Dates v NSW Minister for Planning - [2009] NSWLEC 38

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Dates v NSW Minister for Planning [2009] NSWLEC 38

PARTIES:
APPLICANT:
Worimi Dates
FIRST RESPONDENT:
NSW Minister for Planning
SECOND RESPONDENT:
NSW Roads and Traffic Authority

FILE NUMBER(S): 40026 of 2009

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- Constitutional law - whether s 75U(1)(d) of Environmental Planning and Assessment Act (1979) (NSW) and conditions of approval of a project under Part 3A breach or fail to comply with ss 9 and 10 of Racial Discrimination Act 1975 (Cth) and are consequently invalid under s 109 of Commonwealth Constitution.

LEGISLATION CITED: Commonwealth of Australia Constitution Act 1900, s 109
Environmental Planning and Assessment Act 1979, ss 75H, 75J, 75U(1), Pt 3A
Heritage Act 1977, s 139
National Parks and Wildlife Act 1974, ss 5, 87 and 90
Racial Discrimination Act 1975 (Cth), ss 6A(1), 7, 9, 8 and 10, schedule

CASES CITED: Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43
Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699
Gerhardy v Brown (1984-1985) 159 CLR 70
Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337
Mabo v Queensland (1988) 166 CLR 186
R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23
Telstra Corporation v Worthing [1999] HCA 12, (1999) 197 CLR 61
Victoria v Commonwealth (1937) 58 CLR 618
Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1

DATES OF HEARING: 19 - 20 March 2009

DATE OF JUDGMENT:
6 April 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A
FIRST RESPONDENT:
Mr J G Renwick
SOLICITORS
Crown Solicitor's Office
SECOND RESPONDENT:
Mr A Galasso SC
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

6 April 2009

40026 of 2009

WORIMI DATES v NSW MINISTER FOR PLANNING & ANOR

JUDGMENT

1 HIS HONOUR: On 9 July 2007 the NSW Minister for Planning (the first respondent) granted conditional Approval to the Roads and Traffic Authority (RTA) (the second respondent) under s 75J of the Environmental Planning and Assessment Act 1979 (EPA Act) for the construction of a dual carriage highway bypass to the east of Bulahdelah. Earlier, the development had been declared to be a project to which Part 3A (ss 75A to 75ZA) of the EPA Act applied.

2 The applicant claims that s 75U(1)(d) of the EPA Act, and conditions 2.9 to 2.14 of the Approval breach or are inconsistent with ss 9 and 10 of the Racial Discrimination Act 1975 (Cth) (RD Act) and, consequently, are invalid by operation of s 109 of the Commonwealth Constitution.

3 By s 75U(1)(d), a s 75J approved project does not require a permit or a consent under ss 87 and 90 of the National Parks and Wildlife Act 1974 (NPW Act) to (among other things) disturb or move, or knowingly destroy, deface or damage Aboriginal objects. Approval conditions 2.9 to 2.14 deal with, and seek to minimise, “heritage impacts” on aboriginal heritage.

4 The applicant claims the following relief:

RD

Act

(ii) further or in the alternative, a declaration that the application of s 75U(1)(d) to the Approval is invalidated by virtue of s 109 of the Constitution to the extent that it fails to comply with the provisions of ss 9 and 10 of the RD Act insofar as it allows the destruction, damage and/or movement of Aboriginal objects without a permit or consent pursuant to ss 87 and 90 of the NPW Act.

(iii) an order restraining the second respondent from carrying out any work or activity which seeks reliance upon the authority of the conditions of Approval 2.9 to 2.14 that involves excavation, clearance of vegetation removal which may disturb, damage, move or destroy an Aboriginal object.

5 The applicant’s underlying concern is that the project will impact on or destroy:

(b) a sacred healing stream and the Guardian Tree, both of which are said to be places of particular significance to the Aboriginal Worimi Nation.

6 The applicant is a member of the Aboriginal Worimi Nation and describes himself as a traditional owner of the land the subject of these proceedings. The bypass will be constructed along the western slope of Alum Mountain. The applicant says this place is very sacred to the Worimi and other Aboriginal nations on the east coast. He was taught things about the mountain by his father. He says there are many secret matters concerning the mountain that he is obligated not to reveal. On the mountain there are many significant sites created in the dreamtime, including the Guardian Tree and the Healing Stream. In January 2009 he inspected the route of the proposed bypass and observed a number of scarred trees made by Aboriginal Old People. He says he is trying to protect the place for future generations of the Worimi.

The Approval

7 Clauses 2.9 to 2.14 of the Approval seek to protect Aboriginal heritage by providing that:

a) shall not destroy, modify or otherwise physically affect scarred tree B13; and

2.10 Unless otherwise agreed with the DECC and KLALC, the Proponent shall salvage any detected artefacts from sites B1, B8, B10, B11, B14, B15 and B16 in consultation with the DECC and KLALC and prior to the commencement of construction works that may impact on those sites.

2.11 Unless otherwise agreed with the DECC and KLALC, the Proponent shall undertake subsurface testing for sites BPAD1 to 8 inclusive, and salvage any artefacts of significance identified at those sites in the same manner required under conditions 2.10 of this approval. The approach to salvage shall be detailed as per condition 6.4b of this approval.

a) maintaining water quality in the Stream;

b) minimising impacts on flow dynamics in the Stream;

c) minimising changes to the stream bed and riparian vegetation; and

8 Close consultation with the Karuah Local Aboriginal Land Council and the Department of Environment and Climate Change is required by those conditions. In some cases their effect can be altered with the agreement of both the Department and the Land Council.

9 Clauses 2.15 and 2.16 deal with protection of non-Aboriginal heritage.

10 Clause 2.11 refers to cl 6.4(b), which requires the proponent to prepare and implement a Construction Heritage Management Plan that must detail, “how construction impacts on Aboriginal and non-Aboriginal heritage will be minimised and managed”. That Plan shall be developed in consultation with the Heritage Office, the Department of Conservation and Climate Change and the Karuah Local Aboriginal Land Council. The Plan shall include, but not necessarily be limited to:

i) results and recommendations arising from investigations into Potential Archaeological Deposits;

ii) a strategy for the salvage and curation of salvaged Aboriginal objects;

iii) specific measures to be applied to works undertaken in close proximity to Bulahdelah Mountain to minimise impacts on heritage items;

iv) an education program for construction and project supervision personnel on their obligations for Aboriginal cultural materials;

v) procedures to be implemented if previously unidentified Aboriginal objects and/or Non-Indigenous heritage items are discovered during construction; and
vi) a program for construction work practices to ensure that there is no impact on heritage items additional to that already permitted.

11 That Plan, as part of the Construction Environmental Management Plan, requires the approval of the Director-General of Planning and construction works cannot commence until written approval has been received (cl 6.3).

12 Apart from the terms of the Approval, the respondents admit the following matters in their pleadings, which they concede are sufficient for determination of the constitutional challenge:

(a) the Minister has granted a s 75J Approval in relation to the Bulahdelah Upgrade project;

(b) under conditions 2.9 to 2.13 of the Approval the project may affect Aboriginal cultural heritage objects;

NPW Act

13 The respondents concede that a possible effect on a single Aboriginal cultural object suffices to determine the constitutional argument, and that it is therefore unnecessary to make findings as to the number or particular location of Aboriginal cultural heritage objects.

Environmental Planning and Assessment Act 1979 (NSW)

14 In 2005 the EPA Act was amended by the inclusion of Part 3A (ss 75A – 75ZA) to facilitate Ministerial determinations for major projects and critical infrastructure. A project may be approved under Part 3A with such modifications of the project or on such conditions as the Minister may determine: s 75J(4).

15 At the heart of the case is s 75U(1)(d) which states:

“ 75U Approvals etc legislation that does not apply

…

National Parks and Wildlife Act

16 There is a statutory public consultation process required by s 75H of the EPA Act before a project can be approved under s 75J. The proponent for approval has to submit an environmental assessment which must be made publicly available for at least 30 days. During that time any person can make a submission. The proponent may be required to respond to the submissions.

17 “Aboriginal object” is broadly defined in s 5 of the NPW Act as follows:

Aboriginal object

18 Section 87 of the NPW Act provides:

“ 87 Permits relating to Aboriginal objects

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

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

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

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

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

19 Section 86(a), (b), (c), (d) and (e) of the NPW Act forbids action by any unauthorised person which:

“(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,

(c) takes possession of an Aboriginal object that is in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area,

(d) removes an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or

20 Section 90 of the NPW Act provides:

“(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.

…

21 Sections 87 and 90 have been considered in a number of cases, which have established the following propositions:

(a) “Whilst the National Parks and Wildlife Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the Director-General to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction, which would prevent the power being exercised in relation to development of private land”: Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699 at [67] per Basten JA (Spigelman CJ and Giles JA agreeing).

(b) “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”: Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 at [147] per Preston CJ; similarly, see Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426 at 449 [75] (not reproduced in the report in 63 NSWLR 699);

NPW Act

RD Act

Anderson v Director-General, Department of Environment and Conservation

22 Section 2A of the NPW Act provides:

“ 2A Objects of Act

(i) habitat, ecosystems and ecosystem processes, and

(ii) biological diversity at the community, species and genetic levels, and

(iii) landforms of significance, including geological features and processes, and

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

(ii) places of social value to the people of New South Wales, and

(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,

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

(a) the objects of this Act,

23 There is no statutory process of public consultation under ss 87 and 90. To that extent, it does not compare favourably with the public consultation process required by s 75H of the EPA Act: see [16] above.

Racial Discrimination Act 1975 (Cth)

24 Sections 9 and 10 of the RD Act relevantly provide:

“ Racial discrimination to be unlawful

9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race…which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social , cultural or any other field of public life.

Rights to equality before the law

10 (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race…do not enjoy a right that is enjoyed by persons of another race…or enjoy a right to a more limited extent than persons of another race…then, notwithstanding anything in that law, persons of the first mentioned race…shall, by force of this section, enjoy that right to the same extent as persons of that other race…

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.”

25 The “Convention” referred to in ss 9(2) and 10(2) is the International Convention on the Elimination of All Forms of Racial Discrimination, the text of which is set out in the Schedule to the RD Act. By s 7 the Convention is ratified. A “human right or fundamental freedom etc” in s 9 and a “right” in s 10 include, by incorporation of Article 5(e)(vi) of the Convention, the right to equal participation in cultural activities, on which the applicant relies. Article 5(e)(vi) of the Convention provides:

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

…

26 The definition of a right in ss 9(2) and 10(2) is not exhaustive and therefore appears to allow for the possibility of inclusion of a right that is not found in Article 5 of the Convention.

27 The applicant also alleges that the state of New South Wales has breached Article 2 cl 1(d) of the Convention, which provides that:

28 There is no intention that the RD Act is to cover the field because s 6A(1) says that it is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently.

29 Section 8 permits special racially discriminatory measures designed to deal with historical injustices. Part II of the Act (ss 8 to 18A) does not apply to the application of special measures to which paragraph 4 of Article 1 of the Convention applies (with limited exceptions): s 8. Paragraph 4 of Article 1 provides:

Section 109 Commonwealth Constitution

30 Section 109 of the Constitution states:

31 Inconsistency under s 109 may arise from one or more of the following circumstances, only the third of which might conceivably arise in this case. First, the rare case of a direct collision between statutes where two laws make contradictory provisions upon the same topic, such as a Commonwealth statute commanding something and a State statute forbidding the same thing, making it impossible to comply simultaneously with both: eg R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 at 29. Secondly, indirect inconsistency, where the Commonwealth law validly covers the field leaving no room for the State law to operate: Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489. Thirdly, where one law “alters, impairs or detracts from the operation of a law of the Commonwealth Parliament”: Victoria v Commonwealth (1937) 58 CLR 618 at 630; Telstra Corporation v Worthing [1999] HCA 12, (1999) 197 CLR 61 at 76.

DEC consultation guidelines

32 The applicant’s claim that he and other relevant Aboriginal persons had a right to be consulted in relation to the process under ss 87 and 90 of the NPW Act is based upon the process described in guidelines published by the Department of Environment and Conservation (NSW) entitled “Interim Community Consultation Requirement for Applicants”. Although published in January 2005, the guidelines reaffirm the intent of the Department’s existing policies regarding the requirements for consultation by proponents with members and representatives of Aboriginal communities. The guidelines state that, when administering its approval functions under the NPW Act, the Department requires applicants to consult with the Aboriginal community about the Aboriginal cultural heritage values (cultural significance) of Aboriginal objects and places within the area being considered for development. The guidelines also say that the proponent must actively seek to identify stakeholder groups or people wishing to be consulted about the project and invite them to register their interest. To this end, the guidelines say, it is sufficient for the proponent to provide written notification to the Local Aboriginal Land Council, the Registrar of Aboriginal Owners, Native Title Services, the local council and the Department, and via an advertisement in the local print media. There is a requirement that proponents undertake a cultural assessment which must consider the following factors: notifying Aboriginal people in sufficient detail about activities which may impact on Aboriginal heritage, so that their concerns can be identified; providing the opportunity for Aboriginal people who hold knowledge to contribute to the assessment process; identifying objects and places of significance to the Aboriginal community that may be impacted by the proposal so that these impacts can be avoided wherever possible; and identifying whether there are culturally acceptable mitigation measures when impacts are considered to be unavoidable by the proponent.

Validity of s 75U(1)(d) EPA Act

33 Section 75U(1)(d) of the EPA Act gives the Minister an unfettered discretion to approve the destruction of Aboriginal objects, which are not subject to the statutory constraints in the NPW Act on the discretion to grant a permit and a consent under ss 87 and 90. Those statutory constraints are, first, that the Minister, Director-General and the Service must give consideration to the objects of the NPW Act, which include conservation of places, objects and features of significance to the Aboriginal people, and, secondly, that those objects are to be achieved by applying the principles of ecologically sustainable development (which include the principle of intergenerational equity): s 2A NPW Act; Country Energy v Williams [2005] NSWCA 318, 141 LGERA 426, (2005) 63 NSWLR 699 at [52]; Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 at [90] (Preston J); Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43 at [200] (Pain J).

34 Against that background, the applicant submits that s 75U(1)(d) breached or is inconsistent with s 10 of the EPA Act because it removed the right of consultation that he and other Aboriginal people enjoyed in relation to the process of granting consents and permits under ss 87 and 90 of the NPW Act, thus facilitating the destruction of Aboriginal objects and leading to invalidity under s 109 of the Constitution. The applicant contends that he and other Aboriginal people had a right of consultation by reason of the process of consultation with Aboriginal persons required by the Department of Environment and Conservation in relation to ss 87 and 90 applications, as recorded in its guidelines referred to at [32] above. Notwithstanding that there is no statutory right for anyone to be consulted in relation to an application for a consent or permit under ss 87 or 90, the applicant says that he and other Aboriginal people had a right in the nature of a legitimate expectation to be consulted under the process described in the guidelines. As I understand it, the applicant also says that this right constituted “The right to equal participation in cultural activities” referred to in Article 5(e)(vi) of the Convention, which is incorporated by reference in s 10: see [25] above.

35 The applicant also submits that s 75U(1)(d) breached s 9 of the RD Act, because it “effectively nullified and impaired the recognition of his fundamental freedom and human rights, on an equal footing to any other race, in relation to the protection of his most sacred spiritual and cultural items”. The applicant says that this right was in the nature of a legitimate expectation to which I have referred. Again, as I understand it, he also says that this right constitutes a right to equal participation in cultural activities referred to in Article 5(e)(vi) of the Convention.

36 Section 9 applies to discriminatory acts of persons; s 10 applies to statutes. A convenient statement of the effect of, and difference between, ss 9 and 10 appears in Federal Discrimination Law (a publication of the Human Rights and Equal Opportunity Commission of Australia, 2008), at 3.1.1(c) (some citations omitted):

“Section 9(1) applies to allegations that an act or conduct of a person is discriminatory.

Gerhardy v Brown

Mabo v Queensland

Western Australia v Ward

37 Gerhardy v Brown (1984-1985) 159 CLR 70 was concerned with special measures under s 8 of the RD Act. Mason J explained the circumstances in which there will be invalidity under s 109 of the Constitution in relation to ss 9 and 10 of the RD Act, at 92-93:

Viskauskas v Niland

Clyde Engineering Co Ltd v Cowburn

38 In Mabo v Queensland (1988) 166 CLR 186 at 216-217 Brennan, Toohey and Gaudron JJ said:

“Section 9 proscribes the doing of an act of the character therein mentioned. It does not prohibit the enactment of a law creating, extinguishing or otherwise affecting legal rights in or over land: Gerhardy v. Brown (71)…

Racial Discrimination Act

39 As Mason J explained in Gerhardy v Brown, s 109 of the Constitution has only limited work to do in relation to s 9 of the RD Act. His Honour recognised that s 9 may occasionally render a State law invalid by reason of s 109 inconsistency but only where the State law is a law dealing with racial discrimination and the Commonwealth law intends to occupy that field of operation exclusively, or a State law makes lawful the doing of an act which s 9 forbids. Neither of those circumstances arises here. It follows that the s 9 challenge to the validity of s 75U(1)(d) falls away.

40 In relation to s 10, usually there will be no need to resort to s 109 of the Constitution. If a State law merely omits to confer universal enjoyment of a relevant right on persons of a particular race, s 10, of its own force, complements the State law and confers the right, thus achieving racial equality. As Mason J said in Gerhardy v Brown at 98:

41 His Honour went on to indicate that it was possible to imagine a s 109 issue, at 98-99:

42 “The same is true of a State law that deprives persons of a particular race of a right or freedom previously enjoyed by all regardless of race”: Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 at [107] per the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The majority said in relation to s 10(1) of the RD Act, at [105]:

enjoyment

or effect

43 There may be a legitimate expectation of consultation based upon a public statement or practice adopted by the decision-maker: Country Energy at [74]. Whether a legitimate expectation existed in the present case would require the kind of analysis that was conducted in Country Energy at [86] – [100]. Assuming that there was such a legitimate expectation, the question would arise as to whether the expectation was met in the circumstances of this case. The documentary evidence indicates that there was extensive direct consultation with members of the indigenous community, including the Karuah Local Aboriginal Land Council and the Foster Local Aboriginal Land Council and the Worimi Elders Group, which informed the identification and assessment of Aboriginal objects and other items of cultural significance prior to exhibition of the environmental impact statement (24 November 2004 – 28 January 2005) and the project approval (9 July 2007), as well as prior to approval of the Construction Heritage Management Plan (still to be approved). This consultation included the attendance of the applicant at meetings since December 2007.

44 Let it be assumed (contrary to the respondents’ submissions) that: (a) the process of consultation with Aboriginal persons set out in the publication referred to at [32] above gave rise to a legitimate expectation by the applicant and relevant Aboriginal persons to be consulted as part of the application process under ss 87 and 90 of the NPW Act (a process swept away by s 75U(1)(d) of the EPA Act); (b) the expectation was not in fact met in this case; and (c) the discrimination referred to in s 10 of the RD Act can include the revocation of a right based on a legitimate expectation, as distinct from a statutory right.

45 Even on those assumptions, in my opinion, s 75U(1)(d) did not breach s 10 of the RD Act because s 75U(1)(d) is not a racially directed prohibition resulting in unequal enjoyment of rights. In order for s 10 to apply, it has to be shown that by reason of s 75U(1)(d), Aboriginal persons do not enjoy a right of consultation that is enjoyed by non-Aboriginal persons, or enjoy a right of consultation to a more limited extent than non- Aboriginal persons. If that were to be shown, then s 10 provides its own remedy because it says that the Aboriginal person shall enjoy that right of consultation to the same extent as non-Aboriginal persons. This has no application to the facts of this case.

46 Section 75U(1)(d) has removed a measure of protection for Aboriginal objects that was previously provided under ss 87 and 90 of the NPW Act: see [18] to [20] above. However, even if ss 87 and 90 had provided for consultation with Aboriginal persons, s 75U(1)(d) would not come within s 10 of the RD Act because, by introducing s 75U(1)(d), what Parliament has done is to take away a right which it had previously granted to Aboriginal persons. Section 10 is not concerned with that situation. Nor is s 10 concerned with the present situation, where the alleged right of Aboriginal persons to consultation is weaker because it is based not on a statutory right but instead relies on a legitimate expectation based upon conduct. If Aboriginal persons had such a right, which non-Aboriginal persons did not have, it would be racially discriminatory in favour of the former but permissible as a special measure under s 8 of the RD Act. Such a right, even if enshrined in a statute, could be taken away by statute. “The power to make laws includes the power to unmake them”: Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 at [13].

47 It is unnecessary to consider the respondent’s alternative submission that s 75U(1)(c) is a strong indication of the non-discriminatory purpose of s 75U(1)(d). The argument is that it similarly takes away requirements that would otherwise apply under the Heritage Act1977 (NSW) in circumstances which are evidently not discriminatory. Section 75U(1)(c) provides that an approved project does not require an approval under Part 4, or an excavation permit under s 139 of the Heritage Act 1977. According to the submission, any burden relating to Aboriginal objects imposed by s 75U(1)(d) is equivalent to that imposed relating to non-Aboriginal objects of historical or cultural significance by s 75U(1)(c).

48 For these reasons, in my opinion, there is no inconsistency between s 75U(1)(d) of the EPA Act and ss 9 or 10 of the RD Act and no invalidity of the former under s 109 of the Constitution.

49 The applicant also contends, although I think it falls outside his pleaded case, that the State of NSW, in enacting s 75U(1)(d), failed to comply with its (alleged) obligation under Article 2(1)(d) of the Convention because s 75U(1)(d) (set out at [27] above), removed his right, and the right of relevant Aboriginal persons, to participate in the protection of cultural rights provided through ss 87 and 90 of the NPW Act. In my opinion, Article 2(1)(d) is irrelevant. That is because it imposes obligations on the Commonwealth and other nation states that are parties to the Convention, not on the Australian States. It is unnecessary to consider the respondents’ submission that, in any event, Article 2 has not been adopted into the RD Act.

Validity of Approval conditions

50 The applicant contends that conditions 2.9 to 2.14 and (where it applied) 6.4 of the Approval breached s 9 of the RD Act because they “had the effect of discriminating against the applicant as an Aboriginal Traditional Owner impairing his human rights to enjoy the sacred mountain and the spiritual and cultural objects therein”. Although the applicant also prays that those conditions breach s 10, no submission was made in support of that proposition and, in any event, it must be rejected since s 10 is concerned with statutes.

51 Ironically, the challenged conditions provide a measure of protection for Aboriginal objects where there would not necessarily be any such protective conditions imposed in circumstances where the discretionary processes of ss 87 and 90 of the NPW Act operate.

52 In order to demonstrate a breach of s 9 of the RD Act by operation of the Approval conditions, the applicant would need to show that the conditions authorise conduct which involves a distinction based on race; and have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a human right or fundamental freedom, namely, the right to equal participation in cultural activities. The applicant makes no submission as to the manner in which they do so beyond the arguments concerning ss 87 and 90 of the NPW Act, which have been dealt with above. None of the challenged conditions complained of could fall within the terms of the conduct prohibited by s 9 of the RD Act. Their imposition does not involve a distinction based on race. Even if it did, the distinction based on race does not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the right to equal participation in cultural activities.

53 In my opinion, the imposition of the conditions did not breach and are not inconsistent with s 9 and no question of invalidity arises under s 109 of the Constitution.

Conclusion

54 For these reasons, the summons is dismissed. Costs are reserved. Any application for costs is to be made within seven days, otherwise there will be no costs order. The exhibits may be returned.

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Citations

Dates v NSW Minister for Planning [2009] NSWLEC 38

Cases Citing This Decision

0

Cases Cited

13

Statutory Material Cited

5

Country Energy v Williams [2005] NSWCA 318

Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722

CITATION:	Dates v NSW Minister for Planning [2009] NSWLEC 38
PARTIES:	APPLICANT: Worimi Dates FIRST RESPONDENT: NSW Minister for Planning SECOND RESPONDENT: NSW Roads and Traffic Authority
FILE NUMBER(S):	40026 of 2009
CORAM:	Biscoe J
KEY ISSUES:	JUDICIAL REVIEW :- Constitutional law - whether s 75U(1)(d) of Environmental Planning and Assessment Act (1979) (NSW) and conditions of approval of a project under Part 3A breach or fail to comply with ss 9 and 10 of Racial Discrimination Act 1975 (Cth) and are consequently invalid under s 109 of Commonwealth Constitution.
LEGISLATION CITED:	Commonwealth of Australia Constitution Act 1900, s 109 Environmental Planning and Assessment Act 1979, ss 75H, 75J, 75U(1), Pt 3A Heritage Act 1977, s 139 National Parks and Wildlife Act 1974, ss 5, 87 and 90 Racial Discrimination Act 1975 (Cth), ss 6A(1), 7, 9, 8 and 10, schedule
CASES CITED:	Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43 Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699 Gerhardy v Brown (1984-1985) 159 CLR 70 Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 Mabo v Queensland (1988) 166 CLR 186 R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 Telstra Corporation v Worthing [1999] HCA 12, (1999) 197 CLR 61 Victoria v Commonwealth (1937) 58 CLR 618 Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1
DATES OF HEARING:	19 - 20 March 2009
DATE OF JUDGMENT:	6 April 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Oshlack, agent SOLICITORS N/A FIRST RESPONDENT: Mr J G Renwick SOLICITORS Crown Solicitor's Office SECOND RESPONDENT: Mr A Galasso SC SOLICITORS Blake Dawson