Donnelly v Solomon Islands Mining Nl - [2002] NSWLEC 112

Reported Decision: 121 LGERA 264

Land and Environment Court

of New South Wales

CITATION: Donnelly v Solomon Islands Mining NL & Ors [2002] NSWLEC 112

PARTIES:
APPLICANT:
Donnelly
RESPONDENTS:
Solomon Islands Mining NL & Ors

FILE NUMBER(S): 40169 of 1999

CORAM: Bignold J

KEY ISSUES: Injunctions and Declarations :- Injunctions and Declarations:- alleged breaches of conditions of development consent for gold mining-discretionary nature of relief claimed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 79B, 91A, s 124
National Parks and Wildlife Act 1974, ss 118A, 118D

CASES CITED: Green v Kogarah Municipal Council (2001) 115 LGERA 231;
Oshlack v Iron Gates Pty Ltd (unreported 6 March 1997);
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52;
Winn v Director General National Parks and Wildlife (2001) NSWCA 17

DATES OF HEARING: 13 -17 November 2000, 13 -15 December 2000, 28 - 30 March 2001, 9 - 11 May, 2001, 15 August 2001, 4 - 11 February 2002.

DATE OF JUDGMENT:
07/05/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack (authorised agent)
SOLICITORS
N/A
RESPONDENTS:
1ST TO 3RD RESPONDENTS
Mr P Clay, Barrister
5TH RESPONDENT
Mr I Hemmings, Barrister
SOLICITORS
1ST TO THIRD RESPONDENTS
Phillips Fox
5TH RESPONDENT
Solicitor for National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND

Matter No. 40169 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

5 July 2002

ANDREW DONNELLY

Applicant

SOLOMON ISLANDS MINING NL

First Respondent

CAPRICORNIA PROSPECTING PTY LIMITED

Second Respondent

TIM BARRA GOLD MINES PTY LIMITED

Third Respondent

TENTERFIELD SHIRE COUNCIL

Fourth Respondent

THE DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE

Fifth Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By his amended class 4 application filed 4 February 2002, the Applicant claims declaratory and injunctive relief against the first, second and third Respondents (which I shall hereafter refer to collectively as “the Gold Mining Companies”) in respect of alleged contraventions of specified conditions of a development consent granted by the fourth Respondent (which has filed a submitting appearance) on 11 May 1999 for open cut mining and haul road construction on land situate on Timbarra Plateau comprised in Mining Leases 1386) and 1426 (the development consent) and known as the Timbarra Gold Mine (which was originally established in recent past years upon Mining Lease 1386. The development consent is principally for an extension of that Gold Mine onto the adjoining Mining Lease 1426 (known as the RMT site).

2. The Applicant, who is an authorised representative of the Wahlabul/Malerah Bandjalung Aboriginal Communities and has claimed pursuant to the Native Title Act 1993 (Cth) to be the traditional custodian of the lands and waters covered by Mining Leases 1386 and 1426, has brought several other civil enforcement proceedings in this Court against the Gold Mining Companies in respect of the Gold Mining activities undertaken on Mining Lease 1386. Those other proceedings have now been concluded and the Applicant, in this Court, has been successful in some of those actions and has failed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 112
Decision Date: 07/05/2002

CaseChat Overview and Summary

The case of Donnelly v Solomon Islands Mining NL involved a legal dispute between Andrew Donnelly, representing the Wahlabul/Malerah Bandjalung Aboriginal Communities, and Solomon Islands Mining NL (along with other respondents) concerning alleged breaches of conditions of a development consent for gold mining on the Timbarra Plateau. The case was heard over several sessions and ultimately resulted in a detailed judgment by Bignold J on 5 July 2002. The primary legal issues addressed in the case included whether the mining companies had contravened the conditions of the development consent, whether the development consent was rendered void by any alleged contraventions, and whether any relief should be granted to the applicant under the Environmental Planning and Assessment Act 1979 (EP&A Act) and the National Parks and Wildlife Act 1974 (NP&W Act). The court found that there were significant contraventions of the development consent conditions and a contravention of s 118D of the NP&W Act. However, it determined that the development consent was not rendered nugatory or void by the contraventions. The court concluded that the applicant was entitled to substantive relief in respect of the contraventions and reserved the question of the precise form of that relief, as well as the issue of costs, for further consideration.

Orders