Williams v Director General National Parks and Wildlife Service

[2003] NSWLEC 249

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Land and Environment Court

of New South Wales

CITATION:

Williams v Director General National Parks and Wildlife Service And Ors [2003] NSWLEC 249 revised - 22/10/2003

PARTIES:

APPLICANT:
Williams

RESPONDENTS:
Director General National Parks and Wildlife Service And Ors

FILE NUMBER(S):

40964 of 2002

CORAM:

Bignold J

KEY ISSUES:

Injunctions and Declarations - Interlocutory Relief :- acceptance by Court of undertaking pending anticipated delivery of reserved judgment in three days time.

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

29/11/2002

EX TEMPORE
JUDGMENT DATE :

11/29/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, Agent

SOLICITORS
N/A

2ND-3RD RESPONDENTS:
Mr N J Williams SC
4TH-5TH RESPONDENTS:
Mr M Brennan

SOLICITORS
FIRST RESPONDENT
National Parks and Wildlife Service
2ND-5TH RESPONDENTS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 40964 of 2002

Coram : Bignold J

29 November 2002

NEVILLE WILLIAMS

Applicant

v

THE DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE

First Respondent

BARRICK AUSTRALIA LIMITED ACN 007 857 598

Second Respondent

BARRICK GOLD OF AUSTRALIA ACN 008 143 137

Third Respondent

COLIN PARDOE

Fourth Respondent

JUDGMENT

1. This is an application for interlocutory injunction in proceedings which were filed in Court yesterday and by consent of the parties were heard urgently today. The relief claimed in the present proceedings on an interlocutory basis is that the second and third Respondents (the mining companies) be restrained from acting upon a s 87 permit and s 90 consent issued by the first Respondent (the Director General National Parks and Wildlife Service) on Wednesday of this week.

2. The case has been presented with commendable haste in the course of the day but nonetheless involves extensive documentary evidence as well as affidavit evidence, the deponents not being cross-examined. It became apparent to me in the course of the hearing that the manner in which the case was presented (by formally reading extensive affidavits and more significantly formally tendering documents ranging into hundreds if not thousands of pages) could not be intelligently comprehended by me in the course of the hearing and I will require time to read the documentary material in its extensive format.

3. It was for that reason that in the course of argument earlier this afternoon, I inquired of Senior Counsel representing the mining companies as to whether, on the assumption that I would require some few days to consider the claim to relief, they would be prepared to undertake not to carry out exploratory drilling activity on lands on which authorised activity by the concurrent and related s 87 permit and s 90 consent applied.

4. In the result, the second and third Respondents have proffered undertakings to the Court not to carry out or cause to be carried out any exploration drilling on the travelling stock reserve until 2.00 pm next Tuesday 3 December 2002 which is the time and date that I have nominated for delivery of my reserved judgment. Similarly, they undertake not to bring any of the drill rigs onto that travelling stock reserve until that time and not to carry out or cause to be carried out any exploration drilling on Lot 23, the game reserve and Lot 24 until that time (except for exploration activity which is carried out pursuant to clearances that have been issued by Dr Pardoe pursuant to the s 87 permit No 1361 issued in May 2002, the validity of which was unsuccessfully impugned by the present Applicant in earlier proceedings).

5. The Applicant has urged the Court to not permit any collection activity pursuant to the permit issued last Wednesday at all before judgment on the interlocutory injunction claim (that being the distinctly preferred course and submission of the Applicant) or in the alternative to limit such collection activity to that part of the travelling stock reserve that is adjacent to the game reserve which includes land on which the proposed and approved open mine pit exists.

6. The mining companies have given notice as required by special conditions of the s 87 permit issued last Wednesday to Aboriginal community groups advising of the grant of the permit and the associated s 90 consent and of the fact that the permit requires notification of relevant Aboriginal community groups with an invitation to observe or participate in the collecting or recording of Aboriginal objects which are to be collected as representative samples of Aboriginal objects on the land.

7. That written notice, which has also been given to the Applicant in his capacity as Chairman of the Mooka Traditional Owner’s Council (which is also referred to in the special conditions of the permit) indicates that it is proposed on 2 December 2002 to commence the process of archaeological inspection and collection of Aboriginal objects on lands described as parts of Lot 23, Lot 24, the game reserve and the travelling stock reserve. The letter of notification includes a map showing the drill lines which have already been cleared pursuant to the action taken under the earlier permit No 1361 and the additional sections of the lines to be cleared and still outstanding.

8. It appears that by giving this notice to the relevant Aboriginal community groups the mining companies intend to operate in relation to hitherto uncleared sections of the drill lines on the game reserve, Lot 23, Lot 24 and the travelling stock route in reliance upon the s 87 permit issued last Wednesday and not the permit issued in respect of some of those lands, No 1361, issued in May of this year.

9. The challenge to the validity of the s 87 permit and s 90 consent issued on Wednesday of this week is wide ranging based upon several conventional grounds for administrative law challenge. As I have said, I remain of the view that I need some little time to consider the full gamut of the very extensive documentary evidence which has been hurriedly presented to the Court today and I also need time to consider the bases of claim set out in an extensive pleading ranging over some eight pages together with the submissions made on behalf of the Director General and the mining companies in resisting those claims.

10. By accepting the undertakings, I am assured that the absence of exploratory drilling, (save for those sections in respect of which clearance action under permit No 1361 is already set in train) will preserve the position, the subject of this claim, until judgment so far as the challenge to the s 90 consent is concerned.

11. So far as the challenge to the s 87 permit is concerned, I am satisfied that the activity proposed as notified in the recent letter to the various Aboriginal community groups that I have referred to, will not involve any irreparable damage or harm pending my judgment anticipated at 2.00 pm on Tuesday of next week. In so concluding I am well aware of the Applicant’s sense of grievance that the collection of Aboriginal objects is itself the inflicting of damage or harm. That same argument was advanced but rejected in my judgment in the earlier proceedings and I have not been persuaded to depart from that view. In so concluding, I am not to be taken to be doubting the sincerity of Mr Williams’ belief that that collection activity does violate the integrity of those Aboriginal objects in situ, and I respect that opinion as I noted in my judgment in relation to the challenge to permit No 1361 which failed, as I have earlier indicated.

12. I am satisfied that if my judgment on Tuesday next is in favour of the Applicant, whatever has happened in relation to collection of representative samples as a result of the proposed action on Monday and Tuesday of next week will involve no irreparable harm and can be the subject of appropriate remedial orders.

13. It is for those reasons that I accept the undertakings proffered by the second and third Respondents and will not interfere by interim injunction at this stage in the action proposed for Monday and Tuesday in the collection process as already notified, and am satisfied that no injustice or prejudice will be caused to any of the parties by my reserving judgment until 2.00 pm on Tuesday of next week, by which time I will have been able to give the respective competing cases the careful consideration that they warrant.

14. Accordingly, I reserve my decision and adjourn the proceedings to 2.00 pm on Tuesday 3 December.