Williams v Director General of National Parks and Wildlife Service

[2002] NSWLEC 235

Land and Environment Court

of New South Wales

CITATION:

Williams v Director General National Parks and Wildlife Service and Ors. [2002] NSWLEC 235

PARTIES:

APPLICANT:
N Williams

FIRST RESPONDENT:
The Director-General of The 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 objects situate on site of proposed Gold Mine.

LEGISLATION CITED:

National Parks and wildlife Act 1974 s 87 and s 90

CASES CITED:

Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 118;
Ellison v Warringah Shire Council (1985) 55 LGERA 1;
Hot Holdings Pty Ltd v Creasy (2002) HCA 51 (14 November 2002);
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507;
Williams v Director-General National Parks and Wildlife Service (2002) NSWLEC 91;
Williams v Director-General National Parks and Wildlife Service and Ors (2002) NSWLEC 154;
Yanner v Eaton (1999) 2001 CLR 351

DATES OF HEARING:

29/11/2002

DATE OF JUDGMENT:

12/06/2002

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

5 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

PUBLICATION OF REASONS FOR JUDGMENT

Bignold J:

A. INTRODUCTION

1. I now publish detailed reasons for my decision pronounced on Tuesday 3 December which was accompanied by abbreviated reasons in the anticipation that more detailed reasons would soon be made available.

2. Last Friday (29 November) the Court heard an urgent application for an interlocutory injunction restraining all Respondents (except for the first Respondent) from acting in reliance upon a s 87 Permit and a s 90 Consent issued pursuant to the provisions of the National Parks and Wildlife Act 1974 (the NP&W Act) on Wednesday last week (27 November 2002) by Mr Korn, the Director Western, as an authorised delegate of the Director-General. The Permit and the Consent relate to Aboriginal objects (so far known to comprise artefactual stone materials) situate on lands comprising proposed Mining Lease Area 45 (having an area of some 20 square kilometres) and associated lands involved in the Lake Cowal Gold Project, in respect of which the second and third Respondents are conducting exploratory drilling on land comprising the proposed open pit.

3. The claim to interlocutory relief arises in class 4 proceedings that were filed last Thursday (28 November 2002) challenging the validity of the said Permit and Consent and the original versions of the Permit and Consent that had been issued on the previous Saturday (23 November 2002), again by Mr Korn, as authorised delegate. The urgency of the claim was the giving of notice by the second and third Respondents to relevant Aboriginal Communities (including the Applicant) of their intention to commence to implement the s 87 Permit and s 90 consent on Monday 2 December 2002. At the conclusion of the hearing, I reserved my decision until 2 pm 3 December 2002, accepting the second and third Respondents’ undertakings not to commence any drilling activities on the land until my judgment. For reasons I announced, I refused, pending my judgment, to restrain the second and third Respondents from acting upon the s 87 Permit in the manner that they had notified to the Aboriginal communities.

4. The reasons and circumstances for the re-grant or re-issue of the s 87 Permit and s 90 are contained in a memorandum dated 26 November from the Director Cultural Heritage to Mr Korn (being part of the extensive documentary material (Exhibit 1) adduced at the interlocutory hearing).

5. Following the re-grant or re-issue of the s 87 Permit and the s 90 Consent, another authorised delegate of the Director-General notified on 28 November the Fourth and Fifth Respondents, being recipients of the original version of the s 87 Permit, that it had been revoked pursuant to the NP&W Act, s 87(4).

6. No revocation action was taken in respect of the originally issued s 90 consent apparently because it was regarded as being ineffective, either because of some obvious deficiencies in it on its face, or because of its entire dependency upon the related s 87 Permit which has since been revoked. Indeed, Counsel for the first Respondent in her submissions, accepted that the original version of the s 90 Consent was probably invalid ab initio. In these circumstances where there is no reliance placed upon the original version of the s 90 Consent, I shall ignore it as being irrelevant as an operative consent in the present proceedings.

7. The Applicant’s present claim to interlocutory relief based upon the asserted invalidity of the related s 87 Permit and s 90 consent, raises similar issues to those raised in earlier proceedings between the same parties in which the Applicant failed to obtain interlocutory relief and also failed at the final hearing in his challenge to the validity of another s 87 Permit that had been issued by another authorised delegate of the Director-General on 23 May 2002. Unlike the present case, that Permit was not related to any s 90 consent authorising the destruction of Aboriginal objects, and required the collection and safe custody of all Aboriginal objects likely to be affected by the proposed resumption of exploratory drilling which activity had previously been enjoined by interlocutory and permanent injunctions granted by this Court in earlier proceedings between the same parties. I can conveniently refer to the judgments delivered in that earlier litigation particularly because they set forth the relevant principles to be applied by the Court in adjudicating upon a claim to interim injunction to restrain a person from acting in reliance upon a s 87 Permit in support of a challenge to the validity of that Permit. I refer in particular to my judgment refusing interlocutory relief (Williams v Director-General National Parks and Wildlife Service (2002) NSWLEC 91) and to the Court of Appeal’s judgment dismissing the Applicant’s application for leave to appeal against that decision—see (2002) NSWCA 176.

8. For completeness, I also refer to my later judgment on the final hearing dismissing the Applicant’s challenge to the validity of the earlier s 87 Permit: see Williams v Director-General National Parks and Wildlife Service and Ors (2002) NSWLEC 154.

9. In referring to those earlier decisions, I also conveniently adopt by reference the litigation history therein referred to, which the Applicant has instituted in this Court against the second and third Respondents seeking to restrain their undertaking exploratory drilling activity in respect of the Lake Cowal Gold Mine Project. That history significantly contributes to the proper contextualisation of the present claims (both interlocutory and final) that have arisen in this, the most recent phase of the litigation. A brief conspectus of the chain of litigation reveals that the Applicant’s claims that exploratory drilling activity being undertaken by the second and third Respondents at the approved Lake Cowal Gold Mine Project pose a real threat to Aboriginal objects situate at Lake Cowal have been maintained in response to the changing legal scenarios governing that activity which was originally undertaken without any authorising s 90 Consent, thereafter with the benefit of a s 87 Permit authorising the discovery, collection and safe custody of all Aboriginal objects likely to be at risk and ultimately with the benefit of the related s 87 Consent and s 90 Consent granted last week and where the Applicant’s successive reactions to the changing legal scenarios have been to challenge the validity of the earlier s 87 Permit and the current s 87 Permit and s 90 Consent.

10. Indeed, it is fair to observe at the outset that the Applicant has almost continuously throughout the year indefatigably devoted and exerted himself (a) to conducting litigation (both in this Court and in the Federal Court—in the latter bringing proceedings under the Commonwealth Native Title Act); (b) to making multiple representations to the Director-General urging him to protect the Aboriginal objects (c) to making Ministerial representations (both State and Federal) and (iv) in obtaining Parliamentary representations—all such exertions being directed to one common end, namely his quest to protect Lake Cowal, which he believes to be a “sacred heartland” for the Wiradjuri peoples, from the present exploratory activities of the second and third Respondents which are a likely prelude to the establishment and operation of an Open Cut Gold Mine at Lake Cowal, being a development that was approved by the Minister for Urban Affairs and Planning on 26 February 1999 pursuant to cl 8 of State Environmental Planning Policy No 34—Major Employment Generating Industrial Development (Exhibit B/2).

11. The Applicant’s case (as with his earlier case challenging the validity of the earlier s 87 Permit) has been presented with remarkable industry and alacrity by the Applicant (and his authorised agent, Mr Oshlack) who only obtained informal discovery of a massive quantity of official files from the Director-General in the past week. Moreover, those files have in the past week been growing almost daily with the re-issue of the s 87 Permit and s 90 Consent occurring last Wednesday and the revocation of the original version of the s 87 Permit occurring on Thursday.

12. As with his earlier challenge to the s 87 Permit (1361) issued on 23 May 2002, the Applicant’s present case is based upon conventional administrative law grounds (eg allegations of denial of procedural fairness, defeat of legitimate expectation and bias by the decision maker etc). It is supported by extensive documentary evidence (principally the official files of the National Parks and Wildlife Service) and affidavits, principally of the Applicant.

13. The Applicant filed Points of Claim in support of his case which allege and particularise many administrative law grounds for challenging the validity of the s 87 Permit and the s 90 Consent.

14. The Director-General tendered some additional documentary evidence and the second and third Respondents tendered some additional documentary evidence and a number of affidavits (principally by its three consultant archaeologists) on the question of the balance of convenience.

15. The fourth and fifth Respondents who are two of the consultant archaeologists retained by the second and third Respondents throughout 2002 following the commencement in January of the original proceedings brought by the Applicant against the Mining Companies, and who are the archaeologists to whom the s 87 Permit (No 1468) was issued last Wednesday, have filed submitting appearances in the interlocutory proceedings, save as to any order for costs.

16. Although the interlocutory relief is only claimed against the second and third Respondents on the hearing of the case, the Director-General has played a leading role in resisting the Applicant’s claims that the s 87 Permit and the s 90 Consent are invalid. (This was also the case in the earlier proceedings challenging the validity of the earlier s 87 Permit.) As earlier mentioned, the second and third Respondents opposed the grant of an interlocutory injunction, but their case has focussed more on the question of the balance of convenience, leaving it principally to the Director-General to resist the claims that the Permit and the Consent are invalid.

17. I propose to separately consider each of the three issues that need to be considered in adjudicating upon the Applicant’s claim to interlocutory injunction founded upon his challenge to the validity of the Permit and the Consent: see Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 118. These issues are—

(i) Does the Applicant’s claim of invalidity of the s 87 Permit and s 90 Consent raise a serious question to be tried at the final hearing?

(ii) Will the Applicant suffer irreparable damage unless an interlocutory injunction is granted?

(iii) Does the balance of convenience favour the granting or the withholding of the interlocutory injunction?
B. IS THERE A SERIOUS QUESTION TO BE TRIED?

18. The Applicant’s challenge to the validity of the s 87 Permit and the s 90 Consent propounds some nine separate grounds which are well established in administrative law or the law of judicial review. Each of these grounds is separately particularised in the Amended Points of Claim, a copy of which is annexed hereto and marked “A”. The several grounds of invalidity of the decision of the Director-General’s delegate, Mr Korn, to issue the s 87 Permit and s 90 Consent, are as follows—

(i) denial of procedural fairness or breach of the rules of natural justice (par 7 of Amended Points of Claim);

(ii) failure to take into account relevant considerations (par 8);

(iii) taking into account irrelevant considerations (par 8);

(iv) bias against the Applicant (par 10);

(v) decisions are manifestly unreasonable (par 11);

(vi) disappointment of a legitimate expectation held by the Applicant (par 14);

(vii) lack of evidence to support opinion that the area was not socially or culturally significant for the Wiradjuri peoples (par 15);

(viii) error of law in failing to appreciate the requirements of the Commonwealth Native Title Act 1993 (par 16);

(ix) ultra vires in that the s 87 Permit and s 90 Consent were re-issued without there being a supporting application made therefor (par 17).

19. As I have earlier noted, the Applicant’s case relied upon voluminous documentary evidence (principally the official files of the National Parks and Wildlife Service) and upon a number of affidavits (principally sworn by the Applicant).

20. As I have already noted, many of the grounds of invalidity asserted by the Applicant are very similar to the grounds that were asserted in the Applicant’s unsuccessful challenge to the validity of the earlier s 87 Permit. In my interlocutory judgment in that case refusing interlocutory relief I held that the Applicant’s case raised serious questions to be tried. That holding was not challenged in the subsequent application for the leave to appeal that decision to the Court of Appeal.

21. With the benefit of hindsight provided by the judgment on the final hearing in which I dismissed the Applicant’s challenge to the validity of the earlier s 87 Permit it is clear that the Applicant’s case did raise serious questions which were finally adjudicated upon in the judgment on the final hearing.

22. My evaluation of the Applicant’s present case challenging the validity of the s 87 Permit and the s 90 Consent, based upon the amended Points of Claim as particularised. and my assessment of the evidence adduced at the hearing is that it too raises serious questions to be tried and is indeed a stronger case than the case that was advanced in support of the Applicant’s claim to interlocutory relief in respect of his challenge to the validity of the earlier s 87 Permit. I have expressed myself in this relative and compendious fashion which I think will be a meaningful evaluation of the nature and strength of the Applicant’s case, for the parties who were also engaged in the earlier litigation. I of course recognise that the evaluation, at the stage of entertaining a claim to interlocutory injunction, of the nature and strength of the Applicant’s case simply requires an evaluation of that case. This I have done, but for reasons of economy and convenience, I have expressed my evaluation by reference to, and with the benefit (which is enjoyed by all of the present parties) of the hindsight provided by the concluded previous litigation challenging the validity of the earlier s 87 Permit.

23. In concluding that the Applicant’s present challenge to the validity of the s 87 Permit and s 90 Consent appears to present a stronger case than the case presented in support of a claim to interlocutory injunction challenging the validity of the earlier s 87 Permit, I am referring to a number of matters raised by the present challenge which were not raised in the challenge to the earlier s 87 Permit. These particular matters are—

(i) the allegation of bias against the decision maker, Mr Korn;

(ii) the significance to the decision of the views on the application for the s 87 Permit and s 90 Consent communicated to the Director-General by the Wiradjuri Council of Elders, the registered Native Title Claimants to lands at Lake Cowal, opposing the grant of the s 87 Permit and s 90 Consent;

(iii) the unresolved (in the sense of being not yet determined) separate pending applications (i) to have the relevant lands at Lake Cowal declared an “Aboriginal Place” pursuant to the NP&W Act, s 84 ; and (ii) for the relevant lands at Lake Cowal to be the subject of an Emergency Declaration pursuant to the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s 9.

24. I shall now separately consider each of those three matters according to the Points of Claim and the supporting evidence presented at the hearing—
(i.) Allegation of Bias against the Decision-Maker

25. Whereas the documentary evidence in all of its voluminousness is unlikely to change between now and the final hearing there are some elements of the affidavit evidence relied upon by the Applicant (which the Respondents have not had the opportunity to test either by the process of cross-examination or by evidence in rebuttal) which affidavit evidence, taken in combination with the documentary evidence appears to provide cogent support for the claim of bias by the Director-General’s delegate, Mr Korn. I am here referring to the affidavits of Mr Ron Gardner sworn 28 November 2002 and the two affidavits of the Applicant sworn 29 November 2002, when they depose to what occurred and in particular what was said by Mr Korn at a meeting held at the Lake Cowal Gold Project site on 14 October 2002. That was a meeting that had been arranged between the Applicant and Mr Korn for the purpose of the Applicant making known to the Service his case against the grant of the s 87 Permit and s 90 Consent that had been applied for by and on behalf of the second and third Respondents on 16 August 2002 and was at the date of the meeting still under consideration by the Service.

26. The relevant passages in Mr Gardner’s affidavit are as follows:

4. On the 14 October 2002, I attended a meeting with Neville Williams, other members of the Mooka Traditional Owners Council, David Johnson and Ellie Golbert, with Terry Korn and Allen Hutchins of the NPWS. The meeting was held under a red gum tree on the Game Reserve at Lake Cowal.

5. At the meeting I asked Terry Korn and Allan Hutchins with words to the effect If this place is destroyed who will take responsibility for the deaths that will come from our Peoples’ belief in our own culture and spirituality? Terry Korn and Allan Hutchins agreed with words to the effect”, We will share it around the government agencies

6 I said to Mr Korn and Mr Hutchins with words to the effect – We want the Director-General, Brian Gilligan, to be sitting in your place so his spirit will be present and the full story about the significance of Lake Cowal can be told. Terry Korn said words to the effect OK.

7. During the meeting a large willy willy was heading in our direction and Mr Korn made the comment with words to the effect Here is a demonstration of Aboriginal spirituality. Here’s a bit of culture in action. I replied with words to the effect – Do you know about it then? He replied – I know about these things because I was hooked up with the Hindmarsh Island case and Lake Victoria.

8. At the end of the meeting I invited Mr Korn to walk with Mr Williams and myself towards the centre of the Lake. When we stopped, Mr Korn said to us with words to the effect – It’s my job to get the s 90 Consent to Destroy signed for Lake Cowal.

9. On our return from the walk we rejoined the rest of the group and walked towards the cars. At the cars Mr Korn said to the group with words to the effect – it took me four years to get the Consent to Destroy for Lake Victoria because I wanted it done properly.

27. In one of his two affidavits sworn on 29 November 2002, the Applicant states as follows:

2. I have read the affidavit of Ron Gardner of the 28 November 2002.

3. I refer to paragraph 8 of that Affidavit and say that it is a true and correct statement of events that occurred on October 14 2002.

28. The Applicant has deposed in two other affidavits (one sworn on 28 October 2002 and the other sworn on 29 November 2002) to what had occurred at the on-site meeting at Lake Cowal that he had on 14 October 2002 with Mr Korn and Mr Hutchins (both officers, being from the Service’s Western Office situate at Dubbo).

29. Paragraph 28 of the Applicant’s October affidavit corroborates Mr Gardner’s evidence of what was said by the Service Officers in response to Mr Gardner’s question concerning responsibility for any deaths of Aborigines that might come from violation of Aboriginal spirituality.

30. Senior Counsel for the second and third Respondents, in his submission, noted that the Applicant had not complained to the Director-General following the meeting held on 14 October 2002 about what Mr Korn was later claimed by Mr Gardner and the Applicant to have said about “his job to get the s 90 Consent to destroy signed for Lake Cowal”. (The Applicant had complained to the Director-General following that meeting of the fact that the Service Officers had attended the meeting without wearing any official Service uniform and that their appearance had been somewhat intimidating to him). There is no evidence of any such complaint but it must also be noted that at the time the Applicant would not have known that the decision to issue the s 87 Permit and s 90 Consent (which occurred five or six weeks after the October 14t Meeting) would be taken by Mr Korn, as the authorised delegate of the Director-General. It also is to be recalled that the Applicant was consistently asserting that the Director-General should himself be personally involved in the determination of the second and third Respondents’ s 87 and s 90 Application and that he should in that respect, physically attend the Lake Cowal site. Par 6 of Mr Gardner’s affidavit states that this matter was also raised with Mr Korn at the meeting and that his response was to say “OK”.

31. There is included in the documentary evidence a note in the Service’s official file styled “Notes from Consultative Meeting with Mr N Williams and Associates 14 October 2002”. The Note is not signed and it does not appear who authored it. It does record that the attendees on behalf of the Service were Mr Korn and Mr Allan Hutchins, Archaeologist. The note is two typed A4 pages and reports what the Applicant said when invited to tell the Service Officers “more of the social and spiritual values of the Lake”. However, although it contains reference to Mr Gardner’s question about who would take responsibility for any ensuing deaths of aborigines it does not record any answer to that question such as Mr Korn is said to have given according to the affidavit evidence of Mr Gardner as corroborated by the Applicant that I have referred to. Nor does it contain any reference to what Mr Gardner and the Applicant assert that Mr Korn had said about “his job was to get the s 90 Consent to destroy signed for Lake Cowal”. (I interpose that the Applicant, in one of his November 29 affidavits states in relation to those official notes that he did not observe either Service Officer taking noters during the meeting.)

32. Senior Counsel for the second and third Respondents also submitted that properly construed the words attributed to Mr Korn were in effect, saying no more than that it was his responsibility to determine the application that had been made on behalf of the second and third Respondents for the s 87 Permit and s 90 Consent and that so understood, there had been no prejudgment by Mr Korn of that task.

33. If that is what Mr Korn said or intended to say, then clearly it would not support any finding of prejudgment bias—actual or apprehended. However, at the present time, I only have the affidavit evidence of Mr Gardner and of the Applicant, and confined to that evidence, I do not think that it yields the construction of the words attributed to Mr Korn, that has been proffered by Senior Counsel for the second and third Respondents.

34. I of course appreciate that the evidence of Mr Gardner and of the Applicant on this potentially most serious matter is at the present time both untested and unsusceptible to any evidence in rebuttal (because at the interlocutory hearing there was no opportunity for the Director-General to call any such evidence). Moreover, the evidence must be considered as part of the totality of the evidence, including the great volume of documentary evidence, to see how it fits into the overall picture presented by that evidence. In this latter respect, I have carefully considered the documentary evidence. It clearly indicates, as I have earlier mentioned, that it was Mr Korn who issued the s 87 Permit and s 90 Consent (both the original versions on 23 November and the re-issued versions on 27 November) as the authorised delegate of the Director-General, and those actions occurred some five to six weeks after the meeting held with the Applicant on 14 October.

35. In respect of the original issue of the Permit and the Consent, the documentary evidence discloses that the official memorandum that preceded the issue of the Permit and the Consent and which had set out four possible options for the determination of the application and had recommended that the Director-General endorse option three, was co-signed by the Director Cultural Heritage on 22 November, and by Mr Korn on 23 November and was endorsed by the Director-General on 23 November. The memorandum had described the four options for determining the application in the following terms:

1. Refuse consent.

2. Grant consent to destroy over a portion of the sites on the MLA while implementing conditions for the physical protection of others and, under a concurrent Section 87 permit, undertake investigation works and salvage of material from those sites that will necessarily be destroyed by the mine activities.

3. Grant a consent to destroy over all sites on the MLA and undertake investigation and salvage works as in option two, but incorporate conditions into the Consent that will ensure broad conservation outcomes as offsets.

4. Grant an unconditional consent to destroy.

36. Each of the options is discussed in the memorandum. The fact that the application was seen to present the Service with four possible approaches, of course is a drastically different conception of the task confronting the Service than was Mr Korn’s conception of this task, as verbalised at the meeting with the Applicant on 14 October.

37. The recommendation made in the official memorandum was in the following terms:

The Director-General endorses option three, including those special/specific conditions of consent negotiated with Barrick and taking into account, wherever possible, Aboriginal community views. While fencing and sign-posting of the sites was considered by the REF, the NPWS now requires geotextile blanketing. However, this is also not considered to have a significant effect on the environment, talking (sic) into account the matters raised in that REF.

38. It was apparently following the endorsement by the Director-General of that recommendation that Mr Korn issued on 23 November the original versions of the s 87 Permit and s 90 Consent when he was physically present at Woolgoolga (on the State’s North Coast). It is to be noted that the recommendation endorsed by the Director-General did not, in terms, indicate that if the recommendation were accepted a form of s 87 Permit and of a s 90 Consent were already prepared for signature. It may be that this was the case, but it is also possible that the s 87 Permit and s 90 Consent were prepared by Mr Korn after the recommendation had been endorsed, although all three actions—Mr Korn’s co-recommendation, the Director-General’s endorsement and the issue of the s 87 Permit, and the s 90 Consent, all (according to the documentary evidence) occurred on the same day, namely Saturday 23 November. It should also be noted that the s 87 Permit is a document comprising some 7xA4 typed pages and the s 90 Consent is a document containing some 6x A4 typed pages (excluding in each case the plans annexed thereto). Given these facts, it is more likely that the forms of the Permit and of the Consent were in existence when the recommendation was made to the Director-General.

39. When the Permit and Consent were re-issued by Mr Korn on Wednesday (27 November), that action was preceded by the transmission to him from the Director Cultural Heritage (Mr Ardler) of a briefing note signed and dated by Mr Ardler on 26 November 2002, together with “a draft permit and a draft consent for your consideration”. What is described as the “briefing note” by Mr Ardler appears to be a reproduction of the same memorandum that had been endorsed by the Director-General on 23 November. It contains the same recommendations as had been made to the Director-General on the earlier occasion but on this occasion, the co-signatories to the recommendation were Mr Ardler (Director Cultural Heritage) Mr Bob Sutherland (Manager Western Aboriginal Heritage Council) and Mr Korn (Director-Western). Although the recommendation in terms is that the Director-General endorse the recommended option three, in fact there is no endorsement in the memorandum by the Director-General and it may be inferred that the briefing note was not re-submitted to the Director-General. Rather, as Mr Ardler’s memorandum to Mr Korn of 26 November states (after noting certain deficiencies in the s 87 Permit and s 90 Consent):

While there may be ways of patching things up, it is considered that the clearest way to deal with it is to remake the decisions. Accordingly here are a draft Permit and a draft Concent for your consideration.

40. The significance of the re-issue of the s 87 Permit and the s 90 Consent is that the decision was taken by Mr Korn, himself, to remake the original decisions, but on this occasion, by his reconsidering the briefing note (which was in the same terms as the memorandum that had been endorsed by the Director-General) but without the further endorsement of the Director-General, notwithstanding that the recommendation was that the Director-General endorse option three.

41. It thus appears that the decision to issue the s 87 Permit and the s 90 Consent was the decision of Mr Korn—both in the original versions that he had issued on 23 November (where there had been a recommendation to the Director-General which had been endorsed by the Director-General) and in the versions that he had issued on 27 November (where there had been the same recommendation to the Director-General which did not bear the endorsement of the Director-General).

42. The question for immediate consideration is whether the facts that I have recited concerning the circumstances of the issue of the s 87 Permit and the s 90 Consent (both in their original and current versions) and the contents of the memorandum (and the replicated briefing note) acknowledging the four options that were available to the Service in respect of the second and third Respondents’ application for the related s 87 Permit and s 90 Consent (which options included the option of refusing the application) have the effect of eliminating or negating or otherwise explaining away any inference of apprehended bias by prejudgment by the decision-maker that is capable of being drawn from the evidence of what Mr Korn said at the meeting held at Lake Cowal on 14 October 2002 with the Applicant and others (including Mr Gardner) that it was “his job to get the s 90 Consent to Destroy signed for Lake Cowal”.

43. In posing the question in the manner I have, I deliberately eschew the task (which must be reserved to the final trial) of making any factual findings, since in these interlocutory proceedings, it is only necessary and appropriate for me to consider whether the evidence adduced is capable of supporting an inference of apprehended bias by prejudgment by Mr Korn, as the decision-maker. That task can only engage the evidence as it stands (recognising as I have emphasised that the evidence has not been tested by cross-examination and the Director-General did not have the opportunity at Friday’s hearing of leading any evidence in rebuttal of the Applicant’s evidence or any evidence explaining the circumstances of the decision-making process undertaken by Mr Korn). However, in determining whether there is a serious question to be tried, the relevant question is, as stated by Mason A CJ at 153 in Castlemaine Tooheys “if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”.

44. In my judgment, as the evidence stands, it is capable of supporting an inference of apprehended bias by prejudgment by Mr Korn who was the relevant decision-maker in issuing the current s 87 Permit and the s 90 Consent.

45. In so concluding, I have considered the detailed discussion of vitiating bias (actual or apprehended) by virtue of prejudgment by a decision-maker that is contained in the several judgments delivered in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. (A statement from the joint judgment of Gleeson CJ and Gummow J had been relied upon by the Director-General in the earlier proceedings in which the Applicant unsuccessfully challenged the validity of the earlier s 87 Permit alleging, inter alia, the ground of “bias”. That statement is cited in my earlier judgment, but it is to be noted that it was a statement concerning what is required to establish “actual bias” by the decision-maker).

46. As the judgments in Jia Legeng make clear, cases of “actual” bias do not often arise because of the recent development in Australia of the concept of apprehended or imputed bias: see at 538 per Gleeson CJ and Gummow J; at 541 per Kirby J and at 564 per Hayne J. The following passage from the judgment of Hayne J at 564 is in my respectful opinion, particularly illuminating for present purposes—

The development and application of a test of reasonable apprehension of bias avoids any need for a court, which is asked to prohibit a decision-maker from going further or to set aside a decision which has already been made, to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. As was said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 , [t]he question is on of possibility (real and not remote), not probability .

Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

47. Even if at the final hearing evidence were forthcoming to support a finding that Mr Korn was not relevantly the sole decision-maker but was a co-contributor to that decision (such as is possibly already evidenced by his co-signing the recommendation that received the endorsement of the Director-General as a prelude to Mr Korn’s issue of the s 87 Permit and s 90 Consent in their original form on 23 November), the question would still arise whether, assuming the Court were to accept the evidence of what Mr Korn said at the meeting with the Applicant on 14 October 2002 at Lake Cowal and to find that such statement evidenced apprehended bias by prejudgment on the part of Mr Korn, the decision to issue the s 87 Permit and s 90 Consent was thereby vitiated because of Mr Korn’s participation in the decision. In this respect, the following passage from the recent judgment of the Chief Justice of the High Court in Hot Holdings Pty Ltd v Creasy (2002) HCA 51 (14 November 2002) would require consideration—

In Baker v Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817), the Supreme Court of Canada set aside an administrative decision partly upon the ground that a subordinate of the decision-maker exhibited disqualifying bias. The decision concerned was a denial by an immigration officer of an application for exemption from a certain requirement. The officer who made the decision acted on the basis of a recommendation of a subordinate officer, who examined the case, made detailed notes and comments, and expressed opinions strongly adverse to the applicant. The notes and comments were found to give rise to an apprehension of racial and other forms of bias. L’Heureux-Dube J, giving the opinion of the Court said (at 849)

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. The respondent argues that Simpson J was correct to find that the notes of [the subordinate officer] cannot be considered to give rise to a reasonable apprehension of bias because it was (the superior officer) who was the actual decision-maker, who was simply reviewing the recommendation prepared by his subordinate. In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. In addition….the notes of [the subordinate officer] constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.

48. In leaving this matter, I must again emphasise that I have made no findings in respect of Mr Korn’s conduct on 14 October 2002 on the basis of the evidence adduced by the Applicant on the hearing of his claim for interlocutory relief. This is necessarily so, because as I have already emphasised, the Applicant’s evidence has not been tested in any way and the Director-General has not yet had the opportunity to consider it or to respond to it.

(ii.) The communicated views of the Wiradjuri Council of Elders

49. Another matter in the Applicant’s present case that I think raises a serious question (which was not raised in the earlier challenge to the validity of the earlier s 87 Permit) concerns the effect of the evidence of the significant change in attitude of the Wiradjuri Council of Elders (the registered Native Title Claimants to lands at Lake Cowal) to the second and third Respondents’ application for the issue of the s 87 Permit and s 90 Consent compared with their communicated attitude to the earlier application for the s 87 Permit which was issued in May 2002.

50. The memorandum that contained the recommendation that was endorsed by the Director-General includes the following passages concerning the views of the Wiradjuri Council of Elders as part of the memorandum’s treatment of “Consultation with Aboriginal Communities”:

Barrick also undertook consultation with the Wiradjuri Council of Elders, as registered Native Title claimants and the Condoblin Aboriginal community in early June 2002. All other consultation by Barrick from this ponit forward took place as part of the Right to Negotiate process as part of Native Title proceedings and NPWS has not been a party to these talks. However, part of the consultative efforts for this application related to the development of an archaeology and cultural management plan which was also a condition of the original DA approval (condition 3.3). This resulted in the submission of the Cowal Gold Project-Wiradjuri Heritage Management Plan as part of this S90 and S87 application. The plan is very detailed and discusses, among other things, every known site in the Consent area, the arrangement of objects, industry and community reporting structures, roles and responsibilities of Barrick personnel and dissemination of information.

The Wiradjuri Heritage Management Plan was developed in August 2002. Despite the apparent attention to detail that has gone into the development of the plan and its consistency with points of view expressed during consultation and in other forums such as affidavits, a letter of opposition was received from the Wiradjuri Council of Elders on 7th November, 2002.

The letter indicates that the Wiradjuri Council of Elders do not endorse the plan and that NPWS has no right to determine anything in relation to their cultural heritage over and above their rights as Native Title claimants. It further instructs NPWS, not to approve of any permits or consents without their written endorsement, and agree explicitly to conditions determined by them.

Two points are of concern here:

· The Wiradjuri Council of Elders claim that they believe the plan will be implemented without their involvement or supervision and that the document should be withdrawn and substituted by a separate agreement between themselves and the mining company. Contrary to concerns about a perceived lack of involvement and supervision upon implementation, the plan appears to be very strong in this regard. Further, since NPWS has not been kept informed of matters discussed during Native title negotiations, it has no knowledge of any separate agreement.

· The contention that Native Title rights have supremacy and instructions not to make any approvals without the written endorsement of the Wiradjuri Council of Elders erroneously ignores the Director-General’s legislative role in these matters and further assumes that determinations would be made without consideration of their views.

51. Whereas this extract from the Service memorandum may be accepted as a reasonable summary of the views communicated to the Service, by and on behalf of, the Wiradjuri Council of Elders, the memorandum does not bring out the important fact that in the second and third Respondents’ consultation with the Aboriginal Communities in respect of their application for the s 87 Permit and the s 90 Consent the clear result was the opposition voiced against the application by both the Wiradjuri Council of Elders and by the several Wiradjuri persons living in Condoblin who were consulted.

52. This emerging but clear-cut oppositional response was far different from the results of the consultative process that had been undertaken by the second and third Respondents in their original application for a s 87 Permit which had preceded the issue of the earlier s 87 Permit (1361). The only other mention of the views of the Aboriginal community that is contained in the Service official memorandum is the following discussion of Option four (to grant unconditional consent to destroy all Aboriginal objects at Lake Cowal):

Option four is not viable.

It would portray National Parks and Wildlife Service as being environmentally irresponsible, despite an organisational Conservation ethos. It would also leave Aboriginal Communities feeling as if only token consideration has been given to their input into this issue.

53. This state of the evidence provides strong support for the Applicant’s claim (par 8 of the Points of Claim) that in issuing the s 87 Permit and s 90 Consent, the decision-maker failed to consider (in any real or genuine manner) the fact that the Aboriginal Communities communicated in the processing of the application were strongly opposed to the application.

54. Moreover, the comment in the Service official memorandum that is included in the extracted passage concerning the processes and effect of the Commonwealth Native Title Act 1993 may reasonably be thought to have not appreciated what the Wiradjuri Council of Elders were saying in this respect in their letter dated 7 November to the Service. Their letter had included the following paragraph:

We appreciate that NPWS has some statutory obligations to issue various types of permits in relation to the management of cultural heritage as part of the development process. We also appreciate that over the years NPWS has developed various policies and practises that it considers offer the best means of managing cultural heritage in the context of the development process. We must advise, however, that the Wiradjuri Council of Elders is asserting its rights to act in its custodial role in regard to Native Title. In this context we accept that while NPWS may have a duty of care towards our cultural heritage under the provisions of the National Parks and Wildlife Service Act (1974) , this duty does not provide NPWS with any right to assert any control or decision making power over and above that of those who have traditional custodial roles towards that cultural heritage, recognised through the registration of our Native Title claim. In this matter we refer you to the High Court’s decision in Yanner v Eaton (1999).

(The reference made to the High Court’s decision is a reference to the decision in Yanner v Eaton (1999) 2001 CLR 351.

55. It is to be noted that this letter was received just a couple of weeks before the original versions of the s 87 Permit and s 90 Consent were issued, and it would seem from the Service files that it was Mr Ardler (the Director Cultural Heritage), to whom that letter was directed and there are marginal notes apparently made by him to a number of assertions contained in the Council of Elders’ letter. There is no indication in the Service official files that Mr Ardler sought or obtained any legal advice as to the legal correctness of what the Council of Elders were asserting in terms of the relevance of the Native Title Act to the decision to be made on the second and third Respondents’ application for the s 87 Permit and s 90 Consent.

56. Be that as it may, and recognising that now is not the occasion to examine the complex question of the legal interaction of the Commonwealth Native Titles Act with the provisions of Part 6 of the NP&W Act (containing s 87 and s 90), the Applicant’s claim (par 16 of the Points of Claim) that in respect this important question, the decision-maker fell into legal error, raises in my judgment, a serious question to be tried.
(iii.) The pending undetermined applications for Lake Cowal to be declared an Aboriginal Place under State and Federal Laws

57. The Service’s official memorandum makes reference to these matters when it states the following:

Since the issue of the previous S87 permit, Mr Williams has claimed that the Lake Cowal area is highly significant from a social and spiritual perspective. However, despite written requests for substantive information dating back to 30 July 2002, none has been presented. The initial NPWS request was in response to an Aboriginal Place nomination (S84 NPW Act) made by Mr Williams for Lake Cowal and a large surrounding area.

NPWS representatives met with Mr Williams at Lake Cowal on 14th October 2002. At that consultative meeting Mr Williams undertook to provide NPWS with a written claim of significance by 16 October 2002. On 18 October 2002, Mr Williams provided NPWS with a copy of an application he has lodged for emergency declarations under Sections 9 and 10 of the federal Aboriginal and Torres Strait Islander Heritage Protection act 1984. Information from this documentation has also been considered in relation to this current S87 & S90 application and specific issues from it are discussed later in this brief.

58. However, the memorandum contains no discussion or consideration of the potential impacts on those pending applications of the decision to issue the s 87 Permit and the s 90 Consent in the present case or vice versa.

59. Whereas it is possible to contemplate the dual operation of the Federal and State statutory regimes, it appears somewhat strange, considered at least from the point of view of the harmonious administration of the NP&W Act that the pending application under the NP&W Act, s 84 would not be seen as at least having some bearing or potential bearing on the determination of the second and third Respondents’ application for the issue of the s 87 Permit and the s 90 Consent, and vice versa.

60. It is equally strange, again considered from the perspective of the administration of the relevant Federal and State laws, that the memorandum contains no reference to the fact that the Federal Department of the Environment and Heritage had written to the Service on 24 October 2002 advising of receipt of the Applicant’s claim on behalf of the Mooka/Wiradjuri Aboriginal Traditional Owners seeking an emergency declaration under the Federal Act of lands at Lake Cowal and to the fact that the Office of the Federal Minister had written to the State Minister for the Environment seeking his advice as to whether state law effectively protected the area or objects from the threat of injury or desecration. Whereas the documentary evidence does not indicate any response to the Federal Minister’s inquiry, it might reasonably be expected that the official memorandum would have addressed or at least raised that question because it is hardly likely that it could be said that State law effectively protected the Lake Cowal area of significance to Aboriginals when in terms of that State law the Service had decided to issue the s 87 Permit and s 90 Consent (the latter authorising the destruction of all aboriginal objects other than those collected in terms of the Permit as a representative sample).

61. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s 13(2) is in the following terms:

(2) The Minister shall not make a declaration in relation to an area, object or objects located in a State, the Northern Territory or Norfolk Island unless he has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that Sate or Territory, effective protection of the area, object or objects from the threat of injury or desecration.

62. It is to be noted that when the Federal Minister refused an earlier application for an emergency declaration made by the Applicant in the middle of the year, he had concluded, following consultation with the State’s Minister for the Environment, that the State’s laws did not provide effective protection of the area or objects from the threat of injury or desecration.

63. It is also to be noted that the pending application for emergency declaration under the Federal Act is supported by a massive documentary case involving several hundreds of pages. It also contains the joint written opinion of Mr Wilfred Shawcross and Mr David Johnston, consultant archaeologists, supporting in the “strongest terms” the application. (Both archaeologists have given evidence on behalf of the Applicant in earlier proceedings). There is no evidence that the Federal Minister has yet determined the application.

64. The Service’s official memorandum appears to be referring to that joint opinion when it states:

Archaeological Findings

Recent archaeological interpretations provided in the Section 9 (ATSIHP Act) application by Mr Williams’ consultant archaeologist attempt to demonstrate that previous investigation s have been flawed by inadequate assessment. While argument is presented, plausible counter opinion can likewise be developed and these interpretations must of necessity be considered with respect to the existing comprehensive body of investigation. In terms of previous archaeological findings all reports hold consistent themes with respect to the assessment of scientific significance. These are

· All but two sites are assessed as being of low significance. The remaining two are described as being of moderate significance.

· The integrity of sites is poor. There has been a high level of previous disturbance from vehicle traffic, farm cultivation, active erosion and grazing impacts.

· The probability of in situ sub-surface material being present in original contexts is low.

· The site contents comprise raw materials that appear to be local to the area and are well represented in other sites in the region.

· Artefact scatters and scarred trees predominate in the archaeological record and are well represented elsewhere.

· Additional archaeological study is unlikely to greatly improve the understanding of Aboriginal usage of the area.

Nor has the work undertaken as a result of the previously issued, section 87 permit revealed anything to contradict the above findings and the recent interpretations cannot be considered to be conclusive.

65. The foregoing evidence and consideration of the manner in which the official Service memorandum dealt with (or did not deal with) these matters supports the Applicant’s claims (Par 8 of the Points of Claim) that the decision-maker in issuing the s 87 Permit and s 90 Consent did not give real and genuine consideration to relevant matters.

66. In drawing attention to the evidence concerning the aforesaid three matters, I have not attempted to consider the full gamut of the Applicant’s claims or the evidence. Rather, I have drawn attention to these matters as matters which were not raised in the earlier proceedings concerning the Applicant’s unsuccessful attack on the validity of the earlier s 87 Permit and as matters which tend to demonstrate that the Applicant’s present challenge to the validity of the s 87 Permit and s 90 Consent presents a stronger case than the earlier case he had unsuccessfully prosecuted challenging the validity of the earlier s 87 Permit.

67. For all the foregoing reasons, I conclude that the Applicant’s case raises serious questions to be tried and my overall evaluation of the case is that it has some apparent strengths.
C. WILL IRREPARABLE DAMAGE BE INCURRED IF NO INTERLOCUTORY INJUNCTION IS GRANTED?

68. The present case involves a stronger case of irreparable damage, being incurred in the event that no interlocutory injunction is granted than was the case in the earlier proceedings challenging the validity of the earlier s 87 Permit. There, I was satisfied that the Applicant would experience irreparable damage especially in virtue of his professed Aboriginal spiritual values and sensibilities (which are values and sensibilities shared by many Wiradjuri people). It is important to recall that that finding was made in the context of the operation of a s 87 Permit that required the discovery, collection and safe custody of all Aboriginal objects apt to be damaged or put at risk by the proposed resumption of exploratory drilling at the Lake Cowal Gold Mine site.

69. Whereas in the present case that same nature and degree of irreparable damage will be incurred by the Applicant and like minded Wiradjuri peoples there is an important and additional element of damage in the present case (that was wholly lacking in the earlier case). That is the fact that the current s 87 Permit does not require the discovery, collection and safe custody of all Aboriginal objects. Rather, it requires only the collection of a representative sample of discovered Aboriginal objects and only in the manner and to the extent determined by the second and third Respondents’ Consultant archaeologists, and once this activity is completed, the s 90 Consent authorises the destruction of all remaining known and unknown Aboriginal objects, situate on and in the relevant lands at Lake Cowal.

70. This additional element of irreparable damage (caused by the authorised destruction of Aboriginal objects) makes the present case a far stronger case of irreparable damage that was found to exist in the earlier proceedings involving the earlier s 87 Permit.

71. In so concluding, I have taken into account the evaluation by the three consultant archaeologists retained by the second and third Respondents reflecting their opinion of the low significance of the Aboriginal objects at the Lake Cowal Gold Project Site.

72. However, it must be appreciated that absent a s 90 Consent to destroy, all Aboriginal objects wherever situate in NSW are afforded protection by the provisions of the NP&W Act, Part 6, however they may be evaluated or ranked by consultant archaeologists.

73. For the foregoing reasons, I find that the Applicant will suffer irreparable damage if no interlocutory injunction be granted pending the final hearing.
D. BALANCE OF CONVENIENCE

74. The following matters are relevant to my consideration of the balance of convenience—

(a) Has there been any delay in bringing forward the claim to interlocutory relief?

(b) Has the Applicant provided the usual undertaking as to damages?

(c) What prejudice will the Applicant suffer if the injunction is refused and conversely what prejudice will the Respondents suffer if the injunction is granted? and

(d) What are the comparative strengths and weaknesses of the parties’ respective cases?

75. There is, of course, no delay in the present case with the validity of the current s 87 and s 90 Consent being challenged within one day of their issue.

76. No undertaking as to damages has been proffered. Even if the Applicant had proffered the usual undertaking, the plain facts are that he is a pensioner without legal representation in the proceedings and without the requisite financial wherewithal to enable him to meaningfully satisfy any liability for damages that may be incurred pursuant to the undertaking.

77. Concerning the question of the competing prejudices likely to be suffered by the parties, I have already sufficiently considered the prejudice to the Applicant’s interests in my consideration of the question of irreparable damage.

78. What of the prejudice to the second and third Respondents? Here I have the affidavit evidence of Mr Roger Bennetts sworn 29 November 2002. He is the Group Commercial Manager for the third Respondent. His evidence establishes the current state of the exploratory drilling undertaken by the second and third Respondents at the Lake Cowal site. That drilling as currently undertaken is for the dual purposes of (i) resource definition; and (ii) geotechnical purposes.

79. The completion of the current drilling is essential in order that the Mining Companies may complete their economic feasibility study and detailed pit design. These are necessary preludes to any decision by the Mining Companies to undertake Gold Mining at Lake Cowal.

80. The drilling program as it relates to the proposed open cut pit is nearly completed. Since the issue of the earlier s 87 Permit on 23 May the drilling has been undertaken only in compliance with the requirements of that Permit for the discovery, collection and safe custody of all Aboriginal objects apt to be affected by the exploratory drilling activity.

81. However, the earlier s 87 Permit does not apply to the Travelling Stock Reserve which adjoins the Game Reserve. Part of the proposed open pit encroaches into a section of the Travelling Stock Reserve. It is the only part of the open pit that is not covered by the earlier s 87 Permit.

82. The current s 87 Permit and the s 90 Consent apply to the entire proposed Mining Lease Area 45 (some 20 square kilometres) including the Travelling Stock Reserve and it is imperative for the mine economic feasibility study and for the detailed pit design that the requisite drilling be undertaken on the affected section of the Travelling Stock Reserve.

83. As earlier mentioned, the development consent for the Lake Cowal Gold Project was granted by the Minster on 26 February 1999. In accordance with the EP&A Act, s 99 (as applicable to the grant of that development consent) the development consent will lapse unless within five years of its taking effect, construction of the Mine is physically commenced.

84. However, the conditions of the development consent impose several obligations for environmental reports and studies to be prepared before construction works are commenced. The statutory lapsing period is rapidly evaporating with many preparatory tasks outstanding and there is no power under the EP&A Act to extend that lapsing period.

85. It is to be noted that to date, no Mining tenement has been granted for the Lake Cowal Gold Project. The grant of any mining tenement will attract the operation of the Native Titles Act.

86. When the Mining Companies acquired their interest in the approved Gold Mine in 2001, they were aware of the susceptibility of the 1999 development consent for the mine to lapse in March 2004. However, they did not anticipate being embroiled in litigation throughout 2002 brought by the Applicant. That litigation has delayed the project’s progress and the Companies are now concerned that they may encounter further litigation and concomitant delay in respect of the many other statutory processes and authorities that will need to be obtained before there can be any physical commencement of gold mining at Lake Cowal.

87. Paragraph 22 of Mr Bennett’s Affidavit summarises the prejudice likely to be suffered by the Mining Companies in the following words—

If the Court restrains Barrick from commencing drilling on the Travelling Stock Reserve in early December, there will be a delay to the finalisation of the detailed pit design, the definition of the resource and the mine feasibility study. In addition, there would be delay caused to the finalisation of the various pre-construction management plans which are required by the development consent. These various delays will defer the commencement of the construction phase and further increase the difficulty of managing, the development of this State significant project so that it is physically commenced before the critical deadline of 25 March 2004.

88. The maters of potential prejudice raised in Mr Bennett’s affidavit focus attention on the fact that in the present case neither the grant of development consent nor the grant of the exploration licence decisively resolved the questions of (i) the need for, and (iii) the mode of, compliance with the provisions of Part 6 of the NP&W Act in respect of Aboriginal objects.

89. Whereas both the development consent and the exploratory licence expressly recognised the need for compliance with the provisions of Part 6, they each implicitly assumed that the mode of compliance would be via the obtaining of the requisite s 90 Consent to destroy Aboriginal objects. This must necessarily have been so because it must have been obvious that open cut mining would destroy Aboriginal objects situate on and in the affected lands.

90. Thus Condition 3.3 of the development consent imposed the following obligations:

3.3 Heritage Assessment and Management

(a) The Applicant shall prior to commencement of construction works:


(i) prepare an archaeology and cultural management plan to identify future salvage excavation and monitoring of any archaeological sites within the DA area prior to and during development, and to address Aboriginal and European cultural heritage issues. The plan shall be prepared in consultation with NPWS, the Local Aboriginal Land Council, a consultant archaeologist, any other stakeholders identified by NPWS, Bland District Historical Society, BSC, and Lake landholders/residents, and to the satisfaction of the Director-General;

(ii) employ a Cultural Heritage Officer approved by the West Wyalong Local Aboriginal Land Council who is to be available on site during construction earthworks; and

(b) In the event that artefacts not previously identified, are identified in the DA area during development through earthworks, construction or operation of the mine, the Applicant shall immediately contact the NPWS and cease work in the relevant location pending investigation and assessment of its heritage value.

91. Similarly, the relevant Exploration Licence (No 2865) granted under the Mining Act 1992 imposed the following conditions—

(i) a proviso that the exploration activities do not contravene—Part 6 (Relics and Aboriginal Places) of the NPW Act 1974 ; and

(ii) a proviso that there be an Exploration Protocol acceptable to the DMR prior to commencement of exploration activities to ensure that exploration activities will not have an adverse impact on the features listed in s 238 of the Mining Act 1992 (which list includes features of Aboriginal, architectural, archaeological historical or geological interest.

(iii) Condition 39 which is in the following terms:

The licence holder must not knowingly destroy deface or damage any aboriginal place or relic within the licence area except in accordance with an authority issued under the National Parks and Wildlife Act, 1974, and must take every precaution in drilling, excavating or disturbing the land against any such destruction, defacement or damage.

92. The Mining Companies must of course be taken to have been fully aware at all material times that both the development consent for the Lake Cowal Gold Mine project and the Exploratory Licence required compliance with the provisions of Part 6 of the NP&W Act. Even though both those statutory authorisations clearly contemplated that the mode of compliance would necessarily depend upon the issue of a s 90 Consent to destroy Aboriginal objects, neither authorisation facilitated or assisted or otherwise contributed to that end process.

93. When exploratory drilling commenced at the beginning of 2002, there had been no attempt by the Mining Companies to obtain any s 90 Consent. Indeed, after the Applicant had instituted his first action against the exploratory drilling, in January 2002, three months elapsed before the Mining Companies applied for s 87 Permit to discover, collect and take into safe keeping all Aboriginal objects apt to be damaged by the exploratory drilling and more than seven months elapsed before the Mining Companies applied for the s 90 Consent (which was granted only last week).

94. These are significant elements contributing to the delay experienced by the Mining Companies in undertaking their exploratory activities at Lake Cowal and are delays for which the Mining Companies must be held to be responsible.

95. Their justifiable reliance upon the issue of the earlier s 87 Permit and the current s 87 Permit and related s 90 Consent places the Mining Companies’ case on the balance of convenience on sounder ground. This is because the Companies are entitled to the benefit of the s 87 Permits and the s 90 consent and to the presumption of regularity or validity attaching to the Permits and Consent: cf Ellison v Warringah Shire Council (1985) 55 LGERA 1

96. However, a s 87 Permit and a s 90 Consent is not immune from legal challenge and the Applicant’s challenge to the validity of the s 87 Permits (both the earlier and the current Permits) and the s 90 Consent fall within the jurisdiction conferred upon the Court by the NP&W Act, s 176A: Also see s 20(1) (cg) and s 20(2) of the LEC Act 1979.

97. In Ellison, which involved a challenge to the validity of a development consent granted under the EP&A Act, the claim to interlocutory injunction was refused in circumstances “where there is a total absence of any claim of prejudice or impairment to the right asserted by the applicant or of irreparable damage being sustained by the applicant by virtue of the withholding of interlocutory relief”: at 10.

98. The present case is a far cry from Ellison and I have already stated my conclusions that significant irreparable damage will be sustained if no interlocutory injunction is granted.

99. An evaluation of the comparative strengths and weaknesses of the competing cases cannot be meaningfully essayed because at the interlocutory hearing the evidence was principally adduced by the Applicant and there was insufficient opportunity for the Respondents to adduce evidence in defence of the validity of the s 87 Permit and the s 90 Consent. Ultimately only the final trial will resolve this question.

100. However, I have earlier evaluated the Applicant’s case as being a relatively strong one. Certainly it appears stronger than was his case challenging the validity of the earlier s 87 Permit.
E. CONCLUSIONS AND ORDERS

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.

103. For all the foregoing reasons, I made the following orders on 3 December 2002—

1. The operation of the s 87 Permit (No 1468), the s 90 Consent (No 1467) issued on behalf of the Director-General National Parks and Wildlife on 27 November 2002 each be suspended until further order.

2. The second and third Respondents, by themselves, their servants, agents and contractors be restrained from carrying out activities in reliance upon the Permit and the Consent referred to in Order 1 until further Order.

3. The second and third Respondents, by themselves, their servants, agents and contractors be restrained from carrying out activity which knowingly causes or permits the destruction or defacement of or damage to an Aboriginal object situate on any of the lands to which each of the Permit and the Consent referred to in Order 1, applies, PROVIDED THAT nothing in this Order operates to prevent the undertaking of test exploratory drilling on those parts of the Travelling Stock Route, the Game Reserve and lots 23 and 24 Deposited Plan 753097 upon which are located the drill pathways shown on the annexed plan (marked A) PROVIDED that the undertaking of that activity is in accordance with the terms of the s 87 Permit (No 1361) applying to the said lands (except for the Travelling Stock Route) and the Undertaking of the second and third Respondents given to the Court on 3 May 2002 and in the case of the activity to be undertaken on the Travelling Stock Route in accordance with the Specific Conditions, Special Conditions and General Terms and Conditions of the said s 87 Permit (No 1361) and the aforesaid Undertaking of the second and third Respondents as if that Permit and that Undertaking had been expressed to apply to the Travelling Stock Route.

4. Order that the final hearing of the proceedings be heard as early in the new Law Term as dates can be allocated for that purpose.

5. Grant liberty to apply on two days Notice.

6. Exhibits to be returned.

7. Reserve the question of costs

To: Fotini Sourounis/LEC/NSW_AG@NSW_AG
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