Williams v Homestake Australia Ltd

[2002] NSWLEC 43

Land and Environment Court

of New South Wales

CITATION:

Williams v Homestake Australia Ltd and Ors [2002] NSWLEC 43

PARTIES:

APPLICANT:
Williams

RESPONDENTS
Homestake Australia Limited and Ors.

FILE NUMBER(S):

40010 of 2002

CORAM:

Bignold J

KEY ISSUES:

Interlocutory Relief :- apprehended breach of s 90 of National Parks and Wildlife Act - damage to relics - Balance of Convenience

LEGISLATION CITED:

National Parks and Wildlife Act 1974
Supreme Court Rules pt 28 r 2

CASES CITED:

Forestry Commission v Corkill (1991) 73 LGRA 247

DATES OF HEARING:

20-21 March 2002

DATE OF JUDGMENT:

03/22/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent

SOLICITORS
N/A

FIRST RESPONDENT:
Mr M Brennan, Solicitor
SECOND RESPONDENT:
Mr C Ireland, Solicitor
THIRD RESPONDENT:
Mr Gibbons, Solicitor

SOLICITORS
FIRST RESPONDENT:
Blake Dawson Waldron
SECOND RESPONDENT
Blake Dawson Waldron
THIRD RESPONDENT
Solicitor National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND

Matter No. 40010 of 2002

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

22 March 2002

N. WILLIAMS

Applicant

v

HOMESTAKE AUSTRALIA LIMITED

First Respondent

BARRICK CORPORATION

Second Respondent

THE DIRECTOR GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE

Third Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By Notice of Motion filed on 14 March 2002, the Applicant claims an interlocutory injunction to restrain the first and second Respondents from carrying out any activity pursuant to an Exploration Licence No 2865 granted under the Mining Act 1992 “which activity would disturb the environment, including the movement of vehicles and disturbing the ground surface” and to require the first and second Respondents to remove any drilling rig and machinery from the land described in par 1 of the further amended application in class 4 of the Court’s jurisdiction filed on 4 March 2002.

2. This is the third occasion that the Applicant has claimed interlocutory relief in the brief history of this litigation. The first occasion was when the present class 4 proceedings were commenced on 22 January 2002. That first claim which was heard on 23 and 24 January 2002 was dismissed on 24 January 2002 for the reasons published on that occasion. For convenience, I refer to that judgment for an understanding of the background facts that are relevant to the present application for interlocutory injunction.

3. In those reasons, I expressed the following conclusions at pars 75 to 78:

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.

4. Following the delivery of judgment on 24 January 2002, the Applicant made a further application for interlocutory injunction following an inspection of the lands by the Applicant accompanied by a consultant archaeologist, Mr Johnston, on 21 February 2002. That application was not ultimately pursued after the Applicant agreed with the suggestion made by the first Respondent that the Court should expedite the final hearing of the class 4 proceedings.

5. As a result, the Court, on 4 March 2002 made directions by consent, which included a direction that there be a joint inspection of the land for the purpose of the parties’ respective archaeologists identifying on the land the nature and location of “relics” within the meaning of the National Parks and Wildlife Act 1974 (NP&W Act). Pursuant to these directions, the parties also obtained hearing dates on 1, 2 and 3 May 2002 for the final hearing.

6. It was immediately following the conducting of the joint inspection that the Applicant filed his present Motion seeking urgent interlocutory relief pending the final hearing of the class 4 proceedings, apparently because of what that joint inspection had revealed about the presence of relics on the principal vehicular access situate on the lands.

7. The present application is supported by three affidavits of Mr David Johnston, a consultant archaeologist, the first sworn 3 March 2002 deposing to his observations when attending the land on 21 February 2002, the second sworn 13 March 2002 deposing to his observations on the joint inspection conducted on 11 March 2002 and the third sworn 20 March 2002 replying to the affidavits filed on behalf of the first and second Respondents sworn by Mr Shallvey, the Site Co-ordinator for the Lake Cowal Gold Project of the second Respondent and Dr Pardoe, a consultant archaeologist.

8. In his last affidavit, Mr Johnston summarises the overall observations he made of relics on the lands on his two inspections in pars 3 to 6 as follows:

3. Within Lot 23 which is currently being drilled by the mining company, a total of forty two (42) relics have been recorded on or very near to two of the main vehicle tracks currently being used by the vehicles associated with the mining activities. Five (5) relics were previously identified (site inspection on 21 February 2002) on and near to the northern section of the main track which traverses in a north to south direction. Twenty three (23) additional relics were identified on the same track or in close proximity of it, during the inspection on the 11 March 2002. Fourteen (14) additional relics were also identified on or immediately near to the west to east traversing vehicle track which crosses at right angles the north to south vehicle track at roughly its centre in Lot 23.

4. Both tracks are being used by the mining company vehicles.

5. The vehicle tracks being used by the mining company are not defined, indeed the edges of the vehicle tracks as seen by ones eye are very irregular and often wider than normally expected.
6. These vehicle track boundaries appear to me to be flexibly used and their use not particularly monitored or managed. The case point being that when the pegs were driven to mark the artefacts, the mining company personnel automatically started driving off and around the existing tracks. There appears to be no effective Cultural Management Plan in place that can deal with the location of relics and the procedures to take if relics are identified. Given the occurrence of relics on the two tracks that were inspected, it is archaeologically feasible that other relics will occur off the current tracks. I am concerned as to how further relics potentially exposed due to mining activities (namely heavy vehicle usage) will be identified and managed.

9. In par 8 of the same affidavit, he expresses the following opinion:
7. It is also my opinion that Section 90 of the NSW NPWS Act is being breached by the current exploration activities being carried out within Lot 23. There are relics identified throughout Lot 23 and forty two (42) of them are located on or near to two vehicle tracks which are currently being used by the mining company. While it may be argued that some of the identified crushed or broken artefacts may have occurred from animals, it is my opinion that the continual use of numerous vehicles and other heavy machinery along these tracks have a greater potential to have damaged and to further damage these relics than animals. I don’t recall cattle being present in Lot 23, indeed I would have thought it would have been a health hazard to have them around exploration activities.

10. Dr Pardoe, who attended the joint inspection of the lands as consulting archaeologist on behalf of the first Respondent, in his affidavit sworn 20 March 2002 agreed with Mr Johnston’s observations of relics or artefacts located on the vehicular tracks on lot 23 (par 4). He also observed “road gravel or drill core fragments which are not relics”.

11. Dr Pardoe then deposes (pars 5 to 12) to what occurred at the joint inspection when the first four relics encountered by the inspection team on the main north/south vehicular track were removed from the track and replaced nearby (but off the track). This action was taken with the apparent approval of all three archaeologists but when the fifth relic was encountered, Mr Johnston objected on behalf of the Applicant who was concerned that the taking of such action would prejudice his case that relics were at risk of damage by vehicles and machinery passing over the track. Thereupon the National Parks and Wildlife Service (NPWS) archaeologist, Ms Koettig, announced that she could not resolve the legal issues raised and accordingly decided to place back on the track the four relics that had been removed therefrom and thereafter did not authorise the collection and relocation of any of the other several relics that were encountered by the inspection team on the vehicular track.

12. Dr Pardoe expressed the opinion (par 14) that “the relocation of relics by the National Parks and Wildlife Service authorised archaeologist is clearly the best management solution to achieve the protection for relics on the vehicle tracks” and that “there is no archaeological or cultural disbenefit associated with such a relocation exercise having regard to the fact that the relics are not in situ or the original places—the places they are in are merely their current resting places” (par 15).

13. After expressing opinions as to the locations of the relics so observed, being the result of natural forces, Dr Pardoe expresses the following opinions on the matter of “damaged relics” in par 20 to 23:

20. The lake bed and adjacent areas have also been ploughed for many years (decades) and this could also obviously have damaged relics.

21. As a result, where there are indications of relics having been damaged it is not possible to say with any certainty what caused this damage, even recent damage caused in the last 100 years. It is not possible to say when it occurred. In particular, I saw no evidence of damage that I could probably or reasonably ascribe to the First Respondent’s activities impacting on these relics.

22. During the site inspection I heard Mr Johnston say that the relic referred to in paragraph 10 of his affidavit was recently damaged but that could be cattle.

23. I saw cattle on Lot 23 and in my view cattle impact could have resulted in the damage noted in paragraph 10 of Mr Johnston’s affidavit (and for that matter any other damage seen to relics).

14. Mr Shallvey’s affidavit corroborates Dr Pardoe’s evidence as to what occurred at the joint site inspection concerning the decision not to remove and relocate relics from the road track. In pars 20 to 25 Mr Shallvey details the action he took to place wooden survey pegs where relics had been located at the joint inspection which he later replaced with steel fencing posts. He notified employees of the first Respondent’s contractor undertaking the drilling exploratory activities on the land of the significance of the pegs and of the need to avoid them.

15. Mr Shallvey’s affidavit annexes a plan (a copy of which is annexed hereto and marked “A”) which shows the three north/south vehicular tracks on lot 23. It also shows the six east/west “drill rig pathways” that were physically inspected by NPWS staff in January 2002 and cleared for use.

16. In pars 31 to 39, Mr Shallvey deposes to his involvement with Dr Pardoe, in the process of lodging an application under the NP&W Act, s 87 to authorise Dr Pardoe to collect and relocate to a safe place any relics “that are identified during the course of the first Respondent complying with the Protocol and which are considered to be potentially impacted by the first Respondent’s drilling programme” and to the fact that the first Respondent is preparing an application for a consent under the NP&W Act, s 90 to apply to the “Mining Lease Area and all project infrastructure that is external to the Mining Lease Area”.

17. Mr Shallvey anticipated the lodging of the relevant applications under the NP&W Act, within four weeks (in the case of the s 87 application) and by mid May (in the case of the s 90 application).

18. In pars 40 and 42, Mr Shallvey deposes to the following “prejudice to the first and second Respondents should be interlocutory injunction be granted”:

40. If an injunction is granted restraining the carrying out of exploration activity, I am instructed by the Second Respondent’s Manager, Group Supply and Contracting, Mr Roger Bennetts that, depending on whether or not the grant of the injunction is deemed to be a force majeure event under the contract between the First Respondent and the drilling contractor, Boart Longyear Pty ltd dated 11 October 2001, the consequence will either be:

(a) that the First Respondent will be obliged to continue to pay the drilling contractor during the period of the injunction at the rate of $18,000 per day; or

(b) that the drilling contractor will not be entitled to any payment from the First Respondent during the period of the injunction. Currently the drilling contractor has approximately 25 to 30 employees at the Cowal Gold Project. The number of employees can vary on a weekly basis between the above range.

42. The Second Respondent has 10 geologists and field technicians employed at the Cowal Gold Project site as casuals. These people all work on the First Respondent’s drilling program. If an injunction is granted restraining the carrying out of exploration activity, the consequence will either be:

(a) the Second Respondent may continue to employ the 10 people at a rate of $2300 per day plus superannuation, payroll tax etc; or

(b) the Second Respondent may terminate the employment of the 10 people.

19. In hearing the Applicant’s present claim to interlocutory injunction, I heard concurrently the first Respondent’s application for orders against the third Respondent (the NPWS) to relocate the relics identified in Mr Johnston’s affidavits sworn 13 March 2002 and 3 March 2002 to an alternate location on lot 23 which was not on a vehicular access track and was not proposed to be included in any current or future exploratory drilling site and to order the third Respondent to inspect “any vehicular access tracks that were not inspected during the joint inspection conducted on 11 March 2002 but which are proposed to be used by the first Respondent for the purpose of identifying any relic and relocating it to a safe location.”

20. This application was strongly resisted by the third Respondent, principally because it was seen to be clearly by-passing the processes prescribed by the NP&W Act, Pt 6 for such action being taken in respect of relics.

21. This opposition from the third Respondent led the first Respondent to propound an alternative basis for achieving similar relief, namely by way of order pursuant to Part 28 r 2(1) of the Supreme Court Rules (that apply to this Court) which provides:

In proceedings concerning any property or in proceedings in which any question may arise as to any property, the Court may make orders for the detection, custody or preservation of the property.

22. Although this alternatively propounded relief does not require anything to be done by the third Respondent, I understood the third Respondent to nonetheless oppose the relief upon the ground that it likewise by-passes or subverts the statutory processes prescribed by the NP&W Act, Pt 6. The clear preference of the third Respondent was for the first and second Respondents to lodge their contemplated applications under the NP&W Act, and for the statutory processes to be observed and applied.

23. The Applicant strenuously opposes the first Respondent’s application (in its original form and its alternatively propounded form) claiming it as a wholesale circumvention of the provisions of the NP&W Act, Pt 6.

24. In my judgment, it is not appropriate to grant the relief claimed in the first Respondent’s Notice of Motion because it is essentially inimical to the due processes of the NP&W Act. Certainly, in a case where there were simply no other alternative action to avoid the risk of damage to relics, it may be appropriate for the Court to exercise the power available under Pt 28 r 2 of the Supreme Court Rules for the preservation of property.

25. However, there is in the present case an obvious alternative means of avoiding that risk, namely to restrain activity that poses that risk or to obtain the requisite permit or consent pursuant to the NP&W Act, ss 87 and 90.

26. The problem that accordingly emerges is truly one of timing. The first Respondent is preparing necessary applications for the requisite permit and consent under the NP&W Act but anticipates that those applications cannot be completed for at least the next four weeks. The problem arises because the first and second Respondents wish to continue their exploratory activities pending the lodging of the necessary applications.

27. There are, no doubt good commercial reasons informing the decisions and actions of the first and second Respondent but they cannot, of themselves, dictate or mandate a solution which not only is “outside” the due processes prescribed by the NP&W Act, Pt 6, but in truth, at best simply ignore, and at worst intentionally violate, those processes.

28. This then, brings me ultimately to adjudicate upon the Applicant’s present claim to interlocutory relief.

29. Unlike its first claim where the evidence of threatened breach of the NP&W Act, s 90 was found to be significantly wanting ,the evidence in support of the present claim is significantly strong.

30. A further significant difference between the original claim and the present claim is that it now appears that the Protocol between the first Respondent and the third Respondent (upon which I placed considerable reliance in withholding interlocutory relief of the first hearing) has not yet been implemented because vital decisions were taken on behalf of the third Respondent in granting a clearance to the first Respondent before the Protocol was adopted. I am here referring to the fact deposed to in Mr Shallvey’s affidavit that the six east/west drilling rig pathways shown on the annexed plan were cleared by the third Respondent. They involve a total length of more than two kilometres, and in respect of one small section of only one of those pathways situate near the junction with the north/south access road, the joint inspection revealed the presence thereon of some 14 relics. The position with respect to the east/west pathways that were not inspected by the inspection team must now be considered to be much in doubt, notwithstanding the clearance granted by the third Respondent in January 2002.

31. In my earlier judgment, I noted the relevant principles upon which the Court exercises its judicial discretion for the granting of interlocutory injunctions (see at pars 45 to 50). The relevant principles require consideration of three questions—

(i) Is there a serious question to be tried?
(ii) Will the Applicant suffer irreparable damage unless the injunction is granted; and
(iii) Does the balance of convenience favour the granting or withholding of the injunction?

32. My consideration of these questions on the present hearing has satisfied me that there is a serious question to be tried, the Applicant will suffer irreparable damage if the injunction is not granted and the balance of convenience favours the grant of injunction.

33. The strength of the Applicant’s case of threatened breach of the NP&W Act, s 90 founded principally upon the three affidavits of Mr Johnston, is in my view established and it is not seriously questioned in the evidence adduced by the first and second Respondents.

34. Based upon my acceptance of Mr Johnston’s evidence, I am satisfied that there is such a strong degree of reasonable probability of damage being caused to relics by the continuing exploratory activities undertaken on the lands, to almost borders on inevitability (such as was conceded to be the case in Forestry Commission v Corkill (1991) 73 LGRA 247) which I referred to by way of contrasting illustration in my earlier judgment.

35. Based upon the evidence now adduced by the Applicant in support of its present claim, my present citation of Corkill is no longer by way of contrasting illustration, but by way of comparative illustration.

36. The fact that the first Respondent has now initiated action seeking the necessary permit and consent under the NP&W Act (ss 87 and 90) appears to be a clear recognition by the first and second Respondents that such action is now necessary in the light of what I infer to be a significant change in the level of knowledge on their part of the presence of relics on the land.

37. I have of course considered the potential financial detriment to the first and second Respondents if the injunction is granted as deposed to by Mr Shallvey.

38. Although the Applicant has offered the usual undertaking as to damages (he did not do so, when making his initial claim to interlocutory injunction) he is a pensioner with no real financial wherewithal which would enable him to satisfy any liability for damages that may be incurred pursuant to the undertaking.

39. Despite this fact, I have concluded that on balance, it is just and reasonable to grant the injunction because the risk of damage to relics if the exploratory activities continue is so great, that that factor tilts the balance in favour of the grant of the injunction until the final hearing on 1 – 3 May 2002.

40. Accordingly, I propose to grant the restraining order sought (but not the mandatory order claimed). However, I would note that the continuance of the injunction would not be required in the event of the first and second Respondents obtaining requisite permits and/or consent under the NP&W Act.

41. There should also be afforded to the first and second Respondents the opportunity to satisfy the Court that there are measures available for the resumption of exploratory activities without posing any risk of damage to the relics on the land.

42. To that end, liberty to apply to vary or discharge the injunctions must be reserved to the first and second Respondents so that the injunction granted will not have any operation beyond that which is necessary to restrain any apprehended contravention of the NP&W Act, s 90.

43. Accordingly, for all the foregoing reasons, I make the following orders—

1. Until further order, the first and second Respondents be restrained from carrying out activity on lot 23 Deposited Plan 753097 or the adjoining Game Reserve that involves the movement on or across those lands of vehicles and machinery used for the purposes of conducting exploratory drilling of the lands

2. Grant leave to the first and second Respondents to move the Court on two days’ notice for the discharge of the interlocutory injunction in the event of

A.

their obtaining any permit granted pursuant to s 87 of the National Parks and Wildlife Act or of any consent granted pursuant to s 90 of that Act which would enable the movement on and across the lands of the said vehicles and drilling rigs and machinery without involving any risk of contravention of ss 86 and 90 of the National Parks and Wildlife Act; or

B

their satisfying the Court, after appropriate archaeological survey and report, that the exploratory mining activities may be resumed on the said lands, without posing any risk of contravention of s 90 of the National Parks and Wildlife Act.

3. The first Respondent’s Notice of Motion filed 18 March 2000 (including the alternatively propounded claims to relief) is dismissed.

4. Costs reserved.

5. Exhibits be retained on the Court file.

6. Order 1 is suspended until Noon 23 March 2002 to enable the completion of any current work shift employed at the site undertaking drilling activity and thereafter is further suspended until Noon 25 March 2002 to enable any removal of vehicles, drilling plant and machinery from the land.

7. Liberty to apply on two hours’ notice for the purpose of seeking any further suspension of Order 1 in the nature of the suspensions granted by Order 6.