Broad Henry v Director-General of the Department of Environment and Conservation

[2007] NSWLEC 722

Reported Decision: (2007) 159 LGERA 172

Land and Environment Court

of New South Wales

CITATION:

Broad Henry v Director-General of the Department of Environment and Conservation and Australand Corporation (NSW) Pty Limited [2007] NSWLEC 722

PARTIES:

APPLICANT
Aaron Broad Henry

FIRST RESPONDENT
Director-General of the Department of Environment and Conservation

SECOND RESPONDENT
Australand Corporation (NSW) Pty Limited ACN 001 022 117

FILE NUMBER(S):

41213 of 2006

CORAM:

Preston CJ

KEY ISSUES:

Judicial Review :- permit and consent to destroy, deface and damage Aboriginal objects - request by Aboriginal persons during consultation to make inquiries about alleged massacre and associated burials - claims of failure to consider relevant matters and denial of natural justice in not making such inquiries - claim of consideration of irrelevant matters in considering other reports on the massacre and associated burials - claim of bias and racial discrimination by issuing permit and consent - all claims not substantiated

LEGISLATION CITED:

National Parks and Wildlife Act 1974 s 2A, s 5, s 83, s 84, s 86, s 87, s 90
Racial Discrimination Act 1975 (Cth) s 10

CASES CITED:

Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47;
Anderson v Director General of the Department of Environment and Conservation (2006) 144 LGERA 43;
Brunetto v Collector of Customs (1984) 4 FCR 92;
Country Energy v Williams (2005) 141 LGERA 426;
Foster v Minister for Customs and Justice (2000) 200 CLR 442;
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190;
Henry v Shellharbour City Council [2005] NSWLEC 378 (22 July 2005);
Henry v Shellharbour City Council [2005] NSWLEC 600 (21 October 2005);
Kennedy v Director General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006);
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155;
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1;
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (20 April 2001);
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363;
Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167

DATES OF HEARING:

17 September 2007, 18 September 2007, 19 September 2007

 
DATE OF JUDGMENT: 

1 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (agent)
SOLICITORS
Indigenous Justice Advocacy Network

FIRST RESPONDENT
Ms R Pepper (barrister)
SOLICITORS
Department of Environment and Conservation

SECOND RESPONDENT
Mr N Williams SC
SOLICITORS
Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

1 NOVEMBER 2007

41213 OF 2006

AARON BROAD HENRY V DIRECTOR-GENERAL of the DEPARTMENT OF ENVIRONMENT AND CONSERVATION and AUSTRALAND CORPORATION (NSW) PTY LIMITED

JUDGMENT

1 HIS HONOUR: On 29 September 2006, the Director-General of the Department of Environment and Conservation issued a permit and a consent under ss 87 and 90 respectively of the National Parks and Wildlife Act 1974 in relation to Aboriginal objects in an area on which the Shell Cove Boatharbour Marina Project is being undertaken by Australand Corporation (NSW) Pty Limited.

2 Mr Aaron Broad Henry challenges, by way of judicial review proceedings, the validity of the permit and the consent on four broad grounds: failure to consider relevant matters; considering irrelevant matters; denial of procedural fairness; and bias and racial discrimination by the decision maker. The manner in which the applicant frames these four grounds of review is articulated in the applicant’s points of claim dated 5 March 2007 as amended by leave of the Court on 17 September 2007.

3 These grounds of review derive largely from requests made by the applicant, amongst others, in the process of consultation preceding the making of the application for the s 87 permit and s 90 consent, which requests were not met to the satisfaction of the applicant by the proponent or the Director-General. The applicant’s requests were summarised in a letter dated 26 January 2006 to the proponent’s consultant archaeologist, Dr Johan Kamminga from the applicant, Mr Carl Mundy, Mr Allan Carriage and Ms Tracey Henry. The letter stated:

“This letter is an response to the s 87 and s 90 permit/consent being sought for the proposed Shell Cove Marina.
The area of the proposed Marina is very significant to Traditional Owners and we make the following recommendations that you need to consider in relation to satisfactorily completing this consultation.
A report to be prepared by qualified persons into the burials and reburials of our old people that lie within the proposed development area.
A complete surface survey of the creek area, followed by a decision on the merit of carrying out sub surface work to measure the extent and significance of any identified sites located.
Analysis of the bones that were located during the inspection of the 16th of January, 2006.
A survey report to be undertaken on the bora ring and the massacre burial site.
A report prepared by an Ethnographer/Anthropologist acceptable to Traditional Owners on the social significance of all the sites identified in the development proposal area to be done in consultation with all the relevant elders and traditional owners.
The above reports be forwarded to the Department of Environment and Conservation for their consideration for the s 87 and s 90 application.
We expect to be fully consulted over any excavation or collection licence required under section 87 to complete the consultation.
We request that you respond to this letter within seven days.”

4 The various surveys and reports requested in the letter provide the foundation for the applicant’s claims of failure to consider relevant matters (namely the further surveys and reports requested by the applicant), consideration of irrelevant matters (namely the reports and evidence on the massacre and burials by persons other than persons engaged to carry out the further surveys and reports requested by the applicant), denial of natural justice (by denying the applicant’s reasonable requests for the further surveys and reports), and to a lesser extent, bias (by failing to consider the applicant’s requests that the s 87 permit and s 90 consent be refused).

5 The applicant’s claims are not that there was complete failure to consider the matters the subject of the request of further surveys and reports (such as the massacre and burials), but rather that the Director-General’s consideration miscarried in that, by failing to obtain and consider the further surveys and reports that the applicant had requested, the Director-General failed to consider relevant matters or denied the applicant natural justice and, by considering other evidence on the matters the subject of the requested further surveys and reports, the Director-General considered irrelevant matters.

6 It is therefore critical to examine the evidence of the Director-General’s consideration of the matters, the subject of the applicant’s requests.

Events prior to the application

7 The proponent’s application for a s 87 permit and s 90 consent were dated 29 June 2006 and were received by the Metropolitan Branch of the Department of Environment and Conservation on 10 July 2006. However, as the application makes plain, there had been a long history in relation to the Shell Cove Boatharbour/Marina Project generally and the Project’s impacts on archaeological and Aboriginal cultural heritage issues of concern to Aboriginal people in particular.

8 Over a 20 year period preceding the decision to grant the s 87 permit and s 90 consent, there had been considerable investigation of archaeological and Aboriginal cultural heritage issues. The Shell Cove area was initially surveyed in 1985 by consultant archaeologist Dr Susan McIntyre in consultation with the Illawarra Local Aboriginal Land Council. The purpose of Dr McIntyre’s survey and assessment was to provide a general appraisal of the Aboriginal sites in the area subject to the proposed development. Dr McIntyre located one Aboriginal site during her survey, a shell midden with associated lithic scatter in a beach dune on the foreshore of South Shellharbour Beach (AHIMS site 52-5-207). Dr McIntyre also reported that the survey area had sustained extensive sub-surface disturbance from historic-era settlement activities.

9 In 1986, the New South Wales Public Works Department commissioned Anutech to fulfil McIntyre’s recommendation that further archaeological assessment be undertaken. A team of archaeologists from Anutech conducted a test pitting program and heritage assessment of AHIMS site 52-5-207, and investigated areas of possible archaeological sensitivity identified by McIntyre during the previous year. The team tested/excavated the shell midden site (AHIMS site 52-5-207) with the assistance of two representatives of the Illawarra Local Aboriginal Land Council. No further Aboriginal sites were identified during this survey and recommendations in this report focused on the test excavations at the midden and the outcome of consultations with the local Aboriginal community.

10 The archaeological consulting firm, Navin Officer, undertook archaeological studies for the proposed Shell Cove Boatharbour and Marina and the proposed haul road landfill in 1995. Navin Officer’s archaeological study for the proposed Shell Cove project included: comprehensive review of all previous archaeological work carried out in the development area and in the region generally; assessment of the colonial and modern history of land use disturbance in the Shell Cove area; consultation with the Illawarra Local Aboriginal Land Council; general archaeological survey of the development areas defined at that time, including sub-surface testing of the slope immediately west of the Shellharbour Swamp; a further program of test excavation of shell midden site 52-5-207 in collaboration with the Illawarra Local Aboriginal Land Council; and analysis of material from the test excavations (analysis of the stone artefacts was carried out by Dr J Kamminga).

11 The ground surface survey carried out from Navin Officer focused on areas of ground surface exposure, such as creek banks, road cutting and stock tracks, dams, drainage ditches and areas of stock trampling. Navin Officer uncovered no new Aboriginal sites or objects by ground surface survey or sub-surface testing. It was reported that the development area had sustained extensive disturbance from historic-era settlement activities, such as clearing of a native littoral rainforest, extensive cultivation of wheat and other crops, dairying, construction, golf course, and waste disposal. This report was consistent with earlier assessment by McIntyre in 1985.

12 Subsequently, Navin Officer carried out a survey for the proposed construction of a haul road from Shellharbour Road to Bass Point Quarry and a series of noise-barrier mounds adjacent to the new road. Navin Officer reported the proposed road easement has sustained comparable European land-use impacts to those on the slopes of Shellharbour Swamp, and in particular impacts such as forest clearance, ploughing, cropping and pasture improvement. No Aboriginal objects (sites or isolated artefacts) were identified during the field survey and they assessed the potential for such objects to remain in an undisturbed condition in significant densities to be very low.

13 In 1995, the Minister for Urban Affairs and Planning established a Commission of Inquiry to inquire into and report on the development application that had been lodged by the Council for the Shell Cove Boatharbour/Marina Project. The Commission of Inquiry assessed the claims of the applicant, amongst others, of a massacre and burials in the area and considered the archaeological evidence. The Commission of Inquiry issued its report on these matters in 1996. The Commission concluded that the extent of the site and the distribution of areas of archaeological value provided opportunities to construct major elements of the proposed development without directly impacting the archaeological significant deposit. The Commission stated that it had appraised all of the environmental issues, including the Aboriginal heritage issues, such as the claimed occurrence of a massacre of Aborigines and burial of the victims at Shell Cove. The Commission concluded the proposed development was appropriate, subject to a number of consent conditions. The submissions relating to Aboriginal culture and heritage were summarised and/or appended in the Commission’s report. The Commission’s commentary on and assessment of the Aboriginal issues was included as Appendix 1 of its report.

14 On 26 November 1996, the Minister granted development consent to the Council for the construction of a Boatharbour/Marina, enlargement and enhancement of wetlands at Shadforth and the placement of acoustic mounds adjacent to a Bass Point Quarry Haul road. The conditions of the consent included requirements to: establish a Shell Cove Compliance Committee (which includes a representative of the Aboriginal community); protect the areas of the Aboriginal shell midden site (AHIMS site 52-5-207) identified as having relatively high archaeological value; and prepare, as part of the Environmental Management Plan, an Archaeological and Heritage Protection Plan for each component, in consultation with the Aboriginal community and NPWS (now DEC).

15 The development consent was modified on 9 November 2001 and 6 September 2004. A further development consent was granted on 4 May 2004 for the placement of clean fill to create a landscaped mound.

16 In 2005, the applicant, with others, commenced Class 4 proceedings in this Court challenging the validity of the development consent and seeking a declaration that the Council, in undertaking development in accordance with the development consent, will cause the movement, damage, defacement or destruction of Aboriginal objects in breach of ss 86 and 90 of the National Parks and Wildlife Act 1974. In two judgments, Talbot J dismissed both of the applicant’s claims: Henry v Shellharbour City Council [2005] NSWLEC 378 (22 July 2005) (in relation to the challenge to the development consent) and Henry v Shellharbour City Council [2005] NSWLEC 600 (21 October 2005) (in relation to alleged disturbance of Aboriginal objects).

17 In relation to the second challenge, the applicant and Mr Allan Carriage gave evidence in relation to the Aboriginal objects said to occur within and around the site of the project. Expert evidence was given by Mr Michael Therin, a consulting archaeologist who prepared a report on the applicant’s behalf in May 2005. Mr Therin inspected a number of locations at Shell Cove for the presence of Aboriginal objects. Therin recorded the presence of a total of about 23 Aboriginal stone artefacts on the ground surface at three locations (AHIMS site 52-5-436, 52-5-437 and 52-5-438).

18 Dr Kamminga also gave evidence in these proceedings, including addressing the evidence of the applicant, Mr Carriage and Mr Therin.

19 A departmental requirement for applications under s 87 and s 90 of the Act is for the proponent to engage in consultation with the Aboriginal community in accordance with the DEC “Interim Guidelines for Aboriginal Community Consultation”. The proponent’s consultant archaeologist, Dr Kamminga, undertook consultation in accordance with these guidelines. The consultation process included:

(a) direct mailing and publication of notices in relevant local and Aboriginal community newspapers advising all Aboriginal persons and groups who have knowledge of, or are interested in Aboriginal objects or Aboriginal cultural heritage within the project area to register their interest in the consultation process;

(b) Those persons or groups who registered their interest in the consultation process were provided with a Cultural Archaeological Methodology Briefing Document. The respondents were invited to provide feedback to the proponent, including identification of issues/areas of cultural significance that might affect, inform or refine the methodology. The respondents were advised that there was an opportunity to meet with the consultant archaeologist, Dr Kamminga for face to face feedback including joint inspection of parts of the project area during the consultation process; and

(c) A number of respondents accepted this invitation to meet with Dr Kamminga, including the applicant, and subsequently two feedback reports were prepared by Dr Kamminga summarising the feedback provided at these meetings.

20 Amongst the persons and the groups who registered interest were the applicant, Mr Allan Carriage and Mr Carl Mundy. They, along with Ms Tracey Henry (representing herself and her mother), were referred to collectively as Respondent Group 1. This group had a feedback meeting with Dr Kamminga on 16 January 2006, faxed to Dr Kamminga the letter of 26 January 2006 as well as providing other written communications on 5 January 2006 and 6 March 2006.

21 The consultation feedback meeting on 16 January 2006 with Respondent Group 1 was held in the conference room of the proponent’s office at Shell Cove and continued as a field excursion around the general area of AHIMS sites 52-5-437 and 52-5-438 and near the latter across the road in recently landscaped, open riparian conservation corridor zones to the west of Shallows Drive. In the conference room meeting, the applicant read aloud an extract from a report about a massacre at Bass Point written by Chris Illert. As a group, all respondents expressed the view that they were opposed to the granting of any permits or consents which would allow disturbance within the project area. The expressed strong concern that the proposed development would negatively impact a range of Aboriginal heritage sites including sites registered on AHIMS. The applicant provided information on and the general location of a purported ceremonial area (including a bora ring), massacre site (and associated victims’ burial site), other Aboriginal ancestral remains (Aboriginal burials) on the boundary of Bass Point Quarry adjacent to the Project Area, and a burial site of animal bones (not being human remains).

22 Respondent Group 1 “asked that consideration be given to preparing three special reports for submission to the DEC: one on Aboriginal burials and reburial in the Project Area, a second on a bora ring and associated massacre burial site, the third on the social significance on the sites in the Project Area. The group further asked that consideration be given to a special study of bones found outside the Project Area and undertaking a further archaeological survey of a creek within the Project Area“.

23 Immediately after the meeting in the conference room, Respondent Group 1 inspected sites where stone artefacts previously recorded by Michael Therin had been located, namely AHIMS sites 52-5-437 and 52-5-438, as well as across the road in the riparian conservation corridor (an area not within the Project Area).

24 A video record of the meeting and field excursion was made and subsequently a written feedback statement was prepared. The draft feedback statements were provided to Respondent Group 1 for their consideration, amendments and/or additions.

25 On 3 March 2006, Dr Kamminga sent a registered letter to the members of Respondent Group 1, including the applicant, encouraging them to provide further information about Aboriginal objects or sites within the project area, and in particular about the locations of claimed unregistered human Aboriginal burials, a ceremonial ground and bora ring, ritual stone artefact and reburial animal bones.

26 On 5 March 2006, Alan Carriage, on behalf of Respondent Group 1, responded to the draft statement of feedback from the session on 16 January 2006. After received corrections and comments from Respondent Group 1, the feedback statement was finalised for inclusion with the draft Cultural Heritage Assessment Report.

27 On 19 May 2006, copies of the draft Cultural Heritage Assessment Report were sent to the various respondents, including each of the respondents in Respondent Group 1 (including the applicant).

28 In the covering letter, Dr Kamminga advised the respondents that if they wished to comment on the draft report or on any other related matter including the proposed methodology, the ss 87 and 90 applications and the Aboriginal Heritage Protection Plans (required by a condition of the development consent), it would be necessary to do so within 21 days of the date of the letter. Dr Kamminga further advised that at the end of this period the completed draft report and any additional comments from respondents would be lodged with the Department of Environment and Conservation to support a ss 87 and 90 application to be lodged at the same time.

29 In this letter, Dr Kamminga also encouraged the respondents to provide any further relevant information they may have about Aboriginal objects or sites within or in the immediate vicinity of the Project Area. Dr Kamminga invited further comment or information concerning Aboriginal heritage values of registered sites and objects identified in the draft report, proposed heritage management measures, and the locations of sites and objects not currently registered on the AHIMS. He identified a number of sites and object types that were of particular relevance, namely animal bones buried on beach sand, ceremonial ground, bora ring, cyclon artefact and Aboriginal burials (or human bones) within or within the vicinity of the Project Area. He emphasised such comment or information provided should be in documentary form such as hand written or typed letter, photo, map, and video/audio tape or disc.

30 The only person from Respondent Group 1 who responded to Dr Kamminga was Mr Allan Carriage who faxed a letter to Dr Kamminga dated 23 May 2006. Mr Carriage expressed his concern and regret about the draft report. In particular, he criticised reliance on Navin Officer’s review of the claim about a reported massacre at Shell Cove. Mr Carriage stated he had personal knowledge about the massacre from his Auntie Nell de Rose.

31 Mr Chris Illert, a respondent in Respondent Group 2, also responded by letter and orally. In his letter, Mr Illert provided an account of his evidence for a reported massacre at Shell Cove. In oral feedback, Mr Illert indicated that he may have personal knowledge about Aboriginal burials and reburials at unspecified locations but did not want to provide the information.

32 Another respondent Mr Rueben Brown, provided oral and written feedback confirming his belief that a massacre of Aboriginal people had occurred at Shellharbour Swamp.

33 The second round feedback was considered and discussed by Dr Kamminga in the final Cultural Heritage Assessment Report.

34 The final Cultural Heritage Assessment Report included all of the written and oral communications provided to Dr Kamminga throughout the consultation process. The report responded to the specific issues and concerns raised by the respondents. Attachment 26 set out in tabular form the response to the first and second rounds of consultation, including a response to each of the points raised by Respondent Group 1. In particular, Attachment 26 included a point by point response to the six matters raised in Respondent Group 1’s letter of 26 January 2006. That response is as follows:

Respondent Group 1 Faxed letter from Carl Mundy, Allan Carriage, Aaron Broad Henry and Tracey Henry, dated 26 January 2006. (see Attachment 8)
33	Recommended that a report to be prepared by qualified persons into the burials and reburials of our old people that lie within the proposed development area:	Refer to 13, 15, 14, 17 and 18, 19, 34, 36, 40, 44, 50, 67, 68 and 88. The issue of human burials is discussed in Section 6, 7, 8.1, 9 and 10 of the ‘Draft Cultural Heritage Assessment Report’. The only Aboriginal bone remains demonstrated to exist within the Project Area is the cranial fragment excavated in 1986 by Anutech from midden site AHIMS 52-5-207 (Anutech 1986). This bone fragment does not require further study.
34	Recommended that the bones that were located [in a riparian conservation corridor] during the inspection of the 16 January 2006 should be analysed.	The bone fragments in question are not located within the Project Area. They are in a riparian conservation corridor that is public land accessible to any member of the public who wishes to collect the bone fragments for species identification or other study. The respondents were advised during the field inspection on 16 January 2006 that the mulch containing the bone fragments had been transported to Shell Cove from Dunmore Tip. This mulch had then been used to top-dress newly planted areas within the riparian conservation corridor. Dr Kamminga observed from inspection of some of the fragments that they were modem and in a good state of preservation, and therefore could not have derived from the underlying acidic sediments. He noted that at least one piece of bone had been cut through by an electric band saw. Dr Kamminga concluded therefore that there was no basis to infer that the pieces of bone were human or, more specifically, that they were from Aboriginal burials. The manager of Dunmore Tip has advised the development proponents that this mulch was prepared from recycled green waste delivered to the tip by the public and household kerbside collections. It is most likely that that the bone fragments are from these deliveries. We note that Mr Allan Carriage previously has reported to the media his concern that bone fragments he has found in mulch at Shell Cove could be Aboriginal. Mr Carriage was subsequently advised that these bones were not human. The relevant text of two media reports is cited below: Anon. 2005. Animal Bones, Illawarra Mercury, Saturday 21 May 2005, page 9: Lake Illawarra Police have confirmed bone fragments found at Shell Cove were not human. Shellharbour Aboriginal Tent Embassy organiser Allan Carriage notified police after finding dozens of fragments in mulch on Thursday. Mr Carriage said the site was a corroboree site and burial land. But after tests carried out at Wollongong Hospital, a Lake Illawarra Police spokesman confirmed the bones belonged to an animal, rather than a human. "The bones are nonhuman and most likely from a ... sheep or lamb" he said. Verity, William 2006. Bones may 'tipped', Illawarra Mercury, Wednesday, 20 May, 2006: Bone fragments found in mulch at Shell Cove are almost certainly not culturally significant - according to a senior Shellharbour City Council manager - despite claims by an Aboriginal elder. One of the organisers of the Shellharbour Aboriginal Tent Embassy, Allan Carriage, notified police yesterday after an inspection of mulch around a creek at Shell Cove revealed dozens of bone fragments. When officers did not arrive, he said he would take some for analysis. "We know this is a corroboree site and burial land". Mr Carriage said "This has just come out of the blue."
35	Recommended that a complete surface survey of the creek area, followed by a decision on the merit of carrying out subsurface work to measure the extent and significance of any identified sites located.	The archaeological surveys/studies carried out within the Project Area and specifically the creek channel since 1985, including the archaeological survey by Navin Officer in 1995 and the 2005 inspection by Therin of the creek channel around AHIMS site 52-5-437 (lithic scatter), and the current cultural heritage assessment report, are regarded as sufficient for assessment of the incidence, character, site integrity and heritage values of Aboriginal heritage in this area. An appropriate salvage methodology for lithic scatter site AHIMS 52-5-437 has been detailed in Section 13 and Attachments 2 and 3 of the 'Draft Cultural Heritage Assessment Report'.
36	Recommended that a survey report on the bora ring and the massacre burial site. That the requested report be forwarded to DEC for its consideration for the ss87/90 application.	There is no substantive evidence for the existence of either a bora ring or massacre site within the Project Area, and the existence of these sites is not regarded as credible. See Respondents' comments 68, 69, 70, 88 89, and also development proponents' responses 12, 13, 14 and 63. The claims for the existence of a bora ring and the massacre burial site are reviewed in Section 9 of the `Draft Cultural Heritage Assessment Report').
37	Recommended that a report prepared by an ethnographer/anthropologist acceptable to Traditional Owners on the social significance of all the sites identified in the development proposal area are to be done in consultation with all the relevant elders and traditional owners. That the requested report be forwarded to DEC for its consideration for the s 87 and s 90 application.	The ethnographic and historical information relating to the Illawarra and Shell Cove areas has been professionally reviewed and summarised in studies for the Shell Cove Project since 1995 and by the Commission of Inquiry (1996). Reliance is placed on the process embodied in DEC's "Interim Community Consultation Requirements for Applicants" policy. In any event, Dr Kamminga, the principal consultant commissioned to prepare the 'Cultural Heritage Assessment Report' also is generally trained in social anthropology and history at university level. He is co-author of 'Prehistory of Australia', a text that contains syntheses of Aboriginal history, society, language, and culture.
38	Declared expectation for the respondent group to be "fully consulted over any excavation or collection permit required under section 87 to complete this consultation."	All respondents have been fully consulted in accordance with DEC's "Interim Community Consultation Requirements for Applicants" policy. It has been made clear to the respondents in all dealings that this DEC policy is being implemented and there could as a result be no reasonable or legitimate expectation of any more extensive consultation going beyond that required by the DEC Policy.
39	Request that Dr Kamminga respond to this letter within seven days.	Dr Kamminga responded by hand-delivered letter dated 2 February 2006. He advised Mr Carriage that his fax of 26 January 2006 as a whole, and the matters raised in it, would be considered in this consultation process and in drafting the Cultural Heritage Assessment Report, and that the matters raised in the six bullet points would be in addition specifically considered in accordance with their expressed requirement that these recommendations are those that "... you need to consider in relation to satisfactorily completing this consultation".

The application

35 On 29 June 2006, Australand Holdings Limited on behalf of Shellharbour City Council and Australand Corporation (NSW) Pty Ltd lodged applications for a permit under s 87 and a consent under s 90 of the Act to the Department of Environment and Conservation. The application stated that its purpose:

“is to seek a Permit and Consent allowing the management and authorisation of impacts on Aboriginal objects within the Project Area arising from the ongoing development of the Project Area, including the following development:
(i) work and uses involved in investigative activities, feasibility investigations, pre-construction infrastructure establishment;
(ii) Boatharbour and Marina construction;
(iii) other work including the construction of roads, drainage, services infrastructure, landscaping and buildings within the Project Area; and
(iv) the ongoing use and development of land and waters within the Project Area for the purpose of the Shell Cove Boatharbour Project.”

36 The application sought authorisation in the following terms:

“1. Permission involved under s 87(1) to:
(a) disturb or excavate land for the purpose of discovering Aboriginal objects (‘ object’ );
(b) disturb or move Aboriginal objects;
(c) collect Aboriginal objects for safe-keeping;
(d) transport, replace and retain Aboriginal objects, for safe-keeping, in an interim repository (Keeping Place) as required by any relevant conditions imposed on the Permit/Consent;
AND
2. Consent under section 90 to damage, disturb or destroy:
(a) Aboriginal objects within the Project Area identified in the EIS and Archaeological and Heritage Protection Plan for the Shell Cove Boatharbour/Marina, or as a result of the monitoring or salvage operations under the s 87 Permit and which are not the subject of protection or salvage measures under the Permit; and
(b) Aboriginal objects which are not identified in the EIS, Archaeological and Heritage Protection Plan for Shell Cove Boatharbour/Marina, or during the inspection and salvage operation of the Permit;
(c) and which are disturbed, damaged or destroyed in the course of carrying out the development within the Project Area pursuant to the Development Consents or the Part 5A assessment, or in the course of other work, including the construction of roads, drainage, services infrastructure, landscaping and buildings within the Project Area or in the course of ongoing use and development of land and waters within the Project Area for the purposes of the Shell Cove Boatharbour Marina Project”.

37 The application described the types of Aboriginal objects and their location. Such description was supplemented by the attachments. These attachments included the Cultural Heritage Assessment Reports, both draft and final, prepared by the Dr Kamminga; five earlier archaeological consultancy reports that provide information about, amongst other things, the Aboriginal objects and the sites in which the Aboriginal objects are found; various affidavits, including by the applicant, in the earlier proceedings in this Court brought by the applicant; and the judgments of the Court by Talbot J on 22 July 2005 and 21 October 2005.

38 The Cultural Heritage Assessment Reports, both draft and final, included their own attachments. One of these attachments was an extract from the Commission of Inquiry report in 1996 dealing with the Aboriginal cultural heritage and archaeological considerations. Others described the process and results of consultation with the Aboriginal community.

Consideration of the application

39 On 31 July 2006, a meeting took place between Ms Lou Ewins, Ms Fiona Hamilton and Mr Gavin Martin, of the Planning and Aboriginal Heritage section – Metropolitan Region of the Department of Environment and Conservation; Mr Kevin James of Shellharbour City Council; Mr Glenn Colquhoun of Australand and Dr Kamminga at the Parramatta office of the Department of Environment and Conservation. Ms Ewins was the Manager, Mr Martin was an archaeologist and Ms Hamilton was an Aboriginal Heritage Planning Officer in the Planning and Aboriginal Heritage section. The purpose of the meeting was to discuss the application. Dr Kamminga says that as part of the discussion of the application, he provided an overview of the Aboriginal consultation process involved in preparing the application, the issues raised by respondents during consultation and the Aboriginal cultural heritage of the application area and its regional context. Dr Kamminga says:

“In my presentation at that meeting, I summarised the main cultural heritage issues, including the social and more general cultural heritage values of the Application area, both in general and in reference to individual sites/site types. These sites/site types comprise two groups: those registered on DEC’s Aboriginal Heritage Information Management System (or AHIMS), and those claimed to occur by one or more respondents. These sites/site types included:
AHIMS 52-5-436, 52-5-437 and 52-5-438 lithic scatters;
AHIMS 52-5-207 shell midden (from which human bone had previously been excavated in 1985);
claimed massacre and associated human burial site;
claimed human burial site;
claimed ceremonial site; and
claimed modern animal burial sites.
I also summarised the archaeological, historical and other evidence, including the claims made and relevant information provided by Mr Aaron Henry and other respondents about sites they claimed existed within or in the vicinity of the Application area. During my presentation I referred the attendees at the meeting to the relevant section of the application”.

40 On 12 August 2006, Mr Allan Carriage, writing in his capacity as President of the Wadi Wadi Coomaditchie Aboriginal Corporation, wrote to the Director-General of the Department of Environment and Conservation expressing dissatisfaction with the results of the consultation process about Shell Cove. He also expressed disappointment with the application and accompanying reports which, in his opinion, were not true to the Aboriginal cultural significance of the area.

41 On 21 August 2006, Mr Gavin Martin emailed Ms Fiona Hamilton and Ms Lou Ewins of the Planning and Aboriginal Heritage section, Metropolitan Branch, Department of Environment and Conservation. Mr Ewins was the person with delegated authority from the Director-General to determine the applications.

42 Mr Martin in his email of 21 August 2006 noted, amongst other matters:

“There are conflicting views on the Aboriginal heritage values present across the Shell Cove areas. Essentially the archaeological significance for much of the area is fairly low. To some of the Aboriginal groups, the heritage value of the entire area is high and development should not proceed.
Four Aboriginal sites, registered on AHIMS are located within the Boatharbour/Marina area. These are:
52-5-207 - a midden with associated stone artefacts. A piece of human skull was also found at this site which was interpreted by the archaeologists at the time as being part of a human burial. The midden contains a range of marine and estuarine species and stone artefacts. The amount of midden material, its depth and integrity varies across the site and has been mapped by Navin Officer for the original EIS done in 1995. This site is located on the foredunes next to Shell cove and will be mostly avoided by the development. In particular, those areas of high archaeological significance will be avoided. J Kamminga proposes a monitoring/salvage program at the portion of this site that will be impacted.
52-5-436 - a small stone artefact scatter in sediment exposed in a post hole. It is possible that the artefacts are not in their natural place. This site will be destroyed. Proposed that the site be collected and earthworks monitored.
52-5-437 - low density artefact scatter on a heavily eroded creek bank in ground extensively modified by the old golf course. This site will be destroyed. Proposed collection and salvage excavation.
52-438 - four artefacts in an area that had been severely disturbed in recent times. It is possible that the artefacts are not in their natural place. This site will be destroyed. Proposed that the site be collected. No other archaeological material has been located in the area for construction which includes a wetland/swampy area and surrounding ridges, despite several archaeological investigations being undertaken over the area. There is a possibility, however, that artefacts do occur elsewhere in the development area that have not yet been identified. It does not appear from the application that Australand are seeking a 'blanket' s 90 for the entire area, just for the known sites - this needs to be clarified with Australand.

Consultation :
The COI undertaken in 1995/6 concluded that the development could not be stopped on Aboriginal' heritage grounds. It was recognised that the area was of high significance to the local Aboriginal community, however, the economic and social benefits were felt to outweigh these concerns. The COI also stated that it could not be reliably determined that the area was the location of a massacre site, as claimed by KEJ. FYI - NPWS Southern had provided advice that they would support a s 90 for the development as long as most of the midden was avoided in 1994.
Current situation - Illawarra LALC and Wodi Wodi Elders Corp are not opposed to the development as long as the midden is protected. Their primary concern is that any burials are not damaged. Jo Kamminga stated in our meeting the area of midden to be impacted does not have a likelihood of containing burials.
NIAC and Allan Carriage et al are opposed to any development activities, both to the recorded Aboriginal sites and to the surrounding environment which includes the swamp, ridges etc, which has cultural value to them. They have made a number of requests for further examination of certain areas and an ethnographic study of the area. These requests have been responded to by Australand and Kamminga in the application. Essentially, Australand reject requests for further assessments, saying that adequate assessment has already taken place.
Conclusion :
The various archaeological studies undertaken at Shell cove have identified the midden on the foredunes as being archaeologically significant. The majority of this midden will be conserved and the Aboriginal Heritage Protection Plans developed as an EIS requirement will provide a management plan for the conserved sections of the midden.
The remainder of the land to be impacted is not considered to be archaeologically significant. This however, this contrasts with the views of some of the Aboriginal groups, Alan Carriage et al in particular who feel the whole area is significant, not just the midden, and should all be protected.”

43 Mr Martin in his email referred to a forthcoming site visit which he said “will help in the decision making as well”. Mr Martin then dealt with some additional issues that the Department needed to discuss with the proponent and Dr Kamminga.

44 On 22 August 2006, Mr Ross Carter, the Director, Metropolitan, Environment Protection and Regulation, Department of Environment and Conservation, responded on behalf of the Director-General to Mr Carriage’s letter of 12 August 2006. Mr Carter noted that Mr Carriage had expressed dissatisfaction with the consultative process. Mr Carter noted that Mr Carriage had been consulted as part of the application process. Evidence of the consultation had been attached to the application in the form of a DVD recording of a feedback session that Mr Carriage attended along with other representatives of the Wadi Wadi Coomaditchie Aboriginal Corporation as well as written correspondence from Mr Carriage. Mr Carter then stated:

“The DEC is currently considering the s 87/s 90 application for Shell Cove Boatharbour/Marina development as well as the Aboriginal Heritage Protection Plans required for this development. If there are additional relevant matters you would like to raise in respect of this application, I’d welcome a written submission from you. If you would like to make a submission, I would appreciate it by 30 August 2006. In the absence of a response from you I will assume that you do not have further comments to add other than that which you have already provided.”

45 The foreshadowed site visit took place on 30 August 2006. The participants in the site visit were Ms Ewins and Mr Martin of the Department of Environment and Conservation, Mr Kevin James of Shellharbour City Council, Mr Glen Colquhoun of Australand and Dr Kamminga. As part of the site visit, the attendees visited the following locations: the land on which the approved Boatharbour and entry channel would be constructed; the AHIMS 52-5-207 midden site and the AHIMS 52-5-436, 52-5-437 and 52-5-428 lithic scatters; Bass Point Reserve (not within the application area); and Killalea State Park (not within the application area).

46 Dr Kamminga stated that during the course of the site visit, he explained to the attendees, “the Aboriginal cultural heritage of the Application area and, in particular, informed Ms Ewins and Mr Martin about the general locations of a claimed Aboriginal massacre site, claimed human burial sites and claimed ceremonial site”. Dr Kamminga stated that his discussions with the Department of Environment and Conservation staff in part reiterated information he had provided in the presentation at the Department’s office on 31 July 2006.

47 On 1 September 2006, Mr Glenn Colquhoun of Australand emailed Ms Lou Ewins stating, amongst other things, that he had prepared a letter detailing the consultation undertaken with the Aboriginal community in respect of the Archaeological and Heritage Protection Plans and that that letter had been forwarded to Ms Ewins. Ms Ewins acknowledged receipt of that email.

48 Mr Colquhoun’s letter dated 1 September 2006 was received by the Department on 3 September 2006. In that letter, Mr Colquhoun set out the process by which consultation occurred in relation to the Archaeological and Heritage Protection Plans (AHPPs). This included newspaper advertisements, registered letters to relevant groups and persons, and consultation with persons and groups who registered their interest in the consultation process which included provision of documentation, face to face meetings, provision of draft Cultural Heritage Assessment report and provision of the final Cultural Heritage Assessment Report for comment.

49 The letter noted that comments were received from Respondent Group 1 (represented by Allan Carriage, Aaron Broad Henry, Carl Mundy and Tracey Henry) and their comments are summarised in “Attachment 9” [sic, semble Attachment 7] of the Cultural Heritage Assessment Report.

50 The letter noted that the final Cultural Heritage Assessment Report, and copies of the AHPPs, were sent to all respondents on 19 May 2006. No further responses were received from any of the respondents about the AHPPs. On 1 July 2006, letters were sent to all respondents notifying them of the final ss 87 and 90 application including the final Cultural Heritage Assessment Report and the AHPPs had been lodged with DEC and inviting further inspection of the documents up until 22 July 2006. The letter noted no responses were received from any of the respondents to this letter.

51 On 6 September 2006, Ms Ewins replied to Mr Colquhoun’s letter of 1 September 2006 stating that that letter had “clarified our understanding of the extent of the Aboriginal community consultation undertaken to inform the Archaeological and Heritage Protection Plans”, expressing thanks for the site visit and subsequent meeting on 30 August 2006 and noting that that visit and meeting had been “extremely helpful to us to see the area of land subject to the s 87/90 application and the surrounding area to gain a better understanding of the regional context of the proposal. In this regard the Shellharbour Aboriginal Heritage Assessment Report and the Bass Point Plan of Management are also very useful documents. The site visit and follow up meeting has answered many outstanding questions we had regarding the application”. Ms Ewins then proceeded to ask some additional questions of a technical nature.

52 On 11 September 2006, Mr Gavin Martin emailed Ms Ewins in relation to a query he had received from Mr Al Oshlack about the application. Mr Oshlack is the agent authorised by the applicant in these proceedings to represent him as advocate. Mr Martin said in the email of 11 September 2006:

“I’ve had a call from Al Oshlack who is querying whether a s 90 had been issued for Shell Cove. I told him that the application was currently under consideration. He said that there were burials and artefacts scattered all over that area that would be impacted and that the Aboriginal elders were very concerned. He wanted to know if we’d considered the request of the ‘elders’ and the six points they bring up in their letter. I assume he means the letter signed by Allan Carriage that is included in the application. I reiterated that the application was under consideration.
I said that he or the Aboriginal community could forward any concerns they had with the application to us. I said that it would be more appropriate to send them through to your self and I gave him your email and phone number”.

53 On 12 September 2006, Ms Ewins responded thanking Mr Martin and asking that a copy of the email be put on the file.

54 On 11 September 2006, Mr Colquhoun of Australand responded by letter to Ms Ewins’ letter dated 6 September 2006 answering the queries raised in that letter.

55 On 13 September 2006, Ms Ewins had a telephone conversation with Mr Colquhoun in which she requested clarification in relation to assessment of Aboriginal heritage within the project area defined within the application. Mr Colquhoun provided the clarification sought in a letter to Ms Ewins dated 18 September 2006. Mr Colquhoun stated in part:

“The assessment of Aboriginal heritage in the Project Area (which is also the permit/consent Application Area) and the basis for inferring the potential for preservation of Aboriginal site types and objects in the different land units of the Project Area has been based on assessments and evaluations described or otherwise embodied in the Cultural Heritage Assessment Report and in the permit/consent Application (refer sections 5, 6, 7, 8 and 9 of the Cultural Heritage Assessment Report). This includes:
the Aboriginal archaeological heritage studies carried out over the past 20 years in and around the Project Area, and other studies in the Illawarra region generally;
history of landscape evolution;
the nature of sediment disturbance processes and sediment disturbance history; and
the nature of archaeological sites in the wider area or region.
Archaeological surveys and inspections have been undertaken within the Project Area as variously defined since 1985, and on land around or adjacent to the currently defined Project Area since the 1960s. The Navin Officer study of the Project Area defined in 1995 as one of these studies. The Project’s consultant archaeologist also participated in one of these earlier studies by Sandra Bowdler in 1968-69, and undertook an inspection of a disturbed land area in 2004. The most recent professional archaeological inspections of unrecorded sites was carried out in 2005 by consultant archaeologist Mr Michael Therin.
The assessment of the Project Area has included an assessment of the relevant studies undertaken over the past 20 years. These are described in section 7 of the Cultural Heritage Assessment Report and include:
Sue McIntyre Archaeological study 1985;
Anutech Archaeological study in 1986;
Navin Officer survey in 1995;
Navin Officer survey of haul road landfill in 1995;
NHC inspection of alternative temporary armour rock storage in 2004;
Michael Therin inspections of potential Aboriginal sites in 2005.”

56 On 19 September 2006, Ms Hamilton, the Aboriginal Heritage Planning Officer at the Department, emailed Mr Martin attaching a draft report considering the application and attaching a draft Consent and Permit to Collect. The draft report evaluated the impact of the development on the Aboriginal objects and stated:

“Range of impacts will vary across the Project Area from minor clearing to major excavation works to depths in excess of 10 metres. With the exception of site 52-5-207 (shell midden) impacts to the locations of Aboriginal sites/objects within the project area will be total, completely disturbing the context and nature of the sites, although the objects themselves may not be destroyed, they will however lose all of their original context. All sediment from the site will be transported to a landscaped mound.
52-5-207 – impacts to the shell midden will be restricted to the outlying edges which have been determined to be of low archaeological value. To create the northern groyne it will be necessary to excavate an area of beach sand that contained a single stone artefact and some fragments of shell, identified as “outliers” to the main midden by Navin Officer. This area is approximately 50 metres north of the main areas of shell midden. It is possible that additional artefacts are present in the area to be impacted by the groyne construction and as a result Jo Kamminga has proposed that the area be monitored and a representative sample of any features determined to be of high archaeological value be salvaged.
An associated scatter of stone artefacts on the ground surface immediately behind the sand dune is no longer visible, however, this area may be impacted by landscape remediation works and heritage protection works. It is proposed that the larger area immediately surrounding it be covered with soil and revegetated.”

57 The draft report analysed the registered AHIMS sites and then stated:

“The areas of high archaeological value within the Shell Cove midden will be conserved. The major losses to cultural heritage by Shell Cove Project are the loss of the natural resources which provide a context to the midden (the wetland basin, outlet channel and marine rocky platform). Furthermore, the artefact scatters around the swamp edges will also be removed.”

58 The draft report looked at the chronological background to the application, including the earlier archaeological investigations and reports by S McIntyre in 1985, Anutech in 1986, Navin Officer in 1995, the Commission of Inquiry in 1996, M Therin in May 2005 and the Land and Environment Court judgments in July 2005 and October 2005. The most recent event noted was from January 2006 onwards involving the consultation and inspection undertaken by J Kamminga with the Aboriginal community for the s 87/90 application.

59 The draft report reviewed each of the earlier archaeological reports by McIntyre, Anutech, Navin Officer, and the Commission of Inquiry and the Cultural Heritage Assessment Report by J Kamminga.

60 The draft report then had a detailed section considering the claims from the Aboriginal community. The draft report noted that Respondent Group 1 (which consisted of A Carriage, the applicant in this case A Henry, T Henry and C Mundy) declared “the entire Shell Cove to be significant and oppose the s 90 consent being given”. The draft report noted that the following issues were brought up by Respondent Group 1:

“Shell Cove as the location for a purported massacre site - Kelvin Officer responded to the KEJ claim for this in 1996 and it was found by the COI to be unsubstantiated. Officer found that there was no historical evidence to link the 1818 massacre site to be located at Shell Cove.
Shellharbour Ceremonial site - claims by Aaron Broad Henry for a ceremonial site (including a bora ring) within the swamp. No other claims for this in the 20 years of consultation for this project. No other ceremonial sites in Australia found in swamps. The red tinge interpreted by Henry as being red soil from Uluru to the soil is from an acid sulface scald. Claim unsubstantiated.
A Carriage has made the following recommendations, which are followed by the response from Kamminga:
1. A report to be prepared by qualified persons into the burials and reburials of our old people that lie within the proposed development area.
One burial recorded in the Project Area (piece of human crania only) however there is the possibility that additional bone is present in the midden. The area with potential to contain burials (section of midden with high archaeological value in Figure 20) will be conserved as per the AHPP. Monitoring of construction close to this area will also take place. Furthermore, burials not covered by the s90. For these reasons, further investigation into burials in this area is not considered necessary.
2. A complete survey of the creek area, followed by a decision on the merit of carrying out sub surface work to measure the extent and significance of any identified sites located.
The creek areas have been adequately surveyed through the various previous studies, McIntyre 1985, Navin Officer 1995, Therin 2005 and Kamminga 2006. The merits for undertaking subsurface work has been considered and an appropriate salvage methodology for undertaking the subsurface work has been developed by Kamminga.
3. Analysis of the bones that were located during the inspection of the 16th of January 2006.
These bones were found outside of the Project Area and furthermore there is no basis for them being human or more specifically Aboriginal.
4. A survey report to be undertaken on the bora ring and the massacre burial site.
The allegations of a bora ring have been addressed by J. Kamminga in the Cultural Heritage Assessment report attached to the application. There is no substantive evidence for the bora ring. The claim for the massacre site at Shell Cove has been considered at length in the Commission of Inquiry (1996) as well as by Kamminga for this application. Again there is no substantive evidence for massacre site being located in Shell Cove. Again, the s 90 will cover any human skeletal remains if found.
5. A report prepared by an Ethnographer/Anthropologist acceptable to Traditional Owners on the social significance of all the sites identified in the development proposal area to be done in consultation with all the relevant elders and traditional owners.
The Aboriginal groups who have expressed an interest in this Development have had the opportunity to provide input on cultural values through the DEC's Interim Community Consultation Requirements for Applicants policy. J. Kamminga is generally trained in social anthropology and has facilitated a number of meetings and site inspections with community members providing them with the opportunity to comment on the social significance, which they have done so. Ethnographic and historical information on the Shell Cove areas has also been professionally reviewed in studies for the Shell Cove project since 1995 and for the Commission of Inquiry (1996).
6. The above reports be forwarded to the Department of Environment and Conservation for their consideration for the s87 and s90 application.
Not applicable”.

61 The draft report then described the salvage program. Finally, the draft report noted that “consultation for this application has been conducted in accordance with the requirements for the DEC Interim Guidelines for Aboriginal Community Consultation”. The draft report concluded with a recommendation “that the s 87 Permit be granted to J Kamminga and s 90 Consent to Australand”.

62 Between 14 September 2006 and 25 September 2006 there was an exchange of emails between Mr Martin of the Department of Environment and Conservation and Mr Colquhoun of Australand concerning the correct Australian map grid coordinates for the AHIMS site 52-5-207.

63 On 29 September 2006, a final report was written considering the applications under s 87 and s 90. This report was written and signed by Mr Martin and Ms Ewins. This report stated in the summary at the front of the report:

“In summary, in assessing this application the delegate has taken into consideration the National Parks and Wildlife Act , including the objects of that Act, relevant current DEC policy, the written application and associated documents and correspondence, the views of the Aboriginal community, the views of the project archaeologist, previous cultural heritage studies undertaken at Shell Cove, mitigative measures proposed for those Aboriginal sites to be impacted and management of the Aboriginal site to be conserved. In addition to this, the cumulative impacts to Aboriginal sites in the wider region have also been considered. The delegate’s decision was also informed by a site inspection (30 August 2006) of the project area, including each of the recorded sites (52-5-0207, 52-5-0436, 52-5-0437, 52-5-0438) and of the nearby Bass Point Reserve and of the Kilalea State Recreation Area”.

64 The report noted that the proposal will impact on four known Aboriginal sites, AHIMS 52-5-0207 being a shell midden and 52-5-0436, 52-5-0437 and 52-5-0438, being stone artefact scatters, and those sites were described.

65 The report noted that:

“The Shell Cove Boatharbour/Marina development will result in the disturbance of the three stone artefact scatters referred to above which are present in that area as well as disturbance to the portion of the Shell Cove midden determined to be of no or low archaeological value. The areas of high archaeological value within the Shell Cove midden will be conserved.
Both Shell midden and stone artefact scatters are well represented in the Shellharbour LGA. Furthermore, the portion of the midden considered to be most intact and of high archaeological value will be preserved. The major losses to cultural heritage from the Shell Cove Boatharbour/Marina development are the loss of the natural resources which provide a context to the midden (the wetland basin, outlet channel and marine rocky platform).”

66 The report listed the documents reviewed in the application as being:

“In addition to the documents outlined various other written, audio and video correspondence included in the Shell Cove Boatharbour/Marina Project Application for a Permit under Section 87 and Consent under Section 90 of the National Parks and Wildlife Act 1974 - Volumes 1 and 2 dated 28/6/2006.
Additional correspondence received from Australand dated 1 September 2006, 11 September 2006, 17 September 2006 and 18 September 2006.
Additional correspondence received from J Kamminga dated 1 September 2006.
Letter received from Mr Allan Carriage, President of the Wadi Wadi Coomaditchie Aboriginal Corporation dated 12 August 2006.
The further documents listed in Attachment 1”.

67 Attachment 1 listed 12 other documents including each of the previous archaeological studies and reports by McIntyre (1985), Anutech (1986), Navin Officer (two in 1995 and one in 2000), the Commission of Inquiry Report (1996) and Kamminga (June 2006).

68 The report referred to the AHIMS register and the listed Aboriginal sites within the Shellharbour Local Government Area. The report then referred to the previous archaeological investigations:

“Several archaeological investigations have been undertaken over the past twenty years for the Shell Cove Project (see McIntyre 1985, Anutech 1986, Navin Officer 1995a & 1995b, Commission of Inquiry 1996, Therin 2005 and Kamminga 2006). These studies include both surface survey and sub-surface excavation. Combined these assessments effectively sample all of the landforms present within the Project Area.
Four archaeological sites have been identified as a result of these assessments. The following table summarises these sites and the archaeological significance assessment assigned to them by Kamminga in 2006.

AHIMS #	Type	Description	Archaeological Significance Ranking (from Kamminga 2006)
52-5-207 [Is this the Shell Cove midden?] [sic]	Shell midden	Midden located on dunes next to Shell Cove south of the current inlet. The condition of the midden various across the dunes.	High in area identified by Navin Officer as being intact, low elsewhere.
52-5-436	Artefact scatter	Several artefacts in ground disturbed by a post hole. A small localised artefact scatter in a disturbed context.	Low
52-5-437	Artefact scatter	Sparse scatter along the banks of an unnamed creek draining into Shellharbour swamp.	Low to medium
52-5-438	Artefact scatter	Several artefacts found in an area of disturbed ground.	Low


In addition to these sites, the Shell Cove Project Area does have the potential to contain additional Aboriginal objects (stone artefacts) in areas which are currently covered by soil or vegetation. The proposed salvage methodology discussed below will investigate areas with the potential to contain Aboriginal objects”.

69 The report then assessed the Aboriginal consultation which had been conducted. The report noted that the consultation was conducted in accordance with the requirements of the DEC Interim Guidelines for Aboriginal Community Consultation. The report stated:

“The information provided in the Application, which includes responses from Aboriginal groups and individuals in the form of written correspondence, notes on phone conversations and meetings and a DVD recording and audio tape from feedback sessions have been reviewed. In addition, the comments made by Aboriginal groups and individuals have also been addressed by Australand and Johan Kamminga and recorded in the application. This information was also reviewed and considered.
Supplementary correspondence was received from Mr Allan Carriage, President of the Wadi Wadi Coomaditchie Aboriginal Corporation, dated 12 August 2006 stating in general terms that he was not happy with the results of the consultation process. The response to this letter was made by DEC on 22 August 2006 inviting further written submissions by 30 August 2006. No response to this invitation was received as at 22 September 2006.”

70 The report then referred to the responses from various groups in the consultation to the s 87 Permit and the s 90 Consent application. One of those groups was Respondent Group 1:

“Respondent Group 1 (A Carriage, A Henry, T Henry an C Mundy) declare the entire Shell Cove to be significant and oppose the s 90 Consent being given”.

71 The report stated that:

“The views of the Aboriginal respondents were taken into consideration when assessing this application”.

72 The report then went on to describe the proposed site management actions and the description of the salvage program. The report then assessed the adequacy of the material to make a decision and concluded:

“The s 87/90 Application and supplementary material have been reviewed and are considered an adequate basis on which to make an assessment and recommendation”.

73 The report concluded with the recommendation “that the s 87 permit and the s 90 consent be granted to Australand”. Mr Martin and Ms Ewins signed and dated the report 29 September 2006.

The determination of the application

74 On 29 September 2006, Ms Ewins, as delegate for the Director-General, determined to grant a s 87 Permit and s 90 Consent subject to the terms and conditions set out in the Consent and Permit No 2534. Schedule A identified the Aboriginal objects to which the Consent and Permit No 2534 applied, namely all Aboriginal objects on the land described in Schedule C, being the land in the Shell Cove Boatharbour/Marina Project Area, including the registered Aboriginal sites of AHIMS 52-5-0207 (but only in relation to areas identified as being of relatively low or no archaeological value in Figure 20 (from the Navin Officer 1995 report)), 52-5-0436, 52-5-0437 and 52-5-0438. However, the consent and permit did not apply to the Aboriginal objects or sites described in Schedule B. These were that part of the AHIMS site 52-5-0207 which was described as “Shell midden in relation to areas identified as being of relatively high archaeological value in Figure 20 (attached)” as well as “All human skeletal material, wherever occurring”. The excluded Aboriginal objects or sites were not to be disturbed, moved, damaged, defaced or destroyed.

The failure to consider relevant matters ground

75 The applicant claims that the Director-General failed to consider relevant matters in the following respects:

(a) failed to consider that the site of the proposed Marina was in an area of a recorded massacre of Aboriginal people in the early 19th century (paragraphs 7 and 12 of the points of claim);

(b) failed to refer, consider or obtain any expert historical/ethnographic opinion but instead relied on the submissions to the Commission of Inquiry 12 years previous collected by the archaeologist Kelvin Officer (paragraph 8 of the points of claim);

(c) failed to consider or obtain any further archaeological sub-surface analysis from the proponent as proposed by the applicant in relation to the burials and reburials the applicant claims exist on the land (paragraph 9 of the points of claim);

(d) gave no regard to the fact that the proponent did not carry out any further archaeological work at the site for the consent except for a study commissioned by the applicant (paragraph 10 of the points of claim); and

(e) gave no regard to matters relating to burials and reburials (paragraph 11 of the points of claim).

76 The matters in (a) and (e) are facts about the site that the applicant alleges existed at the time of the Director-General considering and determining the applications for the permit and consent. The matters in (b) and (c) refer to evidence which did not exist at that time but which the applicant alleges the Director-General ought to have obtained and considered in determining the application. The matter in (d) is a fact about the non-existence of evidence at that time, presumably which the applicant alleges ought to have existed and been considered in determining the application.

77 The claims in (a), (d) and (e) are framed in terms of a failure to consider relevant matters. However, as an examination of the statutory powers will show, the matters alleged by the applicant not to have been considered are not stated in the National Parks and Wildlife Act 1974 as matters which are required to be considered but at best could be facts said to be relevant to the matters to be considered. The applicant’s claim, therefore, depends on the Court finding that the statute requires consideration at the level of particularity alleged by the applicant: see Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452 [23].

78 However, the claims in (b) and (c) are not of this kind, but, instead, involve an allegation of a failure to make enquiries to obtain facts said to be relevant. Such a claim is better described under the hearing of manifest unreasonableness in the manner of decision making than a failure to consider relevant matters. A well known example of such a claim is Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. It was held there that where it is obvious that material is readily available which is essentially relevant to the decision to be made, for a decision maker to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of a decision making power in a manner so unreasonable that no reasonable person would have so exercised it: at 169-170.

79 Neither s 87 nor s 90 of the Act expressly state the considerations that the Director-General in exercising those powers is bound to take into account or to ignore. The relevant and irrelevant considerations must, therefore, be determined by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, 55 and Kennedy v Director General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [100].

80 The objects of the Act include the conservation of objects, places and features of cultural value within the landscape including places, objects and features of significance to Aboriginal people: s 2A(1)(b)(i). The Director-General in carrying out functions under the Act is obliged to give effect to the objects of the Act: s 2A(3).

81 The Act establishes a particular regulatory scheme to protect Aboriginal objects and Aboriginal places. These two terms have different meanings, and are subject to different controls.

82 An Aboriginal object is defined to mean “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”: s 5(1). Aboriginal remains are in turn defined to mean “the body or the remains of the body of a deceased Aboriginal” but excluding certain bodies and remains: s 5(1).

83 An Aboriginal place is defined to mean “any place declared to be an Aboriginal place under section 84”: s 5(1). Section 84 empowers the Minister, by order published in the Gazette, to declare “any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act”.

84 Aboriginal objects are deemed to be the property of the Crown: s 83(1). The Director-General is the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales: s 85(1).

85 The Act prohibits actions that might, in some way, harm Aboriginal objects or Aboriginal places. In respect of Aboriginal objects, the prohibition is both on disturbing or moving an Aboriginal object or excavating land for the purpose of discovering an Aboriginal object (s 86) as well as destroying, defacing or damaging an Aboriginal object (s 90(1)). For Aboriginal objects not on land reserved under the Act, such as a national park, the relevant statutory provisions are as follows:

“ 86 Offences relating to Aboriginal objects
A person, other than the Director-General or a person authorised by the Director-General in that behalf, who:
(a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object,
(b) disturbs or moves on any land an Aboriginal object that is the property of the Crown, other than an Aboriginal object that is in the custody or under the control of the Australian Museum Trust;
...
except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against this Act.
90 Destruction etc of Aboriginal objects or Aboriginal places
(1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act.”

86 In respect of an Aboriginal place, the prohibition is on destroying, defacing or damaging an Aboriginal place under s 90(1).

87 For an Aboriginal object, if the application proposed is to disturb or move an Aboriginal object or excavate land for the purpose of discovering an Aboriginal object, amongst other actions prohibited by s 86, a permit can be obtained under s 87(1). If the action is to destroy, deface or damage an Aboriginal object, a consent can be obtained under s 90(2). For an Aboriginal place, only a consent under s 90(2) can be obtained.

88 The different statutory regulation of Aboriginal objects and Aboriginal places, and in relation to Aboriginal objects, the different actions involved and their ramifications to Aboriginal objects, have consequences in terms of the matters that are relevant to be considered in determining an application in relation to an Aboriginal object and Aboriginal places.

89 For example, for an application under s 90 to destroy, deface or damage an Aboriginal place, a relevant matter to be considered would be the special significance with respect to Aboriginal culture of that place that was considered by the Minister as warranting the place being declared to be an Aboriginal place under s 84 of the Act. The Director-General would need to consider, therefore, the impact that any action in that Aboriginal place might have on conservation of the special significance of that Aboriginal place, in accordance with s 2A of the Act.

90 For 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.

91 This 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.

92 Where 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].

93 But any significance of the land independent of or unrelated to the Aboriginal objects located in that place would not be a relevant matter that the Director-General would be bound to consider in determining an application in respect of Aboriginal objects alone under s 87 or s 90 of the Act.

94 In this case the land, the subject of the Shell Cove Boatharbour/Marina Project and the applications under ss 87 and 90, has not been declared an Aboriginal place under s 84 of the Act. It is the presence of Aboriginal objects on the land that has given rise to the application under s 87 and s 90. The Aboriginal objects include those identified in the AHIMS sites as being a shell midden, stone artefact scatters and associated potential archaeological deposits. Aboriginal remains buried on the land are also Aboriginal objects.

95 The relevant matters to be considered in determining the applications for a permit under s 87 and a consent under s 90 must relate to the Aboriginal objects.

96 In this context, I turn now to the facts that the applicant alleges were relevant matters which the Director-General was bound to take into account in determining the application.

97 The first fact that the applicant claims was not considered by the Director-General is that the land the subject of the Shell Cove Boatharbour/Marina Project and the application under ss 87 and 90 was a site of a recorded massacre of Aboriginal people. In order for this fact to be relevant, it must have some relationship to the Aboriginal objects on the land. There are both identified and unidentified Aboriginal objects on the land.

98 The Aboriginal objects that are expressly identified in the s 87 permit and the s 90 consent are a shell midden, stone artefacts and associated archaeological deposits. These objects, however, have no relationship to the alleged massacre.

99 Any unidentified Aboriginal objects on the land would need, of course, to have physical existence in order to be Aboriginal objects within the meaning of the Act, that is to say they must constitute a deposit, object or material evidence relating to the Aboriginal habitation of the area. An historical narrative can not be an Aboriginal object. The Aboriginal objects would also need to have some relationship to the alleged massacre. An example would be where there is an associated burial on the land of Aboriginal persons who died in or as a result of the massacre or of their artefacts.

100 Absent on the land some physical evidence of the massacre (in a form that meets the definition of an Aboriginal object) or some Aboriginal object that has a relationship to the massacre, the bare historical fact that a massacre occurred on the land would not be a relevant matter which the Director-General would be bound to consider in determining the application under ss 87 and 90 of the Act in relation to Aboriginal objects.

101 The second fact the applicant claims the Director-General did not consider concerns burials and reburials on the land. The body or remains of a body of a deceased Aboriginal person falls within the definition of an Aboriginal object under the Act. The Director-General would be obliged to consider the impact of the proposal on such Aboriginal remains. Insofar as any of the burials or reburials are of persons killed or involved with the massacre, the massacre would be a contextual fact relevant to be considered in determining the application under s 87 and s 90 of the Act in relation to such Aboriginal remains. It may provide a basis for assigning significance to the Aboriginal objects for Aboriginal people, which significance would need to be taken into account, in accordance with s 2A of the Act.

102 The Director-General, in determining the application under s 87 and s 90 of the Act, took into account both of these facts of a purported massacre and associated burials and reburials occurring on the land the subject of the application. The massacre and burials and reburials were discussed in the documents received and considered by the Director-General, including the Cultural Heritage Assessment Reports, both draft and final, in the text, (section 9 in particular) and the attachments (including the respondents written and recorded oral comments during the consultation phase on the massacre and burials and reburials, Dr Kamminga’s response thereto particularly Attachment 26 and the affidavits in the previous Court proceedings); in the meetings on 31 July 2006 and 30 August 2006 with and the site visit on 30 August 2006 attended by the delegate of the Director-General and officers of the Department; in the email of Mr Martin dated 21 August 2006 briefing Ms Ewins and Mr Hamilton; in the email of Mr Martin dated 11 September 2006 to Ms Ewins and Ms Hamilton discussing Mr Oshlack’s telephone conversation; and in the draft departmental report dated 19 September considering the application for the s 87 permit and s 90 consent.

103 The issue of burials was expressly addressed in the s 87 permit and s 90 consent by excluding from its terms “all human skeletal material, wherever occurring”. Such excluded Aboriginal objects must not be disturbed, moved, damaged, defaced or destroyed. Particular conditions addressed the protection of human remains.

104 Accordingly, the applicant has not substantiated his claim that the Director-General failed to consider the facts of the massacre and burials and reburials.

105 The third fact the applicant claims the Director-General did not consider is that the proponent did not carry out any further archaeological work and subsurface analysis on the site but instead relied on the work already carried out by others. This fact is not a matter that the Director-General was bound to take into account in determining the application under s 87 and s 90. There can not be found in the National Parks and Wildlife Act 1974 any express or implied obligation on the Director-General to examine the matter the subject of the application at that level of particularity or that fact: Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452 [23].

106 Insofar as the applicant’s real complaint is the type, extent or reliability of the information available to the Director-General, this is not a proper basis for judicial review of the Director-General’s decision to issue the s 87 permit and s 90 consent. The adequacy of the information was a matter within the discretion of the Director-General as decision maker: Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [111].

107 In any event, the Director-General was aware that the proponent had not carried out further archaeological work and subsoil analysis but instead relied upon previous archaeological work done and submitted with the application. The Director-General considered the adequacy of the previous material available on archaeological and Aboriginal cultural heritage issues, including the previous archaeological work carried out, to determine the application. All of the available material was discussed by Dr Kamminga in the Cultural Heritage Assessment Report and attached to it. The Department of Environment and Conservation identified the need for further information, including on the cumulative impacts to Aboriginal heritage sites (see email dated 21 August 2006 to Ms Ewins and Ms Hamilton), and raised these issues verbally with the proponent and Dr Kamminga. The adequacy of the prior assessment of Aboriginal heritage in the Project Area was the subject of a telephone discussion between Ms Ewins and Mr Colquhoun of the proponent on 13 September 2006 and the subject of a letter in response from Mr Colquhoun to Ms Ewins on 18 September 2006.

108 The letter of 26 January 2006 which raised the request for further archaeological work and subsurface analysis was addressed in the Cultural Heritage Assessment Report (Attachment 26), in the email dated 11 September 2006 from Mr Martin to Ms Ewins and Ms Hamilton discussing Mr Oshlack’s request that the six points in the 26 January 2006 letter be considered and in the draft departmental report dated 19 September 2006 which considered each of the six points.

109 The adequacy of the material available was also specifically addressed in the final departmental report dated 29 September 2006 by Mr Martin and Ms Ewins and the conclusion was reached that “the s 87/90 application and supplementary material have been reviewed and are considered as an adequate basis on which to make an assessment and recommendation”.

110 The applicant’s claim that the Director-General was bound to obtain and then consider, first, expert historical/ethnographical opinion and, secondly, further archaeological and subsurface analysis in relation to the burials and reburials is also not sustainable.

111 Generally, there is no obligation on an administrative decision maker to make inquiries: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178. The circumstances in which a Court will find an exception to this general rule are “strictly limited”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. The exception to the general rule that the decision maker is not obliged to obtain further information is only triggered where “it is obvious” to the decision maker at the time of making the decision that there is further information which is “readily available” and is “centrally relevant”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170; Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at 197; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (20 April 2001) at [101], [102]. In order for the decision maker to be able to conclude that it is “obvious” that there exists further material and that such material is “readily available” and “centrally relevant”, there must be something in the material that is before the decision maker to alert the decision maker to such further inquiries: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178-179.

112 The information which the applicant claims ought to have been obtained and considered did not exist and was not readily available at the time of the Director-General’s determination of the application. It could not also be said to be centrally relevant.

113 As noted above, the Director-General considered all of the available material, including the application and supplementary documents, the previous archaeological studies and the material from consultation with the Aboriginal community, all of which addressed the issues the applicant claims should be the subject of further enquiry and report. The Director-General considered that that material provided an adequate basis upon which to make a determination of the applications. The Director-General was aware that the applicant, as part of the consultation process in the letter of 25 January 2006 and subsequently, claimed the Director-General should make enquiries and obtain the very same information that the applicant now claims in these proceedings the Director-General should have enquired about and obtained. The draft departmental report dealt with each of the applicant’s claims in the letter of 26 January 2006 and rejected the need for further investigation. The final departmental report concluded the available material was adequate to assess and determine the application.

114 There was no manifest unreasonableness in the Director-General so deciding and in not proceeding to make further enquiries as claimed by the applicant. Accordingly, the applicant has failed to establish that the Director-General was bound to obtain and consider the further information claimed.

115 For these reasons, the applicant’s challenge on the ground of failure to consider relevant matters is rejected.

Consideration of irrelevant matters ground

116 The applicant claims in the points of claim that the Director-General took into account two irrelevant matters:

(a) the statement of the Commission of Inquiry in its report that “it is the view of the Commission on the evidence that the massacre event enunciated by the Tribal Elders is one held by a limited family grouping...Though as said above the Commission recognises the genuineness of the Tribal Elders view, it does not consider, when such views are weighed in the balance with other social, environmental and public interest considerations that they are such as should cause defeat of the subject development proposal” (paragraph 13 of the points of claim); and

(b) the evidence provided by Dr Kamminga, an archaeologist specialising in stone tool technology who is not qualified in history/ethnography or anthropology, in relation to the massacre to refute the claims of the applicant in relation to an historically recorded massacre or to the existence of the burials or reburial (paragraph 14 of the points of claim).

117 As noted above, in order for a challenger to succeed on the ground of consideration by the decision maker of irrelevant matters, the matters considered must be ones which the statute reposing the administrative power either expressly or by necessary implication oblige the decision maker to ignore: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.

118 The matters alleged by the applicant to have been considered by the Director-General are not matters which the National Parks and Wildlife Act 1974, either expressly or by necessary implication from the subject matter, scope or purpose of the Act, oblige the Director-General to ignore.

119 As to the first, the holding of the Commission of Inquiry in 1995 and the fact of and contents of its report in 1996 are indisputable facts forming part of the history of the application. They preceded and informed the grant of development consent for the Shell Cove Boatharbour/Marina Project. The carrying out of the Project in accordance with that consent is the reason for the application under s 87 and s 90 of the Act. The Act neither expressly nor by implication precludes the Director-General when determining such application from considering such facts.

120 As to the second, the Act neither expressly nor by implication obliges the Director-General, in determining an application under s 87 or s 90 of the Act, to consider only evidence from a person qualified in “history/ethnography or anthropology” in relation to allegations of massacre or burials and reburials and to ignore all other evidence on those subject matters from any person not so qualified. A similar argument was rejected in Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [116].

121 The weight to be afforded to various evidence on the matters of the massacre and burials and reburials was a question of fact within the discretion of the Director-General as decision maker. One factor that might be considered in attributing weight is the qualifications of the person giving evidence on those matters: Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [126]. However, misattribution of weight (if it occurs) does not give rise to a reviewable error: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 321.

122 In any event, the applicant has not established that Dr Kamminga lacks special knowledge and experience in history/ethnography or anthropology. Dr Kamminga’s evidence as to his professional background and experience rebuts the applicant’s claim:

“4. I am the co-author of the book entitled Prehistory of Australia (Allen and Unwin, 1999), which contains syntheses of Aboriginal archaeology, history, society, language and culture. This book is commonly used in Australian universities as a reader or recommended text in Australian archaeology and Aboriginal cultural heritage studies.
5. Stone technology is only one of my areas of professional expertise. I have over 30 years experience as a researcher and consultant in the discipline of archaeology. I am the longest serving consultant archaeologist in Australia, and have professional training and experience in a wide range of subjects in archaeology and related fields. I had three years of university training in social anthropology, two years in ancient history (completing at honours level), three years in non-Australian civilization-era archaeology (completing at honours level), a year in physical (biological) anthropology in the Anatomy Department (Science Faculty), a final honours year in Australian prehistory and a PhD in prehistory.
6. My research and consultancy projects have involved evaluation and interpretation of historical data. In many of my professional publications and consultancy reports, including the co-authored book Prehistory of Australia . I have used historical, ethnohistorical and anthropological sources extensively”.

123 Moreover, this claim of the applicant is inconsistent with the previous claim. In the previous claim, the applicant claims that the Director-General was bound to consider the massacre. Each of the matters that the applicant in this claim alleges are irrelevant involve consideration by, first, the Commission of Inquiry and, secondly, Dr Kamminga of the applicant’s claim that there was a massacre on the land. The conclusions reached by each of these persons are contrary to those put forward by the applicant, that is to say, both the Commission of Inquiry and Dr Kamminga came to the view that the evidence does not substantiate the applicant’s claim that the land was the site of a massacre. A factual finding contrary to that submitted by the applicant on a subject matter said to be relevant by the applicant is not an irrelevant matter.

124 There is no warrant, in judicial review proceedings, for the Court to review factual findings said to be in error. Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness and irrelevancy with factual incorrectness: Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47 at 50. A wrong assessment of the considerations the decision maker takes into account is not a reviewable error of law: Brunetto v Collector of Customs (1984) 4 FCR 92 at 97-98.

Denial of natural justice ground

125 The applicant’s claim of denial of natural justice is two fold:

(a) that the applicant and other traditional owners were denied natural justice by denying their reasonable request that further archaeological, anthropological, ethnographical and historical work be undertaken (paragraph 15 of the points of claim); and

(b) the applicant was denied natural justice in that the consent only provided limited opportunity for any monitoring and salvage of archaeological material (paragraph 16 of the points of claim).

126 The first claim has insuperable difficulties. First, the claim rests on the letter of 26 January 2006 from the applicant, Mr Carriage, Mr Mundy and Ms Henry to the proponent’s archaeologist, Dr Kamminga. It was not a request made directly to the Director-General. Such a request indirectly came to the attention of the Director-General. It was included as an attachment to and was discussed in the Cultural Heritage Assessment Report forming part of the proponent’s application to the Director-General. It was also the subject of a telephone call from Mr Oshlack who asked Mr Martin, in the words summarised by Mr Martin, “If we’d considered the requests of the ‘elders’ and the six points they bring up in their letter. I assume he means the letter signed by Allan Carriage that is included in the application”.

127 The relevance of the fact that the letter was never directly sent to the Director-General is that only the Director-General, as the administrative decision maker determining the applications under ss 87 and 90 of the National Parks and Wildlife Act 1974, can owe any duty of procedural fairness to the applicant: Country Energy v Williams (2005) 141 LGERA 426 at 448 [72] and Anderson v Director-General of the Department of Environment and Conservation (2006) 144 LGERA 43 at 81-82 [158]. The proponent, or its consultant archaeologist, Dr Kamminga, do not owe any duty of procedural fairness to the applicant. Hence, any failure of the proponent or its consultant archaeologist to undertake or to arrange for others to undertake the further surveys and reports requested by the applicant cannot amount in law to a denial of procedural fairness to the applicant.

128 Secondly, as noted in Country Energy v Williams (2005) 141 LGERA 426 at 449 [74], it is necessary to identify the legal basis of any obligation to afford procedural fairness in question. An obligation to accord procedural fairness may arise by, first, the express terms of or by implication derived from a statute; secondly, a public statement or practice adopted by the decision maker; or thirdly, an express promise made to, or arrangement with, the person affected.

129 In the case of an application for a permit under s 87 or a consent under s 90 of the Act, the statute neither expressly nor by implication gives rise to any requirement to undertake the further archaeological, anthropological or ethnographical and historical work requested by the applicant: Country Energy v Williams (2005) 141 LGERA 426 at 449 [75]; Anderson v Director General of the Department of Environment and Conservation (2006) 144 LGERA 43 at 78 [143]; Kennedy v Director General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [86].

130 There has been no public statement or practice adopted by the Director-General, which could found any legitimate expectation in the applicant that the further archaeological, anthropological, ethnographical or historical work requested by the applicant would be undertaken. The DEC’s Interim Guidelines for Aboriginal Community Consultation does not provide any such foundation. The applicant does not particularise its claim in this way in any event.

131 There was no express promise made to, or arrangement with, the applicant which could found an expectation that further archaeological, anthropological, ethnographical or historical work would be undertaken. The applicant’s requests, summarised in the letter of 26 January 2006, were never made directly to the Director-General and the Director-General made no representation to the applicant in relation to the requests.

132 Thirdly, the applicant’s claim is framed in terms of the denial of a substantive outcome, not a process. The applicant’s claim is that he was denied natural justice because the further archaeological, anthropological, ethnographical or historical work was not undertaken, not merely that the applicant’s requests for such work was not considered by the Director-General. The law in Australia does not uphold as legitimate any expectation for a substantive benefit or a final outcome: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at 21 [65]-[67] and 48 [148].

133 Fourthly, even if the applicant could be said to have a legitimate expectation that the Director-General would consider the applicant’s requests that further archaeological, anthropological, ethnographical or historical work be undertaken, the Director-General did consider such requests. Those requests were included in the application and supplementary material submitted to the decision maker (the letter of 26 January 2006 was attached to and was discussed in the Cultural Heritage Assessment Report). The requests were raised and considered in the email of Mr Martin to Ms Ewins on 11 September 2006 discussing Mr Oshlack’s request that the six points in the 26 January 2006 letter be considered by the Director-General. The adequacy of prior archaeological and other work in relation to the land was expressly raised by Ms Ewins in her telephone discussion with Mr Colquhoun of the proponent on 13 September 2006 and Mr Colquhoun was requested to specifically respond to this issue, which he did in the letter of 18 September 2006. The applicant’s requests in the letter of 26 January 2006 was expressly discussed in the draft departmental report provided by Ms Hamilton to Mr Martin on 19 September 2006. All of the material comprising the application and supplementary material, including the applicant’s letter of 26 January 2006 and the discussion thereof, were considered by Ms Ewins and Mr Martin in the final departmental report of 29 September 2006 and a positive finding was made that the application and supplementary material were adequate to make an assessment and determination.

134 The second claim of denial of natural justice is similarly flawed. There was no obligation on the Director-General to provide the applicant with an opportunity for monitoring and salvage of archaeological material. Such an obligation cannot derive, either expressly or by implication, from the National Parks and Wildlife Act 1974. There was no public statement or practice adopted by the decision maker generally or, in this particular case, the decision maker making an express promise to or an arrangement with the applicant, either of which could found an expectation that the applicant would have an opportunity for monitoring and salvage of archaeological material.

135 Furthermore, an expectation that the applicant would have an opportunity for monitoring and salvage of archaeological material is an expectation that would relate to a substantive benefit or final outcome, not a process. As noted above, the law in Australia does not recognise the legitimacy of an expectation for a substantive benefit or final outcome.

136 The applicant’s claims of denial of natural justice have not been substantiated.

Bias and racial discrimination grounds

137 The applicant claims the Director-General was biased in that:

(a) the Director-General failed to consider the applicant’s request that consent be refused (paragraph 17 of the points of claim); and

(b) the Director-General always grants s 90 consents irrespective of the views of Aboriginal people (paragraph 18 of the points of claim); and

(c) the mindset of the delegate of the Director-General was such that no matter what opinion, fact or evidence is given, she will not be swayed from a position to issue consent (paragraph 19 of the points of claim).

138 All of these claims of bias are without factual foundation in the evidence. As to the first claim, the Director-General was aware of the applicant’s request that both s 87 permit and s 90 consent be refused. Such request was expressly discussed in the Cultural Heritage Assessment Report, both in the text dealing with the concerns of Respondent Group 1 (which includes the applicant) and in the documentary attachments; in the email dated 21 August 2006 from Mr Martin and Ms Ewins and Ms Hamilton; and in both the draft and final departmental reports on the application. Indeed, the final departmental report dated 29 September 2006 stated:

“Respondent Group 1 (A Carriage, A Henry, T Henry and C Mundy) declare the entire Shell Cove to be significant and oppose the s 90 consent being given...
The views of the Aboriginal respondents were taken into consideration when assessing this application.”

139 As to the second and third claims, the applicant adduced no evidence in support of the claims. The applicant’s agent asserted from the bar table that if the Director-General actually disputed these allegations, the Director-General should adduce evidence establishing to the contrary. This fundamentally misunderstands the nature of judicial review proceedings and the person on whom the burden of proof in such proceedings lies. The burden of proof is on the challenger to make good the factual foundation for each ground of review relied upon. The applicant has failed to do so.

140 What the evidence does show is that the departmental officers and the delegate of the Director-General, on many occasions, raised queries, sought clarification, and requested further information from the proponent and its consulting archaeologist. There was no acceptance without question of all of the views and all of the material provided by the proponent. To the contrary, the evidence discloses that the Director-General, through the departmental officers and the delegate, carefully considered and came to an independent view of the matters the subject of the application.

141 The evidence also shows that the departmental officers and the delegate of the Director-General considered the issues and the concerns raised by the applicant and other persons in the Aboriginal community.

142 In these circumstances, the evidence does not provide any factual foundation for the allegations of bias. Accordingly, the applicant’s claims of bias have not been substantiated.

143 The applicant’s claim of racial discrimination, as amended by leave, is that:

“In issuing the section 90 consent, the first respondent breached or permitted or authorised a breach of s 9 of the Racial Discrimination Act 1975 (Cth) by excluding persons of the Aboriginal race from the decision making process and thereby impairing the right to the preservation and enjoyment of cultural heritage and the right to make decisions or participate about cultural heritage of the Aboriginal race.”

144 This claim is flawed. The claim that persons of the Aboriginal race were excluded from the decision making process involved in the Director-General issuing the s 90 consent presupposes that there existed some statutory or common law right that was nullified or impaired by the Director-General issuing the s 90 consent. This is not correct for three reasons.

145 First, s 90 invests the power to give consent to destroy, deface or damage Aboriginal objects or Aboriginal places in the Director-General and, in an appeal against the Director-General’s decision, in the Minister. Persons of the Aboriginal race are given no statutory power, and hence have no statutory right, to make a decision under s 90 of the Act. It is not to the point to argue that the legislature ought not have made such a law; that is the law that has been made.

146 As persons of the Aboriginal race do not have a right to make a decision under s 90, the Director-General, in issuing the s 90 consent in this case, therefore, could not have excluded persons of the Aboriginal race from making a decision under s 90.

147 Secondly, all persons, and not just persons of the Aboriginal race, have no statutory right to be consulted in the process of considering and determining an application under s 90. There is no obligation, in the express terms or by implication derived from the National Parks and Wildlife Act 1974, that persons be consulted about or be given a right to otherwise participate in the process of considering and determining an application under s 90: see Country Energy v Williams (2005) 141 LGERA 426 at 449 [75] and Anderson v Director-General of the Department of Environment and Conservation (2006) 144 LGERA 43 at 78 [143]

148 Hence, there was no statutory right held by persons of the Aboriginal race in relation to the decision-making process under s 90 of the National Parks and Wildlife Act 1974 that could be nullified or impaired by the Director-General issuing the s 90 consent in this case.

149 Thirdly, insofar as there might be a legitimate expectation for relevant persons of the Aboriginal race to be consulted as part of the decision making process, for example by reason of a public statement or practice adopted by the Director-General such as the DEC’s Interim Guidelines for Aboriginal Community Consultation, such expectation was satisfied by the consultation in fact carried out in this case. Hence, the issues of the s 90 consent did not nullify or impair any legitimate expectation to be consulted.

150 I note that the applicant was not given leave to amend on the second day of the hearing to add a claim that s 90 of the National Parks and Wildlife Act 1974 itself is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth). (I further note that such a claim was raised but rejected in Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 at 67 [89]).

151 The applicant’s claim on the ground of racial discrimination is therefore not substantiated.

Conclusion

152 The applicant has failed to establish each of the claimed grounds of review. Accordingly, the application will be dismissed.

153 No formal argument has taken place with respect to an order for costs. Following the dismissal of the applicant’s claim, one can expect in most cases the Court will exercise its discretion in favour of the successful respondents. If no application seeking orders to the contrary is filed within 14 days, an order will be made that the applicant pay the costs of each respondent.

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