Lester v Ashton Coal Pty Limited

Land and Environment Court

New South Wales

Case Title:

Lester  v  Ashton Coal Pty Limited

Medium Neutral Citation:

[2012] NSWLEC 181

Hearing Date(s):

22 June, 25-28 June 2012

Decision Date:

10 August 2012

Jurisdiction:

Class 4

Before:

Preston CJ

Decision:

The Court:

(1) Dismisses the summons.

(2) Reserves the question of costs.

(3) Directs the parties, within 14 days, to apply to the Court to list the matter for a hearing on costs.

Catchwords:

CIVIL ENFORCEMENT - harm to Aboriginal objects - underground coal mining causing land subsidence - whether subsidence moved any Aboriginal object from the land on which it had been situated - whether subsidence damaged rock surface of grinding grooves - whether construction of a road by an unrelated company harmed any Aboriginal object - breaches not proven

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 75U(1)(d), pts 3A, 4
National Parks and Wildlife Act 1974 ss 5(1), 86(1), 87(1), 193(1)

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Robert Lester (Applicant)
Ashton Coal Operations Pty Ltd
(First Respondent)
Chief Executive, Office of Environment and Heritage (Second Respondent)

Representation

- Counsel:

Ms B Nolan (Barrister) (Applicant)
Mr A E Galasso SC with Mr T G Howard (First Respondent)
Dr S E Pritchard (Barrister) (Second Respondent)

- Solicitors:

Environmental Defender's Office (Applicant)
McCullough Robertson Lawyers
(First Respondent)
Office of Environment and Heritage Legal Services (Second Respondent)

File number(s):

40628 of 2011

Publication Restriction:

JUDGMENT

Nature of case and conclusion

1. Aboriginal objects occur at various locations on land near Camberwell in the Hunter Valley of New South Wales. Ashton Coal Operations Pty Limited ('Ashton') has carried out, and continues to carry out, underground longwall mining at these locations. The longwall mining has caused parts of the surface of the land to subside.

2. Mr Lester, an elder of the Plains Clan of the Wonnarua People, in the Hunter Valley, believes that the subsidence has caused harm to Aboriginal objects at three locations, referred to as the Oxbow site, Waterhole site, and Pleistocene site, after physiographic or edaphic features occurring at those locations. Mr Lester has brought civil proceedings under s 193(1) of the National Parks and Wildlife Act 1974 ('Parks Act') claiming that Ashton, by harming Aboriginal objects at each of those three locations, is in breach of s 86(1) of the Parks Act. He seeks declarations of the three breaches, orders restraining activities that may harm the Aboriginal objects, an order establishing a keeping place to house any Aboriginal objects removed from the land, an order requiring update of Aboriginal cultural heritage plans required by various Aboriginal heritage impact permits, an order for publication of a notice in a newspaper, and other orders.

3. Ashton has defended the proceedings. It says that Mr Lester has not established that it has breached s 86(1) of the Parks Act at any of the three locations. Ashton also contends that the relief sought by Mr Lester should not be granted, even if a breach were to be established.

4. Mr Lester joined as…