Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd

[2002] NSWLEC 105

Land and Environment Court

of New South Wales

CITATION:	Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105 revised - 3/07/2002
PARTIES:	APPLICANT Wadi Wadi Coomaditchi Aboriginal Corporation RESPONDENT Stockland (Constructors) Pty Ltd
FILE NUMBER(S):	0301 of 2002
CORAM:	Talbot J
KEY ISSUES:	Aboriginal :- construction of consent to destroy relics Interlocutory Relief :- no serious questions to be tried
LEGISLATION CITED:	National Parks and Wildlife Act 1974, s 5, s 90
CASES CITED:	Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
DATES OF HEARING:	27/06/2002
DATE OF JUDGMENT:	06/28/2002
LEGAL REPRESENTATIVES:	APPLICANT Ms Waratah (Barrister) SOLICITORS N/A RESPONDENT Mr M G Craig QC SOLICITORS Baker & McKenzie

JUDGMENT:

IN THE LAND AND Matter No. 0301 of 2002
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 28 June 2002

Wadi Wadi Coomaditchi Aboriginal Corporation

Applicant

v

Stockland (Constructors) Pty Ltd

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is seeking interlocutory relief to restrain the respondent company from engaging in any form of excavation or earth moving work in the area of what is said to be a 4,000 year old tool making site at Sandon Point North of Wollongong, and further that it be restrained from removing any of the soil in the stockpile of earth taken from the site until such times that the whole of the stockpile has been thoroughly examined by Aboriginal Sites Officers for relics.

2. Section 90 of the National Parks and Wildlife Act 1974 (“the NP&W Act”), relevantly provides as follows:-

(1) A person who, without first obtaining the consent of the Director-General knowingly destroys, defaces or damages, or knowingly causes or permits the destruction of defacement of or damage to, a relic or Aboriginal place is guilty of an offence against this Act.

(1A)…
(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

3. “Relic” is defined by s 5 of the NP&W Act as follows:-

…any deposit, object or material evidence (not being a handicraft made for sale) relating to indigenous and non-European habitation of the area that comprises New South Wales, being habitation both prior to and concurrent with the occupation of that area by persons of European extraction, and includes Aboriginal remains.


4. On 30 January 2002, the Director-General of the National Parks and Wildlife Services (“NPWS”) issued a consent to carry out the destruction of Aboriginal relics at the site pursuant to s 90. The consent recites the Aboriginal relics at the site described as “sub surface artefact scatter, are situated upon a site known as Sandon Point stage 2, at North Wollongong”. The land is described in terms and by reference to a map.

5. The cause of action relied upon by the applicant is that earth works are being carried out on the site in breach of s 90 of the NP&W Act because, as the surface became uncovered, it has become apparent that the description of the relics in the consent did not correspond with the relics uncovered. Its is alleged that the site has now been identified as an old tool making site. Furthermore, the works are being carried out in breach of the terms of the consent.

6. An artefact is defined in the Shorter Oxford Dictionary as an “artificial product as opposed to a natural occurring item”. A scatter incorporates the concept of something distributed widely and irregularly. The terms of the consent are no more specific than that they refer to the application being made for consent to destroy the relics. Reference to the application assists with a better understanding of the relics intended to be the subject of the consent. The report attached to the application referred to evidence of Aboriginal occupation of the place. It addressed Aboriginal concerns and reported on Aboriginal views and Aboriginal cultural values. The present applicant was consulted and discussed issues with the respondent’s consultants. The report forming part of the application made the following observations -

The Wadi Wadi Coomaditchie Aboriginal Corporation has not as yet provided any formal statement or resolution relating to the Aboriginal cultural significance of the Stages 2-6 development areas. During the field program representatives voiced the opinion that the recovered artefacts were evidence of undisturbed and possible significant deposits.

7. The report noted that the site includes areas of moderately high artefact density, though a significant proportion of this material is of limited diagnostic value (such as “flaked pieces” and heat fractured material).

8. The formal research methodology lodged in support of the application was inferentially approved. The objective of the research methodology is stated as to recover a large sample of the rarer elements of the assemblages, “diagnostic” technological types, the larger artefact types and retouched flakes ( “tools” ). Inter alia, the following methodology is proposed:-


1. Conduct three grader scrapes along the contour, traversing the lower slopes of the lesser disturbed land surface within Stages 2-6. Each traverse being around 150-200m long and 15-20 cm deep, with spoil deposited to one side

2. Collect surface artefacts from spoil piles and graded surface by eye, manually and using hand rakes (artefacts collected from each traverse are kept separate).

3. Also, wet sieve a sample of the material from the spoil piles at regular or selected intervals (artefacts collected from each traverse are kept separate).

9. Aboriginal monitors have been on the site since earth moving work commenced on May 20. The Court has heard evidence from one of the monitors, John Paggett, that it was very difficult to identify any Aboriginal artefacts or relics in the soil as it was being moved about because of the large quantities of soil being moved at one time, the nature of the soil and the wet and muddy conditions. A “walk over” survey continued over three days while an archaeologist was present. Most of the soil dumped by the grader as “spoil”, was not wet sieved. Alternatively, the monitors hand sieved the soil looking for artefacts.

10. Mr Paggett says on 18 June 2002, he did a walkover of part of the stockpile looking for artefacts on the surface of the pile. He says that in ten minutes he found 16 artefacts, including spear points, blades, a core and a piece of chert as well as a number of small flakes.

11. On 29 May, Mr Paggett wrote a report which he says he handed to a third party with the intention that it be presented to the local council. The report by Mr Paggett said the following in part:-


The artefacts that I have collected include stone axe heads, blades, many small flakes, Bondi points and other materials.

These finds are consistent with the view I formed earlier that the area along the banks of Tramway Creek and the lower parts of Stages 2-6 was an ancient and significant Aboriginal Tool Making Site.

12. The applicant now seeks to contend that as the heavy machinery operation proceeded on the site, it became obvious that the site was an Aboriginal tool-making site. It is claimed that the relics uncovered as the operation progressed disclosed they were present in too greater number to be described as a “sub surface artefact scatter”. There has been no consultation with the Aboriginal community in respect of a tool-making site. Moreover, it is alleged the respondent has failed to consult with Aboriginal monitors thereby depriving them of the opportunity to be heard in respect of the continuing operation. In addition, the operation was undertaken so rapidly there was no practical opportunity to check for artefacts.

13. Mr Paggett is equivocal about the presence of NPWS officers on the site and whether there had been any consultation with them and, in particular, with representatives of aboriginal interests.

14. The project manager for the respondent, Mr Hedge, has given evidence that NPWS officers visited the site in May while the work was going on. They were there in response to a specific complaint in respect to non-compliance with the s 90 consent. There has been no further action by NPWS officers and the Director- General has not been made a party to these proceedings.

15. The difficulty the applicant faces is that the Director-General issued a consent on 30 January 2002 which contemplated the respondent would carry out the very work that is now taking place. The consent recognised that relics, as defined, are present on the site and expressly gives consent “to the destruction of the said relics by the said applicant” . The emotional pleas made by Ms Waratah, who appears as a barrister on behalf of the applicant, may well be justified. The problem is that the issues were essentially resolved by the grant of the s 90 consent. The claim that the operations are continuing in a way that is contrary to the research methodology envisaged at the time the consent was granted, pursuant to s 90, is unsubstantiated. Indeed the evidence, even of Mr Paggett, is the other way.

16. In the circumstances I am not satisfied that there is a serious question to be tried. The applicant’s case is weak and I regard it as having no real prospect of success. The real issue appears to be a dissatisfaction with the terms of the consent and the practicalities with the operation of the conditions of the consent. These appear to be administrative issues. A practical measure would have been to raise the issues with the NPWS. This has not been done. Moreover, the issues became apparent more than a month ago and no steps were taken by the applicant to seek relief in this Court until this week.

17. No breach of the s 90 consent has been identified. It is not readily apparent that the s 90 consent does not authorise the destruction of the relics.

18. In accordance with the principles enunciated in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, particularly at 153-154, in order to secure an interlocutory injunction the applicant must show:-


(1) That there is a serious question to be tried or that there is a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicants will be entitled to relief.

(2) That the applicants will suffer irreparable injury for which damages will not be an adequate compensation.
(3) That the balance of convenience favours the granting of an injunction.
19. There can be no doubt there is a serious risk that relics on the site will be damaged or destroyed. However, that is ostensibly authorised by the s 90 consent issued on the 30 January. No argument has been put that substantiates a real prospect of a finding to the contrary. 20. The finding that there is not a serious question to be tried does not require the Court to consider the remaining two requirements outlined by the High Court in Castlemaine Tooheys . 21. Accordingly, in the circumstances where the applicant has failed at the first hurdle, it is not necessary to consider the issues of irreparable damage and the balance of convenience. It should be noted however, the respondent takes no issue that if there had been a serious question to be tried, it could not argue that irreparable damage would not occur. 22. However, it is significant that the applicant has allowed the respondent to continue with the operations unabated and unchallenged for over a month. Considerable cost will be incurred by the respondent if an interlocutory injunction is granted. 23. The applicant has offered an undertaking as to damages. No issue has been raised about the adequacy about that undertaking. However the inconvenience and disruption of the respondent would need to be taken into account on the balance of convenience if that became necessary. 24. In the circumstances, the Court proposes to dismiss the application for interlocutory relief. Directions can be made for the future conduct of the matter. 25. The questions of costs in relation to the application of interlocutory relief has not been argued and accordingly will be reserved.