacts.’
¦North Angels Beach is unique among those 21 to 47 sites and is significant to us because it has artefacts, there is a burial, is part of our dreaming stories and sadly became a killing ground of our Old People…’
¦ ‘The whole site is sacred.’”
Finally, reference was made to a letter dated 24 May 2007 from the Jali LALC which stated that
“Jali doesn’t consider [Lot 208] as an area of high cultural significance to our people. It is common knowledge that the site has been root-racked (sic) and highly disturbed over the years”.
It is appropriate to set out in full the Report’s evaluation of the issue of cultural significance:
“¦There are clearly different and irreconcilable positions within the Aboriginal community as to the significance of Lot 208. While I consider that much of the material on which the claim of significance by the Andersons to be inaccurate (particularly with respect to the location of the massacre), it is clear they view the site to be of high significance. However, it is equally clear that other members of the community, including people who grew up alongside the Andersons on Cabbage Tree Island and, in the case of Artie Ferguson, someone who has been a sites officer for the Jali LALC for many years, do not consider the site to be of significance.
¦I consider that Weiner’s conclusion of high significance is difficult to justify given that his report suggests strong doubt as to the validity of the Goanna Increase site at Angels Beach, the apparent distance of Lot 208 from the actual massacre site, and the lack of any clear evidence for the presence of a burial at Lot 208. Each of these issues are considered in more detail in (h) below. It is further noted that the Minister for the Environment has declined to declare the Angels Beach area an Aboriginal place, because it was found there was no evidence that the area was directly associated with the East Ballina massacre of Aboriginal people in 1853-54, and nor was there any justification on the basis of traditional Aboriginal culture.
¦That said, I accept the position of Weiner that artefacts and remains are evidence of ‘footprints of the ancestors’. This must be balanced by the reality that Aboriginal objects are found across the NSW landscape.
¦Likewise, I consider the conclusion of Riebe (that the area is of significance primarily for its links to the massacre) to be not particularly robust, and I again note the decision of the Minister for the Environment with respect to the Aboriginal Place nomination.
¦Whilst the investigations of Lot 208 have not uncovered any evidence of human remains at Lot 208, to address the possibility that such remains may be present it is recommended that conditions preventing the disturbance of any human remains be included in the AHIP. It is further noted that the location of the conservation area was original[ly] proposed by local Aboriginal groups during consultation prior to the submission of the application and has been included in the application on the basis that this area is considered the area most likely to contain human remains.”
Mr Hood then dealt with the issue of inter-generational equity under the heading “Principles of ecologically sustainable development”. As the assertion by the appellants that consideration of this issue by Mr Hood was deficient was critical to their challenge to the primary judge’s decision, it is necessary to set out Mr Hood’s discussion of the issue in full.
“(f) Principles of ecologically sustainable development
¦this consideration of ESD principles has a focus on the issues of cumulative impact and inter-generational equity, as they are key to the decision and have been given focus by a previous decision of the Land and Environment Court …as there is not a risk of serious or irreversible environmental damage – the site has already been seriously degraded, the Aboriginal objects heavily disturbed, and as shown elsewhere in this report, there is little evidence to support the claimed significance of the site.
¦A key matter for consideration for this application is the cumulative impact of this proposal. The lack of explicit consideration of this matter was one of the reasons for findings by Justice Pain in Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors [2006] NSWLEC 12. It has also since been raised in submissions from the Andersons.
¦Following the Court case referred to above, DECC requested the applicant provide additional information with respect to the cumulative impact of development in the area. On this basis, Davies heritage Consultants prepared a CIA, the final version of which is dated 12 September 2006.
oThe CIA examined the seven recorded sites from Lot 208 and compared them with known Aboriginal sites (128) in a 1km wide strip along the coastline between Suffolk Park and Evans Head, a distance of approximately 55km. This study area was chosen on the basis of its overlap with the Jali LALC and Anderson’s area of interest, and the inclusion of similar land systems (sand dunes/ridges).
oDespite some of the weaknesses in the data available, the report indicates that of the 128 sites, at least 54 are in a similar setting (dune and/or sand ridge) to that of Lot 208. 17 of the 128 have been issued with a s.90 consent.
oOf the 54 sites in a similar setting, seven have been subject to a s.90 consent (six with salvage), Davies also identifies an additional six that have been subject to disturbance. The net result is there are 41 recorded sites in the study area in a similar environmental setting that have not been subject to a s.90 consent nor have they any recorded disturbance.
DECC evaluation
¦It is clear that a number of very extensive midden sites in the wider East Ballina area, particularly in the vicinity of North Creek and Chickiba Creek, have been destroyed in the course of development works in the 1970s or earlier … However, even when viewed in this context, it is DECC’s view that the highly disturbed nature of the Aboriginal objects at Lot 208 does not justify the protection of these sites compared to other more substantially preserved sites in the study area.
¦Section 6.3 of the CIA is an attempt to analyse the level of similarity of the 54 sites in a similar environmental setting with the sites on Lot 208. This task is compromised by the data available on the site cards and in the reports, and given this, I do not consider it to be very reliable and have given it little weight in my evaluation. Instead I have placed greater weight upon the broader analysis summarised above.
¦Section 7.2.2 considers the conservation of heritage on Lot 208, and focuses on the proposed conservation area in the northwest corner. DECC notes that this area will provide for the explicit request of the Aboriginal community for conservation of the northwest corner (based on a belief that a burial may be present); protect the most undisturbed area and therefore most likely to contain intact archaeological material; and allow for ongoing access to the area and provide a location for a keeping place for Aboriginal objects collected from the development area.
¦Davies concludes on page 56 of the CIA, that ‘there is sufficient sites recorded on the database to not only allow for future research questions to be addressed but also for Indigenous people to research and have access to their heritage’. I consider this is a valid conclusion, particularly given the additional material below.
¦I further note that the sites on AHIMS are only those that have been formally recorded, which are based generally on where people have gone looking for them. I am of the view that there is a strong likelihood that a number of similar unrecorded sites exist where similar landforms occur in proximity to similar resources within the study area…
¦An additional consideration with respect to inter-generational equity is that monitoring and collection during earthworks will mean some Aboriginal objects will be protected and relocated to the conservation area.
¦When examining inter-generational equity and the objects proposed for destruction on Lot 208, it is also appropriate to give consideration to their condition. Numerous reports attest to the extent of disturbance on Lot 208, and the impact that this has had on the objects at the site. Davies (2003a) states ‘…the integrity of the archaeological material has been highly compromised by prior clearance activities. It is considered that more than 30%, and most likely 100% of the area in which the archaeological material is distributed is disturbed’. DECC agrees that the site is highly disturbed and this disturbance has broken up the shell material from the middens extensively and has probably led to accumulations of archaeological material associated with previous land clearing activities. Apparent collection of Aboriginal objects has also further compromised the integrity of the site.
¦The extent of the land unit (dune) beyond the borders of Lot 208 is also relevant when considering the cumulative impacts of the proposal and inter-generational equity. The CIA (p27) describes the dune as extending south to Angels Beach Estate, and north and east of Lot 208. … Davies considers that there is a high probability that the archaeological material in Lot 208 extends north and east and I concur with this conclusion. While Angels Beach Estate has been developed, the land to the east is within a coastal protection zone … The land to the north (known as Dr Stewart’s land) is currently zoned rural, however the area is proposed for development in the Far North Coast Regional Strategy (FNCRS) & Ballina Urban Land Release Strategy. Advice from Ballina Shire Council is that part of Dr Stewart’s land immediately north of Lot 208 has been identified for environment protection … It is recommended that DECC work with Ballina Shire Council and the Dept of Planning to ensure long term protection of that part of Dr Stewart’s land which adjoins the conservation area, to ensure that this wider area is protected in perpetuity.
¦This report also considers the extent to which sites within the region and in particular sites in a similar environment setting, have been conserved, either in the formal reserve system or in other ways such as through zoning. The CIA did not include this aspect in section 7.2.1, so I have undertaken a review of all the sites within the study area of the CIA to determine which of these were located within formal reserves. A summary of this assessment is shown at Attachment G, it indicates that a total of thirteen sites are included within the Richmond River, Ballina and Broken Head Nature Reserves, and the Dubay Nuraham Aboriginal Area. Of these thirteen, eight are in a similar environmental setting to those in Lot 208.
¦Furthermore, there would be an additional group of sites from the study area that are on land zoned in a way that restricts development opportunities. … While these zonings don’t necessarily prohibit all development, they generally promote environmental protection and would provide a higher degree of long term protection than residential zoning.
¦It is my opinion that the inclusion of sites within the formal reserve system in the region, and to a lesser extent the existence of other sites on land zoned for environmental protection, provides explicitly for inter-generational equity, and should be factored in to the decision regarding Lot 208.
¦The CIA did not address the cumulative impact of development on sites associated with the massacre of Aboriginal people in East Ballina in 1853-54. The Andersons have raised this issue in their response to the CIA, and also mentioned it when I met with them on 3 September 2007. Davies addresses her rationale for not considering the massacre in the study in her letter of 12 September 2007.
¦I address the issue of the massacre and its likely location in section (h) below. There is no direct evidence to link Lot 208 with the massacre. The most likely location for the massacre is well to the south of Lot 208, between Black Head and Shaws Bay. It is possible that people fleeing the massacre ran across Lot 208, and even that they fell and died there, but given its distance from the likely site of the massacre there are many other locations with an equal or greater possibility of having had people flee across. Many of these locations, such as Portions 222 and 406, Black Head, land east of the Coast Road and land west of South Angels Beach Estate, have not been developed, are in public ownership and are zoned for open space or environment protection. There are also other undeveloped private lands to the north and west of Lot 208 where people fleeing a massacre might have ran.
¦I do not believe that the development of Lot 208 will have any real impact on the ability of future generations to visit, see, experience and/or research locations associated with the massacre in East Ballina in 1853-54. The conservation area will also be public land which will be able to be accessed by the community. Furthermore, the highly disturbed nature of Lot 208 (outside the conservation area) does not contain Aboriginal objects of high archaeological or cultural significance. To the extent that any burials may be present (although there is only a low probability), proposed conditions will ensure that these remains are not damaged.
¦Overall, I consider that the CIA demonstrates that while there has been a considerable impact on the known sites in the study area (including sites in a similar environmental setting), a larger number remain intact, including a range of sites in areas subject to protection under the parks reserve system, and there would be additional as yet unrecorded sites also within the study area. The archaeological material in Lot 208 is likely to extend into lands to the north and east where further opportunities for conservation exist. Further, the proposed conservation area provides for the long term protection of some of the Aboriginal heritage values on Lot 208, and ongoing access for the community. …
¦The provision of consent for the Aboriginal objects on Lot 208 will not lead to unacceptable cumulative impacts on Aboriginal heritage in the study area, region or locality. Nor would it jeopardise the interests of future generations with respect to Aboriginal heritage.” (Emphasis added)

The parts of the Report that I have emphasised make it clear that the author was addressing inter-generational equity. The Report also dealt in detail with issues raised in submissions to Mr Hood and, in particular, those raised by the appellants including those contained in their affidavits filed in previous proceedings in the Land ane Environment Court. Those issues were:
¦The relationship of Lot 208 to the massacre of Aboriginal people in East Ballina in 1853-54;
¦The cumulative impacts of development in the locality upon Aboriginal heritage;
¦ The presence of a burial on Lot 208;
¦The presence of a Bora Ring on Lot 208 (a bora ring is a ceremonial site];
¦The site forms part of their dreaming stories (relating to a sacred site).
The Report then dealt with each of those matters. I have already referred to Mr Hood’s conclusion that Lot 208 was not directly related to the massacre and certainly no more than any other undeveloped site in the East Ballina/Skinners Head area. As to the presence of a burial on Lot 208 he concluded that there was no strong evidence supporting the presence of such a burial. However, given the many references made to it, he assumed that one existed in the north-western part of Lot 208 which was included in the conservation area that was not to be disturbed. As to the presence of a Bora Ring, the Report concluded that there was no evidence at all to indicate the presence of such a ring on Lot 208 as alleged by the appellants. It was nevertheless acknowledged that Haglund (1991), Riebe (2000) and Weiner (2003) had discussed the presence of known bora rings in the area of Lennox Head, Ballina and Broadwater.
The assertion that the site of Lot 208 formed part of Aboriginal dreaming stories was based upon an earlier report of Haglund (1991) that in the study area there was a sacred site known as a Goanna increase site. Such a site was one where rites for the increase of natural species were formerly performed. However, the Report noted that Dr Weiner had summarised the evidence as to the existence of a Goanna increase site at Angels Beach and had concluded that as there was no record of such a site prior to 1986:
“[t]he recency of the claim of significance, and its lack of distribution throughout the local community – would be enough to doubt that a strong enough claim for the Goanna increase site could be made.”
Mr Hood concluded that on that basis it was not possible to have any degree of certainty about the claim of the existence of a Goanna increase site at Flat Rock (as asserted by the appellants) and whether it impinged on Lot 208.
I mention these matters only because the appellants in their written submissions on the appeal asserted a failure of the first respondent’s delegate and Mr Hood to consider the relationship of Lot 208 to the sites of the Aboriginal objects found thereon given the appellants’ belief that these objects were at the site of the massacre and/or that they marked and commemorated a place where the Bundjalung Peoples’ ancestors “congregated and celebrated and performed ceremonies”.
The suggestion, as I understand it, was that due to those matters, the Aboriginal objects within Lot 208 took on a particular significance to the traditional owners of the land including the appellants. However, given the findings as to the location of the massacre, the assumed presence of a Bora Ring and the location of the Goanna increase site, it follows that a determination had been made after careful consideration that none of those matters impinged upon the cultural significance or values of the land comprising Lot 208. Consequently, from Mr Hood’s perspective no relationship had been established between those matters and the land within Lot 208 that would have enhanced the significance of the cultural values of the Aboriginal objects thereon.
In this context it is convenient to note the appellants’ submission that Mr Hood in the Report had accepted that it was possible that several individuals had died on Lot 208 whilst fleeing the massacre. It was therefore contended that such persons would have shed their blood on the land – and that that blood thereby became an Aboriginal object as defined. The definition of Aboriginal object in s 5(1) of the NPW Act is relevantly as follows:
“Aboriginal object means any deposit, object or material evidence … relating to the Aboriginal habitation of the area that comprises New South Wales … and includes Aboriginal remains.”
Even assuming that any such blood was shed, no basis existed for assuming that it continued to have any physical presence upon Lot 208. The appellants themselves did not suggest to the contrary. As was observed during argument, the shedding of blood and the consequent tainting or sacralising of the soil of Lot 208 had a more spiritual than a material quality about it. That fact might find a foothold in s 84 of the NPW Act by rendering the relevant land a place of special significance with respect to Aboriginal culture but it does not, in my view, bear upon the relationship of the land comprising Lot 208 to the Aboriginal objects (being midden shells and artefacts) whose cultural significance and heritage values were under consideration in the present case. There was thus no physical evidence of the massacre upon Lot 208 in a form that met the definition of an Aboriginal object.
Part 3 of the Report contained a recommendation that the first respondent’s delegate grant the Permit. It then summarised the considerations on which that recommendation was based in the following terms:
“¦Lot 208 has been extensively impacted by prior disturbance, greatly reducing the archaeological significance of the Aboriginal objects;
¦The section of the site subject to the least disturbance since 1970s, and most likely to have intact archaeological deposit, is to be conserved. This will allow for permanent protection of the Aboriginal objects, access to the Aboriginal community and the opportunities for education.
¦Other measures to recognise the Aboriginal heritage of the site include the proposed collection of significant objects and their eventual relocation to the conservation area.
¦Although there has been a significant loss of Aboriginal objects in the East Ballina area and the broader region over the last 100 years, there remain a number of sites intact, including many in a similar environment setting. The archaeological material in Lot 208 is likely to extend into lands to the North and east where further opportunities for conservation exist. In addition, there are a range of sites protected in the State’s formal reserve system in the study area considered in the CIA.
¦There is little evidence to support any direct link between Lot 208 and the massacre of Aboriginals in East Ballina in 1853-54. The balance of the evidence points to the massacre occurring at a site some 1.5-2km south of Lot 208.
¦Again, there is no direct evidence of a burial on Lot 208, however the location that has been most often suggested is the north-west corner of the site, which is incorporated in the conservation area. There is a low probability of other Aboriginal remains on the site; if they exist they would most likely have been heavily disturbed. Conditions which ensure monitoring of the development and the establishment of a protocol in the case that remains are discovered will assist in addressing this issue.
¦The evidence of the proximity of a Goanna Increase site does not stand up to rigorous review. Even if it does exist, there is no evidence that it impinges directly on Lot 208.
¦The video of Elders from Cabbage Tree island does not provide any further evidence of the precise location of the massacre and does not provide any rational basis to reject or further limit development on Lot 208.
¦The consultation carried out has been comprehensive, and there have been no barriers to identified stakeholders providing input to the various studies and commenting upon reports.
¦ The Jali LALC supports the proposal.”
Judicial review and not a merits hearing
As noted at [9] above, the fifth ground of challenge advanced in the appellants’ Points of Claim alleged that the first respondent failed to consider a relevant consideration by failing to give “proper, genuine and realistic consideration” to inter-generational equity. As Basten JA, with the agreement of Handley JA and Hunt AJA, observed in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at 297 [74], that terminology is taken from the judgment of Gummow J in Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291. It was also adopted by Mason P in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at 185 [9] where his Honour said that he was
“attracted to Gummow J’s formulation of ‘proper, genuine and realistic consideration upon the merits’.”
Also in Weal Giles JA, with whom Priestley JA agreed, discussed the issue in the following terms (at 201 [80]):
“Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.”
This formulation was approved by the President at 185 [13]. However the foregoing formulation by Giles JA is not immune from the observation, made by the Chief Justice during the course of argument in the present appeal, that its vagueness and imprecision has the potential to invite impermissible merits review. Nevertheless, the appellants sought to apply the formulation in the present case although it was ultimately rephrased as an assertion that there was nothing in the analysis undertaken in the Report which was capable of either indicating that there was an understanding of inter-generational equity or that there had been an evaluation sufficient to warrant the conclusion that inter-generational equity had been considered.
The abandonment by the appellants of the formulation of “proper, genuine and realistic consideration” on the appeal was, I suspect, sourced in the observations of Basten JA in Kindimindi that such an expression should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. The following further observations of his Honour in Kindimindi (at 297) are also instructive:
“76In Weal v Bathurst City Council (2000) 111 LGERA 181, Mason P, although ‘attracted to’ the language adopted by Gummow J in Kahn, adopted a constrained approach to review of a council’s decision-making process. On the other hand, Giles JA (with whom Priestley JA agreed) stated at [80]:
‘Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration… ’
77This latter formulation appears to treat identification of the correct test as a matter of construction of the clause ‘take into consideration’ in the chapeau of s 79C(1). With respect, that approach runs the risk of falling foul of the admonition contained in the judgment of Spigelman CJ in Bruce v Cole, with whose reasons Mason P and Sheller and Powell JJA agreed.
78The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council (2001) 51 NSWLR 589 of the language of Gummow J in Kahn. Although there is reference to the passage in Bruce v Cole (at [62]), at [64] the Chief Justice noted, by reference to Parramatta City Council v Hale at p 339, that ’mere advertence to a matter required to be taken into consideration is not sufficient’. The reference in Hale, at p 339, in the judgment of Moffitt P read as follows:
‘It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration.’
79So much must be accepted: the danger is that adoption of the epithets such as ‘proper, genuine and realistic’ consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole, they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. …”
His Honour repeated these sentiments in Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 at 467 [76]:
“76I do not think that this reasoning is inconsistent with the approach of Tobias JA, nor, for that matter, with the reasoning of Biscoe J in the Land and Environment Court. However, I would not adopt the passage in the judgment below, quoted above at [28] in which it is said that the consent authority must give ‘proper, genuine and realistic’ consideration to the matters prescribed by s 79C: GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303 at [44]. Biscoe J, in my view correctly, noted the need to apply those epithets cautiously lest they ‘encourage a slide into impermissible merit review’, referring to Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, (2006) 143 LGERA 277 where that risk was noted at [74]-[79]. That caution was reiterated in Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49]-[51].
77By way of explication, it may be noted that use of the word ‘proper’ may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell [1925] AC 338 and The Queen v Toohey; Ex parte Northern Land Council (198081) 151 CLR 170 at 232-233 (Aickin J). Similarly, the word ‘genuine’ may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of ‘improper purpose’, as explained by Aickin J in Ex parte Northern Land Council. Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, ‘realistic’ finds no ready referent in the language of judicial review.
78That is not to say that to give grossly inadequate weight to a matter of some importance may not provide a basis for review; however, to qualify as a ground of judicial review, such conduct must satisfy the test of manifest unreasonableness as applied to the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24 at 41 (Mason J). It is not helpfully reflected in a supposed obligation to give ‘realistic’ consideration to a particular matter.”
See also Notaras v Waverley Council & Anor [2007] NSWCA 333 at [117]-[120].
The “proper, genuine and realistic consideration” formulation was also criticised by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 441-442 where it was observed that the “proper, genuine and realistic” standard
“creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised”.
I agree with Basten JA in Belmorgan that there is a need to apply with caution the epithets or formulations that have been judicially expounded with respect to the requirement in administrative law for the decision-maker to consider a relevant matter. Other formulations adopted in the past require consideration “in a real and conscientious way” (Mendoza v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 405 at 420 per Einfeld J); “in any real sense” (Turner v Minister for Immigration & Ethnic Affairs (1981) 55 FLR 180 at 184 per Toohey J; or that the consideration be “adequately addressed” (LEK v Minister for Immigration, Local Government & Ethnic Affairs (1993) 117 ALR 455 at 472 per Wilcox J); and see Bruce v Cole (1998) 45 NSWLR 163 at 186 per Spigelman CJ. It is obvious that their use is fraught with the danger of a slide into impermissible merit review. I would therefore prefer that they be avoided.
Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, I believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, ‘consider’ and which, as the Full Federal Court observed in Anthonypillai, invoke “language of indefinite and subjective application”.
Furthermore, the formulation that the decision-maker must evince an understanding of the relevant matter may require no more than that he or she must not misdirect himself or herself as to the meaning of the particular matter required to be taken into consideration in the context of the relevant statute.
As I have indicated, the process to be undertaken on judicial review is an evaluative one and a particular case may fall easily on one side of the line or the other. There will of course, be those cases that fall into a grey area but experience indicates that they will be the exception rather than the rule. The present case is one which falls well clear of that line. As will appear, it does not require application of the formulation advanced by the appellants to enable a judgment to be made that the decision-maker in this case considered inter-generational equity.
The decision of the primary judge
The primary judge referred to the relevant principles at [22]-[23]. At [23] he referred to a further observation of Basten JA in Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [51] where he repeated the admonition that the court must avoid impermissibly reconsidering the merits of the decision the subject of challenge.
Under the heading “Inter-generational equity”, the primary judge referred (at [38]-[39]) to those parts of the judgment of Pain J in Anderson No 1 at [199]-[200] which I have emphasised at [15] above. His Honour then referred to the findings of the CIA summarised in the Report by Mr Hood as well as to some of those parts of the Report which I have set out at [41] above. His Honour then concluded (at [46]) that:
“[t]he allegation that the decision-maker failed to give proper, genuine and realistic consideration to the relevant question of inter-generational equity must be rejected. The significance of the land to the Bundjalung people was fully considered and their overall interests were both taken into account and protected.”
The appellants’ submissions on the appeal should be rejected
The appellants’ primary submission was couched in terms of the formulation of Giles JA in Weal which I have set out at [52] above. Although they had rephrased that formulation in the manner referred to at [53] above, their oral submissions kept returning to the formulation of Giles JA originally propounded. It was submitted thus that the first respondent had demonstrated no understanding of inter-generational equity and had failed to undertake any process of evaluation sufficient to warrant the description that he had taken inter-generational equity into consideration.

Reliance was also placed upon parts of the observations of Preston CJ in Broad Henry v Director-General Department of Environment and Conservation & Anor [2007] NSWLEC 722; (2007) 159 LGERA 172 at 200-201 [92]. However, it is necessary to set out [90]-[92] in full to appreciate what the Chief Judge was adverting to:
“90For an application under ss 87 or 90 in relation to an Aboriginal object, however, the focus of significance is different. The Director-General is required to consider the actual or potential significance of the Aboriginal object for Aboriginal people, in accordance with s 2A of the Act: Country Energy v Williams (2005) 141 LGERA 426 at 443 [52]. The significance for Aboriginal people of the Aboriginal object, and the need for it to be protected under the Act, are not contingent upon the place in which the Aboriginal object is located being of special significance with respect to Aboriginal culture. An Aboriginal object can have significance independent of the place in which it is located.
91This is not to say that an Aboriginal object cannot have significance by reason of a relationship with the land in which it is located. The relationship can work in two directions. First, the land may provide a context to understand and evaluate the significance of the Aboriginal object, including its value as evidence relating to the Aboriginal habitation of the area. The land may provide a reason for the Aboriginal object being located in the land. For example, the natural resources, such as biological resources, rocks, stones or clay in the area might have provided the source for the Aboriginal object and been the reason of Aboriginal habitation in the area. The land contributes in such ways to the significance of the Aboriginal object. Secondly, the presence of the Aboriginal object in a particular place may give that place significance with respect to Aboriginal culture. Aboriginal remains in the land may be one example.
92Where there is a relationship between the Aboriginal object and the land in which it is located, in either of these ways, the significance of the land in which the Aboriginal objects are located and the impact that actions which disturb or move the Aboriginal objects or destroy, deface or damage the Aboriginal objects might have on that significance would be relevant matters to be considered in determining an application for a permit under s 87 or a consent under s 90 of the Act: see Anderson v Director General of the Department of Environment and Conservation (2006) 144 LGERA 43 at 89-90 [189] and Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [101] and [163].”
It was asserted by the appellants that there was a relationship between the Aboriginal objects in the present case and the land upon which they were located which had not been considered in the Report and, therefore, had not been considered by the first respondent in adopting its recommendation. In particular, it was submitted that there had been a failure to take into consideration the significance of the land comprising Lot 208 in which the Aboriginal objects were located and the impact that any damage to, or destruction of, the objects might have on that significance.
When requested to articulate the relationship of those objects to Lot 208 other than the fact that they evidenced some past occupation of the land, the appellants responded by referring to the opinion of Dr Weiner that the presence of the objects led him to think that Lot 208 had some involvement in Aboriginal culture due to the presence of bora rings in the area and to the movement of Aboriginals across Lot 208 when fleeing the massacre. At one point it was submitted that the presence of the objects was evidence of the “footprints of the ancestors”, a factor acknowledged in the Report (see the third dot point at [40] above).
However, given the discounting by Mr Hood of each of the matters so relied upon as establishing some relevant relationship between Lot 208 and the Aboriginal objects located thereon, the reliance by the appellants on [92] of Broad Henry fails to gain any traction.
In any event, Preston CJ confined his remarks to those situations where there was a relationship between the Aboriginal object and the land on which it was located in either of the ways he had articulated at [91]. The second of those was the presence of the Aboriginal object in a particular place that gave that place significance with respect to Aboriginal culture such as Aboriginal remains. There was no such relationship in the present case except possibly in the northwest corner of Lot 208 where there was the possibility of a burial and which was intended to be conserved.
Further, in my opinion nothing with respect to Lot 208, in the circumstances adverted to in the Report, provided a context to understand and evaluate the significance of the Aboriginal objects. Thus there was nothing of significance with respect to the land which provided a reason for the Aboriginal objects being located thereon. It was not suggested that the example referred to by his Honour at [91] applied to Lot 208.
The appellants then took a slightly different tack. It was submitted that in order to illustrate an understanding of the principle of inter-generational equity, it was necessary for the Report to have focussed on two inquiries. The first required consideration of what leaving the Aboriginal objects on the land would mean for, first, archaeology; second, science; third, Australian history; fourth, the Australian public in general; and, fifth, the Aboriginal traditional owners or custodians.
The appellants accepted that apart from the fifth matter, consideration had been properly accorded to these matters. They submitted, however, that there had been no such consideration of what the objects in Lot 208 meant for the traditions, customs and observances of the people to whom the land traditionally belonged (such as the appellants).
The second inquiry was to focus on the impact that the removal of the objects from the land would have on those traditions, customs and observances. Both these inquiries were necessary for there to be a consideration of the ability of future generations of the Aboriginal community and, in particular, the local Bundjaling custodians, to enjoy their cultural heritage.
In the foregoing context much reliance was placed upon the final report of Dr Weiner. In particular, it was submitted that there had been a failure to take account of Dr Weiner’s opinion that the “massacre sites”, which included land across which local Aboriginal people had fled and upon which they “undoubtedly died”, was ground which had been sacralised by the spilling of blood of Koori ancestors whose spirits still harboured the grief and anguish of their violent passing. Accordingly, the sites were particularly sensitive and must be treated with extreme reverence and respect.
The problem with the appellants’ submission is twofold. First, the underlying factual assumption adopted by Dr Weiner was not accepted by Mr Hood or, for that matter, the Jali LALC. Second, there was no obligation on Mr Hood to accept Dr Weiner’s conclusions provided he otherwise gave consideration to them, which he clearly did. The whole underlying thrust of the appellants’ submission was that there could be no understanding of inter-generational equity and, therefore, no consideration of it without adopting and accepting uncritically Dr Weiner’s conclusion that Lot 208 was of high cultural significance. When taxed with the proposition that they were arguing that there could be no consideration of inter-generational equity unless Dr Weiner’s opinions were given determinative weight, the appellants’ response was: “No, we don’t put it as high as that”.
Nevertheless, it was submitted that there must be a “minimum level of rationality” without which there must be a failure to take into consideration inter-generational equity. As far as I can detect from the appellants’ submissions, that requirement could only be satisfied by acceptance of Dr Weiner’s opinions. Such a submission is misconceived.
At the end of the day the appellants conceded that that part of the Report, which I have set out at [41] above, contained at least the beginnings of an analysis of inter-generational equity. However, although it was not suggested that Mr Hood had in that analysis taken into account an irrelevant consideration, nonetheless it was contended that he had failed to take into account an essential component of inter-generational equity, namely, the significance of the Aboriginal objects being left in situ to the traditional custodians of Lot 208, including the appellants.
The difficulty with this submission is that it does not stand up to factual analysis. As I noted at [42] above, the Report expressly dealt with the appellants’ contention that Lot 208 was significant, indeed “sacred”. They then identified a number of key issues in their affidavits and submissions to Mr Hood to support their contention. Each was considered in some detail in the Report including the cumulative impacts of development in the locality upon Aboriginal heritage. To maintain that the significance to the traditional custodians of leaving the Aboriginal objects intact in Lot 208 was not addressed in the Report is, with respect, a submission without merit.
It was also contended that that part of the Report which I have set out at [41] above was deficient in that it had, first, adopted a “count the middens” approach; second, had adopted a “straw doll” approach by, in effect, suggesting that if the massacre had taken place on Lot 208 then there would be a stronger case for its conservation; third, had adopted a “museum fallacy” by providing for a conservation area comprising only 14% of the site upon which there was to be a “Keeping Place” for Aboriginal objects salvaged from the balance of the land; and fourth, had adopted an “it’s broken” approach based on the archaeological condition of those objects.
It was not suggested that the factors referred to above were irrelevant considerations. Rather the appellants’ case was that there had been a failure to take into account the symbiotic relationship between the Aboriginal objects and the land within which they were located together with the significance of that relationship to the Aboriginal traditional custodians to which the land belonged. I have dealt with that submission above.
With respect to the “counting the middens” approach that the author of the CIA was said to have adopted, the appellants submitted that its findings focussed on the highly disturbed nature of the Aboriginal objects in Lot 208 as not justifying their protection when compared with other midden sites in the study area considered to be of superior archaeological and scientific significance. However, the NPW Act required, so it was submitted, that the first respondent do more than simply determine the number, environmental setting and archaeological integrity of similar Aboriginal objects in the area.
There are a number of difficulties with this contention. The first is that once one accepts (as one must) the factual findings in the Report with respect to the archaeological and scientific significance of the Aboriginal objects, the starting point of any consideration of inter-generational equity with respect to those objects must be that they were of low indigenous value (according to the Jali LALC) and, according to Mr Hood, of low to medium significance “at best” (referring to the assessment of Davies). A further aspect of the starting point for the consideration of inter-generational equity was the negative findings in the Report with respect to the location of the massacre, the existence of any Bora ring on or in the vicinity of Lot 208 or any relationship between Lot 208 and any Goanna increase site in the locality. The inquiry thus commenced at a low base.
Second, it can be accepted that the existence of middens and the like constitutes evidence of past Aboriginal habitation or occupation of the land on which they are found. But of itself that is no reason to reject an application for a s 90 consent with respect to those objects. The point was well made by Basten JA, with whom Spigelman CJ and Giles JA relevantly agreed, in Country Energy v Williams [2005] NSWCA 318; (2005) 63 NSWLR 699 at [67] where his Honour said:
“… 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 damages, 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.”
In my opinion that was the “reality” to which the Report was referring (at [40] above) when stating that although artefacts and remains are evidence of “footprints of the ancestors” as Dr Weiner asserted, that fact must be balanced by the reality that Aboriginal objects are found across the totality of the New South Wales landscape.
Third, the suggestion that the CIA was an insufficient evaluation of inter-generational equity is without substance. In this context the appellants submitted that Pain J in Anderson No 1 had misunderstood the concept of inter-generational equity and had sent the second respondent off on a “wild goose chase” to obtain a cumulative impact assessment. With respect, in my opinion her Honour was correct to make the observation at [199] of her judgment, which I have emphasised at [15] above, and to have required the undertaking of such an assessment in the manner referred to in that part of [200] of her judgment that I have also emphasised. Its provision was no “wild goose chase”.
It is difficult to see how inter-generational equity, being the obligation of the present generation to ensure that the relevant environment is maintained or enhanced for the benefit of future generations (in this case, of future generations of the local Aboriginal community), can be properly considered without the assessment of the archaeological and cultural significance of the Aboriginal objects on the one hand and the cumulative effect or impact which their destruction may have on the other. Inter-generational equity requires an evaluative judgment as to these matters for otherwise, as the appellants appear to submit, all Aboriginal objects found on land must be conserved for the benefit of future generations of the traditional custodians of that land. That cannot be so.
Fourth, it must be recognised that the relevant decision-maker is only required to consider the relevant matter; he or she is not required to adopt any particular outcome. Furthermore, provided that the relevant matter has been considered to the necessary degree (i.e. not merely adverted to), then the fact that a particular aspect of the matter was overlooked will not invalidate what was otherwise a substantive consideration of that matter.
That is not to accept that in the present case the appellants have pointed to any aspect of inter-generational equity which has been overlooked in the Report. In particular, it cannot be said that the Report overlooked what leaving the Aboriginal objects in Lot 208 would mean to the traditional custodians of that land: see [69] above. The appellants themselves detailed that matter in their affidavits filed in previous proceedings and in their submissions, both oral and written, to Mr Hood who evaluated them in detail: see [42]-[45] above. In so doing and in that part of the Report dealing expressly with inter-generational equity, Mr Hood had demonstrated a complete understanding of that concept and had undertaken an evaluation thereof which warranted the description of that matter having been taken into consideration.
Accordingly, in my opinion the Report’s consideration of inter-generational equity was in all respects comprehensive and pertinent. Thus it does not assist the appellants’ case to point to the apparent weaknesses of the CIA identified by Mr Hood and which he took into account when assessing the weight to be attributed to it. Nevertheless the appellants sought to attach significance to the statement in that part of the Report that dealt with the CIA that
“the review of the conservation of heritage values in the study area … should have considered, at a minimum, whether or not any of the sites were conserved in the formal reserve system managed by DECC, and preferably the zoning of the land on which they occur. This would have provided further information about the degree of formal protection which is provided to these sites. I have obtained additional information with respect to reservation which is discussed in (f) below, however it has not been practice to review the zoning aspect for each of the 128 sites due to the lack of access to data (I do provide an example of where two sites are located on land zoned for coastal protection).”
The appellants submitted that the failure of the CIA to have considered “at a minimum” whether or not any of the 128 sites in the study area were conserved in the formal reserve system managed by the Department constituted evidence of the failure of Mr Hood to consider inter-generational equity. In my opinion this submission only has to be so stated for it to be rejected as being without merit.
There were a number of subsidiary submissions advanced before this Court which in my view it is unnecessary to consider in detail. A contention that there was some form of error in failing to provide Dr Weiner with the opportunity to respond to the rejection by Mr Hood of his conclusion as to the high significance of Lot 208 does not advance the appellants’ case. Nor does the contention that the fact that the summary of the considerations which founded the recommendation that the Permit be granted (set out at [50] above) contains no express reference to the expression “inter-generational equity” was indicative of a failure to understand the principle or to undertake a proper process of evaluation of same.
In my opinion, and as I foreshadowed at [57] above, it is readily apparent that the appellants, being dissatisfied with the merit assessment of the second respondent’s application and the outcome of the exercise by the first respondent of the discretionary power to grant the Permit, have sought to disguise a challenge to the merits of that assessment by reference to one of the recognised grounds of judicial review, namely, a failure to consider relevant matters. Being conscious of the impermissibility of a slide into merit review, the appellants’ submissions require careful analysis, which I have attempted to undertake, in terms of their relevance to the only permissible ground of challenge available to them. In my opinion that challenge fails.
As I have already indicated, in my view the Report adopted by the first respondent gave careful, detailed and comprehensive consideration to the principle of inter-generational equity from the perspective of the archaeological, cultural and heritage significance of the Aboriginal objects the subject of the second respondent’s application for a s 90 consent.
Conclusion
In my opinion the primary judge correctly rejected the fifth ground of challenge advanced by the appellants to the grant of the Permit, namely, that the first respondent failed to give consideration to the question of inter-generational equity. I would therefore propose that the appeal be dismissed with costs.

MACFARLAN JA: I agree with Tobias JA.

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LAST UPDATED:
4 December 2008