Williams v Barrick Australia Limited - [2003] NSWLEC 218

Reported Decision: 128LGERA 80

Land and Environment Court

of New South Wales

CITATION: Williams v Barrick Australia Limited & Ors [2003] NSWLEC 218

PARTIES:
APPLICANT:
Neville Williams
FIRST RESPONDENT:
Barrick Australia Limited
SECOND RESPONDENT:
Barrick Gold of Australia Limited
THIRD RESPONDENT:
Director-General National Parks & Wildlife Service
FOURTH RESPONDENT:
Dr Colin Pardoe

FILE NUMBER(S): 40010; 40948 of 2002

CORAM: Bignold J

KEY ISSUES: Injunctions and Declarations :- Alleged breaches of law
Aboriginal:- Permit to collect Aboriginal objects - Consent to destroy Aboriginal objects - Protection of Aboriginal objects
Mines and minerals:- Exploratory drilling - Archaeological assessment - Alleged breaches of conditions of Permit

LEGISLATION CITED: National Parks and Wildlife Act 1974, ss 86, 87, 90, 176A, 179
National Parks and Wildlife Amendment Act 2001
Environmental Planning and Assessment Act 1979, ss 122, 124
Land and Environment Court Act 1979, s20
Mining Act 1992, s381
Evidence Act 1995, s140

CASES CITED: Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 103 LGERA 355;
Imperial Tobacco Ltd v Attorney-General [1981] AC 718;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170;
Williams v Director-General NP&WS & Ors [2002] NSWCA 176;
Williams v Director-General NP&WS & Ors [2002] NSWLEC 91;
Williams v Director-General NP&WS & Ors [2003] NSWLEC 121;
Williams v Director-General NP&WS & Ors [2002] NSWLEC 231;
Williams v Homestake Australia Ltd & Ors [2002] NSWLEC 5;
Williams v Homestake Australia Ltd & Ors [2002] NSWLEC 43;
Williams v Homestake Australia Ltd & Ors [2002] NSWLEC 68;
Williams v Pardoe & Ors [2002] NSWLEC 150

DATES OF HEARING: 25/11/02-28/11/02, 05/05/03-07/05/03

DATE OF JUDGMENT:
09/26/2003

LEGAL REPRESENTATIVES:

APPLICANT:
A Oshlack (agent)
FIRST AND SECOND RESPONDENTS:
N Williams SC
SOLCITOR:
Blake Dawson Waldron
THIRD RESPONDENT:
A Pearman (Barrister)
SOLICITOR:
National Parks and Wildlife Service
FOURTH RESPONDENT:
M Brennan (Solicitor)
SOLICITOR:
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND 40010; 40948 of 2002

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 26 SEPTEMBER 2003

NEVILLE WILLIAMS

Applicant

BARRICK AUSTRALIA LIMITED

First Respondent

BARRICK GOLD OF AUSTRALIA LIMITED

Second Respondent

DIRECTOR-GENERAL NATIONAL PARKS & WILDLIFE SERVICE

Third Respondent

DR COLIN PARDOE

Fourth Respondent

Judgment

A. INTRODUCTION

1 These are two related class 4 proceedings in which the Applicant claims declaratory and injunctive relief against all Respondents (except for the Director-General National Parks and Wildlife Service) in respect of works carried out by the second and third Respondents (the Mining Companies) at the approved Lake Cowal Gold Mine Project pursuant to an Exploration Mining Licence No 2865 granted pursuant to the Mining Act 1992 and in respect of works carried out by the fourth Respondent (Dr Pardoe) pursuant to a Permit No 1361 granted to him under s87 of the National Parks and Wildlife Act 1974 (the NP&W Act) authorising the discovery and collection of Aboriginal artefacts and undertaking test pit excavations for that purpose.

2 The relief claimed in both proceedings is virtually identical, the only material difference…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] NSWLEC 218
Decision Date: 09/26/2003

CaseChat Overview and Summary

The Applicant, Neville Williams, a Wiradjuri Aboriginal man, commenced proceedings in the Land and Environment Court of New South Wales seeking declaratory and injunctive relief against the Mining Companies (Barrick Australia Limited and Barrick Gold of Australia Limited) and Dr Colin Pardoe, alleging breaches of the National Parks and Wildlife Act 1974 and the Environmental Planning and Assessment Act 1979. The proceedings were filed in two sets, 40010 of 2002 and 40948 of 2002, and involved the Lake Cowal Gold Mine Project. The relief claimed related to the Mining Companies' exploratory operations and Dr Pardoe's archaeological work, particularly the collection and potential damage to Aboriginal objects.

The Court, Bignold J, dismissed the proceedings, finding that the Applicant had not substantiated his claims of breaches of legislation. The Court considered the allegations of breaches of the National Parks and Wildlife Act 1974, including section 90 (destruction or damage to Aboriginal objects without consent) and section 86 (disturbance of land for the purpose of discovering Aboriginal objects), as well as breaches of the conditions of a permit issued under section 87 of the Act. The Court also considered the Applicant's allegation of a breach of the Environmental Planning and Assessment Act 1979 in relation to the installation of a drilling fluids sump and decant system.

The Court found that the evidence did not support the Applicant's claims of breaches of the National Parks and Wildlife Act 1974, as the Mining Companies had implemented a protective regime for the collection and safe custody of Aboriginal objects and there was no evidence of "knowledge" on the part of the Mining Companies that they were damaging Aboriginal objects. The Court also found that the Applicant's claims of breaches of the Environmental Planning and Assessment Act 1979 were not substantiated, as the installation of the drilling fluids sump and decant system was exempt from the requirements of that Act under the Mining Act 1992.

In light of these findings, the Court dismissed the proceedings and made orders for the class 4 applications to be dismissed, exhibits to be returned, and the question of costs to be reserved.

Orders