Williams v Graham

[2016] NSWLEC 151

Land and Environment Court

New South Wales

Medium Neutral Citation:	Williams v Graham [2016] NSWLEC 151
Hearing dates:	14 November 2016
Date of orders:	29 November 2016
Decision date:	29 November 2016
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court orders that the proceedings are dismissed.
Catchwords:	CIVIL ENFORCEMENT – quarry – whether harm to Aboriginal objects threatened – Aboriginal stone artefacts – whether on the land to be quarried – threatened breach not established
Legislation Cited:	National Parks and Wildlife Act 1974 ss 5, 84, 86, 87, 90, 193
Texts Cited:	Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales (2010, Department of Environment, Climate Change and Water)
Category:	Principal judgment
Parties:	Robert Lee Williams (Applicant) Rodney John Graham (First Respondent) Karie Graham (Second Respondent) Peter Carlill (Third Respondent) Robyn Carlill (Fourth Respondent)
Representation:	Counsel: Mr C J Leggat SC with Mr D Beaufils (Applicant) Mr P J McEwen SC with Mr S B Nash (Respondents)   Solicitors: Environmental Defender’s Office NSW (Applicant) Parker & Kissane (Respondents)
File Number(s):	2016/00269183
Publication restriction:	No

Judgment

Proceedings are brought to restrain threatened harm to Aboriginal objects

1. Mr and Mrs Graham are carrying out the development of a basalt quarry on a plateau at Cedar Point near Kyogle. The land on which the quarry is located is owned by Mr and Mrs Carlill. Development consent for the quarry was granted on 21 June 2012. The development consent contained an advisory note that:

The proponent must apply for an Aboriginal Heritage Impact Permit in accordance with the National Parks and Wildlife Act 1974 (‘NPW Act’) prior to disturbing, damaging or destroying Aboriginal objects that occur on the land.

If Aboriginal cultural objects are uncovered due to development activities, all works should halt in the immediate area to prevent any further impacts to the find or finds, to resume only in accordance with the requirements of the Office of Environment and Heritage and the NPW Act.

2. Construction of the quarry commenced on 28 July 2016.

3. Mr Robert Williams is a Gidubul (Githabul) man. He is concerned that there are Aboriginal objects present on the land, which will be harmed by the carrying out of the quarry.

4. Section 86(2) of the NPW Act prohibits a person from harming an Aboriginal object, unless the harm is authorised by an Aboriginal heritage impact permit (see s 87(1) of the NPW Act).

5. Mr and Mrs Graham have not obtained an Aboriginal heritage impact permit under s 90 of the NPW Act authorising harm to any Aboriginal object on the land. Hence, Mr Williams claimed, there is a threatened or apprehended breach of s 86(2) of the NPW Act because the carrying out of the quarry will harm Aboriginal objects without that harm being authorised by an Aboriginal heritage impact permit.

6. Mr Williams has commenced proceedings under s 193 of the NPW Act for an order to restrain Mr and Mrs Graham from carrying out the quarry until such time as an Aboriginal heritage impact permit has been obtained that authorises harm to Aboriginal objects on the land.

7. Mr and Mrs Graham and Mr and Mrs Carlill dispute that the carrying out of the quarry involves any threatened or apprehended breach of s 86(2) of the NPW Act. They claim that the evidence does not establish that there is any Aboriginal object on the land that will be harmed by the carrying out of the quarry. They accept that if there were to be an Aboriginal object on the land to be quarried (the ‘quarry disturbance area’), the quarrying activities would harm the object, at least in the sense that the object would be moved from the land on which it was situated (see par (b) of the definition of “harm” in s 5(1) of the NPW Act). They also accept that they have not obtained an Aboriginal heritage impact permit which would authorise any harm to an Aboriginal object on the land. However, they argue, the evidence does not establish that there are Aboriginal objects in the quarry disturbance area to be harmed by the carrying out of the quarry.

8. The only issue in this case, therefore, is the factual one of whether Mr Williams has established on the evidence that there are any Aboriginal objects on the land to be quarried.

What are the Aboriginal objects?

9. Initially, Mr Williams claimed the Aboriginal objects on the land included: Aboriginal stone artefacts, an initiation site or bora ground, a burial ground, five stone manuports comprising a manuport cache, and Aboriginal modified or scarred trees. In final submissions, however, Mr Williams restricted the claimed Aboriginal objects to be only Aboriginal stone artefacts.

10. The stone objects comprising the manuport cache and the Aboriginal modified or scarred trees are located outside of the quarry disturbance area and will not be harmed. The claimed initiation site or bora ground does not fall within the statutory definition of an Aboriginal object. An Aboriginal object is defined in s 5(1) of the NPW Act to mean:

any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

11. Mr Williams did not claim that there was “any deposit, object or material evidence” of the alleged initiation site or bora ground. Similarly, in respect of the alleged burial ground, the expert evidence was that Aboriginal ancestral remains are unlikely to occur or be preserved within the quarry disturbance area. The topsoil on the plateau is acidic, which would not preserve human osseous (bone) remains.

12. Mr Williams did not claim that there was any Aboriginal place within the quarry disturbance area. An “Aboriginal place” is defined in s 5(1) of the NPW Act to be “any place declared to be an Aboriginal place under section 84”. Section 84 provides that the Minister may, by order published in the New South Wales Government Gazette, declare any place specified or described in the order (being a place that, in the opinion of the Minister, is or was a place of special significance with respect to Aboriginal culture) to be an Aboriginal place for the purposes of the NPW Act. No place on the land has been so declared as an Aboriginal place.

Are there Aboriginal stone artefacts on the land?

13. Mr Williams’ claim, therefore, became limited to Aboriginal stone artefacts. Mr Williams argued that the Court should draw the inference, on the evidence before the Court, that there are Aboriginal stone artefacts in the quarry disturbance area. That inference should be drawn not from the fact that any Aboriginal stone artefacts have to date been found (because they have not) but rather as a matter of probability.

14. In final submissions, Mr Williams relied on the evidence of the two expert archaeologists engaged by the parties, Mr Czastka and Dr Kamminga, in their joint expert report to the Court. The experts agreed that, to date, no Aboriginal objects have been observed or recovered from within the quarry disturbance area, including any Aboriginal stone artefacts. They disagreed, however, on whether Aboriginal objects were likely to be present in the quarry disturbance area. Dr Kamminga said that there was no evidentiary basis to conclude that Aboriginal objects are in the quarry disturbance area but Mr Czastka said that Aboriginal objects are likely to be present in the quarry disturbance area.

15. Dr Kamminga said that to assert that Aboriginal objects are present on the land is “unsupported speculation”. Dr Kamminga noted that despite numerous Aboriginal heritage inspections and assessments of the land over the last 20 years, no Aboriginal objects have yet been found within the quarry disturbance area.

16. Two archaeological surveys of the land were undertaken by an archaeologist, Mr Huw Barton, in 1996 and 1998.

17. In 1996, Mr Barton noted that the quarry site proposed at that time was on a basaltic ridge that overlooked the Richmond River and its associated and extensive floodplain. He did not predict past use of this particular ridge for human traffic “as the valley and river would have been an easier and more likely route” and Mr Barton claimed that significant archaeological sites “are much more likely to occur adjacent to the river in the large open valley below”. He did not think that it was likely “that an extensive and visible archaeological occupation would occur at this location”. Nevertheless, Mr Barton carried out field work over a day in June 1996. He found two Aboriginal scarred trees occurring outside the zone to be quarried but found no “other examples of this site type or other types of archaeological sites”. In particular, he found no artefactual material. He noted that the nature of the soils in the proposed quarry site “are very shallow with the products of weathering basalt clearly visible on the surface of the plateau”. He considered it “highly unlikely that subsurface archaeological deposit of high archaeological significance would occur within the boundaries of the study area”.

18. In 1998, Mr Barton undertook a further archaeological survey for the quarry proposed at that time. He again concluded:

No archaeological sites were located at the proposed Carlill quarry extension and it is not considered likely that there exist any potential for archaeological excavations within the study area.

19. Mr Barton’s archaeological surveys were relied on as part of the development application in 2010 for the current quarry proposal. The environmental impact statement accompanying the development application reiterated that it “is highly unlikely that subsurface archaeological deposits of high archaeological significance would occur within the proposed quarry site as the soils of the site are very shallow”.

20. The Kyogle Council Assessment Report of the development application noted that:

Although an assessment of the Aboriginal significance of the site was undertaken in 1996, there has been no change to the site which would warrant further assessment. The area of the proposed quarry has been reduced in the current format in order to provide permanent protection to significant scarred trees at the southern end of the site. The plateau has been grazed, ploughed and significantly altered over the last five or more decades, so that no other Aboriginal artefacts have been detected on this area during these activities.

21. In August 2011, Umwelt (Australia) Pty Ltd undertook a peer review of the environmental impact statement, including the Aboriginal heritage assessment. The Umwelt Report recommended further consultation with relevant Aboriginal stakeholders. As a result, in December 2011, Everick Heritage Consultants Pty Ltd (‘Everick Consultants’) was engaged to prepare an Aboriginal cultural heritage assessment report.

22. In April 2012, Mr Timothy Robins of Everick Consultants issued an Aboriginal Cultural Heritage Impact Assessment Report detailing the Aboriginal community consultation that he had undertaken. Mr Robins recorded his discussions with representatives of the Githabul people, including Mr Williams. The Githabul representatives said that the basalt ridge line on which the quarry is proposed “runs from the Richmond River valley floor to the Mackenzie Ranges in the west. The ridge line would have made the ideal pathway or ‘highway’ from the valley floor west towards Ettrick. The basalt would also have provided an important resource, as it is some of the hardest rock in the region. It would have been used to make axes. The Githabul stakeholders also contend that there will be stone tools discarded on the plateau.” Everick Consultants, however, did not agree with their assessment of the potential for stone artefacts to be found on the land. Everick Consultants found:

A previous archaeological assessment undertaken by Huw Barton identified the Project as having a low risk of harming physical Aboriginal cultural heritage sites. Evericks archaeologists are of the opinion that the conclusions of Mr Barton are reasonable. During consultation, suggestions have been made that the areas surrounding the Project Area would have been used as a traditional quarry source. There is no evidence of any quarrying activities within the Project Area itself. The bore logs submitted in support of the EIS for the Project demonstrate that between 0.5 m and 2.5 m of topsoil cover the basalt source. It is highly unlikely that any traditional quarries existed with the Project Area. Surveys undertaken by Huw Barton failed to identify any quarries on lands adjacent to the Project Area.

23. Everick Consultants’ assessment and report referred to the scarred trees but otherwise did not identify any Aboriginal objects, including Aboriginal stone artefacts, on the land proposed to be quarried.

24. Development consent was granted on 21 June 2012. Condition 15 required the preparation of a plan of management for Aboriginal cultural heritage on the land.

25. In April 2014, Mr Robins finalised Everick Consultants’ Aboriginal Cultural Heritage Management Plan, which was required by condition 15 of the development consent. The Aboriginal Cultural Heritage Management Plan did not identify any Aboriginal objects other than the culturally scarred trees that are located outside the quarry disturbance area. The Aboriginal Cultural Heritage Management Plan recommended that the Gugin Guddaba Local Aboriginal Land Council be invited to monitor the initial stripping of topsoil for all works, including stripping of topsoil for the quarry haul road and across each quarry extraction cell.

26. In compliance with the Aboriginal Cultural Heritage Management Plan, notice was given to an Aboriginal cultural heritage site officer, Mr William Johnston, who was nominated by the Gugin Guddaba Local Aboriginal Land Council to oversee the removal of topsoil in part of the quarry disturbance area. Approximately 550 m³ of topsoil and 2,000 m³ of overburden, which is the earth between the topsoil and the basalt rock, was moved from its original position on the land and stockpiled in mounds on the land. Mr Johnston inspected the extracted earth upon its exposure and in the stockpiles. At no time, were any Aboriginal stone artefacts discovered.

27. Further Aboriginal heritage inspections and assessments were undertaken by the two archaeologists engaged by the parties, Mr Czastka and Dr Kamminga. Mr Czastka inspected the land in September 2016 and Dr Kamminga inspected the land in October 2016. Neither archaeologist observed any Aboriginal objects, including any stone artefacts, in the quarry disturbance area.

28. Dr Kamminga says that on 6 and 7 October 2016, he inspected ground surface exposures, sediment stockpiles and four dams within the quarry disturbance area, but did not observe any Aboriginal objects whatsoever within the quarry disturbance area. Dr Kamminga added, in the joint expert report:

During my inspection of the area within and around the Quarry Disturbance Area, I observed that a large area of topsoil (removed from Quarry Cell No 1 prior to the commencement of quarrying operations), had been spread continuously over a level ground surface area of approximately 600 m². As far as I am aware this area of exposed topsoil is not subject to future quarry operations. Despite close visual examination of the surface of this redeposited topsoil I did not detect any Aboriginal objects. Along with other evidence, this result suggests that the occurrence of Aboriginal objects within the Quarry Disturbance Area may be very low and that normal archaeological test pitting may fail to reveal any Aboriginal objects at any chosen locations within or in the vicinity of the Quarry Disturbance Area.

29. Mr Czastka inspected the land on at least two occasions in September 2016. Mr Czastka noted that no Aboriginal objects, other than the scarred trees, were located during the course of the investigations of Everick Consultants or the earlier archaeological surveys by Mr Barton. Mr Czastka did not identify any Aboriginal stone artefacts within the quarry disturbance area on any of his inspections of the land. In the joint expert report, Mr Czastka agreed that no Aboriginal objects have been identified to date within the footprint of the quarry disturbance area.

30. Mr Czastka says, however, that this is largely a product of a lack of suitable conditions conducive for archaeological detectability (i.e. about 5 per cent or less of exposed ground surfaces). Mr Czastka disagreed with Dr Kamminga:

that a visual inspection of the ‘large area of topsoil (removed from Quarry Cell No 1 prior to the commencement of quarrying operations)’ is an appropriate way to make a judgment call on the density of Aboriginal objects for the Quarry Disturbance Area. In my opinion, I would contend that observation of this topsoil under survey conditions would not necessarily reveal any Aboriginal objects and is therefore not necessarily a good indication of the presence or absence of Aboriginal objects. This is because the topsoil is a very stony soil and the ‘background’ noise of basalt gravels would potentially obscure Aboriginal objects. Furthermore, much of the topsoil would be clods (lumps or chunks of soil) because of the high clay content of the soil and would not break down into finer fractions: in this instance Aboriginal objects could be hidden within the lumps of soil. It is my opinion that archaeological subsurface testing is the only appropriate and objective method for testing for the presence or absence of Aboriginal objects.

31. Other persons with cultural knowledge, interest or lay expertise have also had opportunities to inspect the quarry disturbance area, but have not observed any Aboriginal objects.

32. Mr Williams, who identifies as a Gidubul (Githabul) man, has visited the land on a number of occasions and, with the permission of the owners of the land, Mr and Mrs Carlill, camped with his wife on the land. Mr Williams was also involved in the Aboriginal cultural heritage assessment undertaken by Everick Consultants in April 2012.

33. Mr Williams recognised that the Galibul (Gulli-bul) people are the caretakers of the land on which the quarry is being carried out but said that it is of significance to all the tribes of the surrounding areas, including the Gidubul (Githabul) tribe. Mr Williams claims knowledge of the land was passed to him by a senior elder of the Gulli-bul tribe. Mr Williams claims that the land contains a men’s initiation site, a burial ground and toolmaking sites. He says that “it would be impossible to make tools and weapons at the site without leaving stone artefacts behind at the site”. He therefore believes that it is likely that there are stone artefacts on or below the surface of the land.

34. Notwithstanding his belief and despite inspecting the land on a number of occasions, Mr Williams has not yet identified any stone artefacts within the quarry disturbance area.

35. Mr Michael Walker, a Gulli-bul man, disputes Mr Williams’ claim to be an elder of the Githabul tribe. Mr Walker is an elder of the Gulli-bul tribe. Mr Walker considers that the land on which the quarry is being carried out is within the Gulli-bul tribal lands and outside the tribal lands of the Githabul tribe. Mr Walker disputes Mr Williams’ claim that he received cultural information about the land from a senior elder of the Gulli-bul tribe. Mr Walker says that the only recognised senior elders of the Gulli-bul tribe who have lived during Mr Williams' lifetime are himself and his father. Neither Mr Walker nor his father passed any information to Mr Williams regarding the significance or otherwise of the land to the Gulli-bul people. Mr Walker says that according to Gulli-bul lore, any information relating to a men’s place “must be kept confidential and communicated only to other men within that tribe”. For information to be communicated in the way alleged by Mr Willliams, who is not of the Gulli-bul tribe, would constitute a breach of Gulli-bul lore.

31. Mr Walker disputes Mr Williams’ claims that an initiation site or burial ground is on the land to be quarried. Mr Walker says that, as a result of his cultural knowledge and his position within his community, he is aware of ceremonial and initiation sites and burial grounds within the Gulli-bul tribal lands, but none of these are at the land on which the quarry is being carried out. Mr Walker says that his cultural knowledge also enables him to identify areas which would be of significance to the Gulli-bul tribe, including the types of places and practices which were traditionally involved in different ceremonies of the Gulli-bul tribe. Based on this knowledge, Mr Walker considers that there is not sufficient cultural infrastructure present on the land for it to be a ceremonial or initiation site. Some of the types of cultural infrastructure that would be present at ceremonial or initiation sites are: a permanent water source in the immediate vicinity, food sources in the immediate vicinity and access to certain earthly elements, such as types of dirt, trees and plants. None of this cultural infrastructure is present on the land. Mr Walker also disputed that there would be a burial ground at a ceremonial or initiation site. Mr Walker said that it is a traditional practice of the Gulli-bul and other tribes not to bury their deceased at ceremonial or initiation sites.

32. Mr Walker said that he did not see any Aboriginal objects on the land when he attended the land on 7 October 2016 with Dr Kamminga or at any other times, which he considered to be Aboriginal artefacts, apart from the scarred trees.

33. Mr Walker says that:

Based on my cultural knowledge of the Site, in particular my knowledge that the Site was not a burial, ceremonial or initiation Site, I do not believe that there would be any Aboriginal objects at the Site. If I held cultural knowledge which suggested that the Site held this significance, the objects that would be found there would be artefacts of my direct ancestors and the Gulli-bul tribe. I would have no interest in seeing these objects harmed and I would have an obligation to the Gulli-bul tribe to communicate this knowledge and seek to protect these objects.

39. Mr William Johnston is a sites and cultural officer employed by the Gugin Guddaba Local Aboriginal Land Council. His role is to monitor work undertaken in the Kyogle area which involves or is likely to impact on Aboriginal cultural heritage. Mr Johnston was the person advised by Mr O’Reilly, the quarry supervisor, under cl 7 of the Aboriginal Cultural Heritage Management Plan when work was to be undertaken at the quarry. Mr Johnston attended the land during the construction of the access road, the construction of the office, toilet and associated facilities and the ripping and stripping of topsoil in preparation for blasting. During Mr Johnston’s attendance on the land, he observed any soil which was broken and examined it for any objects which might be Aboriginal objects. For example, he said he would often pick up rocks which were found in the topsoil and examine them for any significant markings or any notable shaping. Mr Johnston says that he never found any objects at the site, or in the moved soil, identifiable as Aboriginal objects of the Gulli-bul tribe or otherwise.

40. Mr Carlill, with his wife, is the owner of the land. The land has been in his family for three generations. Mr Carlill has worked on the land for over 50 years. Over this period, he has ploughed and cultivated the entire land on which the quarry is now being carried out and has used the land to run cattle. Mr Carlill says that he has had a lifelong interest in Aboriginal artefacts. He has studied a number of books on the subject, including F D McCarthy’s book, Australian Aboriginal Stone Implements (1967, The Australian Museum Trust). Mr Carlill says that these books have taught him how to identify and recognise a wide range of different stones used in production, including stones of different shapes.

41. Mr Carlill recalls when the land was ploughed in 1983 and 1985. He watched the ploughing take place in 1983 and walked over the ploughed area numerous times following the ploughing, over a period of months. At no stage did he observe or find any Aboriginal stone artefacts. Mr Carlill undertook the ploughing in 1985 and afterwards walked over the ploughed area numerous times. The ground had been broken down substantially more than from the first ploughing, which meant that there was ample opportunity for Mr Carlill to inspect the ploughed area in detail. Mr Carlill inspected the ploughed area again after a number of rain events. Mr Carlill says that at no time did he observe or find anything resembling Aboriginal stone artefacts.

42. Mr Carlill says that over the years the land has been otherwise disturbed. Kyogle Council performed test drilling and explosions on the land and Mr Carlill has constructed a number of dams on the land. Vehicles, including trucks, have travelled across the land. Many people have walked over the entire land. Mr Carlill has walked over the entire land specifically keeping an eye out for Aboriginal stone artefacts. Notwithstanding this activity on the land, Mr Carlill has never discovered Aboriginal stone artefacts on the land and at no time has anyone who has been on the land informed Mr Carlill that they have discovered or located Aboriginal stone artefacts.

43. Mr Stephen O’Reilly is employed as a quarry supervisor by Mr and Mrs Graham. His role is to oversee and co-ordinate all works and activities at the quarry.

44. Mr O’Reilly oversaw earthmoving and construction work at the land between October 2015 and June 2016. This included the construction of the access road and the removal of topsoil. Mr O’Reilly notified Mr Johnston, the site’s cultural monitor, to monitor the work and look for Aboriginal objects. Topsoil was removed on: 9 March 2016, to commence construction in relation to the access road; 11 July 2016, to construct the office and toilet block and associated facilities; 18 July 2016, to rip the topsoil for the buffer zone; and 26 August 2016, to strip topsoil for the blast area. Mr Johnston was present on all of these occasions. Mr O’Reilly estimated that 550 m³ of topsoil and 2,000 m³ of overburden were moved from their original position on the land. All of the topsoil and overburden which has been moved is located in stockpile mounds on the land. Mr O’Reilly says that Mr Johnston inspected the excavated earth upon its exposure and also inspected the stockpiles. At no time were any artefacts discovered or found. Mr O’Reilly says that he also walked around the land with Mr Czastka on 20 September 2016. They walked the full perimeter of the quarry footprint, identified by pegged markers, and around the new topsoil and overburden stockpiles. No artefacts were observed during this inspection.

45. Dr Kamminga relies on this evidence that, after all of these Aboriginal cultural assessments and inspections of the quarry site, no Aboriginal stone artefacts have been discovered. In light of this evidence, Dr Kamminga says that Mr Czastka’s opinion that Aboriginal objects, based on probability, will be present within the footprint of the quarry disturbance area, is unsupported speculation. Dr Kamminga said that the number and nature of the inspections and assessments that have been undertaken and the extent of exposure of the topsoil and overburden that has occurred, have provided greater opportunity to discover Aboriginal objects than the archaeological survey recommended by Mr Czastka would provide. Notwithstanding this greater opportunity to discover Aboriginal objects, no Aboriginal objects have been found.

46. Dr Kamminga did accept that Aboriginal stone objects are widely found throughout Australia and that at least some Aboriginal stone objects might occur in the topsoil sediment of the plateau as a whole. However, the quarry disturbance area is less than 10 per cent of the plateau top. Dr Kamminga says that he has no evidentiary basis to say that this 10 per cent would contain Aboriginal objects.

47. Dr Kamminga did not accept Mr Williams’ claim that Aboriginal stone objects would be likely to be present because of the existence of an initiation site, burial ground or toolmaking sites. Dr Kamminga said that there was no tangible evidence for the current or former presence of an initiation site, a bora ground or a burial ground. There is no physical evidence for an Aboriginal stone quarry on the plateau and no evidence for the presence of igneous metamorphosed bedrock suitable for making stone axe heads and, in particular, axe heads that would have been of sufficient quality to trade with others.

48. Mr Czastka’s opinion that Aboriginal objects, as a matter of probability, are present within the quarry disturbance area has three bases.

49. First, Mr Czastka relied on the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales (2010, Department of Environment, Climate Change and Water). Step 2b of the “generic due diligence process” recommended by the code is to consider whether Aboriginal objects are likely to be in the area of the proposed activity, having regard to particular landscape features, including if the proposed activities are located on a ridge top or ridge line or within 200 m of waters (including a river). This is because Aboriginal objects are often associated with particular landscape features as a result of Aboriginal people’s use of these features in their everyday lives and for traditional cultural activity. Mr Czastka noted that the proposed quarry is located on the basaltic ridge in proximity to the Richmond River. He applied the predictive archaeological model in the code to predict that it is likely that there are Aboriginal objects present in the quarry disturbance area on the ridge.

50. However, the predictive archaeological model in the due diligence code has an extra factor that Mr Czastka failed to consider in expressing his opinion. Step 2b states that one only must proceed to step 3 of the due diligence process if the proposed activity is on or within a specified distance of specified landscape features (such as on a ridge line or within 200 m of waters) “and is on land that is not disturbed land (see Definitions)”. Indeed, steps 3 and 4 state that they only apply if the land is not disturbed land or contains known Aboriginal objects. “Disturbed land” is defined to be:

Land is disturbed if it has been the subject of a human activity that has changed the land’s surface, being changes that remain clear and observable.

Examples include ploughing, construction of rural infrastructure (such as dams and fences), construction of roads, trails and tracks (including fire trails and tracks and walking tracks), clearing vegetation, construction of buildings and the erection of other structures, construction or installation of utilities and other similar services (such as above or below ground electrical infrastructure, water or sewerage pipelines, stormwater drainage and other similar infrastructure) and construction of earthworks.

51. In this case, the land clearly is disturbed land. The land has been cleared, grazed and ploughed; dams have been constructed; and earthworks have been undertaken, including the construction of an access road and office and toilet facilities, the ripping of the buffer zone and the stripping of topsoil in quarry extraction cells. Proper application of step 2b of the due diligence process, therefore, would not necessarily result in the conclusion that there is likely to be Aboriginal objects in the quarry disturbance area.

52. The second basis of Mr Czastka’s opinion was, primarily, the evidence of Mr Williams. Mr Czastka relied on Mr Williams’ belief that Aboriginal people had used the land as an initiation site and burial ground and for toolmaking. Any such activity would have left material evidence, including stone artefacts.

53. The third basis of Mr Czastka’s opinion was the absence of ground visibility and the lack of archaeological subsurface testing. Mr Czastka says that it would have been prudent, given the negligible ground visibility across the land, to record part of the land, including the quarry disturbance area, as a potential archaeological deposit and test it accordingly. The lack of archaeological subsurface testing meant that one could not conclude that Aboriginal objects are not present. Mr Czastka did not accept that the soil exposed from previous excavation across the land would have provided sufficient opportunity to identify Aboriginal objects that might be present.

54. Mr Czastka concluded in his report that:

Based on the reviewed evidence, the nature of ceremonial and initiation ceremonies that are purported to have taken place, the proximity to water and the elevated position (vantage point) of the Quarry site and the ancillary activities that would have taken place such as subsistence or preparation for ceremonies, there is a high likelihood that Aboriginal deposits/objects/material evidence as defined under the National Parks and Wildlife Act 1974 and representing evidence of Aboriginal habitation will be located on the Quarry Site.

Aboriginal stone artefacts not proven to be present

55. Mr Williams bears the onus of proof that there has been or will be a breach of s 86 of the NPW Act. A critical element in establishing a breach is the existence of Aboriginal stone objects on the land to be quarried. The only Aboriginal objects claimed by Mr Williams to be on the land are Aboriginal stone artefacts. Mr Williams therefore bears the onus of proving, on the balance of probabilities, that there are Aboriginal stone objects within the quarry disturbance area.

56. I am not satisfied, considering all of the evidence, that Mr Williams has discharged this onus of proof.

57. First, no Aboriginal stone artefacts have been found to date in the quarry disturbance area, notwithstanding numerous Aboriginal heritage inspections and assessments and numerous opportunities to discover Aboriginal stone artefacts. Four archaeologists have inspected and assessed the land for Aboriginal cultural heritage over the last 20 years, being Mr Barton in 1996 and 1998, Mr Robins in 2012 and 2014, and Mr Czastka and Dr Kamminga in 2016. At least three Aboriginal people with knowledge about Aboriginal cultural heritage and Aboriginal objects have inspected the land, being Mr Williams, Mr Walker and Mr Johnston. The owner of the land, Mr Carlill, has worked on the land, including on the proposed quarry disturbance area, for over 50 years and has a demonstrated interest in Aboriginal objects. The quarry supervisor, Mr O’Reilly, carried out earth moving works, including moving topsoil and overburden, in accordance with the Aboriginal Cultural Heritage Management Plan. All of these people were looking out for Aboriginal objects, but none of them detected any Aboriginal stone artefacts in the quarry disturbance area.

58. Mr Williams argued, relying on Mr Czastka’s archaeological adage that “the absence of evidence is not evidence of absence”, that the absence of evidence of Aboriginal stone artefacts to date is not necessarily evidence that such artefacts are absent from the quarry site. However, as I have earlier stated, Mr Williams bears the onus of proving the presence of Aboriginal stone artefacts on the site; the respondents do not bear the onus to prove the absence of Aboriginal stone artefacts. Mr Williams cannot prove the presence of Aboriginal stone artefacts by asserting that the evidence does not prove the absence of Aboriginal stone artefacts.

59. In this case, notwithstanding the considerable number of purposeful Aboriginal heritage inspections and assessments and opportunities to discover Aboriginal stone artefacts, the number of people who have undertaken inspections and assessments or have had the opportunity to discover Aboriginal objects and the Aboriginal cultural heritage expertise of some of these people, including archaeologists and Aboriginal people, no Aboriginal stone artefacts have been discovered on the land. In these circumstances, it is difficult for Mr Williams to establish that there are Aboriginal stone artefacts in the quarry disturbance area.

60. Second, I do not agree with Mr Czastka that an inference can be drawn, as a matter of probability, that there are Aboriginal objects on the land on the three bases he stated.

61. As to the first basis, the fact that a step in the due diligence process of the due diligence code might recommend assuming the presence of Aboriginal objects if a proposed activity is on land associated with particular landscape features (and is not on disturbed land) does not establish that there are in fact Aboriginal objects present on the land. The making of that assumption is a step (step 2b) in the multi-step due diligence process that the due diligence code recommends should be followed in order to determine whether an application should be made for an Aboriginal heritage impact permit.

62. The making of the assumption is part of a precautionary approach designed to minimise the risk that a proposed activity might harm Aboriginal objects. If, by applying step 2b, Aboriginal objects are assumed to be present, the next step in the due diligence process (step 3) is to decide whether measures can be taken to avoid any potential harm to the Aboriginal objects that have been assumed to be present. An example would be moving the activity away from the area where the Aboriginal objects are assumed to be present. If potential harm can be avoided, the activity can be cautiously carried out without applying for an Aboriginal heritage impact permit.

63. If, however, potential harm cannot be avoided, the next step in the due diligence process (step 4) is to undertake a desktop assessment and visual inspection of the area, by a person with expertise, to see if Aboriginal objects can be identified or are likely to be present below the surface. Where the desktop assessment or visual assessment does not indicate that there are or are likely to be Aboriginal objects, the activity can be cautiously carried out without applying for an Aboriginal heritage impact permit.

64. If, however, the desktop assessment or visual inspection indicates that there are or are likely to be Aboriginal objects in the area of the proposed activity, more detailed investigation and impact assessments will be required. This is step 5. If this detailed investigation and impact assessment establishes that harm will occur to Aboriginal objects, only then does the code advise that an application be made for an Aboriginal heritage impact permit.

65. The making of the assumption at step 2b in the due diligence process, that Aboriginal objects might be present if the proposed activity is on land associated with particular landscape features (and is not on disturbed land), is, therefore, but one step in the due diligence process to ascertain if, in fact, there are Aboriginal objects present that might be harmed by the proposed activity. The making of the assumption does not and cannot prove, on the balance of probabilities, the presence of Aboriginal objects on the land.

66. In any event, in this case, proper application of step 2b of the due diligence process would not necessarily require making the assumption of the presence of Aboriginal objects. This is because the proposed quarry is on disturbed land. Step 2b only requires making the assumption if the proposed activity is not on disturbed land or contains known Aboriginal objects.

67. The second basis of Mr Czastka is dependent on Mr Williams’ belief that there is an initiation site within the quarry disturbance area at which toolmaking was undertaken, so that there would be stone artefacts from toolmaking present on the land. Mr Williams’ belief is contested by Mr Walker, who is an elder of the Gulli-bul tribe on whose tribal lands the quarry is located. Mr Walker states, based on his cultural knowledge and position as an elder of the Gulli-bul tribe, that there is not an initiation site or burial ground on the land. Mr Walker disputes that Mr Williams has authority to possess or pass cultural information about the land. Mr Walker also disputes that the source of the information that Mr Williams said was passed to him was from a senior elder of the Gulli-bul tribe. Mr Walker further states that there is insufficient cultural infrastructure present on the land for it to be a ceremonial or initiation site. Mr Walker said that because the land was not a burial, ceremonial or initiation site, there would not be any Aboriginal objects on the land.

55. The evidence of the archaeologists is also that there is no known physical evidence for an Aboriginal stone quarry on the plateau and no evidence for the presence of igneous metamorphosed bedrock suitable for making into stone axe heads.

56. Having regard to the evidence of Mr Walker and the archaeologists, which I accept, I am not satisfied that Mr Williams has established, on the balance of probabilities, that Aboriginal stone artefacts are within the quarry disturbance area because of the existence of toolmaking sites associated with a ceremonial or initiation site or an Aboriginal stone quarry on the land.

57. The third basis of Mr Czastka’s opinion was that because of the negligible ground visibility in the quarry disturbance area and the lack of archaeological subsurface testing, one could not conclude that there are not Aboriginal stone objects present. This does not assist Mr Williams’ case. Mr Williams needs to prove that Aboriginal objects are present on the quarry site; he cannot do this by asserting that, because of the negligible ground visibility and a lack of archaeological testing, it has not been proven that Aboriginal objects are not present within the quarry disturbance area.

58. In summary, Mr Williams has not established, on the evidence to date, that there are Aboriginal stone artefacts within the quarry disturbance area.

No threatened breach established

72. Because Mr Williams has not established that there are Aboriginal stone artefacts within the quarry disturbance area, which will be harmed by the carrying out of the quarry, Mr Williams has not established a threatened or apprehended breach of s 86 of the NPW Act. Mr Williams’ proceedings should therefore be dismissed.

73. This conclusion that Mr Williams has not established, on the evidence before the Court, a threatened or apprehended breach of s 86 of the NPW Act does not mean that the respondents can harm any Aboriginal object that might be found on the land in the future. The statutory obligation imposed by s 86 of the NPW Act not to harm Aboriginal objects continues to apply. If any Aboriginal object were to be found within the quarry disturbance area, the respondents would be obliged by s 86 not to harm it, except if they are authorised to do so by an Aboriginal heritage impact permit. The respondents remain, therefore, under the ongoing obligation imposed by s 86 not to harm any Aboriginal object in the course of carrying out the quarry.

Costs

74. The question of the costs of the proceedings was not argued. Ordinarily in civil enforcement proceedings in Class 4 of the Court’s jurisdiction, the usual order is that costs follow the event. An exception can be made, however, if the Court is satisfied that the proceedings have been brought in the public interest: see r 4.2(1) of the Land and Environment Court Rules 2007. Mr Williams’ genuine concern to prevent harm to Aboriginal objects that he believes might be present on the land is an indication that his proceedings were brought in the public interest. I would therefore be minded not to make an order that Mr Williams pay the respondents’ costs. However, I will give the respondents an opportunity to apply for an order for costs. If the respondents wish to do so, they should apply within 14 days of the date of judgment.

Order

75. The Court orders that the proceedings are dismissed.

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Decision last updated: 29 November 2016