Hika Tarawa Te-Kowhai v Transport for New South Wales

[2021] NSWLEC 145

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hika Tarawa Te-Kowhai v Transport for New South Wales [2021] NSWLEC 145

Hearing dates:

17, 18, 19, 22 and 25 November 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraphs 132 and 133

Catchwords:

ENVIRONMENT AND PLANNING — whether Aboriginal heritage impact permit (AHIP) required to undertake test excavation work — harm to Aboriginal objects under s 86 of National Parks and Wildlife Act 1974 — exclusion of certain acts from definition of harm — statutory construction of requirement 14 of Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales — proximity of test excavations to burial sites, shell middens, conflict sites — interpretation of known, likely, suspected — no breach found — ENVIRONMENT AND PLANNING — whether test excavations contrary to principles of ecologically sustainable development — claim not substantiated — ENVIRONMENT AND PLANNING — whether Applicant denied procedural fairness — no denial found — Summons dismissed

Legislation Cited:

Interpretation Act 1987 (NSW)

National Parks and Wildlife Act 1974 (NSW)

National Parks and Wildlife Regulation 2019 (NSW)

Cases Cited:

Kioa v West (1985) 159 CLR 550

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498

Texts Cited:

Macquarie Dictionary (3rd ed, 2001)

Michael Organ, Illawarra and South Coast Aborigines 1770-1850 (1990, Aboriginal Education Unit, University of Wollongong)

Category:

Principal judgment

Parties:

Hika Tarawa Te-Kowhai (Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
Mr A Oshlack, agent (Applicant)
Mr R White (Respondent)

Solicitors:
N/A
Ashurst Australia

File Number(s):

2021/298028

Publication restriction:

No

Judgment

Nature of Proceedings

1. By Summons filed 14 October 2021, Mr Hika Tarawa Te-Kowhai (the Applicant) seeks the following orders in relation to works being undertaken by Transport for New South Wales (the Respondent):

1. A declaration that the Respondent has and continues to breach s 86(1) and/or (2) of the National Parks and Wildlife Act 1974 (NSW) (NP&W Act) by causing harm and/or desecration of Aboriginal objects in undertaking archaeological excavation work without a valid permit pursuant to s 90 of the NP&W Act in the construction footprint of the proposed Moruya Bypass;

2. An order restraining the Respondent jointly or severally their employees, contractors and servants from any archaeological work involving the excavation, earth works, disturbance of soil or removal of vegetation;

3. Costs; and

4. Such further orders as the Court deems appropriate.

2. The Applicant sought an order for an urgent interim interlocutory injunction until further orders in relation to subparagraph (2) above.

3. On 22 October 2021, the Court made case management directions and noted an undertaking from the Respondent that it would not carry out test excavation works on the relevant area until 5pm on the day of the hearing of the interlocutory injunction, which was listed for 27 October 2021.

4. On 27 October 2021, the interlocutory injunction was heard and dismissed. In light of the nature of the substantive claim, the matter was listed for a 3-day hearing to commence on 17 November 2021. The Respondent gave two undertakings to the Court, applicable until 5pm on 17 November 2021 in the following terms:

1. The Respondent would not carry out test excavation work on PAD 14; and

2. In the event that shell middens were discovered on PADs 15-21 (excluding PAD 20), the Respondent would immediately cease excavation work in line with its unexpected finds policy.

5. The proceedings were initially brought by an applicant that was characterised as an unincorporated entity. The Respondent challenged the standing of that applicant pursuant to s 193 of the NP&W Act to bring the proceedings. On the last day of the hearing, on the application of the Applicant, I granted leave to substitute the Applicant as the applicant in the proceedings in lieu of the unincorporated entity. The Respondent consented to this substitution. Any issue as to the Applicant’s standing to bring proceedings pursuant to s 193 of the NP&W Act has been resolved.

6. Mr Oshlack was granted leave to appear as agent for the Applicant in these proceedings.

Background facts

7. These proceedings relate to the proposed Moruya Bypass which is being considered as part of an overarching project to upgrade various sections of the Princes Highway (Proposed Bypass).

8. A preferred route for the Proposed Bypass has been identified (the Orange Corridor) and an indicative construction footprint of the Proposed Bypass within the Orange Corridor has been identified (the Indicative Construction Footprint). Each of these areas is illustrated in Figures 1 and 2 below.

Figure 1: Map 1 of 2 showing indicative Construction Footprint within Option Orange. Source: Moruya Bypass Aboriginal Heritage Stage 3 PACHCI – Archaeological Test Excavation Methodology dated September 2021, p 8.

Figure 2: Map 2 of 2 showing Indicative Construction Footprint within Orange Option. Source: Moruya Bypass Aboriginal Heritage Stage 3 PACHCI – Archaeological Test Excavation Methodology dated September 2021, p 9.

9. As part of the environmental assessment of the impact of the Proposed Bypass on the Orange Corridor upon Aboriginal cultural heritage the Respondent has undertaken an ongoing process of assessment and consultation. The Respondent has, by its consultants, undertaken background research including consideration of: relevant heritage registers for Aboriginal Cultural Heritage including the Aboriginal Heritage Information Management System (AHIMS); review of previous archaeological and cultural heritage assessments; and a summary of the local environmental context.

10. Building upon the background research, the Respondent moved to Stage 2 in its assessment where it developed a series of predictions as to where Aboriginal sites and objects were likely to be located within the Orange Corridor: these areas were identified as areas of potential archaeological deposits (PADs) as part of Stage 2 assessment visual surveys and consultation with stakeholders (Procedure for Aboriginal Cultural Heritage Consultation and Investigation 2011 (Stage 2 PACHCI)). Upon consideration of this Stage 2 PACHCI it was determined that sub-surface investigations were required to assess the extent of any impacts on Aboriginal Cultural Heritage as a consequence of the Proposed Bypass.

11. The Respondent proposes to, and is carrying out, sub-surface archaeological test excavations and investigations (Test Excavations) on areas of the site identified as PADs in order to investigate evidence of Aboriginal cultural heritage by reference to the presence or absence of any sub-surface deposits within the Indicative Construction Footprint (Stage 3 PACHCI). The PAD locations are shown above in Figures 1 and 2.

12. The Applicant contends that the Respondent requires a valid Aboriginal heritage impact permit (AHIP) pursuant to s 90 of the NP&W Act in order to undertake the Test Excavations as the location of the PADs are “within an area containing significant cultural features including conflict, barnyard battleground, the King Campbell Reserve, burials of Coorall the Great, Father of Kian and other known burial sites, shell middens and artefacts made by our Old People”: Applicant’s draft outline of submissions dated 12 November 2021. The Applicant identified some of these locations on plans at Figures 3 and 4 below.

Figure 3: Map showing the location of PADs 14-32 within the Orange Corridor assessment area, as well as the Applicant’s overlay of significant Aboriginal cultural locations. Source: Annexure C to Affidavit of Owen Stanley Carriage sworn 26 October 2021.

Figure 4: Map showing the location of PADs 1-14 within the Orange Corridor assessment area, as well as the Applicant’s overlay of significant Aboriginal cultural locations. Source: Annexure C to Affidavit of Owen Stanley Carriage sworn 26 October 2021.

13. The Respondent contends that no AHIP is required as the Test Excavations are being carried out in accordance with the “Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales” as published by the Department of Environment, Climate Change and Water in the Gazette of 24 September 2010 (2010 Code), the consequence being that the Test Excavations are excluded from the definition of harm under the NP&W Act.

Issues for determination

14. The Applicant contends that the Respondent is carrying out or proposing to carry out the Test Excavations in breach of the NP&W Act in that such Test Excavations:

1. Comprise harm to Aboriginal objects contrary to s 86 of the NP&W Act, and, are not excluded from the definition of harm in s 5 of the NP&W Act as the Test Excavations are being carried out or are proposed to be carried out:

1. In or within 50m of an area where burial sites are known or are likely to exist;

2. In or within 50m of a …shell midden…;

3. In areas known or suspected to be conflict sites;

2. Are being carried out contrary to the requirements of the NP&W Act in that they have not been carried out in accordance with the principles of ecologically sustainable development (ESD); and

3. That the Applicant has been denied procedural fairness.

15. A breach of the NP&W Act, by operation of s 193(4) includes a breach that is threatened or apprehended.

16. Each of the matters raised by the Applicant require a consideration of the provisions of the NP&W Act in order to determine what is required by that Act and whether the actions being undertaken or proposed to be undertaken are in breach of any relevant requirement.

17. To the extent that a breach of the NP&W Act is alleged the Applicant bears the onus of establishing on the evidence such breach on the balance of probabilities.

18. I will deal with each of these asserted breaches in turn.

Relevant legislative provisions

19. Relevantly, s 86(1) and (2) of the NP&W Act provide as follows:

86   Harming or desecrating Aboriginal objects and Aboriginal places

(1)A person must not harm or desecrate an object that the person knows is an Aboriginal object.

…

(2)   A person must not harm an Aboriginal object.

…

(4) A person must not harm or desecrate an Aboriginal place.

20. The expressions “Aboriginal object” and “Aboriginal place” are defined in s 5(1) to mean:

Aboriginal object means 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.

Aboriginal place means any place declared to be an Aboriginal place under section 84.

21. No part of the Orange Corridor has been declared an Aboriginal place under s 84 of the NP&W Act.

22. The term “harm” is also defined in s 5(1) as follows:

harm an object or place includes any act or omission that—

(a)   destroys, defaces or damages the object or place, or

(b)   in relation to an object—moves the object from the land on which it had been situated, or

(c)   is specified by the regulations, or

(d)   causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c),

but does not include any act or omission that—

(e)   desecrates the object or place, or

(f)   is trivial or negligible, or

(g)   is excluded from this definition by the regulations.

23. The National Parks and Wildlife Regulation 2019 (NSW) (the Regulation) excludes certain acts from the definition of harm. The terms of cl 5 are:

5   Exclusion from meaning of “harm” objects and places

An act carried out in accordance with the Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales as published by the Department of Environment, Climate Change and Water in the Gazette on 24 September 2010 is excluded from the definition of harm an object or place in section 5(1) of the Act.

24. The 2010 Code makes the following relevant provision in Requirement 14:

Acts carried out in the course of sub-surface investigation will not be excluded from harm where they are carried out in the following areas:

1.   in or within 50 m of an area where burial sites are known or are likely to exist

2.   in or within 50 m of a declared Aboriginal place

3.   in or within 50 m of a rock shelter, shell midden or earth mound

4.   in areas known or suspected to be Aboriginal missions or previous Aboriginal reserves or institutes

5.   in areas known or suspected to be conflict or contact sites.

In these circumstances it will be necessary to apply for an AHIP.

25. In this case, cl 5 of the Regulation provides that the sub-surface excavations will be excluded from the definition of harm if carried out in accordance with the 2010 Code. The 2010 Code then excludes certain acts from that exclusion by the operation of Requirement 14. Therefore, an act needs to be carried out in accordance with the 2010 Code and not be an act prescribed by Requirement 14 in order for such acts to be excluded from the definition of harm. If such sub-surface investigations do not meet the exclusion then an AHIP is required before any sub-surface investigations may occur: ss 86, 87 and Part 6 Division 2 of the NP&W Act.

What is required by Requirement 14?

26. The case as particularised in the Summons relates to whether the proposed sub-surface investigations are excluded from the definition of harm in the NP&W Act by operation of Requirement 14 in so far as such sub-surface excavations relate to: shell middens; burial sites; and conflict areas. Requirement 14 deals with each of these objects and places differently and it is necessary to identify what is required by the relevant provision of Requirement 14 in order that it may be determined as to whether there has been a breach of the NP&W Act.

Construction of the meaning of the 2010 Code

27. As the 2010 Code is not strictly an Act or a statutory instrument the usual principles relating to statutory construction do not strictly apply. However, the terms used in the 2010 Code need to be understood as to their meaning. Both parties submitted that the effect of the 2010 Code is such that it should be construed in accordance with the usual principles of statutory construction. For the reasons that follow, I accept that such an approach is appropriate.

28. The nature of the 2010 Code is relevant to a determination of the manner in which it is to be construed. The 2010 Code is adopted as:

1. The means by which the defined term “harm” is to be construed; and

2. A defence to criminal proceedings in the NP&W Act. As such carrying out sub-surface excavations in breach of the 2010 Code can give rise to a criminal liability.

29. Further, the purpose of the NP&W Act one of its stated objects is contained at s 2A(1)(b)(i), which provides:

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

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

…

30. The stated purpose of the 2010 Code is stated in paragraph 1.1 as:

The purpose of this Code of Practice is to:

1   establish the requirements for undertaking test excavation as a part of archaeological investigation without an AHIP

If you comply with these requirements and you harm an Aboriginal object when undertaking test excavations, your actions will be excluded from the definition of harm and as such you will not be committing an offence of harm to an Aboriginal object.

2   establish the requirements that must be followed when carrying out archaeological investigation in NSW where an application for an AHIP is likely to be made.

Under the NPW Act, the Director General can require that certain information accompany an application for an AHIP. This Code explains what that information is in relation to archaeological investigations.

31. Requirement 14 is contained paragraph 3.1 of the 2010 Code which has as its stated purpose:

Purpose: To collect information about the nature and extent of sub-surface Aboriginal objects, based on a sample derived from sub-surface investigations. Test excavations contribute to the understanding of site characteristics and local and regional prehistory and they can be used to inform conservation goals and harm mitigation measures for the proposed activity.

32. The objects of the NP&W Act and the purpose of the 2010 Code provide a context in which the terms of the 2010 Code are intended to function. As can be drawn from these provisions, the NP&W Act (including the regulation of acts that constitute harm and the criminal sanctions) together with the provisions of the 2010 Code are intended to be protective in that they operate with the goal of conserving identified features, objects and places.

33. In that context the undefined terms in Requirement 14 are to be read applying the ordinary meaning of those words where such meaning provides a degree of precision to ensure conservation whilst also providing precision to enable a delineation of criminal liability.

34. With that context in mind, the ordinary meaning of the terms used in Requirement 14 is to be considered. What can be observed from Requirement 14 is that a number of differing terms are used, such that the conclusion must be drawn that where a different term is used it is intended to mean something different from another term with an otherwise similar ordinary meaning. In Requirement 14 the following undefined terms are used: known; likely; and suspected.

35. As a point of consideration recourse may be had to dictionaries as to the ordinary meaning of an ordinary word: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [25]-[30]. The dictionary definitions of each of these terms as relevantly defined in the Macquarie Dictionary (3^rd ed, 2001) are:

Known verb past participle of know

Know verb 1. to perceive or understand as fact or truth, or apprehend with clearness and certainty….5. to have knowledge or clear and certain perception, as of fact or truth,...

Likely adjective 1. Probably or apparently going or destined to be…2. Seeming like truth or fact, or certainty or reasonably to be believed or expected; probable…

Suspect verb 1. To imagine to be guilty, false, counterfeit, undesirable, defective, bad, etc., with insufficient proof or with no proof 2. To imagine or believe to be rightly chargeable with something stated, usually something wrong or something considered as undesirable, on little or no evidence…3. To imagine to be the case or to be likely; to surmise…4. To have suspicion…

36. From the context referred to above and having regard to the ordinary meaning of the words used in that context, I find that in Requirement 14 the appropriate construction to be placed upon these undefined terms is that they provide a level of the state of knowledge of a thing in descending order of such knowledge: “Know” is the most certain, and requires the presence of some accepted evidence of the fact of the thing in question; “likely” is the next in order being something less in that there must be some evidence that supports the probability of the matter being in fact true without that evidence being complete; and the lowest is “suspected” which requires less certainty or evidence than likely but still requires more evidence than a mere possibility of the presence of the thing in question.

37. The construction I place upon the term suspected takes into account that if all that was required was a mere possibility then the term would have no operative effect in the context of Requirement 14 in that it could never be the case that a mere suspicion could ever be displaced and the purpose of Requirement 14 is to permit certain acts where there is some ascertainable material capable of evaluation to determine whether the area is within the exception provided for in the 2010 Code or within the exceptions to the 2010 Code as provided for in Requirement 14.

36. Each of the parties accepted the approach at [36] was appropriate in the context of this case – the provisions of Requirement 14.

37. It is then necessary to consider the evidence in the context of these terms to determine whether there has been a breach of the NP&W Act as contended for by the Applicant.

Identification of the locality generally

40. The evidence adduced by each party in these proceedings refers to locations by the name they are presently commonly known. In order to understand the reference to such locations the locality map at Figure 5 below identifies those areas referred to by the witnesses as they relate to the Orange Corridor and the Indicative Construction Footprint.

Figure 5: Project locality map showing the Orange Corridor assessment area, Indicative Construction Footprint and water sources. Source: Report prepared by Susan Dale Donaldson dated 12 November 2021.

Burial sites

41. The relevant question required to be determined is whether there is an apprehension or threat that the Respondent will carry out sub-surface excavations in or within 50m of an area where burial sites are known or are likely to exist. This requires a determination of whether there is a known or likely burial site and whether what is proposed to be undertaken by the Respondent is within a lineal distance of 50m from that area.

Evidence

Applicant’s evidence

42. The Applicant relies upon his affidavit sworn 8 November 2021. Mr Hika Tarawa Te-Kowhai identifies himself as a member of Clan Tunungeranbrun of the Walbunja within the Yuin Confederation. He deposed as to his knowledge of burial sites in proximity to the Test Excavations at [25]-[30] of his affidavit in the following terms:

25.   As I have previously deposed and given oral evidence at the interlocutory hearing the burials of Coorall the Great, Father of Kian and possibly a second burial is situated in proximity or within the area identified as PAD 14.

26.   This knowledge was given to me by Granny Coopie on or about mid or late September 2014. I was driving Granny Coopie from Tuross to Moruya by Moruya Heads. Granny Coopie had done a blessing for a property owner and we were driving back via Moruya Heads along South Head Road. The burial site is situated to the right of South Head if you are travelling west, adjacent to Congo road, which I identify as the location of PAD 14.

27.   She said while pointing in a north west direction to me with words to the effect:

‘That's a burial over there and it's Coorall’

I replied: ‘Whose Coorall?

She said: ‘He's the father of Kian and there are other burials but I don't know who they are. He was one of the Old People he was one of the Kings.’

28.   When we got back to her place, I helped her into the house and she said ‘Get the purple folder on top of the cupboard’ I gave her the folder and she took an A4 document of 4 or 5 pages out and said to me: ‘Take this home and read it's about Coorall’ it's written by Wolrab ‘The Reminiscences of Moruya Aborigines’

29.   Granny Coopie then told me: ‘I used to live down there at Ryans Creek, camp down there, I was working there pickin’ and my dad told me he was buried down there at the bend’

30.   Although I am not directly related to Granny Coopie by blood we were extremely close and it was through her and Uncle Kevin that I obtained knowledge of accounts, records and events of the history of our people and their system of law.

43. In addition, the Applicant had identified the area he understood to be the location of the burial sites conveyed to him in these conversations as being generally in the locations identified by the placement by him of three yellow circles on Figure 4 at [12] above.

Respondent’s evidence

44. The Respondent adduced evidence from Ms Susan Dale Donaldson, expert anthropologist, who has undertaken considerable work in the Eurobodalla area generally and also specific investigations with respect to the proposed routes of the Moruya Bypass. She was not satisfied on the material available to her from historical sources and oral histories of the locality, including from Granny Coopie (also known as Georgina Parsons) that there were any burials known or likely to be within 50m of the Test Excavations. She did state that it is “possible” that there are such burials (see [32] of her affidavit sworn 27 October 2021). The only burial that she had been made aware of from oral histories taken that is proximate to the Orange Corridor is that of a clever woman buried in the reclaimed land south of the Moruya River and west of Ryan’s Creek. This burial, although not yet located, is likely to be present, but its likely location is approximately 1km from the closest point of the Orange Corridor.

45. Considering directly the evidence of the locations of the burials identified by the Applicant in his affidavit and identified on Figure 4 above, she noted that from her investigations, at the time that Coorall is said to have been buried (at around 1860), the Parish Maps identified Mynora as a small portion of land outside the Orange Corridor; an area that has now become known as Ryan’s Creek. Whilst the depiction of Mynora has since been shown as a larger area, this was in later Parish Maps such as that from 1938, being a period after the burial.

46. Ms Kirsten Bradley, a consultant archaeologist for the Respondent also gave evidence that there was a suspected burial in an area 1km west of the Orange Corridor. Further, there was historical material, namely the Moruya Examiner from 1888 that indicated that some 20 years prior to the report there had been a burial in a locality described as Mynora. Ms Bradley prepared a plan that overlayed the Orange Corridor with the Parish Map identifications of Mynora. This map shows that:

1. In 1852 the area designated Mynora was outside the area of the Orange Corridor; and

2. In 1910 and 1938 the area designated Mynora included part of the Orange Corridor in the location of PADs 13 and 14 but was not limited in its east and west extent by the Orange Corridor and included land not within the Orange Corridor.

47. An examination of historical records of the relevant period lead her to believe that the area of Mynora to which the burial of Coorall relates is an area outside of the Orange Corridor. Ms Bradley concluded that it was unlikely that any sub-surface investigation would occur within 50m of a known or likely burial site.

48. Ms Bradley identified the relevant distances of the three yellow circles in Figure 4 from any proposed sub-surface excavations as:

1. The most northern of the yellow circles at its closest point is 20m to the Indicative Construction Footprint;

2. The most southern of the yellow circles at its closest point is 25m to the Indicative Construction Footprint; and

3. The most western of the yellow circles at its closest point is more than 50m to the Indicative Construction Footprint.

49. The Respondent adduced evidence from Mr Owen Carriage who identifies himself as a Yuin man of the Walbunja clan and an Elder within the Aboriginal Community in and around Moruya. Mr Carriage is also the uncle-in-law of the Applicant. He is well acquainted with the Respondent’s proposal for the Proposed Bypass. He was provided with a copy of Figure 4 above and he deposed that he had no knowledge of an Aboriginal man known as Coorall the Great nor his burial place. He was confident if such a man had been buried in a location such as that identified in Figure 4 or the Orange Corridor his Elders would have told him, and he would have passed this information to the Respondent. He was cross examined on this evidence and did not resile from this position.

50. Ms Wendy Smith identifies herself as a Yuin woman of the Walbunja clan and an Elder within the Aboriginal community in and around Moruya. She has spent most of her life living in and around the south coast. She was also acquainted with the Respondent’s proposal. She deposed that she had never heard of Coorall the Great. She also deposed that her Elders had never passed on to her knowledge that there were any burial sites in the vicinity of the Orange Corridor. As far as she is aware there are no actual or likely burial sites in any part of the Orange Corridor. If there were any burials, she is confident her Elders would have passed such information to her and they did not. Ms Smith was cross examined on her evidence and did not resile from her position to any material extent.

Applicant’s submissions

51. The evidence of the Applicant is that there is definitely a burial to the south of Moruya River in an area proximate to or within 50m of the Orange Corridor and the Indicative Construction Footprint. The evidence of the Applicant has not been challenged in that it was not suggested that he was never given this knowledge or that he was making it up. Therefore, the evidence given by Granny Coopie must be taken as evidence of the burial of Coorall and another unnamed person.

52. The presence of the burial of the clever woman at a location further west indicates that it is possible that the whole area between Coorall’s burial and the clever woman is a burial ground and may include a mass grave.

53. The Applicant’s evidence cannot be dismissed due to the fact that Granny Coopie never told Ms Donaldson or her other relatives about the burial. She may not have shared it with anyone other than the Applicant. It is still knowledge of an Elder. It is also important to note that she passed this knowledge to him before the Proposed Bypass project came into being, so there was no motive connected to stopping the bypass.

54. The historical documentary evidence establishes that Coorall existed and was buried at Mynora. The Parish maps that show Mynora vary from time to time and you cannot take those references as limiting the area of burial and no basis has been found on which to say it is not in the area identified by Granny Coopie to the Applicant.

Respondent’s submissions

55. Whilst the Respondent does not contend that Granny Coopie did not give the knowledge identified by the Applicant in his affidavit to him, it does suggest that the identification of any burial location in the manner given was so vague and open to interpretation that the Court could not be satisfied on the balance of probabilities that it was either known to be contained or likely to be contained within any of the three areas designated by the yellow circles on the Applicant’s plan. That uncertainty takes it below the level of satisfaction that is required by Requirement 14 that a burial in known or likely to be within 50m of the area proposed to be excavated.

56. This uncertainty is compounded by the fact that the knowledge does not appear to be widely held within the local Aboriginal community. Whilst shared with the Applicant, it does not appear that Granny Coopie told any of her relatives, Ms Donaldson who expressly asked her about burial sites, nor have other Elders shared this knowledge with any identified persons.

57. Further uncertainty is evidenced in the historical documentary evidence which shows the area of Mynora as being differing areas of land at differing times. Whilst the three yellow circles appear to be located in an area that was at some time designated as Mynora, the area of Mynora is much larger, such that the location of the circles cannot be related by their location as the likely place within the larger designation of Mynora.

Findings as to harm to burial sites

58. In order for the proposed investigations to be a breach of the NP&W Act the Applicant must establish by evidence on the balance of probabilities that the Test Excavations either have or will be undertaken within 50m of an area where burial sites are known or are likely to exist.

59. Taking the evidence adduced relating to the burials of Coorall and the unnamed person at its highest, it appears that it is possible that, at least with respect to the burial of Coorall, the burial location is on the southern side of the Moruya River in an area that was referred to as Mynora. The generality of this evidence both in relation to the location identified by Granny Coopie and the location of the area of Mynora, however, is unspecific.

60. The Applicant has attempted to interpolate from the knowledge conveyed to him the likely location of the burial sites within the generally identified area. However, the evidence does not provide a sufficient basis for me to find that such an interpolation is a determination of the designation of that part of the general area identified where the burial location is likely to occur. The generality of the interpolation is exemplified by the fact that the Applicant, doing the best he can with the information he was given, has identified three potential areas, some of which are within 50m from the Test Excavations and some beyond such a distance. All of these areas, on his assessment, are equally likely to be the burial location.

61. Further, the uncertainty of the location of the area referred to as Mynora prevents a correlation of the historical documentary evidence with the knowledge passed to the Applicant by Granny Coopie. At best, on this evidence, all that can be established is that it is possible that Coorall, and potentially the other unnamed person, is located within the Orange Corridor within 50m of the Test Excavations within PADs 13 and 14. Based on the reference to Mynora in the documentary evidence, however, it is equally possible that the burial location is more than 50m distance from the Test Excavations in PADs 13 and 14.

62. The evidence that the location of the burial of Coorall and by implication the other unnamed person was not knowledge held or shared by other Elders in the community leaves the evidence as a most general identification of a possible location, rather than a known location or with sufficient information to determine a more specific location.

63. In order to establish the breach asserted I must be satisfied that the location of the burial is likely to be within 50m of the Test Excavations. Such a provision that makes a requirement determined by a measurable distance inherently requires a degree of precision so that the measurement can be undertaken. In dealing with an area where a burial site is known or is likely to exist the degree of satisfaction required to enable such a location to be known requires evidence of the existence of the burial. Where it is that a burial is likely there need evidence sufficient that one can be satisfied that it is probable that the burial site is located within the distance measured from the Test Excavation. On the evidence available, for the reasons outlined above, the potential location of the burial sites are so uncertain and general that I cannot be satisfied that it is likely that the Test Excavations are or are proposed to be undertaken in or within 50m of an area where burial sites are known or are likely to exist.

64. In this case, whilst it is possible that a burial site may be within 50m of the Test Excavations, such a standard is insufficient to establish a breach of the NP&W Act.

Shell middens

65. The relevant question required to be determined is whether there is an apprehension or threat that the Respondent will carry out Test Excavations in or within 50m of a shell midden. This provision has no qualifier such as known or likely, rather it relates to an existing fact, the presence of a shell midden. This requires a determination of whether there is a shell midden within a distance of 50m from any proposed Test Excavations.

Evidence

Applicant’s evidence

66. The Applicant deposes at [7]-[13] of his affidavit:

7.   I have received the knowledge that PADs 15 to 28 in proximity to shell middens. The side of the river at the proposed highway crossing is known in the Dhurga dialect of the Murrin/Yuin/Kuric language family as Pergoga

8.   Pergoga (Malabar) is the abode of the Walbunja People on the Nawa (Moruya) River. In that particular place the Wabunja would harvest from the river marine resources including oysters, mussels, crabs and fish.

9.   My Elder Uncle Kevin Smith informed me that Pergoga was the place: ‘Where we got the bimbulas (cockles), crabs, mussels, oysters, bream, flathead and bully mullet.’

10.   This is evidenced by the extensive middens along the Moruya River, Malabar and Dooga Creeks which are the fresh water catchments that flow into Malabar lagoon. These creeks are the only fresh water sources able to be utilised by our People.

11.   This knowledge is confirmed by documentary evidence recorded by Susan Donaldson in Appendix 7 of the Eurobodalla Aboriginal Cultural Heritage Study

12.   In Appendix 7, Susan Dale Donaldson states that ‘According to local Aboriginal knowledge archaeological materials exist on the banks of Malabar Lagoon, providing evidence of pre contact use of the area.’ The area referred by Donaldson can be identified as the locations of PAD's 17, 18, 19, 22, 23, 24, 26, 27, 28. Donaldson states that: ‘Preliminary investigations reveal the presence of (shell midden material),

13.   The identification and location of the shell midden material from the ‘preliminary investigations’ were not registered on the AHIMS in accordance with s91 of the NPWS Act and thus there are no extant site cards for these sites.

67. The Applicant has not marked on the plan at Figures 3 or 4 above the location of the midden sites, however by reference to the PAD numbers at [7] of his affidavit the location of the shell middens referred to by him are in the Orange Corridor to the north of the Moruya River.

Respondent’s evidence

68. Ms Smith deposes that there are no shell middens within the Orange Corridor. During cross-examination it became apparent that Ms Smith was unaware of an area referred to as the Malabar Lagoon however, she did state that she was very familiar with the area having played there as a child, but she was not familiar with the term “Malabar Lagoon”.

69. Mr Carriage also deposed that he was unaware of any shell middens within the Orange Corridor and that he had not been given any knowledge of any shell middens within that area by his Elders. Mr Carriage was familiar with both the Malabar Lagoon and the Moruya River, having engaged in swimming, fishing and hunting in these areas since his childhood. Mr Carriage was also aware of the presence of shell middens in Malabar Lagoon both from his own observations and from knowledge passed to him by his Elders.

70. Ms Bradley deposed that she had carried out visual surveys by foot of the area to the western edge of the northern portion of Orange Corridor for a width of about 100m along in the company of another archaeologist and four Aboriginal Site Officers. From this visual inspection no shell midden sites had been located. Such inspection included PADs 30, 29, 26, 25, part 24, 23, part 22, part 20 and part 19. In addition, since that visual survey, she has inspected on foot the southern bank of the creek adjacent to PADs 16 and 18 but that area is yet to be surveyed in the company of any Aboriginal Site Officers.

71. She further attested that as part of the Stage 3 PACHCI, prior to carrying out any Test Excavations, each of the areas of the PADs are visually inspected by archaeologists and Site Officers.

72. The Test Excavations of PADs 24, 27 and 28 have been completed and at the date of the swearing of her affidavit, PAD 29 was still under investigation with 18 test pits having been completed. No shell middens have been located as a consequence of any of the Test Excavations on these PADs.

73. Not all of the areas identified as PADs in the Stage 3 PACHCI are proposed to be the subject of excavation. It is proposed that, notwithstanding the designation as PADs, Test Excavations will only be undertaken in areas within the proposed construction footprint or where geotechnical works are proposed. There is no proposal to undertake Test Excavations of PADs 18, 20, 23, 25, and 26 which are entirely outside of the construction footprint or those parts of PADs 28, 27, 24, 22, 21,19, 18, 17, 16 or 15 which are not within the Indicative Construction Footprint.

68. Ms Bradley was aware of existing shell middens within the Malabar Lagoon which had been identified in 2011 but which had not been listed on AHIMs. She identified those locations from a study undertaken in 2011 and has designated them on the plan at Figure 3 of her affidavit. None of the identified known shell middens in Malabar Lagoon are within 50m of any proposed sub-surface excavations.

69. Ms Donaldson deposed that as part of her cultural assessment for the Moruya Bypass she undertook consultations with a number of Aboriginal people who hold cultural knowledge of the Moruya area. In particular, she spoke to some people who had personally lived and worked on farms located west of the Malabar Lagoon and in the vicinity of the Orange Corridor. She specifically asked them if they recalled observing shell middens. Whilst some of these persons had seen or heard of the shell middens within the Malabar Lagoon none recalled seeing or hearing of any shell middens on the surrounding land within the Orange Corridor. It was her opinion that the Test Excavations were not in or within 50m of a shell midden.

Applicant’s submissions

76. There is evidence of the presence of shell middens in Malabar Lagoon. The Respondent has not followed the intrusion of Malabar Lagoon or Dooga Creek into the Orange Corridor and these are the areas where a shell midden is likely to exist. Requirement 14 obliges the Respondent to carry out investigations in these areas as they are within 50m of where the Test Excavations are being undertaken and without such a survey the Respondent cannot be certain that there is no shell midden within 50m of the Test Excavations.

77. The surveys that Ms Bradley says have been undertaken to date are insufficient as they were visually hampered, severely limited and over a small amount of the area identified as the PAD area.

78. There is an inherent weakness in complying with Requirement 14 as the middens may be present, but we just do not know so an AHIP should be applied for so that elements of thoroughness can be undertaken.

79. The evidence is that there is no doubt that the Respondent has caused actual harm in relation to PAD 24 where there has been Test Excavations. There is a threat of harm in PADs 16, 17, 18, and 19.

Respondent’s submissions

80. The Applicant bears the onus of establishing that there has been harm or that there is an apprehension or threat of harm. Actual harm would be established if the Applicant could prove on the balance of probabilities that the excavations that have already been completed were undertaken within 50m of a shell midden. No evidence has been adduced that would permit such a finding. As to the threatened harm for future excavations all sub-surface excavations will be within 50m of the edge of the Orange Corridor and all of the area within the Orange Corridor will be further surveyed on foot by qualified archaeologists and Aboriginal Site Officers prior to any excavation and if any shell midden is found no area within 50m of it will be excavated.

Finding on shell middens

81. In order for a breach of the NP&W Act to be established on this ground the Applicant must, on the evidence, establish on the balance of probabilities that the Test Excavations have or will be carried out in or within 50m of a shell midden.

82. Whilst there is clear and undisputed evidence of the presence of shell middens within the Malabar Lagoon, such middens are more than 50m from any of the Test Excavations.

83. The assertions by the Applicant at [7] of his affidavit is that he has received knowledge that PADs 15 to 28 are in proximity to shell middens. Upon the knowledge to which he then refers at [9] and the evidence he has considered at [10] and [11] he asserts that there are “extensive middens along the Moruya River, Malabar and Dooga Creeks”. Apart from the evidence relating to the Malabar Lagoon shell middens he provides no evidence of the location of the “extensive middens” at the other locations to which the Applicant refers. Further, to the extent that he relies upon the investigations of Ms Donaldson at [12] of his affidavit, again, the shell middens to which she refers are those located in Malabar Lagoon. The evidence of the Applicant, taken at its highest, does not provide any evidence of a shell midden being located within 50m of any actual or proposed Test Excavation.

84. The criticism by the Applicant that the Respondent cannot know or has not established that there is not a shell midden within 50m of the Test Excavations is misplaced. I accept the Respondent’s submission that in these proceedings it is not for the Respondent to establish the lack of presence of a shell midden, it is for the Applicant to establish that there is a shell midden within 50m of any Test Excavation.

85. The Applicant’s submission that the Respondent has elected not to satisfy itself that there are no middens (should such submission have any bearing on the outcome of these proceedings) should also be rejected. The Respondent, as part of the Stage 2 PACHCI undertook visual surveys of the western most portion of the Orange Corridor for a width of approximately 100m. This survey was undertaken by qualified archaeologists and Aboriginal Site Officers. The purpose of the survey was not only to identify any visual indications of the presence of objects and places of Aboriginal Cultural Heritage but also to identify any areas that had potential archaeological deposits. Such a survey called on the combined expertise of the archaeologist and the Aboriginal Site Officers who have local specialised knowledge. Through this process the PADs were identified. The Stage 2 PACHCI survey was not and is not the only visual survey that will be conducted prior to Test Excavations. In accordance with the Stage 3 PACHCI a further extensive survey of each of the PADs and the Orange Corridor is undertaken by the archaeologists and Aboriginal Site Officers. This survey further refines the identification of PADs and determines the actual locations within the PADs in which Test Excavations will occur. By the time any excavation occurs the PADs and its surroundings within the Orange Corridor will be fully surveyed by appropriately qualified persons to enable the identification of areas, including the presence of shell middens. If this process identifies a shell midden then excavation cannot occur within 50m of any such middens.

86. Further, the suggestion that shell middens are present at the locations in which the Dooga River and the Malabar Lagoon, or Moruya River, bisect the Orange Corridor is not borne out by physical examination. The northern bank of the Dooga River bisection forms the southern extremity of PAD 24. That PAD has been excavated and no evidence of shell middens was identified. The proposition put by the Applicant that there will be or must be shell middens in locations as these is not borne out: on the oral histories of the Applicant; the evidence and knowledge of the Elders called by the Respondent; the past and recent investigations of Ms Donaldson in consulting with the local communities; nor the actual physical surface and sub-surface investigations of Ms Bradley and her associates, including the Aboriginal Site Officers. The bare assertion of the presence of shell middens in the locations identified by the Applicant or Mr Oshlack in submissions cannot be supported on the evidence.

87. On the evidence the Applicant has failed to establish that the Test Excavations have or will be undertaken in or within 50m of a shell midden. Accordingly, this ground should be dismissed.

Conflict sites

88. Whilst the Applicant’s Summons made reference to contact sites, Mr Oshlack confirmed in his closing submissions that the Applicant only put this ground on the basis of conflict site and not contact sites.

89. Requirement 14 excludes from the exemption from the definition of harm in the NP&W Act Test Excavations in areas known or suspected to be conflict sites. That is, there is no lineal measure, merely an identification of an area that is known or suspected to be a conflict site.

90. Conflict site is defined in the 2010 Code to mean:

Conflict Site means a site where confrontation occurred between Aboriginal and non-Aboriginal people or between different Aboriginal groups.

91. Confront is defined in the Macquarie Dictionary as:

verb (t) 1.  to stand or come in front of; stand or meet facing; stand in the way of.

2.  to face in hostility or defiance; oppose.

3.  to set face to face.

92. Conflict is defined in the Macquarie Dictionary as:

verb (t) 1. to come into collision; clash, or be in opposition or at variance; disagree.

2. to contend; do battle.

–noun

3. a battle or struggle, especially a prolonged struggle; strife.

93. The Applicant does not contend that there is an area of a known conflict site within the Orange Corridor. The Applicant does contend that the area that includes the Orange Corridor is a suspected conflict site. The conflict/s upon which the Applicant relies are:

1. Action taken by a landholder known as Flanagan as a consequence of the spearing of some of his cattle on his land which was, in part, located within the Orange Corridor north of the Moruya River; and

2. The dispersal or dispossession of the traditional owners of the occupied land to the north of the Moruya River as referred to in the cross-examination of Mr Carriage which is reproduced below.

94. Applying this term in the context of the 2010 Code (as identified above) imports a notion of actions of opposition. This does not necessarily require a person to be physically harmed, but it does require an expression, in action, of opposing parties with opposite desired outcomes.

The evidence

Applicant’s evidence

95. The Applicant states at paragraphs [19]-[24] of his affidavit that:

19.   In 1829/30 Mr Francis Flanagan acquired a land grant from a Mr BG Raye over the area which is covered by PAD's 15 to 32

20.   In a short time after the acquisition, some cattle belonging to Flanagan were speared by some Aboriginal people who we identified as Wiradjuri which the settlers describe as ‘The come by night from over the mountains’

21.   On the 4th of October, 1830, Flanagan informed Governor Ralph Darling that he would take necessary protection and security stating: ‘I am encouraged most humbly to beg, that some active measures will be immediately adopted for the protection of our Persons and Property.’ And further stated that: ‘nevertheless I beg to suggest the necessity .... of their being made to see our superiority of power....’

22.   On or about 12th of December, 1996, my Uncle Kevin, at a Native Title meeting which I attended, addressed the Walbunja Native Title Claim Group and amongst the matters he spoke with were words to the effect: ‘I know the stories of Francis Flanagan when he slaughtered us and murdering us accusing us of killing his cattle’

23.   On or about the 14th of September 2013, I was in the car driving from Moruya to Sanden Point with Granny Coopie, the late Georgina Parsons, the previous ruler of the Walbunja, who told me with words to the effect: ‘Bai, when Mr Flanagan moved and settled in Moruya, in the first year he slaughtered our People because he thought we killed his cattle, it wasn't us we told him it wasn't us and he got his gun out and his convict fellas started shooting us, We were all living there together, it was sad what they done to our People.’

24.   The conflict is not spoken in the wider community because of the fear of retribution and staunch denial amongst the non indigenous.

96. The Applicant also relied upon the extracts of historical correspondence contained in Michael Organ, Illawarra and South Coast Aborigines 1770-1850 (1990, Aboriginal Education Unit, University of Wollongong) (Organ). In Organ the correspondence referred to by the Applicant is reproduced together with other relevant correspondence of the time. In particular, the Applicant relies upon the correspondence reproduced in the section of Organ headed: ‘Aboriginal Outrages’ at St. Vincent which relate to a period in the 1830’s relating to cattle slaughter and asserted threats to safety of life and property.

97. The Applicant also relied upon the cross-examination of Mr Carriage that the Applicant at Tcpt, 18 November 2021, p 123(36-50) – p 124(1-10) where he said:

Q. Did Mr Flanagan push those Traditional Owners that may be camping on that land from that place?

A. Well, look, the - the - the stories that the Elders spoke of, they were certainly asked to move from those areas of the landowner. He weren't the only one. There were other white landowners as well in that area where they actually put a stop to our hunting and gathering.

Q. Did your mob ever resist being pushed?

A. No. Again, you know, our people, and I've experienced it myself, told to move on, and we have. And so we weren't in - never in a position to argue with landowners.

Q. Why not?

A. Well, when you consider that the landowners, a lot of it was fenced off, and they had guns. Who is goes to argue with them? Our people certainly didn't.

Q. Had they ever used guns against you? Your people?

A. Not that the Elders ever told me, no.

Q. When talking about this person, Flanagan, was there ever like some sort of - I was going to say "shame", but it's not the right word. Like a hesitancy? Something that really - you know, they didn't like to talk about it at all what occurred?

A. No. Historically I recall them talking about not only one particular person, but numerous famers that, well, chased us off the land. If you're saying - if there's shootings, the Elders never spoke of it.

And at Tcpt, 18 November 2021, p 124(40-48):

Q. Just to finish this part, ...(not transcribable)... what came up, the farmers, where you're camping, and hunting, and fishing, and raising families and all that. They just told you to leave and your people just got up and left?

A. But of course. Who - who - our people never argued, particularly if some farmers - some farmers with guns in their arms, and also they just didn't want to enter into arguments with farmers.

Q. They were in fear of these farmers?

A. But of course.

Respondent’s evidence

98. The Respondent has adduced evidence from two Aboriginal Elders, Mr Owen Carriage and Ms Wendy Smith. Each of these persons contends that they are unaware of any known or potential conflict sites within the Orange Corridor or in particular in any area identified for potential archaeological investigation.

99. Ms Donaldson, as an anthropologist has also undertaken extensive consultation with the local Aboriginal communities and Aboriginal Elders and asked them whether there were any conflict stories within the location of the proposed corridor and was advised that they were not aware of such stories. In addition, written records have been examined and whilst conflict areas in the locality have been identified in contemporaneous written records no such conflict site is within the Orange Corridor.

Applicant’s submissions

100. The historical documentary record is not complete – as can be observed from the reference in Organ at folio 1502 of the Applicant’s Tender Bundle where Organ states:

[Unfortunately the above account glosses over the more unsavoury aspects of this affair – it does not describe the European atrocities. The original letters and documents, form the Archives Office of New South Wales, describing these events are transcribed below.

101. The historical record names Mr Flanagan’s land which is located in proximity to and includes part of the Orange Corridor. The reference to the tensions relating to Mr Flanagan and his land and his employees having been diffused by the intervention of the colonial government representatives must mean that there were tensions on Mr Flanagan’s land, this is sufficient evidence of conflict. The Flanagan land being subject to conflict would have the consequence that the whole of the northern portion of the Orange Corridor and all of the PADs within it would be within a conflict area within the meaning of Requirement 14 and, therefore, no Test Excavations can be undertaken in this area without an AHIP.

102. Whilst the area shown on the Applicant’s map shows a conflict area on both the north and south of the Moruya River, Mr Oshlack is only making submissions about a conflict site to the north of the River.

Respondent’s submissions

103. The Respondent observes that as to the conflict on the Flanagan land, the evidence does not support a finding of any known or suspected conflict on land held by Mr Flanagan and, therefore, no relevant evidence relating to the Orange Corridor. The Organ material does not, when read according to its term, identify any actual conflict on that land. Further, the evidence of Mr Donaldson and Mr Carriage is that there was a known conflict in Moruya but not in the locality of the Orange Corridor.

104. The cross-examination of Mr Carriage that the Applicant relies on indicates dispossession, but not that there was a relevantly defined conflict as a consequence of the Aboriginal Community being moved from the lands in the Orange Corridor.

Findings on conflict site

105. It is necessary to determine whether any of the Test Excavations are in an area known or suspected to be a conflict site.

106. Adopting the meaning of the term known and suspected as identified above, the evidence does not disclose that the area to the north of the Moruya River and contained with the Orange Corridor is a known conflict site.

107. The Applicant’s evidence as to what was stated by Uncle Kevin Smith and Granny Coopie have references to Mr Flanagan and the killing of cattle and the killing of Aboriginal people by Mr Flanagan. These references appear to link the conflict to land within the Orange Corridor. However, this is not the totality of the evidence available. The two Elders, Mr Carriage and Ms Smith, were not aware of the killing of any Aboriginal persons by Mr Flanagan or in the area of the Orange Corridor, although Mr Carriage was aware of massacres of Aboriginal people in the locality more generally.

108. The documentary evidence relied upon relating to Mr Flanagan does demonstrate some tension between Mr Flanagan (and other non-indigenous occupiers of land) and the local Aboriginal communities. It was contended that “outrages” had been committed including the killing of cattle. Those tensions were sufficiently apparent that Mr Flanagan (and others) felt compelled to write to Governor Darling in October 1830 in most insistent terms which stated, in part:

I most humbly beg further to state, that although no person can entertain more charitable feelings for our unenlightened Brethren, or be more inimical to coercion than myself; - nevertheless, I beg to suggest the necessary for our mutual protection and security, of their being made to see our superiority of power, and to that end, I conceive it absolutely necessary that some mode of punishment be adopted for such of them as commit any outrageous act, and I think your Excellency will also see the necessity of it when you consider that a short time since, an outrage of a similar kind was committed on some Cattle the property of Alexr. McLeay Esqr. in the same neighbourhood, and the Authors of it finding they cou’d do it with impunity, there having been no coercive measures resorted to at the time, it has encouraged them to commit the outrages now complained of and to a more alarming extent.

109. Following from the numerous correspondences of the non-indigenous occupiers the Governor sent Lieutenant Macalister to investigate and report. Lt Macalister reported:

Mr Thompson has been the one sufferer to the Eastward, his farm being immediately under the mountains, as all acts of aggression have been solely confined to the Mountain natives and should these strange people hereafter break the apparent good faith my visit amongst them has produced, and thereby render the adoption of the intended arrangement expedient, to keep them in check, Jemacabane and Mr Thompson’s farm are the only places at which I would recommend to station Military, at both places soldiers can be victualled and accommodated.

A perfectly good understanding has invariably existed between the Settlers and the Coast Natives, therefore to station military at the farms of Messrs. Morris & Flanagan (on the coast) cannot in my opinion effect any desirable result.

The Mountain Blacks having complained to me that they are neglected, in not receiving Blankets or Rugs, and I have promised them on the part of the Government, that Twenty four Blankets or Rugs would be forwarded to Mr Thompson’s station (by Inverary) for the purpose of being distributed amongst them. I therefore beg.... to call your attention particularly to this matter, and have only to add that His Excellency the Governor’s instructions to me are perfectly made known and understood by all the Black Natives who have been concerned in the depredations.

110. There is no further record of tensions following from the attendance of Lt Macalister. The records do reveal that the blankets were distributed, and that Aboriginal people were still in occupation (or proximity) of Mr Flanagan’s land after 1830.

111. This information does reveal real and escalating tensions in the 1830s. Those tensions, however, on the records, appear to have been diminished by the actions following the inspection of Lt Macalister such that no conflict in the sense of a face-off between two parties occurred.

112. There is no evidence that the military was stationed at any location following the Lt Macalister report. It is also noted that it was in terms stated that there was a “perfectly good understanding” between indigenous and non-indigenous people in the area of Mr Flanagan’s land and even if military were sent they need not be located at the coast which area included Mr Flanagan’s land.

113. Taking this evidence as a whole, I accept there were tensions, but those tensions were not sufficient to fall within the defined term “conflict site” as used in Requirement 14. There were clearly issues relating to the killing of cattle, but this does not appear to be of Mr Flanagan’s stock. He identified his concerns relating to the killing of his neighbour’s cattle. The references to Mr Flanagan retaliating by killing Aboriginal persons is not supported by his letter requesting that the colonial government take action on his behalf and the recitations of investigations by Lt Macalister. Whilst I do not rule out that there may have been some retaliatory action in the locality there is no sufficiently founded evidence that such confrontations occurred on the Flanagan land. Accordingly, dealing with the issue of the conflict relating to Mr Flanagan, I am unable to be satisfied that the Orange Corridor is an area of a known or suspected conflict site.

114. Dealing with the evidence of Mr Carriage, adduced in cross-examination, as relied upon by the Applicant, the question again is if this evidence supports a finding that the northern part of the Orange Corridor is a known or suspected conflict site. Mr Carriage’s evidence discloses the unchallenged (and undisputable) fact that Aboriginal persons were displaced from their traditional lands by non-indigenous occupation, land tenure practices, and agricultural practices. This displacement itself, without more, however, would not fall within the definition of conflict site in the 2010 Code.

115. The something more to which the Applicant refers is the presence of guns and the fear of the Aboriginal community of the non-indigenous occupiers. But again, there needs to be some conflict as that term is used in the 2010 Code to render the area a conflict site. On the evidence of Mr Carriage, he does not contend that there was conflict in the sense of a confrontation, rather that the Aboriginal community were, in effect, resigned to the imbalance of power and did what they could to avoid conflict and confrontation when moved on by the non-indigenous landowners. Taking this evidence as it was presented it is not sufficient to establish that the Orange Corridor is an area of a known or suspected conflict area as is contended by the Applicant.

116. On the basis of all of the evidence and submissions, I am not satisfied that the northern part of the Orange Corridor is an area of a known or suspected conflict area. Therefore, what is proposed by the Respondent, is not in breach of the NP&W Act as it is not, as was contended, in breach of Requirement 14 of the 2010 Code as it relates to conflict areas.

Ecologically sustainable development

117. The application of the principles of ESD were not expressly pleaded in the Summons. The Applicant had alluded to this principle in the written opening submission. As I understand Mr Oshlack’s closing submissions he identified that the issue arose in the following manner:

1. The objects of the NP&W Act at s 2A(2) and (3) provided:

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

(3)   In carrying out functions under this Act, the Minister, the Chief Executive and the Service are to give effect to the following—

(a)   the objects of this Act,

(b)   the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

2. The 2010 Code is made under the NP&W Act (or is authorised/incorporated by it) and as such it must operate in furtherance of the objects of the Act including the principles of ESD;

3. Any person undertaking acts in accordance with the 2010 Code must do so consistently with the principles of ESD; and

4. The Respondent in this case had not undertaken acts in accordance with the principles of ESD which include the precautionary principle. The application of the precautionary principle and inter-generational equity would require an onus to be placed on the Respondent to be certain that there were no Aboriginal objects in locations of Test Excavations and if such certainty could not be had, then an AHIP should be obtained before such work is undertaken.

118. The precautionary principle would require the Respondent to undertake non-intrusive investigations prior to excavation like, for example, ground penetrating radar.

Respondent’s submissions

119. The 2010 Code sets out a series of steps that must be undertaken before any Test Excavations can take place. By following each of these steps there is an assurance that the works is being carried out in accordance with the principles of ESD.

Findings on ESD

120. The principles of ESD as incorporated into the NP&W Act require a considered process of assessment and action. The process outlined by the NP&W Act together with the Regulation and the 2010 Code provide for a process of building layers to form a knowledge base. Any destructive activity, such as excavation, is limited either to the minimum extent necessary to permit knowledge to be sufficiently held or where the prospect of harm to places and objects (as identified in the 2010 Code) is established. This process, when taken as a whole, is consistent with the principles of ESD as identified in the NP&W Act.

121. The fundamental submission of the Applicant is that an AHIP should be required in all circumstances where harm to an Aboriginal place or object is a possibility. The Applicant suggests that such a proposition is consistent with the principles of ESD. The NP&W Act provides for a regime of assessment. In limited circumstances an AHIP is not required. The management and control of those circumstances through the ongoing assessment process as set out in the 2010 Code reinforces the conservation goals of the Act which also reinforce the principles of ESD. The Applicant has been unable to identify any particular aspect of this proposal undertaken and the actions being undertaken which are said to be in breach of the principles of ESD. Rather, the Applicant is concerned with the adequacy of Requirement 14 as it relates to Aboriginal objects and area more generally. There being no challenge to the validity of the 2010 Code in these proceedings, such a consideration is beyond the scope of the matters for determination before me.

122. Accordingly, there being no identified action in breach of Requirement 14 or the 2010 Code more generally, the Applicant has failed to substantiate its claim that the proposed Test Excavations are in breach of the NP&W Act due to the requirements of that Act to consider the principles of ESD.

Denial of procedural fairness

123. The Applicant pleaded, at Ground 4 of the Summons, a denial of procedural fairness, in that the Respondent has refused the Applicant access to the site during excavations.

124. Mr Oshlack identified the particular aspects of the claim for procedural fairness in his closing submissions in a different manner to that which was pleaded in the Summons. He identified this ground as having two aspects: first, that procedural fairness has been denied to the Applicant as there is an Aboriginal person that wishes to protect certain sites and he is unable to do so because there is an onus placed upon him to establish the case; second, that the operation of Requirement 14 allows breaches of the NP&W Act in an unregulated manner in that harm can be caused to Aboriginal objects without a permit and this makes it hard to ensure compliance.

125. A claim for a denial of procedural fairness must identify an obligation on the part of a decision-maker to afford to the Applicant the right to be heard prior to a decision being made that affects him: Kioa v West (1985) 159 CLR 550. In this case, the Applicant has not identified any relevant decision to which he was entitled to be heard and he was denied that opportunity. Complaints about the making of legislative provisions generally do not give rise to a right of procedural fairness. As to the making of Requirement 14, s 5(7) of the NP&W Act requires that certain steps be taken to notify any proposal to exclude certain acts from the definition of harm. Such notice is to invite submissions and to consider such submissions. There is no claim or evidence in this case that such actions were not undertaken.

126. As to the suggestion that the Applicant should be entitled to be on the land whilst the sub-surface investigations are being undertaken, the Applicant did not identify any right or power that permitted or required his attendance. I further note that all sub-surface excavations being undertaken by the Respondent are undertaken in the presence of Aboriginal Site Officers.

127. The Applicant has, therefore, failed to establish any denial of procedural fairness and Ground 4 of the Summons will be dismissed.

Costs

128. The costs of this hearing and the reserved costs of the interlocutory hearing remain to be determined.

129. Due to the time taken in the hearing of this matter the parties were unable to make submissions as to costs. The Applicant requested that I reserve costs to enable him to consider my reasons before making submissions. As the hearing time (including the additional day added to the fixed dates for hearing together with sitting beyond usual court hours on the last day) did not permit submissions to be made. I will reserve costs.

Conclusion and orders

130. It is no part of these proceedings for me to determine whether there is in fact any burial sites, middens, conflict or contact sites. The only question for determination in this case is whether the Applicant has established that what is being proposed by the Respondent is an action which comprises a breach, including an apprehended or threatened breach, of the NP&W Act.

131. For the reasons outlined above, on the evidence adduced, the Applicant has not established on the balance of probabilities that the actions undertaken by the Respondent or proposed to be undertaken by the Respondent in connection with the Test Excavations are in breach of the NP&W Act. Accordingly, the Summons must be dismissed.

132. The Court orders that:

1. The Summons filed on 14 October 2021 is dismissed;

2. Costs of the interlocutory and substantive proceedings are reserved; and

3. The Exbibits are returned.

133. The Court directs that the matter be listed for mention on Friday, 4 February 2022 at 9am for directions on the question of costs.

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Decision last updated: 10 December 2021