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 being the different lands in respect of which relief is respectively claimed. In proceedings No. 40948 of 2002 the land is relevantly lot 23 Deposited Plan 753097 and the adjoining Game Reserve and in proceedings No. 40010 of 2002 the land is relevantly lots 24, 25 in Deposited Plan 580301 and lot 2 in Deposited Plan 753097 and the adjacent Travelling Stock Reserve. All these land are included in the larger area of some 20 square kilometres covered by the proposed Mining Lease for the Project. Lot 23 and the adjoining Game Reserve are those parts of the Mining Lease Area which contain the open pit to be mined for gold.

3 The Applicant’s claims are based upon three principal allegations of breaches of legislation (for the civil enforcement of which open standing is expressly conferred), namely:

(i) damage has been caused by the Mining Companies’ exploratory operations to Aboriginal objects without there being in existence any requisite consent under s90 of the NP&W Act ;

(ii) the collection of Aboriginal objects authorised by Permit 1361 has been carried out in breach of the conditions of the permit in as much as some collections have been undertaken by persons other than Dr Pardoe; and

Environmental Planning and Assessment Act

EP&A Act

4 All three allegations are denied by the Mining Companies and Dr Pardoe. The position in the litigation adopted by the Director-General (against whom no relief is claimed) is that he is satisfied that the exploratory operations undertaken by the Mining Companies have not caused damage to Aboriginal objects and that the collection of Aboriginal artefacts undertaken pursuant to Permit No. 1361 has not involved any breach of the conditions of that Permit.

5 In addition to their denial of the Applicant’s allegations of breaches of the NP&W Act the Mining Companies and Dr Pardoe submit that in the exercise of its judicial discretion the Court would withhold all relief claimed. In particular they submit that the Applicant has not made out any case that would justify the grant of any injunctive relief.

6 Before proceeding to determine these disputed claims it will be helpful, if not necessary, to note the history of the Applicant’s present claims in order to contextualise them within the overall litigation history between the parties that has been virtually serially sustained in this Court for a period of 18 months commencing in January 2002.

B. THE LITIGATION HISTORY

7 By class 4 application (No. 40010 of 2002) filed 22 January 2002, the Applicant (who is an Aborigine of the Wiradjuri people and a Traditional Custodian and the Chairperson of the Mooka Traditional Owners Council) sought declaratory and injunctive relief in respect of the carrying out of activity pursuant to an Exploration Licence No 2865 granted under the Mining Act 1992 on land known as lot 23 Deposited Plan 753097 at Lake Cowal (the subject land) in breach or threatened breach of the National Parks and Wildlife Act 1974, s90 which prescribes an offence of "knowingly destroying, defacing or damaging a relic or Aboriginal place without first obtaining the consent of the Director General". (In the course of the litigation history the NP&W Act has been amended. Relevantly the defined term “relic” has been replaced by the defined term “aboriginal object”, and s90 has been amended to remove from the offence the mens rea element of “knowingly”. The first mentioned amendment has come into force, but not the latter.)

8 By his class 4 application, the Applicant also claimed interlocutory relief by way of an order restraining the first and second Respondents "from carrying out further activity on the land which causes any disturbance to soil, the movement of any stone or rock and the clearing of vegetation pursuant to the said Exploration Licence unless it holds a valid consent under s90 of the National Parks and Wildlife Act 1974".

9 The Applicant's claim to interlocutory and permanent relief was founded upon the NP&W Act, s176A(1) which provides as follows:

Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

10 It has never been disputed that a breach or threatened breach of the NP&W Act, s90 would fall within the ambit of s176A.

11 The NP&W Act, s 90 appears in Part 6 (comprising sections 83 to 91 inclusive) of that Act which deals with the subjects “Relics" (subsequently replaced by the term “Aboriginal object”) and "Aboriginal Places" those terms being defined by s 5(1) of the Act as follows:

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

Relic

means 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.

12 Section 90 (as relevantly in force) in subsection (1) 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 or defacement of or damage to, a relic or Aboriginal place is guilty of an offence against this Act.

Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation).

13 Subsection (2) and (3) provide as follows:

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

(3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister.

14 In refusing the Applicant’s claim to interlocutory injunction I expressed the following conclusions at paragraphs 75 to 78 of my judgment of 24 January 2002 (see [2002] NSWLEC 5):

75. For all the foregoing reasons, the Applicant's claim to interlocutory relief must be refused. In refusing the claim, I should note that I have placed considerable importance on the Arrangement of Protocol (Exhibit E1) between the first Respondent and the NPWS.

76. I am confident that adherence to this Arrangement or Protocol will provide an adequate assurance (i) that the first Respondent will be well placed to fulfil its obligations under the provisos and conditions of Exploration Licence 2865; (ii) that the third Respondent will likewise be considerably assisted in the discharge of its statutory obligations under Part 6 of the NP&W Act in respect of the protection of relics and (ii) that there will be no breach of the NP&W Act, s 90.

77. I would, of course, emphasise that the dismissal of the Applicant's claim to interlocutory relief does not preclude him from seeking further relief if circumstances are to change or if he can establish a stronger case of actual or apprehended breach of the NP&W Act, s 90.

78. My findings on the evidence adduced in the present case mean that the first Respondent's proposed exploration activities do not pose such a risk to the relics located on the subject land that may otherwise have justified the grant of interim relief for the purpose of preserving the subject matter of the litigation, until the adjudication upon the final hearing.

15 Soon thereafter the Applicant amended the class 4 proceeding to extend the relief originally claimed to include, in addition to Lot 23, “Lots 24 and 25 Deposited Plan 753097, Lot 2 Deposited Plan 580301 Travelling Stock Route 17085 and Game Reserve R62750”.

16 By further Notice of Motion filed 4 March 2002 the Applicant again sought an interlocutory injunction against the Mining Companies. On 22 March 2002, after a contested hearing, I granted an interlocutory injunction restraining the Mining Companies from carrying out operations on “Lot 23 and the adjoining Game Reserve” that involved the movement on or across those lands of vehicles and machinery used for the purpose of conducting exploratory drilling. My reasons for so concluding were stated in my judgment: see [2002] NSWLEC 43. They included the following:

34. Based upon my acceptance of Mr Johnston's evidence, I am satisfied that there is such a strong degree of reasonable probability of damage being caused to relics by the continuing exploratory activities undertaken on the lands, to almost border on inevitability (such as was conceded to be the case in

(1991) 73 LGRA 247) which I referred to by way of

contrasting

illustration in my earlier judgment.

35. Based upon the evidence now adduced by the Applicant in support of its present claim, my present citation of

is no longer by way of

contrasting

illustration, but by way of

comparative

illustration.

36. The fact that the first Respondent has now initiated action seeking the necessary permit and consent under the

(

ss 87 and 90

) appears to be a clear recognition by the first and second Respondents that such action is now necessary in the light of what I infer to be a significant change in the level of knowledge on their part of the presence of relics on the land.

37. I have of course considered the potential financial detriment to the first and second Respondents if the injunction is granted as deposed to by Mr Shallvey.

38. Although the Applicant has offered the usual undertaking as to damages (he did not do so, when making his initial claim to interlocutory injunction) he is a pensioner with no real financial wherewithal which would enable him to satisfy any liability for damages that may be incurred pursuant to the undertaking.

39. Despite this fact, I have concluded that on balance, it is just and reasonable to grant the injunction because the risk of damage to relics if the exploratory activities continue is so great, that that factor tilts the balance in favour of the grant of the injunction until the final hearing on

1 - 3 May 2002

40. Accordingly, I propose to grant the restraining order sought (but not the mandatory order claimed). However, I would note that the continuance of the injunction would not be required in the event of the first and second Respondents obtaining requisite permits and/or consent under the

41. There should also be afforded to the first and second Respondents the opportunity to satisfy the Court that there are measures available for the resumption of exploratory activities without posing any risk of damage to the relics on the land.

42. To that end, liberty to apply to vary or discharge the injunctions must be reserved to the first and second Respondents so that the injunction granted will not have any operation beyond that which is necessary to restrain any apprehended contravention of the

, s 90.

17 Thereafter on the final hearing the interlocutory injunction was, by consent, converted into a permanent injunction as they related to Lot 23 and the Game Reserve. In my judgment delivered on 3 May 2002 (see [2002] NSWLEC 68) I adjourned the hearing of the Applicant’s claim to relief in respect of lands (other than lot 23 and the Game Reserve) and I directed the parties to bring in short minutes for the final disposal of the proceedings.

18 On 17 May 2002 I made final orders which included the following:

1. The First and Second Respondents be restrained from carrying out activity on Lot 23 DP 753097 or the adjoining Game Reserve (“the Land”) that involves the movement on or across the Land of vehicles and machinery used for the purposes of conducting exploratory drilling of the Land.

2. Grant leave to the First and Second Respondents to move the Court on 2 days’ notice for the discharge or partial discharge of the injunction in the event of:

(a) their obtaining:

any permit pursuant to section 87 of the National Parks and Wildlife Act (“the Act”) which would authorise their archaeologist to collect relics from areas of the Land which the First and Second Respondents propose to use for exploratory drilling and/or the passage of vehicles and machinery used in conducting exploratory drilling; or

any consent granted pursuant to section 90 of the Act which authorises the collection or destruction of relics on the Land; or

(b) their satisfying the Court, after appropriate archaeological survey and report, that the exploratory mining activities may be resumed on the Land without contravening section 90 of the Act.

19 By Notice of Motion filed on 23 May 2002 the Mining Companies claimed the discharge of the permanent injunction granted on 17 May 2002 on the ground that Permit 1361 had been issued pursuant to s87 of the NP&W Act. The Applicant in opposing the discharge of the permanent injunction immediately commenced sperate class 4 proceedings (No. 40171 of 2001) challenging the validity of Permit No. 1361 and claiming an interlocutory injunction restraining the Mining Companies from acting in reliance upon that Permit.

20 The Applicant’s claim to interlocutory injunction was heard immediately following the completion of the hearing of the Mining Companies’ Motion seeking the discharge of the permanent injunction, at the conclusion of which I ordered on 29 May 2002 that there be excepted from the permanent injunction the following:

“ except for activity carried out by Dr Pardoe and his associates in implementation of the permit granted on 23 May 2002 pursuant to s 87 of the National Parks and Wildlife Act 1974 ”

21 On 31 May 2002 at the conclusion of the hearing of the Applicant’s claim to interlocutory injunction I ordered that the permanent injunction be discharged on and from 2.00pm 3 June 2002 upon the Court accepting the following undertakings from the Mining Companies:

1. To serve the Applicant with a copy of the confirmation notice lodged with the Third Respondent pursuant to Special Condition 15 of the s 87 permit issued by the Third Respondent on 23 May 2002;

2. To allow the Applicant and Mr David Johnston to inspect, in company with an archaeologist nominated by the first and second Respondent, the areas cleared of relics pursuant to the s 87 permit within 7 days of the service of the notice referred to in (1) above, with the Applicant providing the first and second Respondents with 48 hours notice in writing of his proposed inspection.

3. To not carry out exploratory drilling on any part of Lots 23, 24 or the Game Reserve without first receiving written notice from Dr Pardoe or his delegate Dr Kamminga that any such land has been cleared of relics in accordance with the s 87 permit granted by the Third Respondent on 23 May 2002.

22 The reason for the Court inviting the Mining Companies to proffer those undertakings and for the Court’s acceptance of the undertakings was to ensure that the protective regime for the collection and safe custody of relics was fully implemented before exploratory drilling was resumed and to give the Applicant the opportunity by inspection of the site with his archaeologists to ensure that the regime was efficacious.

23 Concurrently with the discharge of the permanent injunction I dismissed the Applicant’s claim to interlocutory injunction based upon his challenge to the validity of Permit No. 1361 – see [2002] NSWLEC 91. (The Court of Appeal on 14 June 2002 refused leave to appeal against my decision to refuse an interlocutory injunction – see [2002] NSWCA 176.)

24 On 6 September 2002 I published reasons dismissing the Applicant’s challenge to the validity of Permit No. 1361 – see [2002] NSWLEC 154. Of particular relevance to the present proceedings are the following passages at paragraphs 132 to 138 of that judgment in answer to the Applicant’s argument that the s87 Permit was an impermissible de facto s90 Consent:

132. Here, the Applicant claims that the clear purpose of the obtaining of the Permit was to enable the resumption of exploratory mining activity provided that the injunction granted by the Court was discharged and that this is a purpose that is foreign to, and cannot be effectuated by, the issue of a permit granted under s 87 . The Applicant claims that such a purpose can only be effectuated by a consent granted pursuant to the NP&W Act , s 90 to " destroy or damage relics " and that in truth the Permit is tantamount to a s 90 consent, and on that account, is invalid.
133. The Respondents meet these arguments by directing attention to what the NP&W Act declares to be the purpose of a permit issued under s 87 , namely to sanction the doing of an act or thing specified in s 86(a) , (b), (c), or (e), the doing of which, except in accordance with an enabling permit, is declared by s 86 to be an offence against the Act.

134. The Respondents submit that the activities sanctioned by the Permit are activities falling within the scope of s 86(a) and (b) and accordingly the Permit in so authorising those activities to be done, does not exceed its lawful bounds and is clearly within the power conferred by s 87 read in conjunction with s 86. They submit that if the doing of the things authorised to be done by the Permit lead to the lawful resumption of the exploratory mining activity, and indeed even if that goal be the ultimate purpose of the issue of the Permit, those consequences are irrelevant to the validity of the Permit to the extent that it authorises acts specified in the different paragraphs of s 86 .

135. In my judgment, the Respondents' submissions on this point are correct. The fact that an ultimate purpose or consequence of the issue of the Permit may be the resumption of exploratory mining on the lands comprising the application area, does not infect the validity of the Permit to the extent that it authorises the doing of the matters or things specified in s 86(a), (b), (c), (d), or (e) .

136. Nor does that ultimate consequence have the effect of somehow translating the Permit into a s 90 consent to destroy or damage relics. A permit under s 87 and a consent under s 90 are entirely different creatures.

137. Nothing in Permit authorises the destruction or damage of relics, no doubt for the very good reason that none of the acts specified in s 86(a), (b), (c), (d) or (e) involves the " knowing destruction of, or damage to, relics" . In context, the " movement " or " collection " of relics cannot constitute the " destruction " of or " damage to " those relics.

138. If relics are " knowingly destroyed, defaced or damaged" , either in the process of carrying out the acts permitted by the Permit or in the process, if it emerges, of the intended resumption of exploratory mining activities, then s 90 no doubt will operate in respect of such acts, as will the NP&W Act , s 176A in respect of such acts, actual or anticipatory.

25 It is clear from these passages (and especially paragraph 138) that the Court was recognising the possibility that the protective regime proposed by the s87 Permit might not eliminate the risk of damage within the ambit of the offence created by s90 being caused to relics upon the resumption of exploratory drilling operations after the requisite archaeological clearance certificate had been issued.

26 The hearing of the Applicant’s present claim in proceedings No. 40010 of 2002 commenced on 25 November 2002.

27 But at the outset of the hearing Counsel for the Director-General informed the Court that on the preceding Saturday (23 November 2002) a further s87 Permit (No. 1463) had been issued to Dr Pardoe and Dr Kamminga, and a s90 Consent (No. 1464) had been issued to the Mining Companies. Counsel for the other Respondents thereupon submitted that the issue of the s87 Permit (No. 1463) and the s90 Consent (No. 1464) ‘fundamentally destroyed the Applicant’s case” especially having regard to the combined contents of those authorisations which both applied to the whole of the proposed Mining Lease Area in comparison with the limited geography to which Permit No. 1361 applied (namely Lots 23, 24 and the Game reserve encompassing the location of the proposed open cut pit).

28 The timing of the issue of these authorisations was obviously disruptive to the hearing of the Applicant’s claims but the possibility of those authorisations being issued was well understood by all parties to the litigation. Indeed the Applicant had vigorously opposed the issue of the authorisations.

29 This submission was met by the Applicant’s predictable response that he now wished to challenge the validity of the s87 Permit and the s90 Consent but that he nonetheless wished to proceed with his present claims which were based upon allegations that breaches of the NP&W Act had already been committed by the Mining Companies and Dr Pardoe, which were not cured by the later authorisations.

30 It was at this stage of the hearing that the Applicant filed separate class 4 proceedings (No. 40948 of 2002) claiming similar declaratory and injunctive relief against the Mining Companies and Dr Pardoe as claimed in the further amended class 4 application filed in proceedings No. 40010 of 2002 and claiming additional relief against the Director-General namely an order that the Director-General prosecute the Mining Companies for breaches of s90 of the NP&W Act (paragraph 9) and an order that the Director-General revoke s87 Permit No. 1361. (Significantly both claims against the Director-General (which to be sustainable would have encountered obvious fundamental legal difficulties) were abandoned in the amended class 4 application that was filed on 27 November 2002).

31 On 27 November 2002 in the course of the hearing leave was granted to the Applicant to file an amended class 4 application (in proceedings No. 40948 of 2002) and a further amended (4th) class 4 application (in proceeding No. 40010 of 2002) copies of which applications are annexed hereto and marked ‘A’ and ‘B’ respectively.

32 On 28 November 2002 during the continuing hearing the Applicant filed separate class 4 proceedings (No. 40964 of 2002) challenging the validity of the s87 Permit (No. 1463) and the s90 Consent (No. 1464). With the leave of the Court and with the consent of all Respondents the claim in those proceedings for an interlocutory injunction restraining the Mining Companies and Drs Pardoe and Kamminga from acting on the authority of that Permit and that Consent was made returnable for hearing on Friday 29 November 2002 and by consent of all the parties to the Applicant’s part heard present claims, the hearing of those claims was adjourned to a future date (commonly expected to be a date after the Applicant’s challenge to the validity of the s87 Permit (No. 1468) and the s90 Consent (No. 1467) had been determined on both an interlocutory and final basis). The Permit and the Consent which were originally issued on 23 November 2002 were each reissued on 27 November 2002 - hence their new numbers (No. 1468 and No. 1467) respectively.

33 On 3 December 2003 after a contested hearing I granted the Applicant interlocutory relief including an interlocutory injunction restraining the Mining Companies from carrying out activities in reliance upon the s87 permit (No. 1468) and the s90 Consent (No. 1467) – for the abbreviated reasons given on that day – see [2002] NSWLEC 231 and for the amplified reasons given on 6 December 2002 – see [2002] NSWLEC 235 which included the following conclusions:

101. Having regard to my aforesaid findings, I have concluded that a case has been made out for the Court in the exercise of its discretion to grant some form of interlocutory relief pending the final hearing of the Applicant's challenge to the validity of the s 87 Permit and the s 90 Consent issued on behalf of the Director-General by his authorised agent Mr Korn, the Director Western on 27 November 2002 in respect of Aboriginal objects situate on lands comprising the Lake Cowal Gold Mine Project. However, the relief to be granted provides a structured opportunity for the second and third Respondents to complete their exploratory drilling for the Project provided that the requirements of the earlier s 87 Permit (No 1361) issued on 23 May 2002 are complied with and in the case of the proposed exploratory activity on the Travelling Stock Route as it adjoins the Game Reserve as if the conditions of that Permit were expressed to also apply to that Travelling Stock Route.

102. Such form of relief will maintain in my judgment, until final hearing, a fair balance in the competing interests of the Applicant to protect Aboriginal relics from being damaged defaced or destroyed and of the second and third Respondents to complete their nearly completed exploratory drilling activity in order for them to complete their project feasibility. However, pending the final hearing of the Applicant's challenge to the validity of the s 87 Permit and s 90 consent, the operation of both Permit and Consent should be suspended. Unless this relief is granted, irreparable harm may be caused to the Applicant's interests in the event that no interim relief be granted but his challenge to the validity of the s 87 Permit and s 90 Consent were to be ultimately successful. Conversely, unless the relief is tempered to provide the second and third Respondents with the opportunity to complete their exploratory activities as a necessary prelude to their completing their project feasibility study, they will be likely to suffer considerable detriment if more drastic interim relief were granted and the Applicant's challenge to the validity of the s 87 Permit and s 90 Consent were ultimately to fail.

34 Following the final hearing of the Applicant’s challenge to the validity of the s87 Permit and the s90 Consent which was concluded on 20 March 2003 I dismissed the application and dissolved the interlocutory relief in my reserved judgment published on 19 May 2003 – see (2003) NSWLEC 121.

35 A few weeks before I had delivered that reserved judgment the hearing of the adjourned present proceedings was resumed and was completed.

36 To complete this summary of the litigation history I should finally note that on 29 May 2003 the Applicant commenced separate class 4 proceedings (No. 40626 of 2003) claiming declaratory and injunctive relief based upon alleged breaches of conditions of the s87 Permit (No. 1468). After a disputed hearing on the Applicant’s claim to an interlocutory injunction I refused the Applicant’s claim on 24 June 2003 – see (2003) NSWLEC 150. (The final hearing of those proceedings has not been held).

37 Finally I should note that on 29 May 2003 I varied the Mining Companies undertakings given and accepted on 31 May 2002 by substituting for undertaking No. 3 the following:

3. To not carry out exploratory drilling on any part of Lots 23, 24 or the Game Reserve without first receiving written notice from Dr Pardoe or Dr Kamminga:

(a) that any such land has been cleared of relics in accordance with the section 87 permit granted by the Third Respondent on 23 May 2002; or
(b) pursuant to special condition 16 of the section 87 permit dated 27 November 2002 that the archaeological works authorised for that land have been completed.

C. THE ISSUES RAISED BY THE PRESENT PROCEEDINGS

38 Having chronicled in some necessary detail the litigation history it is now possible to focus attention upon the issues raised by the Applicant’s present claims, which as I have earlier noted, are strongly resisted by the Mining Companies and by Dr Pardoe, which resistance is supported by the case presented on behalf of the Director-General (against whom the Applicant ultimately claimed no relief).

39 Essentially the Applicant’s claims are based upon (i) his allegations of two discrete breaches by the Mining Companies of the NP&W Act (namely breaches of s90 and s86) alleged to have been committed after 23 May 2002 when the s87 Permit (No. 1361) was issued and (ii) his allegation of a breach of the EP&A Act by virtue of the construction later in 2002 of the installations for the drilling fluids sump and decant system.

40 Although the hearing of the present claims was punctuated by a 6 months adjournment from November 2002 until May 2003 (which had been granted by consent of all the parties) to enable the Court to hear and determine the Applicant’s challenges to the validity of the s87 Permit (No. 1468) and the s90 Consent (No. 1467) which were the subject of an interlocutory hearing on 29 November 2002 and a final hearing in March 2003, it is to be noted that all of the evidence given in the case addressed relevant facts occurring before the end of November 2002. It is vitally important to appreciate the brief time frame relevant to the Applicant’s present claims alleging breaches of s90 of the NP&W Act encompassing the 5 month period from the end of June to the end of November 2002. This importance lies in the following facts which are established in the evidence pertaining to the history of the Lake Cowal Gold Project:

(i) Exploration for the Lake Cowal Gold Project had originally commenced at the Lake in the early 1980s and culminated in the discovery of gold deposits in 1988. Between 1989 and 1999 some 450 – 550 exploratory drill holes were undertaken by North Gold (WA) Limited, the original prospector;

(ii) On 26 February 1999 the Minister for Urban Affairs and Planning after the holding of a Commission of Inquiry under the EP&A Act granted development consent (subject to stipulated conditions) for the construction and operation of an open cut gold mine and gold processing plant at Lake Cowal;

(iii) On 5 October 2001 the Department of Mineral Resources registered a transfer from North Gold (WA) Limited to one of the present Mining Companies of its interests in a number of Exploration Licences granted pursuant to the Mining Act 1992 (including Exploration Licence 2865).

(iv) On 11 October 2001 one of the present Mining Companies entered into a surface drilling contract with Boart Longyear Pty Ltd for a programme of exploratory drilling at Lake Cowal likely to be carried out continuously throughout 2002.

(v) Exploratory drilling on behalf of the Mining Companies commenced at Lake Cowal on Lot 23 and the Game Reserve at the end of 2001 and continued until 22 March 2002 when I granted the first interlocutory injunction restraining the Mining Companies from moving on or across those lands any vehicular or other machinery used for the purposes of exploratory drilling. That interlocutory injunction was converted into a permanent injunction on 17 May 2002 and continued in force until 3 June 2002 when that injunction was discharged (subject to the Undertakings given by the Mining Companies to the Court on 31 May 2002).

41 Thus at the commencement of the hearing on the Applicant’s present claims in the last week of November 2002 the collection process authorised by Permit No. 1361 had been completed and the exploratory drilling on the lands to which that Permit applied (namely Lots 23 and 24 and the Game Reserve) had been completed.

42 By the time (just a few days later) that I granted the second interlocutory injunction on 3 December 2002 the exploratory drilling programme so far as concerned the proposed open pit area had been completed except for a small section of the pit that extended from the Game Reserve into the Travelling Stock Reserve. It was because of my acceptance of the evidence adduced by the Mining Companies that it was imperative for the completion of the economic feasibility studies of the Gold Mine Project that the exploratory drilling be completed on the affected section of the Travelling Stock Reserve that I exempted from the operation of the interlocutory injunction the exploratory drilling of that section, provided that it was undertaken in accordance with the regime by the s87 Permit No. 1361 as (if that Permit operated in respect of the Travelling Stock Reserve).

43 It thus can be appreciated that the Applicant’s claims in respect of allegations of breaches by the Mining Companies of s90 of the NP&W Act are essentially confined to what occurred in the course of the exploratory drilling programme from the date when the first clearance certificate under s87 Permit No. 1361 was issued on 25 June 2002 until the end of November 2002, by which time the drilling programme in respect of the open cut pit area had been completed (save for the small encroachment of the pit into the Travelling Stock Reserve which was not covered by Permit No. 1361).

44 It is obvious from this essential fact that the Applicant’s case for injunctive relief is based upon an inescapably tenuous foundation, since not only has the exploratory drilling programme already been completed but the Mining Companies now have the benefit of the further s87 Permit (No. 1468) and the s90 Consent (No. 1467) which collectively apply to the whole of the proposed Mining Lease Area (which far exceeds the lands affected by the proposed open pit area to which lands s87 Permit No. 1361 had applied) and ultimately via the s90 consent authorise the destruction of Aboriginal objects which are not collected in accordance with the s87 Permit.

45 The combined effect of the facts that at the time the Applicant’s present claims were heard (i) the relevant exploratory drilling programme had already been completed and (ii) the Mining Companies had obtained the s90 Consent (No. 1467), which in combination with the further s87 Permit (No. 1468) applied to the whole of the proposed Mining Lease Area, is the obvious absence of any justification for the grant of any injunctive relief even if the Applicant were to substantiate his allegations of relevant breaches of s90 of the NP&W Act. This unexceptional and inevitable legal conclusion also carries its own legal consequence and that is to bring seriously into question the appropriateness or utility of the grant of merely declaratory relief, considered both from the perspective of jurisdiction and discretion, again assuming the Applicant were to substantiate his allegation of breaches of s90: see Zamir & Woolf: The Declaratory Judgment 3rd ed. (2002) at paragraphs 4.093 to 4.101.

46 Moreover to the extent that the Applicant claims a declaration that the Mining Companies have breached s90 of the NP&W Act his claim is confronted by the established reluctance of civil courts to grant declarations that particular conduct constitutes a crime “because the grant of a declaration could result in conflict between the civil and the criminal courts, with the civil courts usurping the proper role of the criminal courts”: The Declaratory Judgment at paragraph 4.172. See generally paragraphs 4.172 to 4.205 ibid.

47 This particular aspect of the exercise of judicial discretion to withhold declaratory relief is particularly relevant to this Court’s exercise of discretion to grant or to withhold declaratory relief in response to the (assumed) substantiation of the Applicant’s claims in the present case in circumstances where no injunctive relief can be justified because the conduct complained of is already past, and irretrievably so, in the sense that no mandatory relief can be devised to possibly restore the position that has been changed by that past conduct. To state the obvious, damaged Aboriginal objects cannot be rendered undamaged by any mandatory relief, and objects collected by persons who were not archaeologists cannot, by dint of any mandatory relief, be uncollected.

48 Hitherto I have noted that the Applicant’s claims in the present proceedings (in common with his claims in the other proceedings I have noted in the litigation history) invoke the jurisdiction conferred upon the Court by s176A of the NP&W Act: see s20(1)(cg) of the Land and Environment Court Act 1979 (the LEC Act) That jurisdiction is for an order to be made by the Court “to remedy or restrain a breach of this Act”: subsection (1). Whether that jurisdiction empowers the Court to grant a remedy by way of a bare declaration (without any other substantive relief) is debatable. I am prepared to assume that s176(1) so empowers the Court to grant only declaratory relief “to remedy or restrain a breach of the Act”, which may, in a given case, provide an effective remedy but the present case is clearly not such a case. (However it may be noted that an alternative source of available jurisdiction and power is provided by s20(1)(c) and (2) of the LEC Act, and although that jurisdiction is only invocable by a person having legal standing, I do not think that there can be any doubt that the Applicant would have a sufficient interest in the subject matter of the present litigation to invoke that jurisdiction).

49 But to return to my consideration of the Applicant’s claims (which originally included injunctive relief in addition to declarations) founded upon the jurisdiction conferred by s176A(1) of the NP&W Act it is to be noted that although the expression “breach of the Act” is not defined (contrast s122 of the EP&A Act) it clearly enough would include conduct that constitutes an offence created by s90 of the NP&W Act, namely “to knowingly destroy, deface or damage, or knowingly cause or permit the destruction or defacement of or damage to an Aboriginal object… without first obtaining the consent of the Director General”. Similarly it would include conduct that constitutes an offence created by s86 of the NP&W Act (being the relevant provision concerning the Applicant’s allegations of breach of the Act made against Dr Pardoe in respect of the conditions of Permit No. 1361).

50 Accordingly it follows in respect of the Applicant’s allegations of breaches of the NP&W Act that the declarations claimed are that the Mining Companies have committed an offence or offences against s90 and that Dr Pardoe has committed an offence or offences against s86. That is the declarations are claimed in respect of exclusively past conduct.

51 In my opinion, in no meaningful sense could it be reasonably asserted or held that the grant of relief solely by way of the declarations claimed would “remedy or restrain” any relevant breach of the Act within the meaning of s176A(1) of the NP&W Act.

52 Alternatively, but equally importantly, there would be no utility in granting such relief. In this respect it may be noted that in Imperial Tobacco Ltd v Attorney-General [1981] AC 718 the House of Lords held that a declaration by a civil court whether or not certain conduct constituted a criminal offence was no bar to a criminal prosecution being commenced and such a declaration would not found a plea of autrefois acquit or autrefois convict: per Viscount Dilhorne at 741. See also The Declaratory Judgment at paragraphs 4.172 to 4.175.

53 It is of some relevance to note that the offences respectively created by ss86 and 90 of the NP&W Act may be prosecuted summarily before a Local Court or before this Court (s176) but that proceedings for such offences may only be taken by “a police officer or by a person duly authorised by the Director-General” (s179(1)) or only with “the written consent of the Director-General” (s179(1A)). This means that the Applicant would not be able to bring a private prosecution for an offence against the NP&W Act without the consent of the Director-General. Although there is no suggestion that the Applicant has either sought or failed to obtain the Director-General’s consent to commence criminal prosecution proceedings, as I have earlier noted the position adopted by the Director-General in these proceedings is that he is satisfied that no offence has been committed by the Mining Companies or by Dr Pardoe, such as have been alleged against them by the Applicant in these proceedings.

54 Notwithstanding this express limitation on the possibility of the private prosecution for an offence against the NP&W Act I am of the very firm opinion that discretionary factors irresistibly militate against the granting of any declaratory relief concerning breaches of the NP&W Act as claimed by the Applicant in these proceedings. In addition to the discretionary factors that I have already discussed as virtually constraining such an outcome in the present case the following considerations combine to fortify that seemingly inevitable conclusion:

(i) as will presently be demonstrated, the very small extent or quantum of Aboriginal objects alleged to have been damaged by the Mining Companies in the relevant period that exploratory drilling operations were undertaken after the s87 Permit No. 1361 was granted on 23 May 2002 and the permanent injunction was conditionally discharged on 3 June 2002, and in conformity with the protective regime provided for by that Permit and the Undertakings accepted by the Court (there being no allegation that that protective regime was not conscientiously adhered to by the Mining Companies); and

55 In my consideration of the Applicant’s disputed allegations of breaches of the NP&W Act I have so far focussed emphatic attention upon: (i) the limited nature of the relief that could possibly be obtained by the Applicant (assuming he substantiated his allegations of the relevant breaches of the NP&W Act); and (ii) the discretionary considerations which overwhelmingly militate against the grant of that bare declaratory relief.

56 At first blush this may appear to be an unusual approach to adopt for the required adjudication in a case, such as the present, where allegations of breaches of the NP&W Act (which are disputed by the Respondents) are the foundation for judicial relief. In such a case the conventional approach to adjudication of the disputed claims is to first proceed to determine whether the allegations of breaches of the Act have been substantiated and then to determine what, if any, remedy should be granted in the exercise of the Court’s discretion. However for the reasons I have given the discretionary aspects of the grant of relief are very clear cut whereas the allegations of breaches of the Act are hotly contested and involved disputed expert testimony.

57 Moreover, as I have attempted to demonstrate by my survey of the extensive and complex litigation history in an attempt to contextualise the Applicant’s present claims (especially those based upon allegations of breaches of s90 of the NP&W Act), this is no conventional civil enforcement case and in very large measure, given the litigation history and overall outcomes achieved in the litigation the present claims are essentially addressing matters which might, not unreasonably, be characterised as “leftovers” in the overall litigation stakes and history or “minor undetermined skirmishes” after the principal battles have been decided. I hasten to say that this analysis and epithets are not intended to trivialise or minimise the Applicant’s present claims (which were perseveringly pressed with the Applicant’s usual vigour and commitment) but represents my attempt to fairly and truly place them in perspective.

58 In truth the sole legal foundation for the Applicant’s claims has been the operation of Part 6 of the NP&W Act (‘Aboriginal objects and Aboriginal places’) and in particular s90 forbidding ‘the knowing destruction etc of Aboriginal objects… without the consent of the Director-General”. That legal foundation however has been progressively diminished to the point of non-existence by action taken by the Director-General pursuant to Part 6 throughout the litigation history – initially by the issue of the s87 Permit (No. 1361) on 23 May 2002 and later by the issue on 27 November 2002 of the combined s87 Permit (No. 1468) and the s90 Consent (No. 1467). The Applicant’s response to these actions has been firstly to challenge the validity of the s87 Permits and the s90 Consent and when those challenges have failed to allege breaches of the conditions of the relevant s87 Permits. But in truth the real battle was lost when the s90 consent was issued on 27 November 2002, thereby eliminating the sole legal foundation for the Applicant’s claims in this Court against the Mining Companies.

59 Hence the Applicant’s present claims alleging breaches of the NP&W Act are to be appreciated as being directed against the exploratory drilling operations conducted by the Mining Companies in accordance with the protective regime for the discovery, collection and safe custody of Aboriginal objects for the closed period of 5 months from the end of June to the end of November 2002. Moreover the claims are pressed in civil enforcement proceedings where the only possible relief is bare declarations which clearly in the circumstances of the case do not ‘remedy or restrain’ the alleged breaches of the NP&W Act, but in effect seek civil orders that offences against the NP&W Act have been committed by the Mining Companies and Dr Pardoe.

60 In the light of these considerations it is difficult to contemplate a clearer case for the exercise of judicial discretion to withhold the declaratory relief claimed by the Applicant even if the allegations of breach are established.

61 Notwithstanding my view that discretionary considerations are themselves entirely sufficient to dispose of the Applicant’s claims of breaches of the NP&W Act, I will, for the sake of completeness, and in view of the serious nature of the hotly contested allegations, consider whether the allegations of breaches of the NP&W Act have been established by the evidence.

62 The allegation of breaches of the EP&A Act by virtue of the Mining Companies’ installation of the drilling fluids sump and decant system is a discrete claim unaffected by the litigation history. It is resisted by the Mining Companies essentially on legal grounds (reliance upon s381 of the Mining Act). I will separately consider this allegation, but I should note at this preliminary stage, that the Applicant’s allegation that the installation involved damage to Aboriginal objects was unsupported by any evidence adduced in the Applicant’s case and was firmly rebutted by evidence led in the Respondent’s case.

D. ALLEGATIONS OF BREACHES OF S90 NP&W ACT

63 It is important at the outset to define with precision the factual and mental ingredients of what constitutes a breach of s90, especially in view of the formulations of the Applicant’s allegations in his two Class 4 applications, which are not factually or legally adequate. This is because they omit the all important element of ‘knowledge’ on the part of the Mining Companies that they are damaging etc Aboriginal objects without obtaining requisite consent of the Director-General under s90.

64 I have earlier recited the relevant provisions of s90 and have noted in passing the important fact that the amendments made to s90 by the National Parks and Wildlife Amendment Act 2001 (Act No. 130) which removed from the elements of the offence the requirement that the offender ‘knowingly’ damage etc Aboriginal objects and instead created a strict liability offence but provided in subsection (1C) the following statutory defence:

(1C) It is a defence to a prosecution for an offence against subsection (1) if the defendant shows that:

(a) he or she took reasonable precautions and exercised due diligence to determine whether the action constituting the alleged offence would, or would be likely to, impact on the Aboriginal object or Aboriginal place concerned, and

(b) the person reasonably believed that the action would not destroy, deface, damage or desecrate the Aboriginal object or Aboriginal place.

65 However for the purposes of determining the Applicant’s allegations of breach of s90 the relevant law is in the form that I have earlier recited.

66 It was in that form that the Court of Criminal Appeal considered s90 in Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 103 LGERA 355, where each of the members of the Court of Criminal Appeal opined on the fact that the offence required the offender to “knowingly destroy, damage…etc relics”. The Chief Judge said at 358:

The terminology of Bignold J, to the effect that a person accused of this offence must know "the precise nature, quality, quantity and location of the relics", may be putting an unnecessary gloss on the statute. Section 90 of the

1974 requires that the accused knows that the object, to which he or she is either causing damage or permitting damage to be caused, is an Aboriginal relic.

For the reasons given by Greg James J and on the basis of his Honour's findings of fact which I adopt, I agree that the evidence with respect to each of the three counts never rose above, at best, proof that the appellant was recklessly indifferent to the probability that its conduct would cause damage to such relics. Reckless indifference is not sufficient for purposes of the offence constituted by s90.

67 Sperling J said at 360:

Bignold J held, correctly, that in the circumstances of this case there could be no knowingly caused damage to Aboriginal relics without proof of knowledge of the precise nature and location of such relics. He went on to find that "the evidence does not establish actual knowledge of the precise nature and location of the relics on the subject land". He then reviewed the evidence of Mr Merceica, the appellant's director, and restated the finding in these terms:

"The foregoing evidence clearly establishes that the defendant knew that the nature of the relics on the subject land were 'important stones having some Aboriginal significance'. However it does not establish that the defendant knew which stones were important stones. Nor does it establish the location, on or in the subject land, of these stones. Much less does it establish that in carrying out the acts to improve the rural capability of the subject land, the defendant knew that those acts were causing damage to relics."

68 Greg James J said at 390:

I consider that the evidence was not such as to support the conclusion beyond reasonable doubt that Mr. Merceica and hence the appellant, was aware of particular relics or deposits of them, ie., their existence, nature and location, or was aware of an intensity and distribution of relics such that those doing work likely to damage relics, if present, must have realised relics must be damaged by that work, ie., that relics must have been present and I so find. Although, as the Chief Justice points out, s.90 of the Act does not specify that a person accused, under this section, must be proved to be aware of the nature and location of any relic, there must be that proof of knowledge the Chief Justice refers to. On the evidence I find insufficient proof of that knowledge for the reasons I set out below.

69 Although the Mining Companies strenuously disputed that its exploratory drilling operations at Lake Cowal within the relevant period (ie. between end of June and end of November 2002) had caused any damage to Aboriginal objects, it submitted that even assuming that such damage were established by the evidence there was absolutely no proof that any such (assumed) damage had been done “knowingly” in the sense of that word adopted by the Court of Criminal Appeal in Histollo. In this respect it submitted that the evidence indisputably established that no exploratory drilling (involving the movement of vehicles and drilling rigs) had been conducted until the Mining Companies had received successive clearance certificates issued by Dr Pardoe as required by the conditions of Permit No. 1361 and the Undertakings given to the Court by the Mining Companies.

70 As noted earlier, four such clearance certificates were issued by Dr Pardoe – the first on 25 June 2002 and the last on 1 November 2002. (The last certificate noted that Dr Pardoe had by that time completed “archaeological inspections of drill lines, drill hole locations, drill hole excavations, access tracks and other access areas in accordance with NP&WS section 87 Permit No. 1361.”)

71 Each of the four certificates issued by Dr Pardoe adopted a similar format and content in respect of each of the four separate phases of the overall tasks authorised to be undertaken by Permit No. 1361. Typical content included:

(i) a detailed verbal description and map delineation of the parts of the Lake Cowal site that had been inspected; (ii) a detailed description of the archaeological excavations conducted; (iii) a detailed description of the methodology of the clearance inspections and of the persons (archaeologists and Wiradjuri persons) engaged; and (iv) a statement that “all lithic items found…had their positions recorded with a GPS… and then were removed, bagged noted and stored in accordance with Permit No. 1361”.

72 Each of the four certificates issued by Dr Pardoe concluded with the following advice:

I now advise that archaeological monitoring now start for the designated areas (see also map attached). This will ensure that development will proceed in accordance with the provisions of the NP&WS Act 1974 and that Aboriginal relics will not be adversely impacted by development activities.

It is my view that the work I have undertaken and supervised ensures that Barrick Gold Australia will not be in contravention of any provisions of the NP&W Act 1974 in relation to preservation and protection of Aboriginal relics and sites.

The proposed drilling and support activities may now proceed on the specified areas.

73 The reference in Dr Pardoe’s certificates to “archaeological monitoring” is a reference to the “post clearance” monitoring undertaken as required by Special Condition 7 of Permit No. 1361.

74 The monitoring programme actually undertaken by the Mining Companies during the relevant period is explained in the following passages from the affidavit sworn 4 October 2002 by Mr Roger Bennetts, the Project Manager for the Cowal Gold Project:

“Monitoring of cleared access tracks and drill pathways

19. In the section 87 application document lodged by Barrick with the NPWS, Dr Pardoe outlined a proposed methodology for monitoring areas from which relics are collected. At page 4 of the document it was stated:

“Whilst the likelihood of additional relics being found after the inspections referred to in Step 1 is considered low, as a further precautionary measure, Dr Pardoe, or another qualified archaeologist will carry out a further inspection of access tracks and drill rig pathways at 2 weekly intervals after the commencement of exploration activities on that land for the purpose of identifying any relics that may subsequently become visible. Any identified relics will be dealt with in accordance with step 3 above. The intervals of these inspections will be reviewed, in consultation with NPWS, after 6 weeks and will be amended if it is considered necessary in the light of the result of inspections carried out so far.”

20. Special condition 7 of the Section 87 Permit mandates Dr Pardoe’s proposed monitoring methodology and states:

“7. All defined access tracks, drill pathways etc shall be monitored by the archaeologists and community representative at two weekly intervals for an initial period of six weeks. Should additional relics be located they shall be treated as per Special Condition 4. The frequency of monitoring shall be subject to review pending the results of the initial monitoring and amended if necessary.”

21. The monitoring program which Barrick has implemented at the Project site include the following elements:

(a) periodic inspections of drill pathways and access tracks;

(b) monitoring drill rig movements; and

(c) monitoring rehabilitation of completed drill sites.

22. To my knowledge, some relics comprising small fragments of stone have been identified, collected and stored from cleared tracks and pathways as part of the monitoring program. In addition, I am aware that on the joint site inspection held on 10 September 2002 four small lithic items were found on drill pathway 8 located on the Game Reserve. These four lithic items were found by Neville Williams and were then collected, recorded and stored by Dr Pardoe in accordance with the requirements of the Section 87 Permit. Also I am aware that during the Court ordered site inspection held on 27 September, six small lithic items were found by Neville Williams and Wilfred Shawcross within drill pathways 5 and 7 on Lot 23. I have instructed Dr Kamminga to analyse the ten lithic items and determine whether they are relics.

23. The fact that some small lithic items have been discovered subsequent to the completion of a phase of the relic collection program is not completely unexpected, albeit our archaeologists originally assessed this likelihood as being low. The monitoring program has the objective of collecting any visible surface relics. Small lithic items may become visible after the completion of a collection phase by reason of:

(a) vegetation subsequently dying off after brush cutting. The dying off of vegetation can improve ground surface visibility;

(b) the erosion of surface soil by wind and rain can expose near-surface sediment;

(c) pedestrian and vehicular traffic may have the effect, in certain circumstances, of improving ground surface visibility.

24. Because small lithic items have been found on cleared drill pathways and also because of the increased exploration activity at the Project site, I issued instructions yesterday to management at the site, that our standard monitoring be increased from 4 days per week to 7 days per week. Although Barrick has at all times held several intensive days of monitoring involving up to 8 Wiradjuri field assistants the permanent team that undertakes monitoring comprises 2 employees. These employees work 10.5 hours per day from Monday to Thursday each week. The monitoring work they do involved walking the drill pathways and access tracks, rehabilitating drill holes and maintaining the star pickets and orange flagging tape which delineates the perimeter of cleared drill pathways and access tracks (“Barriers”). From tomorrow, these 2 employees will be supplemented by casual Wiradjuri field assistants so that our regular minimum program operates 7 days per week and not only from Monday to Thursdays. The remoteness of the Project site means that absenteeism can be a problem with casual employees, but it is our intention that from tomorrow there will be 2 Wiradjuri field assistants engaged in monitoring work each day.

25. All cleared drill pathways and access tracks on Lots 23, 24 and the Game Reserve have had their perimeters marked with the barriers in accordance with special condition 5 of the Section 87 Permit. No drill rigs were allowed on pathways or tracks prior to the erection of barriers. Exhibited to me at the time of swearing my affidavit and marked with the letters “RB4” are two photographs taken at the Project site which shows various cleared corridors with their perimeters marked by the abovementioned star pickets and orange flagging tape.

75 There was considerable evidence attesting to the effectiveness of the Mining Companies’ implementation of this protective regime. For example under cross-examination Dr Kamminga, a distinguished archaeologist who worked with Dr Pardoe at the Lake Cowal Gold Project in 2002, described the clearance and monitoring programme as “an exemplar” with nothing like it having happened in archaeological management in Australia. Indeed he went further in declaring (I presume with some flourish of hyperbole) that the regime had rendered the land at Lake Cowal “the most archaeologically scrutinised part of the world’s surface”.

76 Emeritus Professor Richard Wright (who had not been involved in the archaeological work undertaken at Lake Cowal in 2002) in his affidavit affirmed 14 October 2002 expressed the opinion that the “collecting and monitoring has been carefully carried out” and that in consequence “the risk of damage to relics by the current exploration activity is low”

77 In his second affidavit affirmed 14 November 2002 Emeritus Professor Wright (in reply to Mr Shawcross’ affidavit evidence) expressed the following opinions:

In my opinion, the ongoing relic collection and clearance process authorised by the section 87 permit is effective in achieving its purpose of protecting relics from damage or disturbance… .

Vehicles and treadage of course have the potential to break artefacts. Normally no precautions are taken against this when land is farmed and driven over. By contrast, the precautionary collecting and clearance that is now being done at Lake Cowal is, in my view, a responsible management activity that will for practical purposes eliminate future breakage to relics.

78 Under cross examination Emeritus Professor Wright conceded that not all artefacts would have been removed from the site and that it would be virtually impossible to achieve the removal of all artefacts.

79 This evidence which was relied upon by the Mining Companies as negating any suggestion that they ‘knowingly’ damaged any Aboriginal objects was not challenged or rebutted by the Applicant’s case, probably because his case had focussed attention on the prospect of the exploratory drilling operations creating the risk of damage to Aboriginal objects. But as I have already noted this was an erroneous focus because the only relevant basis upon which a declaration could be made was that the Mining Companies “knowingly” had damaged Aboriginal objects or caused them to be damaged contrary to s90 of the NP&W Act. If the relief claimed had been directed against restraining apprehended future or ongoing breaches of s90 then the prospect of the risk of damage would have been relevant (see s176A). However the risk of such damage occurring is not relevant to the question whether past conduct constitutes an offence against s90 where ‘knowing’ actual damage must be proved.

80 This leaves the outstanding question: Is there any evidence in rebuttal of the evidence relied upon by the Mining Companies as negating relevant “knowledge” which would support a finding that the Mining Companies had “knowingly” damaged Aboriginal objects (assuming that there is proof of such relevant damage) within the relevant 5 month period?

81 The question does not arise in vacuo. Rather it arises in the context of the Applicant alleging relevant damage (i) to three Aboriginal objects discovered by the Applicant on lands that had been cleared and monitored, (ii) to six Aboriginal objects out of a sample of 136 taken by Mr Shawcross from the 2,000 lithic items collected and held in safe custody and (iii) to one Aboriginal object observed in the Game Reserve - where the evidence establishes that some 2,000 lithic items (either actual or putative or possible Aboriginal objects comprising very small stone materials) have been discovered and collected pursuant to the protective regime provided for by the combined effect of Permit No. 1361 and the undertakings given to the Court by the Mining Companies.

82 The only possible sources of evidence that could conceivably support a finding that the Mining Companies had relevant “knowledge” of damaging Aboriginal objects are in respect of the following facts:

(i) the discovery of a few Aboriginal objects (actual or putative) by the Applicant and his archaeologist in the course of carrying out inspections of cleared areas; and

83 It may be inferred that these facts no doubt informed the Mining Companies that the clearance activity was not absolutely 100 per cent effective in discovering and collecting every Aboriginal object on the relevant lands and that there was the possibility of some undetected isolated objects remaining on the land and there was the possibility of such undetected isolated objects being damaged by the exploratory drilling operation. But the knowledge of those possibilities does not translate into knowledge that in undertaking the exploratory operations following receipt of Dr Pardoe’s clearance certificates the Mining Companies knew either of the existence of any of those undetected objects in particular or that its exploratory operations would ‘knowingly’ damage any of those objects.

84 In my judgment this evidence that the Applicant can rely upon, does not meaningfully challenge or otherwise undermine or disturb the evidence adduced by the Mining Companies upon which they rely as establishing an absence of relevant “knowledge” on their part.

85 In my judgment the totality of the evidence relevant to the question of “knowledge” on the part of the Mining Companies does not come anywhere close to supporting a finding of relevant knowledge, even upon the civil standard of proof which is the appropriate standard in these proceedings: see s140 of the Evidence Act 1995 but noting the following exposition of relevant principles in the joint judgment of the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170/171:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…”.

86 I now come to consider the factual elements in the allegations of breaches of s90 upon which there was a body of disputed opinion evidence, namely whether any Aboriginal objects were damaged by the Mining Companies during the relevant period that exploratory drilling operations were conducted in conformity with the protective regime authorised by Permit No. 1361 and the undertakings of the Mining Companies.

87 In a strict sense this disputed issue need not be adjudicated upon because of my finding that the evidence does not support any finding that the Mining Companies relevantly “knowingly” damaged Aboriginal objects.

88 However for completeness I will determine the question. The Applicant’s allegations are based upon separate strands of evidence supporting the existence of the following damaged Aboriginal objects:

(i) two stone artefacts discovered by the Applicant in the Game Reserve during his inspection on 20 August 2002 which Mr Shawcross considered to be damaged;

(ii) one stone artefact discovered by the Applicant and Mr Shawcross during their inspection of Lot 23 on 10 September 2002;

(iii) six damaged stone artefacts in the sample of 136 artefacts examined by Mr Shawcross on 27 September 2002 from the collected Aboriginal objects held in safe custody; and

89 The Applicant’s allegations that these damaged Aboriginal objects (except for (iv)) were damaged by the Mining Companies in conducting exploratory drilling operations during the relevant period is based upon the following opinions of Mr Shawcross:

“I observed no stock on the Game Reserve at the time of my visit and it is unlikely that they were present during the drilling so that, on probabilities, it is likely that the damage was caused by machinery (paragraph 6 of Affidavit affirmed 28 August 2002),

“the broken flake appeared to have been damaged by a heavy vehicle” (par 20 of affidavit affirmed 16 October 2002); and

45. (i) The assemblage analysed by Dr Cane from site P1 (Ibid, Appendix 2) came from an already disturbed and eroded surface of the plain.

(ii) The erosion of that surface must have substantially taken place before the mining operations initiated by North Limited. North’s heavy plant drove over artefact exposures probably adding significantly to the high frequency of damage noted by Cane, which he also ascribed to farming activities such as ploughing.

(iii) A substantial proportion of the evidently degraded site P1 had been transferred along with the non-cultural, erosion debris into the talus on the lake floor The artefacts came from previously buried deposits and would have experienced little damage from machinery and would have been deposited as relatively undamaged pieces in the talus .

(iv) North Limited’s drilling operations would have damaged a proportion of artefacts exposed on the surface of the talus . However, the renewed drilling operations by Homestake would have further contributed to damage before the temporary cessation of operations ordered by the Court, and the issue to Dr Pardoe of the permit to collect and excavate commencing 6 May 2002.

(v) Dr Pardoe’s initial collection would be likely to have cleared most of this material from the surface of the drilling lines and which, from the evidence of my grab sample taken from the stored collection, would show about 4% of damage.

(vi) However, it has been shown in this affidavit that it is not possible to collect 100% of the artefacts and permanently clear the surface. Some of this is due to the general problems of visibility, but some is due to the nature of the

deposit itself, which must contain artefacts. This means that artefacts that lie on the surface of the drilling area will still continue to be at risk from machinery damage. There is evidence that damage to artefacts has continued, both from Mr Neville Williams’s inspections of those parts of the drilling lines to which he has had access and from my own inspections. I refer to paragraph 22 of my affidavit of 16 June 2002, and to its accompanying Figure 1, which illustrate a case of a badly broken artefact found on a cleared drilling line. Artefacts have been damaged since North Limited commenced drilling at Lake Cowal, and damage has continued at the site during the present programme of drilling and has continued despite the issue to Dr Pardoe of a Section 87 Permit to collect and excavate.

90 Concerning to the damaged artefact discovered by the Applicant on the Game Reserve on 17 November 2002 there was no opinion from Mr Shawcross, (who evidently was not consulted on this matter) the only archaeologist to examine it being Dr Pardoe when it was shown to him in situ on 19 November 2002 by the Applicant.

91 Mr Shawcross was rigorously cross examined on his opinions which were severely criticised by the Respondent’s Counsel and by their expert witnesses in their evidence mainly on the grounds that his relevant opinions were unsubstantiated, and had not adequately discounted other known or possible causes of damage to the Aboriginal objects that had or may have occurred at times prior to the relevant period (June to November 2002) when the Mining Companies conducted exploratory drilling operations in conformity with the protective regime of Permit No. 1361 etc.

92 Mr Shawcross was unable to relocate the two artefacts which he observed on the Game Reserve on 20 August 2002 when he attempted to do so on his return visit on 10 September 2002, the difficulty being experienced because of errors made in Mr Shawcross’ original GPS readings. Not only did Dr Kamminga and Dr Pardoe say that this particular allegation of damaged artefacts was simply not verifiable but Dr Kamminga observed that he had been informed by the Mining Companies’ Senior Project Geologist that prior to Mr Shawcross’ inspection of the Game Reserve on 20 August 2002 there had been only one drilling rig operating in the Game Reserve and it had operated with pneumatic rubber tyres and not heavy metal treads (as assumed by Mr Shawcross).

93 Dr Kamminga disputed Mr Shawcross’ opinion that the damaged artefact observed on Lot 23 on the site inspection conducted on 10 September 2002. Dr Kamminga examined with his low magnification stereoscopic microscope the four lithic items discovered by the Applicant on that occasion and concluded that they showed no evidence of ‘fresh breakage’.

94 Dr Kamminga having examined a total of 10 lithic items (collectively discovered by the Applicant on the Court ordered site inspections conducted on 10 and 27 September 2002) concluded that six were Aboriginal objects (and four were not) before expressing the following opinion at paragraph 27 of his affidavit affirmed 14 October 2002:

All fractures forming the surfaces on any of these 6 Aboriginal artefacts (or the non-Aboriginal artefact) are either definitely related to the formation of these items in prehistoric times, or probably so, or consistent with normal post-depositional processes over the last 150 years and not demonstrably related to the Respondent’s exploration mining activities.

95 In reply to Mr Shawcross’ opinion concerning the six damaged stone artefacts that he observed in his sample of 136 taken from the 2,000 collected lithic items Dr Kamminga gives the following evidence:

(i) Mr Shawcross did not show the six lithic items to Dr Kamminga, who was present at the site inspection. Nor did he seek to discuss the matter with Dr Kamminga. Nor did he invite Dr Kamminga to examine the items microscopically. Accordingly Dr Kamminga was unable to verify whether the items were Aboriginal objects, whether the fractures post dated the formation of the lithic item, and if there were apparently recent fractures when and why they might have occurred ( paragraph 37 of his affidavit affirmed 18 November 2002); and

96 Dr Kamminga’s opinion of the lack of demonstration of Mr Shawcross’ opinion that damage to Aboriginal objects was caused by the Mining Companies during exploratory drilling operations in the relevant period is shared by Dr Pardoe and Emeritus Professor Wright. At paragraph 39 of Dr Kamminga’s affidavit affirmed 18 November 2002 he offers the following opinion on causes of breakages to stone artefacts:

In brief, there are many causes of breakages (fractures) on siliceous stone objects, they commonly occur on pieces of flaking debitage during the process of making a stone tool and distributing the flaking debitage around the place with

the tool was made. Fractures continue to occur after initial deposition on and within sediment, and in to modern times. An example of this is set out in the following passage:

“transversely broken microliths are common finds at sites on the eastern seaboard, representing failures during their production or discarded pieces during spear repairs”. (John Mulvaney and Johan Kamminga 1999. ‘Prehistory of Australia’, Allen and Unwin, page 236).

97 Emeritus Professor Wright’s opinions in response to Mr Shawcross’ opinions concerning the “breaks” he was observing in the artefacts sampled from the collection held in safe custody were stated in paragraphs 9 and 10 of his affidavit sworn 14 November 2002 as follows:

9. While not denying that drilling machinery could possibly break artefacts, I understand that the land in general has been farmed and driven over for decades before artefacts were formally collected and removed from the surface during the current exploration operations pursuant to a section 87 permit. I understand that he did not see any stock in the game reserve, so concludes on the balance of probabilities that the breaks were caused by Barrick’s drilling machinery. I comment that for Mr Shawcross’ conclusion to hold it would have to be demonstrated that no stock or machinery were ever on that land before Barrick’s drilling machinery got access. I cannot conclude that any “breaks” allegedly observed by Mr Shawcross should be attributed to Barrick’s drilling activities.

10. Vehicles and treadage of course have the potential to break artefacts. Normally no precautions are taken against this when land is farmed and driven over. By contrast, the precautionary collecting and clearance that is now being done at Lake Cowal is, in my view, a responsible management activity that will for practical purposes eliminate future breakage to relics.

98 In my judgment Emeritus Professor Wright’s opinions have aptly exposed the fundamental problem with Mr Shawcross’ opinion that the Mining Companies in undertaking the exploratory drilling operations in conformity with the protective regime have damaged some of the artefacts that Mr Shawcross has observed in his inspections of Lake Cowal. That problem is accentuated once it is appreciated that Mr Shawcross’ opinion must be held to be essentially based upon his sampling of the collected artefacts (actual or putative or possible). This confinement of the factual basis for his opinion reasonably flows from the fact that he has been unable to produce or relocate the two items discovered by the Applicant on the Game Reserve on 20 August 2002 and my decided preference for Dr Kamminga’s opinion, based upon his microscopic examination, of the one items discovered on the inspection held on 10 September which Mr Shawcross had opined to be recently damaged.

99 My findings that Mr Shawcross’ opinions concerning the three objects discovered by the Applicant during the inspections conducted on 20 August and 10 September 2002 cannot be relied upon, essentially confines the basis for Mr Shawcross’ opinion to his sampling of 136 items of the 2,000 collected lithic items held in safe custody. (It may be that this was the only basis relied upon by Mr Shawcross in any event because of ambiguity in his October affidavit).

100 But this at once exposes Mr Shawcross’ opinion to the obvious problem that it ignores the fact that the collected items are simply unaffected by the Mining Companies’ exploratory drilling operations which only occurred during the relevant period after the items had already been collected and placed in safe custody. In other words even if there be damage to some of the collected items, that damage could not possibly have been caused by the Mining Companies exploratory drilling operations which only took place after the collection process had been completed.

101 I recognise that there remains the possibility that some of the collected items were collected in damaged condition in the course of the monitoring programme after the relevant clearance certificates had been issued by Dr Pardoe and drilling operations were undertaken on the lands the subject of the clearance certificate. But the totality of the evidence of the discovery and collection process and the follow up monitoring programme satisfies me that by far the great bulk of the collected lithic items were collected in the clearance process and what was collected in the monitoring programme were sporadic and isolated items not detected in the clearance process. But the plain fact remains that Mr Shawcross’ ‘grab sample’ of 136 items almost certainly comprised items that had been collected in the clearance process, and as such whatever be the extent of the evidence of damage to the collected artefacts, that damage simply could not have been caused by the Mining Companies’ undertaking exploratory operations in the relevant 5 month period in conformity with the protective regime pursuant to Permit No. 1361 and the Undertakings.

102 But apart from this fundamental logical flaw in Mr Shawcross’ opinion attributing responsibility to the Mining Companies for the damage to some (4%) o th 136 artefacts he sampled from the collection held in safe custody. Mr Shawcross’ opinion wholly fails to come to terms with the known facts and possibilities concerning damage caused to the artefacts before the relevant period of exploratory drilling by the Mining Companies (ie from the end of June to the end of November 2002).

103 Having noted in paragraphs 40 and 44 of his affidavit affirmed 16 October 2002 that Scott Cane’s 1995 Report had noted “an even higher proportion (20%) of damage to the artefact assemblage on Site P1” where such damage was attributed to “…cattle, plough and vehicular damage” and “Disturbance is already occurring with heavy vehicular traffic drilling and rig construction leading to wind erosion of the thin grey top soils”. Mr Shawcross opines (paragraph 44):

“…apportionment of responsibility for heavy machinery damaging artefacts must be shared between the original and present drilling operations”.

104 Not only is this opinion wholly unsubstantiated in terms of differentiating between the original and the present drilling operations but the cross-examination of Mr Shawcross revealed that he did not know the extent or the manner of drilling operations undertaken by North Gold (WA) compared with that undertaken by the Mining Companies (for example North Gold had drilled 450 to 550 holes compared with the less than 100 by the Mining Companies). Nor did Mr Shawcross differentiate between the drilling operations undertaken by the Mining Companies for the period from the end of 2001 until 22 March 2002 (when I granted the first interlocutory injunction) and the drilling operations undertaken by the Mining Companies from the end of June until the end of November 2002.

105 Significantly, Mr Shawcross appears to have overlooked the fact that the drilling undertaken by the Mining Companies in the earlier period was not the subject of any protective regime such as that which governed the second period of drilling activity undertaken in conformity with Permit No. 3161 and the Companies’ Undertaking to the Court. Accordingly the earlier period of exploratory drilling was undertaken at a time when the 2000 lithic items subsequently discovered and collected pursuant to Permit No. 1361 existed on the subject land where the possibility of damage being caused to Aboriginal objects was obvious. This exploratory drilling activity, which is irrelevant to the Applicant’s present allegations of breaches of s90, is to be contrasted with the second period of exploratory drilling undertaken by the Mining Companies in conformity with the protective regime, where the possibility of damage being caused to Aboriginal objects is necessarily confined to those very small numbers of isolated items that were not detected in the course of clearance and monitoring programmes, being a risk of damage to artefacts which Emeritus Professor Wright considers “for practical purposes to be eliminated”.

106 For all the foregoing reasons I am utterly unpersuaded by Mr Shawcross’ opinions attributing to the Mining Companies responsibility for the few artefacts which he observed and considered to be damaged by the drilling operations undertaken during the relevant period (end of June to end of November 2002).

107 Accordingly I find that the Applicant has not substantiated any of his claims of breaches of s90 which claims rely upon Mr Shawcross’ opinion that the mining Companies damaged Aboriginal objects.

108 This leaves for determination the Applicant’s claim based upon the evidence of the single damaged Aboriginal object discovered by the Applicant and his friends in the Game Reserve on 17 November 2002. As I have already noted Dr Pardoe was the only archaeologist to observe this item when the Applicant showed it to him in situ on the Game reserve on 19 November 2002. Dr Pardoe discusses this matter at paragraphs 13 to 28 of his affidavit affirmed 27 November 2002. From his brief examination of the item Dr Pardoe proffers the following opinion at paragraph 20:

During the site inspection I examined the item briefly. In my opinion it is an Aboriginal object being a triangular shaped flake of a dark grey material, which has weathered to a lighter colour on the outside. Its two pieces do fit together and the item has been broken at some time in the past, after it was manufactured. I cannot say when this break occurred. The weathering of the surface is evident when compared to the material exposed by the break indicating the different times of origin.

109 In response to the Applicant’s assertion made to Dr Pardoe that the “item was 3-5 metres from a drill head” and “had been broken by the drill rigs” Dr Pardoe states that the item was not found in a vehicular track and that he could see no evidence, from his examination of the artefact and the ground upon which it was located, that it had been damaged by a vehicle (paragraph 22). Moreover he expressed the opinion that the item “being a distinctive relic” of a size larger then the size of items occasionally found during the monitoring programme, it could not possibly have been missed in the clearance process which had involved himself between 29 – 31 October 2002 (paragraphs 23-25).

110 Finally Dr Pardoe expressed his opinion that the item must have been placed in the position in which it was discovered after the clearance certificate dated 1 November 2002 had been issued by himself and before he was shown the item by the Applicant on 19 November 2002.

111 In my judgment the evidence concerning this particular damaged Aboriginal object does not support a finding that the item was damaged by the Mining Companies’ exploratory drilling activities undertaken during the relevant period. Even if there had been evidence that it was damaged by vehicular traffic (and there was no such evidence) that evidence would not have proved that the Mining Companies’ vehicles and drilling rigs had been responsible because the Game Reserve is a public place frequented by members of the public and their vehicles.

112 For all the foregoing reasons I find that the Applicant has not substantiated any of his claims of breaches of s90 of the NP&W Act.

E. ALLEGATIONS OF BREACHES OF CONDITIONS OF PERMIT NO. 1361

113 The Applicant alleges breaches of Permit No. 1361 by virtue of the fact (not disputed in the evidence) that persons, other than Dr Pardoe to whom the Permit had been issued, were employed in undertaking actions authorised by the Permit, including the physical collection of discovered Aboriginal objects. The evidence establishes that a number of Wiradjuri persons, as casual employees of the Mining Companies, were engaged in both the clearance and monitoring tasks, having received training from Dr Pardoe and/or Dr Kamminga. The evidence also establishes that these Wiradjuri persons, (generally youths or young adults) undertook clearance activities under the physical supervision of Dr Pardoe or of other archaeologists retained by the Mining Companies namely Dr Kamminga, Professor Allen and Dr Hiscock. Finally the evidence establishes that Dr Pardoe was absent overseas for a period of about one month from mid September to mid October 2002. This period occurs after the completion of the Stage 3 clearance programme and before the commencement of he Stage 4 clearance programme.

114 The Applicant’s allegations of breaches of the conditions of Permit No. 1361 depend upon an acceptance of his argument that the Permit authorised Dr Pardoe alone to undertake the authorised works of discovering and collecting Aboriginal objects.

115 Permit No. 1361 was issued to Dr Pardoe. In terms it authorised him “to collect artefacts as required and undertake test pit excavations of selected areas”.

116 The Permit was issued “subject to the General Terms and Conditions covering archaeological permits and consents, as well as those Specific Terms and Conditions pertaining to each type of permit. The Permit is also issued subject to any Special Conditions determined by the Director.”

117 The “General Terms and Conditions” include the following:

1. Permits and Consents are not transferable.

… …

5. The Person to whom the Permit is issued or the Consent granted shall be responsible for the manner in which the work covered by the Permit or Consent is performed.

… …

12. The holder of the Permit or Consent shall consult with the local Aboriginal community regarding the work covered by the Permit or Consent and shall respond to any reasonable request to involve the Aboriginal community in the work.

… …

14. The holder of the Permit or Consent shall keep field records and a copy of all such records shall be lodged with the National Parks and Wildlife Service at the termination of each field work period.

15. The holder of the Permit or Consent shall notify the Dubbo office of the National Parks and Wildlife Service, and shall supply to District officers details of field work programs and results if requested..

118 The ‘Special Conditions’ include the following:

3. The Homestake consultant archaeologist shall, in conjunction with a community representative/s inspect the land in the Application Area that will be utilised for exploration activity to identify all surface relics. This will include all access tracks, drill hole sites, environmental monitoring sites and drill rig pathways.

119 The relevant authorities granted by Permit No. 1361 and the relevant terms and conditions imposed by that Permit are best understood in the light of the relevant provisions of the NP&W Act, namely ss 86 and 87 which are in the following terms:

86 Offences relating to Aboriginal objects

A person, other than the Director-General or a person authorised by the Director-General in that behalf, who:

(a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object,

(b) disturbs or moves on any land an Aboriginal object that is the property of the Crown, other than an Aboriginal object that is in the custody or under the control of the Australian Museum Trust,

(c) takes possession of an Aboriginal object that is in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area,

(d) removes an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or

(e) erects or maintains, in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, a building or structure for the safe custody, storage or exhibition of any Aboriginal object,

except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against this Act.

87 Permits relating to Aboriginal objects

(1) Subject to section 88, the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e).

(2) Terms and conditions imposed by the Director-General under subsection (1) may include terms and conditions relating to the proper restoration of land disturbed or excavated.

(3) A failure to comply with a term or condition authorised by subsection (2) shall be deemed to be a contravention of section 86.

(4) The Director-General may, at any time:

(a) revoke a permit issued under this section, or

(b) vary the terms and conditions of such a permit.

120 The offence created by s86 is further explained by s175 which is in the following terms:

175 General offence and penalties

(1) A person who:

(a) does that which by this Act (Parts 2, 3 and 5 excepted) the person is forbidden to do, or

(b) fails or neglects to do that which by this Act (Parts 2, 3 and 5 excepted) the person is required or directed to do,

is guilty of an offence against this Act.

(2) A person guilty of an offence against this Act, whether pursuant to subsection (1) or otherwise, is, where no other penalty is prescribed, liable to a penalty not exceeding 100 penalty units, in the case of an individual, or 200 penalty units in the case of a corporation.

121 It should be noted at the outset that if the Applicant’s construction of the authorities granted by Permit No. 1361 be held to be correct, ie if those authorities are only applicable to Dr Pardoe, then all of the persons (other than Dr Pardoe) who undertook any of the actions authorised by the Permit would be exposed to the criminal liability imposed by s86 of the NP&W Act, If this be the case it may be a further consequence that Dr Pardoe, who is the only relevant person charged by the Applicant with breaching the conditions of the Permit, would not himself be liable. This would be a very anomalous outcome and would at least indicate that the proceedings have not been properly constituted, so far as necessary and proper parties are concerned, even if the only relief obtainable was bare declarations.

122 However upon the proper construction of Permit No. 1361 I do not think that the authorities or authorisations granted by the Permit are limited to Dr Pardoe personally, or operate so as to require Dr Pardoe personally to undertake all relevant actions.

123 The Applicant’s reliance upon General Condition 1 (“Permits and Consents are not transferable”) does not mandate or support the construction of the Permit contended for by the Applicant.

124 The plain effect of General Condition 1 is that Dr Pardoe could not transfer the Permit to another archaeologist or another person. But this restriction does not mean that Dr Pardoe is not permitted to employ assistance in undertaking the authorised activities. The legitimacy of employing assistance is implicitly recognised by General Condition 5 which imposes upon the person to whom the Permit is issued “responsibility for the manner in which the work covered by the permit…is performed”.

125 Moreover the construction contended for by the Applicant would impose unreasonable and unnecessary limits on the authorisations granted by the Permit for no sound reason and probably render the Permit practically unworkable. In this respect it needs to be noted that Permits issued under s87 are not limited to archaeologists as a class.

126 Finally as I have earlier mentioned the construction pressed by the Applicant would, if adopted, expose the innocent persons, such as the young Wiradjuri persons employed to assist Dr Pardoe, to the criminal liability imposed by s86.

127 It is significant that the Director-General did not support the Applicant’s interpretation of Permit No. 1361.

128 Finally it is to be noted that Dr Pardoe informed the Dubbo Office of the National Parks and Wildlife Serve by letter dated 25 June 2002 of the manner in which the Phase 1 clearance had been undertaken, including disclosing the names of the Wiradjuri persons who had participated.

129 If the methodology employed in the clearance activity that was fully disclosed by Dr Pardoe’s letter had appeared to the Service to involve some violation of the Permit it is reasonable to expect that the Service would have responded appropriately to the advice from Dr Pardoe.

130 The Applicant sought to make much of the fact that the written inventory of collected Aboriginal objects that had been made available to him by the Mining Companies contained errors or omissions in some of the detail eg. Dr Pardoe appears to be mentioned as collecting objects at times when he was absent overseas.

131 However the inventory was a working draft document, which had not been completed. (Completion awaits proper archaeological assessment of the lithic items collected). The Permit does not made any requirements for a working inventory to be maintained. Rather it imposes obligations for a final report.

132 The Applicant expressed consternation that the inaccuracies and deficiencies in the working draft inventory was symptomatic of a lack of care and concern and value by the Mining Companies and their retained archaeologists for the integrity of the collection. This is not matter that is relevant to the Applicant’s claim that the conditions of Permit No. 1361 have been breached by virtue of the engagement of persons other than Dr Pardoe to assist in the clearance and collection activities authorised by the Permit. However there is no reason to doubt that the Mining Companies and their retained archaeologists will not act otherwise than to conscientiously complete the task of assessing and reporting upon the collection of Aboriginal objects in accordance with their obligations under Permit 1361 (which it may be noted have been expanded by additional obligations imposed under later s87 Permit and s90 Consent).

133 Finally I should note the Applicant’s continuing concern that it is not culturally appropriate for young Wiradjuri persons to be casually employed to assist in the clearance and monitoring programmes. The Applicant also raised the question of whether the engagement of those Wiradjuri persons fulfilled the requirements of Special Condition 3 of Permit No. 1361. That condition required inspection of the affected lands by the Mining Companies “consultant archaeologist” in conjunction with “ a community representative”. For example the Applicant noted that there was no evidence that the Wiradjuri Council of Elders had nominated as its representatives any of the young Wiradjuri persons who had been casually employed by the Mining Companies.

134 The Permit does not qualify who is “a community representative” and I see no valid reason for supposing that the Wiradjuri persons engaged in the clearance and monitoring programmes were other than relevantly qualified as a community representative.

135 For all the foregoing reasons I hold that the Applicant has not substantiated his allegations of breaches of the conditions of Permit No. 1361.

F. ALLEGATION OF BREACH OF THE EP&A ACT

136 The Applicant alleges that the construction or installation by the Mining Companies of the drilling fluids sump and decant system on Lot 23 involved a breach of the EP&A Act in as much as no development consent or approval under Part 5 had been granted for that development.

137 Furthermore the Applicant alleges that this development caused damage to Aboriginal objects.

138 No evidence was adduced in the Applicant’s case to support his claim that the development caused damage to Aboriginal objects. That the facts are to the contrary of this allegation is established by the evidence of Mr Bennetts’ contained in the following paragraphs 17 to 21 of his affidavit sworn 13 November 2002, which is corroborated by Dr Kamminga’s evidence (Paragraphs 48 to 52 of his affidavit affirmed 18 November 2002):

17. The Applicant alleges in paragraph 18 of the Amended Points of Claim that “artefacts” were disturbed in the construction of the drilling fluids sump and decant system.

18. This is to my knowledge factually incorrect.

19. The fluids tanks and other parts of the drilling sump and decant system were specifically constructed in an area that had been closely inspected by Dr John Kamminga and subsequently by Dr Colin Pardoe, in each case along with Wiradjuri assistants, prior to its construction and which was certified by Dr Pardoe as being clear of Aboriginal objects. The sump facility was constructed with minimal soil disturbance. Soil was trucked in to construct the protective bund. Dr Pardoe and/or a Wiradjuri field assistant monitored the construction to ensure that no Aboriginal objects were disturbed. No lithic items were removed or collected for the purposes of this archaeological inspection.

20. The initial location for the construction of the drilling fluids sump and decant system was in fact changed as a result of this archaeological inspection as some lithic items were found on the originally nominated site. I required this archaeological inspection precisely in order to ensure that a location was selected for the drilling fluids sump and decant system was free of Aboriginal objects.
21. I gave directions for the construction of the drilling fluids dump facility and confirm that to my knowledge no Aboriginal objects were found during its construction. My directions to the archaeologists and workers involved in the construction of the drilling fluids sump were that if any Aboriginal objects had been found I was to be informed and work was to cease. Those involved in the construction have reported back to me and confirmed that no Aboriginal objects were found during the construction.

139 In his same affidavit Mr Bennetts gives the following evidence at paragraphs 12 and 14 concerning the necessity to the drilling program of the drilling fluids sump and decant system:

12. The drilling fluids sump and decant system is a necessary part of Barrick’s drilling program. A facility to supply, decant and dispose of drilling fluids used in the drilling process is in my experience necessary for any diamond drilling program of this kind.

… …

14. The essential purpose and operation of the drilling fluids sump and decant system may be briefly described. The tanks of the drilling sump contain water, lubricating additives and drill cuttings. When the drilling rigs are in operation clean fluid is pumped via a pipeline to each drilling rig to lubricate the drill rods and drill bit during the drilling operation. Thos fluid containing suspended silt and solids from the drilling operation is then pumped back to the sump and decant system where it is settled to remove the silt and solid in the form of a sludge. The clean fluid is then pumped back to the drilling rigs to recommence the cycle.

140 As earlier noted the Mining Companies resist the Applicant’s allegation of breach of the EP&A Act principally by reliance upon s381 of the Mining Act 1992. They also raise discretionary defences but it is not necessary to consider them.

141 The written submissions advanced on behalf of the Mining Companies included the following:

84. It is clear from Mr Bennetts’ affidavit that the drilling fluids sump and decant system is an element of Barrick’s current drilling program. That drilling program is carried out pursuant to Exploration Licence No. 2865 granted under the Mining Act 1992 and held by the Second Respondent.

85. Section 381 of the

has the effect of ousting the operation of the

in respect of a person who is authorised to carry out exploration activities pursuant to the

Section 381 states:

381 Prospecting unaffected by Environmental Planning and Assessment Act 1979

If a person is authorised under this Act to prospect on any land:

(a) nothing in, or done under, the Environmental Planning and Assessment Act 1979 or an environmental planning instrument operates so as to prevent the person from carrying on prospecting operations on that land, and

(b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the person.

86. The verb “prospect” is defined in the Dictionary to the Mining Act as follows:

means to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A.

87. The expression “prospecting operations” is defined in the Dictionary:

means operations carried out in the course of prospecting.

88. The installation and operation of the drilling fluids sump and decant system, being required for the operation of the drill rigs authorised under Exploration Licence No. 2865, is not something which requires development consent under Part 4 or assessment under Part 5 of the

. It is part of “prospecting operations” and as such is exempt from the requirements under the

by reason of section 381 of the

142 In my judgment this submission is correct and I hold that s381 provides a full answer and defence to the Applicant’s allegation of breach of the EP&A Act.

143 Accordingly I hold that the Applicant has not substantiated his allegation of breach of the EP&A Act.

144 The hearing of the proceedings focussed exclusive attention on lot 23 and the Game Reserve. It was to this land (plus lot 24) that Permit No. 1361 applied and the Companies’ Undertakings to the Court applied.

145 To the extent that the Applicant’s claims in proceedings 40010 of 2002 alleging breaches by the Mining Companies of s90 are expressed to apply to lands other then lot 23 and the Game Reserve the Applicant adduced no evidence in support of these allegations. Accordingly these allegations, which were denied by the Mining Companies, have not been substantiated.

H. CONCLUSIONS AND ORDERS

146 For all the foregoing reasons I hold that the Applicant has not substantiated any of his allegations of breaches of the NP&W Act and the EP&A Act. No relief is therefore obtainable. Had declaratory relief been available, it would have been withheld in the exercise of judicial discretion for the reasons I have earlier stated.

147 Accordingly I make the following orders in each proceeding:

1. Class 4 application be dismissed.

2. Exhibits be returned.

3. Question of costs be reserved.

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