Legend International Holdings v Taylor Aly Awaditijia
[2013] QLC 66
•20 December 2013
LAND COURT OF QUEENSLAND
CITATION: Legend International Holdings v Taylor Aly Awaditijia & Anor [2013] QLC 66 PARTIES: Legend International Holdings Inc
(applicant)v James W Taylor Aly Awaditijia
(respondent)and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)FILE NO: EPA081-13 DIVISION: General Division PROCEEDING: General application DELIVERED ON: 20 December 2013 DELIVERED AT: Brisbane DATE OF HEARING:
Final submissions filed 28 October 2013
HEARD AT: Written submissions PRESIDENT: CAC MacDonald ORDERS: 1. The application to strike out the respondent's objection is refused.
2. The application to strike out paragraphs 1, 8, 9 and 10 of the respondent's particulars of objection is granted.
3. The application to strike out paragraphs 2, 3, 4 and 5 of the respondent's particulars of objection is refused.
CATCHWORDS: Mining - mining lease - draft Environmental Authority - objection - accepted by statutory authority - application to strike out by miner - power of Court to strike out - relevance of UCPR - overriding provision in Environmental Protection Act (EPA) - objection not struck out.
Mining - mining lease - draft Environmental Authority - objection - particulars to objection - application to strike out - purpose of particulars - required to relate to objection - discretion by analogy with UCPR - equity and good conscience provisions - some particulars struck out.
Mining - mining lease - draft Environmental Authority - objection - cultural issues within 'environment' definition - failure to enter into Cultural Heritage Management Plan (CHMP) - remedy under AboriginalCultural Heritage Act, not EPA.
Aboriginal Cultural Heritage Act 2003
Environmental Protection Act 1994
Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012
Land Court Act 2000Land Court Rules 2000
Uniform Civil Procedure Rules 1999Gregcarbil Pty Ltd v Backus [2011] QLC 04
Royalene Pty Ltd v Registrar of Titles [2007] QSC 059
Townsville City Council v Department of Main Roads (2006) 27 QLCR 6
Trittenheim Pty Ltd, Heaney & Heaney v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434.
Xstrata Coal Queensland Pty Ltd & Ors v. Friends of the Earth - Brisbane Co-Op Ltd & Ors and Department of Environment and Resource Management (2012) 33 QLCR 79.COUNSEL: JS Brien, for the respondent SOLICITORS: A Chay for the applicant
Just Us Lawyers for the respondent
K Harbert for the statutory party
Introduction
Legend International Holdings Inc (the applicant) has applied for eight mining leases[1] within the Mount Isa region for the purpose of extracting and beneficiating phosphate, together with associated activities.
[1] MLA 90197, MLA 90221, MLA 90222, MLA 90223, MLA 90224, MLA 90225 and MLA 90227.
As required by the Environmental Protection Act 1994 (the Act), the applicant also applied for an Environmental Authority (EA) for the project, on 4 December 2009. Various interim steps took place in the following years and on 9 January 2013, the administering authority, the Chief Executive, Department of Environment and Heritage Protection (the statutory party) issued a draft Environmental Authority (EA).
On 15 January 2013, notice of the application for the EA was published as required by s 211 of the Act.
The respondent Mr JW Taylor Aly Awaditijia sent a letter, dated 18 January 2013, addressed to Minister Powell, EPA Minister, Brisbane Q 4001. The content of the letter is set out in full -
"Minister,
The EPA for Legend Mine got problems.The artesian basin got Lady Annie - Lady Loretta mines on the supply.
Battle Creek is highly sensitive CHMP site protected by Lady Annie mine and Native Title.
"Water is important"!
So you see surface water is not viable. And ground water zero.
A pipe line from Gunpowder will be OK.
"So minister water-EPA."
Kalkadoon Pty Ltd and KAC both are winded up
No Kalkadoon body no CHMP.
no EPA. I am a party by NNTT court to the claim and can take Federal Court action and State CHMP 2003 Act. laws to protect area as sovereign duty of care for country. Protect the country use State Laws and ACT. or go to court.
The Legend project can't get water.
Only Gunpowder option choice.
So do get back to me. I told Legend to fix up EPA and CHMP.
And in MT ISA every aspect got to be studied as the river is the town water supply and transport.
Carbon tax closes the Xstrata furances too.
So do consider as court action can stop the project. for CHMP and EPA.
Lets hope you know the case before you and the mine.
No water in area!
Do reply.
Yours
JW Taylor Aly Awaditijia"It appears that the administering authority accepted the letter as an objection, under s 217(3) of the Act.[2] Section 217 provides -
[2] Applicant's submissions [14]; Respondent's submissions [6]; Statutory Party's submissions [9].
"217 Acceptance of objections
(1) The administering authority must accept an objection if it -
(a) is written; and
(b) is signed by or for each entity (signatory) who made the objection; and
(c) states the name and address of each signatory; and
(d) is made to the administering authority; and
(e) is received on or before the last day of the objection period; and
(f) states the grounds of the objection and the facts and circumstances relied on in support of the grounds.
(2) An objection that complies with subsection (1) is called a properly made objection.
(3) The authority may accept a written objection even if it is not a properly made objection."
The objection was referred to the Land Court on 26 February 2013, pursuant to s 219 of the Act. Following various directions hearings and mentions, the respondent filed particulars of the objection on 27 August 2013, pursuant to an order of the Court made on 25 July 2013.
Below is a summary of those particulars -
1.The applicant has failed to carry out a wet season survey in the period specified in the Terms of Reference for the Environmental Impact Statement (EIS) and as a result has failed to identify and consider the potential impact of the project in particular, the effects of the damming of Battle Creek on frogs, eels and fish.
2.The respondent is the present day custodian of the Kalkadoon Dreamtime Story for the Frog. The story explains how frogs came into being and how they travel on Kalkadoon country and on to other people's country. The story deals with the habits of the burrowing frog and the Kalkadoon Peoples' customary practices in relation to the frog. [The details of the story are not set out here].
3.Battle Creek along with other ephemeral creeks and flood plains on Kalkadoon country is territory for the burrowing frog referred to in the Dreamtime Story.
4.The damming of Battle Creek will destroy the habitat of the burrowing frog referred to in the Kalkadoon Dreamtime Story in various specified ways.
5.The applicant has not proposed any measures designed to identify, protect and monitor the effect of mining operations on the 13 different species of frog that exist on Kalkadoon country, in its animal management plan.
6.It is likely that a dam on Battle Creek will result in significant loss of water flow downstream that will have a detrimental effect on the ecology.
7.Alternatively the natural environment of Battle Creek could be preserved and water used more efficiently if water were imported to the project area and stored in tanks (preferably below ground).
8.The tailings dam proposed for the project is too close to Battle Creek, poses an unacceptable risk to the ecology of Battle Creek and thereby interferes with the native title rights to utilise the natural resources in the beds and banks of Battle Creek and its tributaries. It also has the potential to damage the cultural heritage of the Kalkadoon People by disturbing the Kalkadoon ancestral spirits.
9.There was a fierce battle between the settlers and Kalkadoon People along Battle Creek (hence its name). There is a burial ground for some of the respondent's ancestors on the northern bank of Battle Creek. The respondent believes that the spirits of his fallen ancestors still occupy the creek and traverse its length. The damming of the creek will be an affront to the ancestors of the Kalkadoon People and will disturb some of the unmarked resting places of the ancestors, resulting in great evil and misery to the Kalkadoon People.
10.The applicant has not reached agreement with the Kalkadoon People on the protection of Aboriginal cultural heritage nor has a cultural heritage management plan been agreed with them.
On 18 September 2013, the applicant filed a general application in the Court seeking the following Orders:
1.That the respondent's objection be struck out.
2.Further and in the alternative to Order 1, that paragraphs 1, 2, 3, 4, 5, 8, 9 and 10 of the respondent's particulars of objection be struck out.
3.Such further or other orders that the Court sees fit.
With the consent of the parties, I dispensed with an oral hearing of the application, pursuant to r 36A of the Land Court Rules 2000.
Applicable Law
On 31 March 2013, most of the provisions of the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (the amending Act) came into effect. This Act substantially amended the Environmental Protection Act, including Chapter 5 which deals with the objection process. However s 683 of the amending Act provides that -
"683 Effect of commencement on particular applications
(1) This section applies to the following applications made, but not decided, before the commencement -
(a) an application for an environmental authority (mining activities) made under former chapter 5; and
(b) an application to amend, surrender or transfer an environmental authority (mining activities).
(2) From the commencement -
(a) processing of the application and all matters incidental to the processing must proceed as if the amending Act had not been enacted; and
(b) an environmental authority granted, amended or transferred is taken to be an environmental authority to which section 682 applies."
The application for an EA in this matter is an application for an environmental authority (mining activities) made under former Chapter 5, within the meaning of s 683(1)(a). As the application had been made, but not decided, before the commencement,[3] the effect of s 683(2)(a) is that the processing of the application for the EA and all matters incidental to the proceeding must proceed as if the amending Act had not been enacted. In the absence of s 638, there may have been an issue as to which version of the Act was to be applied in this matter. However, the effect of s 683 is that the relevant provisions of Chapter 5 as they stood immediately prior to the operation of the amending Act[4] are to be applied.[5]
[3]Section 666 of the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 defines "commencement", for the purpose of Part 17 of Chapter 13 of the Act, to mean "commencement of this section". Section 683 commenced on 31 March 2013.
[4] The Environmental Protection Act 1994 current as at 14 March 2013 is the relevant version of the Act.
[5]There were no amendments to the relevant provisions of the Act between the time when the application for an EA was originally made and 14 March 2013.
Application to strike out objection
The applicant submitted that the objection was so vague and uncertain in its terms that it ought to be struck out as, in effect, a pleading, on the grounds set out in r 171(1)(a) or (b) of the Uniform Civil Procedure Rules 1999 (UCPR).
Rule 171 relevantly provides -
"171 Striking out Pleadings
(1) This rule applies if a pleading or part of a pleading -
(a) discloses no reasonable cause of action or defence; or
(b) has a tendency to prejudice or delay the fair trial of the proceeding;
…
(2)The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis."
It is accepted that there is no provision in the Environmental Protection Act authorising the Court to strike out an objection. Nor is there any such provision in the Land Court Act 2000 or the Land Court Rules 2000. However, s 4 of the Land Court Rules provides that -
"4 Application of Uniform Civil Procedure Rules
(1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
(2)For subrule (1), an originating process under these rules is to be treated as if it were a claim under the uniform rules."
The Land Court's jurisdiction to deal with objections under the Act is conferred by s 219 which provides that -
"219 Referral to Land Court
(1) If there is a current objection relating to the application when the objection period for the application ends, the administering authority must, within 10 business days, refer the application to the Land Court for a decision under this subdivision (the objections decision).
(2) The referral must be made by filing with the registrar of the Land Court -
(a)a notice, in the approved form, referring the application to the Land Court;
(b)a copy of the application document for the application and each current objection.
(3) The referral starts a proceeding before the Land Court for it to make the objections decision.
(4) The parties to the proceeding are as follows -
(a) the authority;
(b) the applicant;
(c) each objector for the application;
(d) anyone else decided by the Land Court.
(5) The authority must, within 10 business days after making the referral -
(a)give the applicant a copy of the notice and each current objection; and
(b) give each objector a copy of the notice."
Counsel for the respondent, Ms JS Brien, submitted that because the administering authority had accepted the objection, it was a 'current objection' until such time as it might be withdrawn by the objector (which could be done at any time before the objections decision was made). The consequence was that the matter must be referred to the Land Court. Once referred to the Court, the Court has jurisdiction to make an objections decision and in fact must do so, Counsel submitted. Further, the Land Court is not vested with jurisdiction to revisit the decision of the statutory party made pursuant to s 217(3). Accordingly, Ms Brien submitted, that part of the application seeking to strike out the respondent's objection must fail.
The statutory party made no submission as to whether the Court has power to strike out an objection although it appears to accept that strike out was possible.
Although r 171 of the UCPR may be used in this jurisdiction to strike out a pleading in an appropriate case, the rule cannot apply where there are statutory provisions to the contrary. In my opinion, the effect of s 219(3) of the Act is that, once the objection was referred to the Land Court as required by s 219(1), the Court must make an objections decision. Section 222(1) defines an objections decision as follows:
"222 Nature of objections decision
(1)The objections decision for the application must be a recommendation to the EPA Minister that -
(a)the application be granted on the basis of the draft environmental authority for the application; or
(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or
(c)the application be refused."
Section 223 provides that -
"223 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following -
(a)the application documents for the application;
(b)any relevant regulatory requirement;
(c)the standard criteria;
(d)to the extent the application relates to mining activities in a wild river area - the wild river declaration for the area;
(e)each current objection;
(f)any suitability report obtained for the application;
(g)the status of any application under the Mineral Resources Act for each relevant mining tenement."
It is to be observed that s 222(1) is in mandatory terms, that is the objections decision must be a recommendation to the EPA Minister that the application be granted as applied for, granted but on different conditions, or refused. Section 223 sets out the matters which the Land Court must consider in making the objections decision.
If I were to accede to the application to strike out the objection the result would be that the Land Court proceedings would be terminated because there would be no opportunity for the respondent to file another objection. This is because, as discussed further below at [27], the effect of s 218(1)(a) of the Act is that an objection may only be amended or replaced within the objection period. If the objection were struck out, the Court would no longer be able to fulfil its statutory obligation to make an objections decision of the type required by s 222(1). A decision to strike out an objection is not a recommendation to the Minister that an application be approved, although the end result may be the same. Nor does a decision to strike out take into account the matters required to be considered by the Court under s 223. In short, a decision to strike out an objection is not an objections decision.
The application to strike out the objection must therefore be refused.
Application to strike out paragraphs 1, 2, 3, 4, 5, 8, 9 and 10 of the respondent's particulars of objection
Mr Chay for the applicant submitted that paragraphs 1 to 5 and 8 to 10 of the particulars should be struck out because particulars are intended to be supplementary to the objection, providing greater detail of the facts and circumstances that constitute the grounds of objection. As the particulars filed by the respondent did not make reference to the original objection nor link the particulars to the objection, the applicant was embarrassed by not being able to ascertain which parts of the letter were being particularized. The orders made by this Court on 24 July 2013 did not permit (nor in light of s 218(1) of the Act could not permit) the respondent to file an amended or replacement objection, Mr Chay submitted.
The respondent submitted that -
· the particulars provide the applicant with the material facts on which the respondent relies. They have the effect of defining the issues to ensure that neither the court nor the applicant is taken by surprise;
· the acceptance by the applicant of paragraphs 6 and 7 of the particulars sits uncomfortably with the criticism of the other paragraphs. The applicant conceded that the objection can only be considered an objection to lack of sufficient environmental flow of water in Battle Creek downstream from the dam. The lack of appropriate surveys, lack of appropriate protections and the effects on identified fauna all have a relationship with the concession.
Whether the Land Court has power to strike out particulars of the objection
The function of particulars is to fill in the picture of a party's claim or defence with information sufficiently detailed to put the other parties on notice as to the case to be met, and to enable preparation for a hearing. Strictly speaking, particulars may not be used to fill minor gaps in a pleading which ought to have been filled by appropriate statements of the various material facts constituting the cause of action. In practice, however, there is an overlap between pleadings and particulars and it can be difficult to distinguish between a material fact and a particular piece of information.[6]
[6]See "A Judge's Viewpoint : the Role of Pleading" by the Honourable Justice B Tamberlin and the Honourable Justice S Rares. Paper presented to the 2012 Judges' Series, Practical Litigation in the Supreme Court and the Federal Court (16 June 2012).
The use of particulars in this matter is further constrained by the application of s 218 of the Act which provides that -
"218 Amendment or withdrawal of objection
(1) If the administering authority has accepted an objection, the entity who made the objection may, by written notice in the approved form -
(a)within the objection period, amend or replace the objection; or
(b)at any time before the objections decision is made, withdraw the objection.
(2) However, a notice may be given only as follows -
(a)before the objection period ends - by giving it to the authority;
(b)after the objection period ends - by filing it with the Land Court and giving the authority a copy."
In my opinion, the effect of s 218(1)(a) is that an objection may not be amended or replaced other than in compliance with s 218(1)(a), that is, within the objection period which in this case expired on 21 February 2013.[7] It follows that if the effect of any of the particulars supplied by the respondent is to amend or replace the objection, such amendment or replacement is not permitted by the Act and should be struck out.
[7]See Gregcarbil Pty Ltd v Backus [2011] QLC 4; Xstrata Coal Queensland Pty Ltd & Ors v. Friends of the Earth - Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management (2012) 33 QLCR 79 at 106, 107; [132] - [134].
Having said that, I acknowledge that it is difficult to identify the precise scope and meaning of the objection lodged in this matter. The general approach that I have adopted is that where there is some doubt about whether a particular constitutes an amendment to the objection, I have resolved that doubt in favour of the objector, for two reasons.
Under r 171(1) of the UCPR, the Court's power to strike out pleadings involves the exercise of a broad discretion. That discretion should only be exercised where the pleading is obviously untenable and, conversely, it should not be exercised except in clear cases.[8] By analogy, I consider that the same approach should be applied in this case.
[8] Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 at [6].
Further, s 7(b) of the Land Court Act provides that the Land Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. While that provision does not relieve this Court from its obligation to apply strict principles of law, where that is clearly the intent of a statute, in certain cases there remains scope for the Court to adopt a broad approach of common sense and common fairness.[9] In Townsville City Council v Department of Main Roads, Keane JA said that a provision such as s 7(b) must be given effect and there is support for the view that the inclusion of such a provision widens rather than restricts the discretion available to a decision maker.[10]
[9] Trittenheim Pty Ltd, Heaney & Heaney v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434 at 442.
[10] (2006) 27 QLCR 6 at 16, [38], [39], [40]. McMurdo P and White J agreed with Keane JA.
The Particulars
Before dealing with the parties' detailed submissions relating to specific paragraphs of the particulars, it is useful to make some general observations about the objection and the particulars.
The respondent has clearly raised the issue of the availability of water in the objection - he says that Lady Annie - Lady Loretta mines are on the artesian basin supply; that water is important; surface water is not viable and there is no groundwater; the Legend project can't get water; that in Mt Isa every aspect is to be studied as the river is the town water supply and transport; there is no water in the area.
The objection also states that Battle Creek is a highly sensitive CHMP (Cultural Heritage Management Plan) site protected by Lady Annie Mine and native title. The objection also states that there is no CHMP.
The particulars have identified that Battle Creek is a culturally significant area to the Kalkadoon people who are the native title holders for the area. Relevantly, the Kalkadoon dreamtime story for the Frog relates to Battle Creek as well as other creeks in Kalkadoon country. Maintenance of the ecology of the creek is necessary to preserve the habitat of the burrowing frog. Battle Creek is also culturally significant to the respondent who believes that the spirits of his ancestors travel along the creek.
Section 3 of the Environmental Protection Act provides that the object of the Act is to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. Section 4 sets out how the object of the Act is to be achieved. Section 8 of the Act defines "environment" as follows -
"8 Environment
Environment includes -
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and
(d) the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c)."
Although at first sight it appears that the Frog dreamtime story, the burial ground and the respondent's concerns about potential disturbance of the spirits of his ancestors are matters that might be appropriately dealt with under the Aboriginal Cultural Heritage Act 2003, I consider that they also fit within s 8(a), (b), (c) and (d) of the Environmental Protection Act. For example, subs (a) refers to people and communities; subs (b) to all natural and physical resources; subs (c) to the qualities and characteristics of places that contribute to the sense of community and subs (d) refers to social and cultural conditions that are affected by things mentioned in paragraphs (a) to (c). The dreamtime story and the respondent's concerns about the burial ground and his ancestors' spirits are therefore to be treated as part of the environment which it is the object of the Environmental Protection Act to protect. Accordingly, if those matters can be regarded as raised in this objection, they are properly the subject matter of the objection process under the Act.
The question is whether those issues were raised in the objection lodged by the respondent, or have only been raised for the first time in the particulars.
Paragraph 1
Mr Chay submitted that paragraph 1 of the particulars should be struck out because it was not referable to any of the substantive matters set out in the respondent's letter. It was a very specific allegation regarding the terms of referral for and content of the EIS and an alleged failure to adhere to the terms of reference.
The statutory party submitted that paragraph 1 was concerned with compliance with the terms of reference and impacts on frogs, eels and fish. These raised new or not previously identified matters and were therefore outside the scope of the objection.
Counsel for the respondent submitted that -
·the objection letter directly referred to the sensitivity of Battle Creek, that water is important and raised cultural heritage and native title matters;
·although s 216(4) of the Act has the effect that an objection may not be made about an EIS, the subsection does not prevent the objector from commenting on a concern relevant to the draft EA that may arise out of a deficiency in the assessment;
·the objection process triggers a merits review of the matters identified in s 216(1)(a) to (e);
·if the matters raised by an objector are relevant to the material identified in s 212 of the Act, then it cannot be said that they are outside the scope of the matters that may be raised in the objection.
In my opinion, the particulars in paragraph 1 go beyond the matters raised in the objection. There was no reference to the EIS in the respondent's objection. Further, although s 150(e) of the Act provides that an EIS is an application document, an objector may only object to the application, the draft environmental authority or a condition included in the draft (s 216(1)). An objector cannot object about failure to perform any obligations in the EIS.
I consider therefore that paragraph 1 of the particulars should be struck out.
Paragraphs 2 to 5
The applicant submitted that paragraphs 2 to 5 of the particulars should be struck out because they refer to an alleged dreamtime story of the Frog and the alleged effect on the burrowing frog of the damming of Battle Creek, in circumstances where -
· the objection did not refer to the burrowing frog;
· the only possible reference to a dreamtime story and the burrowing frog would be the statement that Battle Creek is a highly sensitive CHMP site protected by Lady Annie mine;
· discussions between a representative of the applicant and the respondent in June 2013 and a document produced by the respondent identified the sites protected by a CHMP between the operators of the Lady Annie mine and the Kalkadoon people;
· the document establishes that those cultural heritage sites are not close to the applicant's proposed leases;
· there was no mention in the discussions of the burrowing frog or the dreamtime story;
· these matters are a recent addition and constitute new grounds of objection;
· it is not open to the respondent to argue that the reference to CHMP in the objection can be used to include any or all cultural heritage matters. The reference in the objection was to those sites protected by the Lady Annie mine.
· it is unfair and prejudicial to the respondent to allow the respondent to introduce new matters under the guise of particulars.
The statutory party submitted that paragraphs 2, 3 and 4 broadly relate to and expand the reference in the objection to the cultural sensitivity of Battle Creek. The paragraph explains that sensitivity is due to the Frog dreamtime story. These paragraphs should not be struck out.
The statutory party submitted, however, that paragraph 5 should be struck out because it related to measures to protect 13 species of frogs (as distinct from the Frog dreamtime story) which was not an issue raised in the objection.
Paragraphs 2 to 4 of the particulars refer to the habitat of the burrowing frog and the dreamtime story associated with the frog. Although there was no reference in the objection to the frog or the dreamtime story, it is clear, as discussed above, that the objection raised the objector's concerns as to the impact of the proposed mine on the water supply in the area. As lack of water could adversely impact the fauna in the area, I consider that the particulars in paragraphs 2 to 4 identify aspects of the lack of water supply the respondent is concerned about. Similarly although the dreamtime story was not expressly referred to in the objection, the particulars indicate why the supply of water and the preservation of the habitat of the burrowing frog is important to the respondent.
The applicant submitted that there was evidence showing that the respondent was referring only to the CHMP for the Lady Annie mine, and that the reference to a CHMP could not be used to include any or all cultural heritage matters. I do not accept all of this submission. While the first reference to a CHMP in the objection may be limited to the Lady Annie CHMP, the subsequent references to CHMP are not so limited. In my view those references raised, in general terms, the lack of protection of cultural heritage. This is particularized in paragraphs 2 to 4 to refer to the dreamtime story about the burrowing frog. On balance therefore, I do not consider that these particulars raise new issues beyond those in the objection.
I also consider that the particulars in paragraph 5 are sufficiently connected with the potential impact of the mine on the water supply in the area for it to be said that they do not amount to an amendment to the objection.
Accordingly the application to strike out paragraphs 2 to 5 of the particulars is refused.
Paragraphs 6 and 7
There was no application to strike out paragraphs 6 and 7. The applicant submitted that paragraphs 6 and 7 are the only matters which could arguably constitute true particulars in that they appear to refer to there being insufficient water flow in Battle Creek if the applicant takes water from the Creek. However it is only an objection to the lack of sufficient water environmental flows of water in Battle Creek downstream from the dam, the applicant said.
Paragraphs 8, 9 and 10
The applicant submitted that -
· the particulars relating to the tailings dam are a new objection;
·to the extent that there is a reference in paragraph 8 to cultural heritage the previous submissions apply;
·the allegations in paragraph 9 are vague and not particularized and should be struck out;
·paragraph 10 refers to a matter not relevant to an objection under the Act and therefore should be struck out.
I do not consider that the objection raised any issue as to the tailings dam. The particulars in paragraph 8 should be struck out.
Nor is there any reference in the objection to the burial ground on Battle Creek or the potential disturbance to the ancestral spirits referred to in paragraph 9 of the particulars. Unlike the particulars relating to the burrowing frog and frogs generally, discussed above, there is no obvious connection between the burial ground and the ancestral spirits on the one hand and the possible impact of the mine on the water flow in the area. That link is provided by the information in the particulars that it is the proposed damming of the creek that may affront the ancestors and damage the burial ground. However, even on the broadest reading, there was nothing in the objection, other than the statement that there was no CHMP in place, which even suggested that these were issues. I do not consider therefore that the particulars in paragraph 9 relate to matters raised in the objection. Accordingly paragraph 9 should be struck out.
While cultural issues are recognized by s 8 of the Act as falling within the definition of the environment, the failure to enter into a CHMP is not a matter for which a remedy can be given under the Environmental Protection Act. The respondent should seek any remedies under the Aboriginal Cultural Heritage Act. Paragraph 10 of the particulars should be struck out.
ORDERS
1.The application to strike out the respondent's objection is refused.
2.The application to strike out paragraphs 1, 8, 9 and 10 of the respondent's particulars of objection is granted.
3.The application to strike out paragraphs 2, 3, 4 and 5 of the respondent's particulars of objection is refused.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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