Williams v Homestake Australia Ltd
[2002] NSWLEC 5
•01/24/2002
Reported Decision: 119 LGERA 55
Land and Environment Court
of New South Wales
CITATION: Williams v Homestake Australia Ltd and Ors [2002] NSWLEC 5 PARTIES: APPLICANT:
RESPONDENTS:
Williams
Homestake Australia Ltd and Ors.FILE NUMBER(S): 40010 of 2002 CORAM: Bignold J KEY ISSUES: Interlocutory Relief :- Interlocutory injunction-carrying out of activity pursuant to an Exploration Licence granted under Mining Act 1992-whether activity involves a threatened breach of NP&W Act-balance of convenience.
LEGISLATION CITED: National Parks and Wildlife Act 1974, s 90 CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148;
Forestry Commission v Corkill (1991) 73 LGRA 247;
Ross v State Rail Authority of New South Wales (1987) 70 LGERA 91DATES OF HEARING: 23-24 January 2002 EX TEMPORE
JUDGMENT DATE :
01/24/2002LEGAL REPRESENTATIVES:
APPLICANT:
Mr a Oshlack, Agent
SOLICITORS
N/A1ST AND 2ND RESPONDENTS:
SOLICITORS
Mr M Brennan Solicitor
THIRD RESPONDENT
Ms E Glancy, Solicitor
1ST AND 2RD RESPONDENT
Blake Dawson Waldron
THIRD RESPONDENT
National Parks and Wildlife Service
JUDGMENT:
IN THE LAND AND
Matter No. 40010 of 2002
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
24 January 2002
NEVILLE WILLIAMS
Applicant
v
HOMESTAKE AUSTRALIA LIMITED ACN 007 857
First Respondent
BARRICK CORPORATION
Second Respondent
THE DIRECTOR-GENERAL NATIONAL PARKS AND WILDLIFE SERVICE
Third Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. By class 4 application filed 22 January 2002, the Applicant (who is an Aboriginal of the Wiradjuri people and a Traditional Custodian and the chairperson of the Mooka Traditional Owners Council) seeks declaratory and injunctive relief in respect of the carrying out of activity pursuant to an Exploration Licence No 2865 granted under the Mining Act 1992 on land known as lot 23 Deposited Plan 753097 at Lake Cowal (the subject land) in breach or threatened breach of the National Parks and Wildlife Act 1974, s 90 (NP&W Act) which prescribes an offence of “knowingly destroying, defacing or damaging a relic or Aboriginal place without first obtaining the consent of the Director General”.
2. By his class 4 application, the Applicant who claimed interlocutory relief by way of an order restraining the first and second Respondents “from carrying out further activity on the land which causes any disturbance to soil, the movement of any stone or rock and the clearing of vegetation pursuant to the said Exploration Licence unless it holds a valid consent under s 90 of the National Parks and Wildlife Act 1974”.
3. This judgment concerns the Applicant’s claim to interlocutory relief which was heard yesterday and earlier today. The interlocutory relief was opposed by the first Respondent (which appeared at the hearing, as did the third Respondent (to assist the Court) but the second Respondent, a foreign corporation, did not appear).
B. THE LEGAL FOUNDATION FOR THE APPLICANT’S CLAIM
4. The Applicant’s claim to interlocutory relief is founded upon the NP&W Act, s 176A(1) which provides as follows:
- Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach .
5. It is not in dispute that a breach or threatened breach of the NP&W Act, s 90 would fall within the ambit of s 176A.
6. The NP&W Act, s 90 appears in Part 6 (comprising sections 83 to 91 inclusive) of that Act which deals with the subjects “Relics” and “Aboriginal Places” those terms being defined by s 5(1) of the Act as follows.
- Aboriginal place means any place declared to be an Aboriginal place under section 84.
Relic means any deposit, object or material evidence (not being a handicraft made for sale) relating to indigenous and non-European habitation of the area that comprises New South Wales, being habitation both prior to and concurrent with the occupation of that area by persons of European extraction, and includes Aboriginal remains.
7. Section 83 declares certain relics to be Crown property.
8. Section 84 empowers the Minister to declare any place to be an Aboriginal place where he is of the opinion that that place “is or was of special significance with respect to Aboriginal culture”.
9. Section 85(1) declares the Director-General to be “the authority for the protection of relics and Aboriginal places in New South Wales”.
10. Section 86 creates a number of offences in respect of relics which may be committed by a person “other than the Director-General or a person authorised by the Director-General”.
11. Section 87 empowers the Director General to issue a permit to do any of the acts proscribed by s 86.
12. Section 88 grants the Australian Museum Trust custody of certain relics.
13. Section 89 empowers the Minister and the Director General to acquire by agreement a relic that is not Crown property for the purpose of preserving or exhibiting the relic.
14. Section 90 creates a similar but separate offence to those offences created by s 86.
15. It provides in subsection (1) as follows:
(1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, a relic or Aboriginal place is guilty of an offence against this Act.
- Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation).
16. Subsection (2) and (3) provide as follows:
(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.
(3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister.
17. Finally, s 91 creates the offence of failing to notify the Director-General of the location of a relic after a person becomes aware of its existence (except where the person believes on reasonable grounds that the Director-General is aware of the location of that relic).
C. THE RELEVANT FACTS
18. The evidence adduced at the hearing comprised affidavits sworn by the Applicant deposing to his concerns upon learning in the past fortnight that exploratory drilling activities were being undertaken at Lake Cowal, and the action that he subsequently took to investigate the matter, and to seek the termination of the drilling activities.
19. That action involved him contacting the National Parks and Wildlife Service (NPWS) and learning that the Service had registered in its records two archaeological sites, namely nos 43/4/7 and 43/4/8 on the subject land and that it had not granted any consent for the destruction of relics in the Lake Cowal mining area.
20. Thereafter, on 14 January, the Applicant accompanied by two other persons, drove to Lake Cowal and entered the subject land where he observed a drilling rig being transported across the proposed mine pit area which was the site of the aforesaid registered archaeological sites—one of which is in respect of a scarred tree and the other of which is in respect of artefact scatters.
21. On the next day (Jan 15th), the Applicant wrote to the second respondent in Perth, Western Australia, calling upon it to immediately cease the drilling and exploration activity at Lake Cowal on the registered archaeological site, failing which he would seek an urgent interlocutory injunction from this Court without further notice.
22. On the same day, the Applicant also wrote to the NPWS urgently drawing its attention to the “destruction of the registered archaeological site 43-4-7 on the shores of Lake Cowal”.
23. On the next day (16th) the Applicant was informed by the NPWS that it would be conducting an on-site inspection with an Aboriginal Sites Officer the following day.
24. On that same day the first Respondent replied to the Applicant’s letter of 15th January to the second Respondent advising the Applicant as follows:
- Homestake Gold of Australia Limited is conducting exploration in the Lake Cowal region under approval issued by the Minister of Mineral Resources. Under that approval we are very aware of our responsibilities to (Relics and Aboriginal Places) Part 6 of the National Parks and wildlife Act 1974. In order to ensure compliance with this approval to proceed, cultural awareness training for all site staff has been conducted by Rowley Williams, site curator for the Wiradjuri Regional Aboriginal Land Council. Our staff are also aware of the presence of identified aboriginal artefact sites in the area. We believe we have not disturbed any sites and will discuss the issues you have raised with the National Parks and Wildlife Department.
If you have any further questions or would like further explanation of any activities at Lake Cowal please feel free to contact me on 08 9212 5715.
25. On the same day (16th), the first Respondent wrote to Mr Oshlack, the authorised agent of the Applicant, in response to his telephone conversation earlier in the day advising of the Applicant’s instructions that proceedings be commenced in this Court if the exploration activity were not forthwith ceased. (Mr Oshlack has informed the Court that he did not receive the letter which was sent by facsimile transmission c/- the Applicant’s facsimile address). Whether or not the letter was received, its contents explain the first Respondent’s attitude to the claims being made against it when it states the following:
- In order that you and the MTOCWN are aware of the relevant facts, I have described our current activities and intentions below:
National Parks & Wildlife Act to carry out exploration activity on any part of lot 23, you can be assured that the Company will obtain such an approval before carrying out the work.
- Representatives of the Company will be meeting with a representative of the NPWS on site tomorrow. I hope that this letter addresses the concerns of the MTOCWN. It is our aim to have a positive relationship with this group and the other indigenous groups in the region.
In the event that you proceed with your threat to commence injunction proceedings against the Company, I request that you produce a copy of this letter to the Court in order that the Court can be fully apprised of the relevant facts.
26. According to the Applicant’s affidavit sworn yesterday, the Applicant on 17th January again attended the subject land in the presence of two other Wiradjuri Traditional owners and other persons who took photographs and video film of the inspection.
27. The Applicant and his party later met up with two NPWS officers at the subject land to be told that they were going to a meeting with the first Respondent and with an officer of the Department of Mineral Resources (DMR). He asked could he also attend the meeting and accompanied the NPWS officers to the meeting place, but was excluded from the meeting by the first Respondent who told him that the meeting was to discuss the first Respondent’s rights with the DMR and the NPWS.
28. Thereupon, the Applicant accompanied by his friends, returned to the subject land and commenced his inspection, photographing and video filming what was observed.
29. His observations included “vehicle tracks right through the artefact scattersite” and a broken hammer stone on one of the well used vehicle tracks.
30. He also observed some completed drilling sites, noting that the surrounding ground had been highly disturbed.
31. Thereafter, the Applicant joined the NPWS staff and the first Respondent’s representatives “walking the line” (presumably referring to one of the proposed travel pathways for one of the drilling rigs).
32. During this joint inspection, the Applicant drew to the attention of the NPWS officers the existence of the broken hammer stone and the existence of another River Red Gum tree which he considered to be a scarred tree.
33. It is apparent from the affidavit that the Applicant was disappointed with the manner in which Ms Blair, the NPWS Aboriginal Heritage Officer had conducted the site inspection.
34. Thereafter, on 21 January 2002 the Applicant wrote again to the second Respondent calling upon it to remove all of the drilling rigs from the subject land, failing which the Applicant would seek urgent interlocutory relief from this Court.
35. He also wrote again to the NPWS expressing his disappointment with his exclusion from the meeting and the manner in which the NPWS Aboriginal Heritage Officer had conducted herself at the inspection of the subject land.
36. His letter contained the following demands:
- We demand that the Lake Cowal gold mine stop without any further exploration. We demand an inspection by a senior archaeologist to properly record a preliminary assessment of the many unrecorded sites and relics that have been uncovered. We wish to remind you that Lake Cowal is very ancient and our Wiradjuri history also lies beneath the surface. A kilometre wide mine pit in our sacred heartland is not appropriate management of our cultural heritage, for which you have a duty of care and a statutory obligation.
We have immediate concerns that:
A hammer stone on a track between two drill rigs has been damaged;
The registered site 43-4-7 is still being driven over and two drills are within 50 metres of an unregistered marked tree.
37. In addition to the foregoing facts, which emerge from the Applicant’s two affidavits, there was some documentary evidence which establishes facts (that do not appear to be in issue). Additionally, there were some formal admissions made by the first Respondent and there were some commonly agreed facts.
38. Collectively from these other evidentiary sources the following facts may be taken to be established for the purpose of adjudicating upon the Applicant’s claim to interlocutory relief:-
1. On 5 October 2001, there was registered by the DMR the transfer from North Gold (WA) Limited to the first Respondent of the interests of the former in a number of Exploration Licences (including Exploration Licence 2865 which was granted in respect of the subject land).
2. Exploration Licence 2865 is currently renewed until 1 June 2003 and is granted subject to a number of conditions of relevance to the Applicant’s present claim. These conditions include the following:
(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.
1. Development consent for the Lake Cowal Gold Project was granted by the Minister in 1998 or 1999. The development application had been supported by an Environmental Impact Statement which in Appendix E contained “An overview of Archaeological Information”.
2. That Overview noted the following relevant facts:
(i) The Overview involved an summation of five earlier reports dealing with different aspects of the Aboriginal culture and heritage of Lake Cowal that had been commissioned at different stages of the process of environmental assessment for the Lake Cowal Gold Mine Project.
(ii) Exploration for such Project had commenced at the Lake in the early 1980s and culminated in the discovery of gold deposits in 1988. Between 1989 and 1994 some 450 drill holes had been undertaken.
(iii) The surveys had revealed more than 20 archaeological sites within the proposed Mining Lease Area (comprising some 20 square kilometres). Of those identified sites, only two, P1 and P2 were located on the subject land which contains the proposed mine pit area measuring some 1 km in length by 250 m in breadth located on the western shore of Lake Cowal.
(iv) In respect of the Mine Pit Area, the Overview States the following:
- The impact of the pit area on the lake shore measures about 1 km long by 250 m. This area has been grazed and cropped for over 100 years. It is partially disturbed and has excellent exposures for finding archaeological materials. Most of the pit area was inspected for archaeological materials. Archaeological visibility is estimated to be as high as 75% and effective survey coverage to be 54%2. (Cane 1995a).
2The area investigated covered approximately 250,000 sq. m. About 90% of the area was examined and approximately 75% of the ground surface was exposed. Visibility within these exposures was high, probably as high as 90% although background interference from natural graves and quartz was also high, again probably as high as 90%. This interfered with the effect coverage, resulting in a confident archaeological assessment of some 54% of the area.
(v) Site P1 is described as the Pit area containing a continuous scatter of artefacts. The Overview states—
- The Pit area contains a continuous scatter of artefacts which appeared to concentrate in a band 50 – 100 metres from the lake shore. This concentration had a fairly low density of artefacts (generally less than one artefact per 40 square metres) with the highest concentrations in the order of one artefact per 20 sq m.
Vehicle, cattle and plough disturbance has distorted the appearance of the assemblage in the pit area suggesting some artefact types might be under estimated (modified flakes constitute just 4%) while others may be over estimated (cores account for 10%). Twenty percent of the material has been broken (snapped) by vehicular traffic.
Site P1 Description
Density 1/40 sq.m.
Artefacts
Flake 66%
Mod Flake 4%
Flaked piece 1%
Core 10%
Backed blade 6%
B. blade blank 5%
Blade 3%
Hammer 1%
Burin 3%
Adze 1%
Materials
Chert 75%
Quartz 19%
Silcrete 4%
Quartzite 2%
The assemblage was recorded as being dominated by unmodified flakes (66%) and cores (10%), with a high proportion of backed blades, blades and small blades (14% of the site).
The majority of the artefacts were made of a fine black chert (75% of the assemblage). This is a very high quality material and, with the exception of one silcrete blade, all the precision implements were made of it. The other materials included quartz, silcrete and local quartzite.
(vi) Site P2 is described as “a scarred tree (red gum) on the south west margin of the proposed mining pit”.
(vii) Throughout the processes of the various archaeological surveys, there had been consultation with the Aboriginal community (the Local and Regional Aboriginal Land Councils) including their participation in field work, inspections and suggested management options. The ultimately recommended management approach was agreed to by representatives of the Local, Regional and the State Aboriginal Land Councils.
1. Exploration activity proposed by the first Respondent is likely to be undertaken throughout 2002 and mining activity is not anticipated this year. The first Respondent’s mining lease application is currently pending and has not been determined by the Minister. The first Respondent intends to carry out extensive exploratory drilling on the subject land.
2. On 11 October 2001 the first Respondent entered into a surface drilling contract with Boart Longyear Pty Ltd (an Adelaide based Company). The contract will involve progressive drilling, the manner of progress of which depends upon the outcome of the preceding round of drilling. Three drilling rigs are currently in place on the subject land.
3. On 18 January 2002, Ms Blair, the NPWS Aboriginal Heritage Officer wrote to the first Respondent in the following terms:
- The NPWS thanks you for your prompt attention and co-operation with respect to the recent stop work order pending a site investigation of alleged threats to the cultural heritage resources of Lake Cowal. This letter confirms that work may now proceed.
I, as the Aboriginal Heritage Officer for the Western Directorate and Ranger Graeme Towney from the Lachlan Area undertook an investigation of the current and proposed drilling locations and operations on 17/1/02. The service is satisfied that every condition of the EIS is being met and that no breach of the NPW Act 1974 has occurred in relation to the cultural heritage.
The service acknowledges your company’s efforts to maintain an open line of communication with the Aboriginal communities and has likewise discussed the mining operations and conditions of approval with the Aboriginal Community representatives in order to clarify their understanding and prevent any further incidents.
4. Following receipt of this advice the first Respondent resumed its exploration activities on the subject land.
5. The subject land (lot 23) is Crown land held on perpetual leasehold by Mesdames Buttenshaw and Currie.
39. In addition to the foregoing facts, the Court was informed by the third Respondent (who was represented at the hearing with the object of providing assistance to the Court) that NPWS staff had been on the subject land on Tuesday and Wednesday of this week for the purpose of further investigating the impact on relics of the immediately proposed exploratory activities and that on the bases of these further investigations, the Service was satisfied that there was no apprehended breach of the NP&W Act, s 90. These investigations of the subject land were currently being extended onto adjoining lands (also within the area of the proposed Mining Lease) which contain a number of other identified sites (containing relics). The purpose of this extended investigation is for recording purposes because these other sites identified in the archaeological surveys included in the EIS for the Gold Mine Project have not hitherto been included in the NPWS register of archaeological sites. (That Register does not appear to have any statutory status or basis, but nonetheless provides a ready reference of known relics).
40. Another matter raised by the Solicitor representing the first Respondent concerns the financial prejudice to the first Respondent if the interim injunction claimed by the Applicant were granted. The Court was informed that in terms of the aforesaid contract, the first Respondent would be liable to pay the contractor a penalty at the rate of $18,000 per day for disruptions caused to the drilling programme. This submission was made on instructions and is not independently proved because only a small portion of the contract was tendered (because the whole of the contract encompassing some 180 pages was not available).
41. In the course of the hearing, I raised the possibility of an arrangement or protocol being agreed between the first Respondent and the Service whereby the Service would be given prior notice of each successive round of exploratory drillings, including the pathway of travel for the drilling rigs from one location on the subject land to the next to enable the Service to be satisfied that each stage or round of the progressive drilling would not involve any risk of damage to relics deposited on the subject land.
42. The first day’s hearing concluded on the basis that the first and third Respondent were invited to give consideration to the adoption of a suitable protocol.
43. Upon resumption of the hearing today, the first Respondent tendered a written Arrangement of Protocol (Exhibit E/1), a copy of which is annexed hereto and marked “A”.
44. In tendering the document, the Solicitor for the first Respondent emphasised that the first Respondent was not giving any undertaking to the Court in terms of fulfilling its obligations under the Protocol. This was because of the first Respondent’s submission that the Applicant had not established his case for interim relief and in particular its submission the evidence proffered by the Applicant did not establish any past breach or apprehended future breach by the first Respondent of the NP&W Act s 90. The submission was buttressed by the evidence to the effect (i) that the first Respondent did not believe that it was in breach of the NP&W Act, s 90; (ii) that as soon as it had received the Applicant’s complaints, it had voluntarily ceased exploratory activities on the subject land in order that the NPWS and DMR be consulted on the issue and the NPWS have the opportunity to investigate the first Respondent’s present operations on the subject land and (iii) the first Respondent had only resumed activity following receipt of the Service’s advice contained in Ms Blair’s letter dated 18 January 2002 “confirming that work may now proceed”.
D. ADJUDICATION ON THE APPLICANT’S CLAIM TO INTERLOCUTORY RELIEF
45. The principles governing the exercise of judicial discretion for the granting of interlocutory injunctions are comprehensively discussed in the following passage of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 – 154:
- The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that 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; (2) that he will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
Recently two members of this Court have held that the plaintiff must establish that there is a serious question to be tried, to use the expression favoured in American Cyanamid v Ethicon Ltd [1975] AC 396 at 407, in preference to the prima facie case test which was adopted in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 525 Gibbs CJ); Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284 (Brennan J). In my opinion that is the correct test to be applied at least in the majority of cases — see Mason J, Declarations, Injunctions and Constructive Trusts (1980) 11 University of Queensland Law Journal 121 at 128; but cf Administrative & Clerical Officers’ Association v Commonwealth (1979) 53 ALJR 588. However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned.
46. These principles involve consideration of the following three questions—
(i) Is there a serious question to be tried?
(ii) Will the Applicant suffer inseparable damage unless the injunction is granted?
(iii) Does the balance of convenience favour the granting or withholding of the injunction?
47. The Solicitor for the first Respondent submitted that the Applicant’s case had not satisfied the first principle, and on that ground alone, the application must fail.
48. With respect, I think that this submission is more aptly directed to the consideration whether the Applicant has made out a prima facie, which consideration has been passed over in favour of the consideration of whether the case raises a serious question to be tried. The cases decided since the decision in Castlemaine Tooheys have confirmed the preference for the test being whether the case raises a serious question to be tried.
49. However, this conclusion does not mean that the question of the strength of the Applicant’s case is not relevant to the exercise of judicial discretion for that question is obviously relevant to the consideration of the “balance of convenience”.
50. The Applicant’s claims to final relief assert an apprehended breach of the NP&W Act, s 90 by the future exploratory activities to be undertaken by the first Respondent on the subject land. Accordingly, the permanent injunction claimed is in the nature of a quia timet injunction to restrain what is alleged to be a threatened breach of the Act. Likewise, the interim relief claimed is a quia timet injunction.
(i.) Serious Question
51. In my judgment, the Applicant’s claim does raise a serious question to be tried in the sense that it asserts that if the first Respondent undertakes its planned exploratory activities on the subject land, there is a serious risk that relics deposited on or in that land will be thereby damaged, either by virtue of (i) the drilling process itself which obviously disturbs the surface and subsurface of the land being drilled or (ii) the process of transporting the drilling rigs from one drill site to the next over land which is known to contain scatters of artefacts, and that the voluntary assumption of that risk will inevitably create the probability of an apprehended breach of the NP&W Act, s 90 whilever there has not been granted by the third Respondent a relevant consent under that section.
52. Accordingly, I would hold that the Applicant’s claim to permanent relief does raise a serious question to be tried. However, I leave for later, my consideration of the strength of the Applicant’s case.
(ii.) Irreparable damage
53. So far as concerns the second question since the Applicant does not assert any ownership or the like in the relics, no question arises as to whether an adequate remedy in damages would be available in lieu of the grant of injunction. However, from a practical viewpoint, if the interim injunction is not granted and if damage to relics happened to be occasioned by the first Respondent’s proposed exploratory activities on the subject land, the result would be contrary to the public interest as well as being contrary to the Applicant’s emotional, psychological and cultural interests.
54. However, to so conclude is inevitably question begging because the irreparable damage will only be caused if damage to relics is occasioned by the first Respondent’s exploratory activities. Accordingly, this consideration further reinforces the importance of the question of the strength of the Applicant’s case, which I shall now consider in considering the balance of convenience.
(iii.) The balance of convenience
55. In considering this matter, it is to be noted that the Applicant has acted promptly in claiming an interlocutory injunction upon learning of the existence of the first Respondent’s present exploratory activities on the subject land but that he has not offered the usual undertaking as to damages. The last mentioned factor weighs against the grant of relief inasmuch as it is apparent that the first Respondent is likely to suffer some significant financial detriment if the drilling contract is temporarily suspended. However, this factor is not by itself determinative of how the judicial discretion should be exercised: see Ross v State Rail Authority of New South Wales (1987) 70 LGERA 91.
56. This brings me finally to the crucial question of the strength of the Applicant’s case, appreciating, as I have earlier mentioned that the gist of the Applicant’s case is that whilever the first Respondent undertakes exploratory activities on the subject land without the benefit of any relevant consent granted under the NP&W Act, s 90, it is likely to pose the risk of damage to relics deposited in or on subject land in the form of widespread scatters of artefactual materials, that likelihood being the result of the combination of two known facts, namely—(i) the nature of the exploratory drilling activities including most particularly the movement across the subject land of the drilling rigs working on the land; and (ii) the widespread scatter throughout that land of the relevant relics.
57. However, the evidence adduced by the Applicant concerning those known facts does not, in my judgment, establish a reasonable probability—far less an inevitability—of damage being caused to the relics. This is because of the relatively low density of the scattered artefactual material as revealed in the archaeological surveys that were undertaken as part of the EIS process leading to the grant of development consent in 1998 or 1999 by the Minister for the establishment and operation of the Lake Cowal Gold Mine Project.
58. According to the “Overview” of those archaeological studies the following material facts emerge:
(i) 90 percent of the land designated as the proposed mining pit comprising an area of some 250,000 m2 was investigated for the presence of relics with “archaeological visibility being estimated to be as high as 75 per cent”. The ultimate degree of confidence in the archaeological assessment was claimed to be in respect of some 54 per cent of the area.
(ii) That investigation identified Archaeological Site “P1” comprising scatters of artefactual materials throughout that Site;
(iii) The nature and density of the artefactual materials, namely (a) an assemblage of unmodified flakes, cores and blades and (b) density of generally less than one artefact for each 40 square metres of surface area; and
(iv) 20 per cent of the artefactual material had been broken by vehicular traffic.
59. This evidence, even considered in isolation of other relevant evidence (presently to be mentioned) falls very far short of establishing in the inherent nature of things, that the first Respondent’s present and proposed exploratory activities on the subject land will, as a matter of probability, cause damage to the relevant relics and hence involve the commission of an offence against the NP&W Act, s 90.
60. Even if it be accepted that the exploratory activities have the potential or capacity for risking damage to the relics, the existence of this risk falls far short of establishing a threatened breach of the NP&W s 90.
61. In this respect, it needs to be emphasised that the relevant “breach’ alleged involves the commission of a criminal offence, which is an important consideration in the application of the NP&W Act, s 176A. It means that the Applicant who invokes the Court’s jurisdiction under s 176A must establish that the first Respondent’s proposed activities involve a threatened commission of a criminal offence.
62. Although the standard of proof in this respect is relevantly the civil standard (vide the Evidence Act 1995, s 140(1)), the Court, in determining whether the case has been established on the balance of probabilities may, in accordance with the Evidence Act, s 140(2) take into account the following matters—
(i) the nature of the cause of action or defence;
(ii) the nature of the subject matter of the proceedings; and
(iii) the gravity of the matters alleged.
63. The gravity of the matter alleged in the present case is that it is alleged that the first Respondent threatens to commit a criminal offence. What then is the evidence of the threat? The Applicant’s evidence has already been noted, and its weight needs to be evaluated in the light of all of the evidence which establishes the following—
(iv) The first Respondent is bound by the express conditions and provisos of Exploration Licence 2865 not to contravene Part 6 of the NP&W Act, and in particular is bound by Condition 39 “to take every precaution in drilling, excavating or disturbing the land against the destruction defacement or damage of any relic except in accordance with a consent issued under the NP&W Act”.
(v) The first Respondent has declared its commitment to strictly comply with its obligations under the NP&W Act in respect of relics on the subject land, and its obligations under the relevant Exploration Licence.
(vi) The NPWS has investigated the Applicant’s complaint and has concluded that the first Respondent has not in the past committed any breach of the NP&W Act, s 90 and is not in the future, likely to commit any such offence;
(vii) The first Respondent has entered into the arrangement or Protocol with the NPWS (Exhibit E/1) regulating its proposed exploration activities on the subject land in a manner that provides the NPWS with adequate opportunity for site investigation and evaluation of the impact upon relics of each stage or round of exploratory activities to be undertaken on the subject land. Compliance with that Protocol provides an adequate and realistic precaution against damage being caused to the relics scattered on and in the subject land.
64. This evidence powerfully bespeaks future compliance by the first Respondent with its obligations not to damage relics in undertaking its exploratory activities on the subject land. This evidence provides a strong rebuttal of any suggestion of a threat by the first Respondent to commit a criminal offence.
65. This brings me to my ultimate evaluation of the Applicant’s case, which is that it is not a strong case. Indeed it is not even a prima facie case. At its highest, the Applicant’s case is that there is a risk that relics will be damaged by the first Respondent’s exploratory activities. However, my evaluation of that risk based upon the evidence is that it is not a high risk. Nor is the risk of such a nature and degree as to be incapable of being avoided by the taking of reasonable precautions in the manner in which the exploratory activities are undertaken. The Arrangement or Protocol (Exhibit E/1) is an obvious example of the precautions that are available and that may readily be adopted, involving a vital degree of supervision by the NPWS which has the important statutory obligation (vide the NP&W Act, s 85(1)) to protect relics.
66. However, the risk, as I have evaluated it, of damage being caused to relics by the first Respondent carrying out exploratory activities on the subject land, falls far short of establishing the threatened commission of an offence against the NP&W Act, s 90.
67. In this respect, the present case may be meaningfully contrasted with the facts in Forestry Commission v Corkill (1991) 73 LGRA 247 where the issue was whether a programme of logging in the Chaelundi State Forest approved by the Forestry Commission of NSW would involve a contravention of the NP&W Act, s 98 or s 99 in circumstances where it was common ground that the result of carrying out that logging would be the disturbing or killing of protected fauna (being the relevant activities proscribed by s 98 and s 99).
68. As the Court of Appeal’s judgment noted at 248/9
- However, it is accepted that however such a proposal be carried out and with whatever practical safeguards, the result will be that certain protected fauna in the particular forest will be disturbed and/or killed.
That is accepted to be the unintended but necessary result of the carrying out of the logging proposal.
69. The Court of Appeal, affirming the trial judgment of Stein J, held that the approved logging proposal would involve the commission of an offence against the NP&W Act, s 99.
70. The evidence in the present case does not, on my evaluation of it, establish that the carrying out by the first Respondent of its present and proposed exploratory activities on the subject land will necessarily result in damage being caused to a relic. On the contrary, the evidence establishes that precautions to avoid such a result are available and are in place, particularly in the form of the Arrangement or Protocol (Exhibit E/1) which Protocol confers an important supervisory role upon the NPWS in the discharge of its statutory duty to protect relics.
71. I appreciate that the Applicant has expressed dissatisfaction with the manner in which the NPWS Aboriginal Heritage Officer Ms Blair conducted her site investigation on 17 January 2002. Likewise, I appreciate that it is the Court, and not the NPWS, that has the ultimate responsibility for determining whether the first Respondent’s conduct (present or proposed) in carrying out exploratory activities on the subject land constitutes the actual or the threatened commission of an offence against the NP&W Act, s 90.
72. However, this does not mean that the investigations and opinions formed by the NPWS in respect of compliance by the first Respondent with its Exploratory Licence obligations not to Contravene Part 6 of the NP&W Act, are not relevant to the Court’s evaluation of the strength of the Applicant’s case, especially given the statutory duty imposed upon the NPWS “to protect relics”: vide the NP&W Act, s 85(1).
73. For the reasons given, I am of the opinion that the Applicant’s case is not a strong case, and this conclusion is decisive in my evaluation of where the balance of convenience lies in the present case.
74. In my judgment, the balance of convenience clearly favours the first Respondent and in the overall exercise of my judicial discretion, I decline to grant the interlocutory injunction claimed by the Applicant.
E. CONCLUSIONS AND ORDERS
75. For all the foregoing reasons, the Applicant’s claim to interlocutory relief must be refused. In refusing the claim, I should note that I have placed considerable importance on the Arrangement of Protocol (Exhibit E1) between the first Respondent and the NPWS.
76. I am confident that adherence to this Arrangement or Protocol will provide an adequate assurance (i) that the first Respondent will be well placed to fulfil its obligations under the provisos and conditions of Exploration Licence 2865; (ii) that the third Respondent will likewise be considerably assisted in the discharge of its statutory obligations under Part 6 of the NP&W Act in respect of the protection of relics and (ii) that there will be no breach of the NP&W Act, s 90.
77. I would, of course, emphasise that the dismissal of the Applicant’s claim to interlocutory relief does not preclude him from seeking further relief if circumstances are to change or if he can establish a stronger case of actual or apprehended breach of the NP&W Act, s 90.
78. My findings on the evidence adduced in the present case mean that the first Respondent’s proposed exploration activities do not pose such a risk to the relics located on the subject land that may otherwise have justified the grant of interim relief for the purpose of preserving the subject matter of the litigation, until the adjudication upon the final hearing.
79. Accordingly, I make the following orders—
1. The first Respondent shall give seven days prior written notice to the Applicant of any proposal of the first and third Respondents to dissolve or to vary the arrangement on Protocol between them (Exhibit E/1).
2. In all other respects, the Applicant’s claim to interlocutory relief is dismissed.
3. Exhibits to be returned upon publication of reasons for judgment except Exhibit E1 which is to remain on the Court file.
4. Question of costs is reserved.
Preamble
A. This arrangement relates to Lot 23 on DP753097 (the "Land").
B. National Parks and Wildlife Service ("NPWS") acknowledges that Homestake Australia Limited ("Homestake") has taken extensive precautions to avoid interfering with Aboriginal relics on the Land and has cooperated with NPWS in this regard.
C. The purpose of this document is to codify and refine the current procedure for further site assessment on the Land. It has been voluntarily developed by Homestake with NPWS.
The Procedure
1. Homestake will give NPWS 10 days notice in writing of:
(a) the location of new proposed drill sites on the Land; and the location of any new proposed pathways for drill rigs or vehicles arising from (a) above,
prior to commencing such work.
2. Homestake will not commence any work described in paragraph 1 above until:
(a) NPWS has inspected the sites and advised that the proposed work will not impact on any Aboriginal relics; or
(b) 3 days after an archaeologist (approved by NPWS) has inspected the sites and certified to NPWS that the proposed work will not impact on any Aboriginal relics.
3. Homestake acknowledges that NPWS may from time to time undertake a spot audit of the work referred to in paragraph 2(b) and will assist NPWS in obtaining access to the Land for this purpose.
4. Homestake will permit Mr Neville Williams, in his capacity as chairperson of the Mooka Traditional Owners Council, and/or his qualified archaeologist to have access to the Land from time to time during the period when it is carrying out exploration activity on the Land. The conditions on which such access will be granted are:
(a) Homestake must be given a minimum of 7 days' written notice of a request for any site visit;
(b) such access may only be for the purpose of inspecting Aboriginal relics;
(c) Mr Williams and his qualified archaeologist must observe the regulatory requirements which any visitor to the Land is obliged to observe pursuant to provisions in the Mining Act and its regulations;
(d) any site visit by Mr Williams and/or his qualified archaeologist must be in company with an officer of the NPWS and a representative of Homestake.
5. The obligations accepted by Homestake in paragraphs 1 to 4 above will be extinguished in the event that Homestake obtains a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974 in relation to the Land.
Dated: 24 January 2002
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