Williams v Director General National Parks and Wildlife Service

[2002] NSWLEC 231

Land and Environment Court

of New South Wales

CITATION:

Williams v Director General National Parks and Wildlife Service and Ors. [2002] NSWLEC 231

PARTIES:

APPLICANT:
Williams

FIRST RESPONDENT:
The Director General National Parks and Wildlife Service

SECOND RESPONDENT:
Barrick Australia Limited Acn 007 857 598

THIRD RESPONDENT:
Barrick Gold of Australia ACN 008 143 137

FOURTH RESPONDENT:
Dr Colin Pardoe

FIFTH RESPONDENT:
Dr J Kamminga

FILE NUMBER(S):

40964 of 2002

CORAM:

Bignold J

KEY ISSUES:

Injunctions and Declarations - Interlocutory Relief :- Challenge to validity of Permit and Consent issues pursuant to National Parks and Wildlife Act in respect of Aboriginal object situate on site of proposed Gold Mine.

LEGISLATION CITED:

National Parks and wildlife Act 1974 s 87 and s 90

CASES CITED:

DATES OF HEARING:

29/11/2002

DATE OF JUDGMENT:

12/03/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, Agent

SOLICITORS
N/A

1st RESPONDENT:
Ms A Pearman, Barrister
2nd & 3rd RESPONDENTS:
Mr N Williams SC
4th & 5th RESPONDENTS:
Mr M Brennan

SOLICITORS:
1st 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

3 December 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

DR COLIN PARDOE

Fourth Respondent

Dr J Kamminga

Fifth Respondent

JUDGMENT

Bignold J:

1. For more detailed reasons to be published, 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.

2. 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.

3. In so concluding that a case for balanced interim relief is made out, I have concluded as follows:

(i) the Applicant’s challenge to the validity for the s 87 Permit and s 90 Consent raises a serious question to be tried;

(ii) unless some interim relief were granted, the Applicant is likely to suffer irreparable damage for which no alternative relief or compensation is available; and

(iii) the balance of convenience favours the grant of the interim relief that I have delineated.

4. I shall publish as soon as possible more comprehensive reasons for my decision in this case.

5. For all the foregoing reasons, I make the orders as set forth in the minute attached.