Williams v Pardoe and Ors. - [2005] NSWLEC 119

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Williams v Pardoe and Ors. [2005] NSWLEC 119

PARTIES:
APPLICANT:
Williams
RESPONDENTS:
Pardoe and Ors.

FILE NUMBER(S):
40626 of 2003

CORAM:
Bignold J

KEY ISSUES:
Administrative Law :- challenge to validity of Permit and Consent in respect of Aboriginal objects-alleged denial of procedural fairness-alleged breaches of Conditions of Permit-alleged racial discrimination

LEGISLATION CITED:
National Parks and Wildlife Act 1974, s 2A, ss 87, 90
Racial Discrimination Act 1975, ss 9 and 10

CASES CITED:
Beckwith v the Queen (1976) 135 CLR 569;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170;
Port of Melbourne Authority v Anshun Property Ltd (1981) 147 CLR 589;
Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;
Ryde City Council v Echt (2000) 107 LGERA 317;
Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80;
Tynan v Meharg (1998) 101 LGERA 255;
Williams v Barrick Australia Ltd (2003) 128 LGERA 80;
Williams v Pardoe (2003) NSWLEC 150;
Williams v Director General National Parks and Wildlife Service (2003) LGERA 354;
Williams v Pardoe (2003) NSW LEC 363;
Williams v Pardoe (2004) NSWLEC 71

DATES OF HEARING: 24-31/05/2004, 2,4,8/06/2004

DATE OF JUDGMENT:

03/18/2005

LEGAL REPRESENTATIVES:
APPLICANT:
A Oshlack, Agent
SOLICITORS
N/A
1ST-3RD RESPONDENTS:
Mr N Williams SC
4TH RESPONDENT
Mr A Galasso, Barrister
SOLICITORS:
1ST - 3RD RESPONDENTS
Blake Dawson Waldron
4TH RESPONDENT
Solicitor for National Parks and Wildlife Service

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

18 March 2005

40626 of 2003 WILLIAMS v PARDOE AND ORS.

: HIS HONOUR

1 On 29 May 2003 the Applicant commenced these class 4 proceedings alleging breaches by the first Respondent of specified conditions of a permit issued by the fourth Respondent (the Director-General) pursuant to the National Parks and Wildlife Act s 87 (NP&W Act) and consequential breaches by the second and third Respondents of ss 87 and 90 of that Act. (The alleged breaches are “consequential” in the sense that the NP&W Act, s 86 creates the offence by proscribing certain activities that are undertaken “except in accordance with the terms and conditions of an unrevoked permit”.). The s 87 Permit (No 1468) had been issued on 27 November 2002 in conjunction with a consent pursuant to the NP&W Act, s 90 in respect of Aboriginal objects situate on land at Lake Cowal being the area of some 2,400 hectares that was then the subject of Mining Lease Application 45 (subsequently approved by the grant in June 2003 of Mining Lease 1535 in respect of the approved Lake Cowal Gold Mine).

2 These class 4 proceedings were the last of a series of proceedings brought by the Applicant in this Court since 22 January 2002 against the Respondents in respect of Aboriginal objects situate at the approved Lake Cowal Gold Mine Site. (Development consent for the establishment and operation of the Lake Cowal Gold Mine had been granted by the Minister for Urban Affairs and Planning on 26 February 1999. Included in the conditions of that development consent was Condition 3 imposing specific obligations in respect of Aboriginal heritage, including the requirement for consent to be granted pursuant to s 90 of the NP&W Act). That overall litigation history is summarised in the last of the final judgments in the litigation series delivered on 26 September 2003—see Williams v Barrick Australia Ltd (2003) 128 LGERA 80 at 83 to 90 inclusive.

3 The Applicant’s claim in these proceedings to an interlocutory injunction against the first, second and third Respondents was heard one week after the proceedings were filed and in my reserved judgment delivered on 24 June 2003, I refused the application for interlocutory relief—see Williams v Pardoe (2003) NSWLEC 150.

4 Following the Court’s refusal of the Applicant’s claim to interlocutory injunction, the first, second and third Respondents sought an order against the Applicant for security of costs in the proceedings. That application was dismissed on 23 December 2003—see Williams v Pardoe (2003) NSW LEC 363.

5 Thereafter, the Applicant filed in Court a document styled “further amended class 4 application” to which objection was raised by the first, second and third Respondents resulting in a contested hearing as to whether the Court would grant leave to the amended application. In my reserved judgment delivered on 5 March 2004 (see Williams v Pardoe (2004) NSWLEC 71), I granted leave for the amendment of the proceedings in accordance with a specified document that had been filed in the Court on 26 February 2004 having noted that the amended class 4 application included several new claims which had arisen since the original proceedings were commenced on 29 May 2003 in respect of the following matters—

6 The amended claims also included allegations of further breaches of the conditions of Permit No 1468 said to have been committed by the first Respondent on nominated dates in August 2003.

7 Additionally, claims were made against the fourth Respondent alleging breaches of statutory duties imposed by the NP&W Act.

8 On 19 March 2004, I refused leave for the Applicant to further amend the amended class 4 proceedings (by alleging breaches of conditions of Permit No 1681) for the reasons that the additional claims had been raised far too belatedly in the proceedings and would be likely to prejudice the fair trial of the case that already had been allocated early hearing dates.

9 At the trial, the Applicant maintained the following claims—

10 These several claims were particularised in the Applicant’s Further amended Points of Claim filed on 16 March 2004. Each of the claims is denied by each of the Respondents according to their respective Points of Defence filed in the proceedings. Moreover, the first, second and third Respondents raise discretionary grounds for the Court to decline to grant any substantive relief against any of them in the event that any of the Applicant’s claims are substantiated. Additionally in their final address at the hearing, the first to third Respondents asserted a lack of jurisdiction for the Court to entertain the Applicant’s claims of racial discrimination under the Commonwealth Racial Discrimination Act 1975.

11 Concerning discretionary factors, the parties agreed that the present hearing should be confined to an adjudication on the Applicant’s substantive claims and the Respondents’ denials of those claims, and that in the event of the Applicant substantiating any of his claims, I should reserve for further hearing all questions of any discretionary grounds opposing the grant of relief and the form of any relief that might be considered appropriate.

12 The evidence adduced at the final hearing relevant to the several claims made against the first to third Respondents in the Applicant’s further amended class 4 application and further amended Points of Claim was in the following form.

13 Firstly, in relation to the allegations of breaches of conditions of Permit No 1468 by the first Respondent during the period 23-29 May 2003 the evidence was generally the same as that which was given at the hearing of the Applicant’s claim to interlocutory relief (which claim I rejected) except for some evidence given by Dr Pardoe under cross-examination in those interlocutory proceedings which was not repeated or otherwise adduced at the final hearing.

14 The evidence in respect of the allegations of breaches of conditions of Permit No 1468 comprised affidavit and documentary evidence (including the cross-examination of the deponents).

15 There was no evidence in respect of the alleged invalidity of Permit No 1468, this claim being based upon an asserted legal proposition that the alleged breaches of the conditions of that Permit had the effect of rendering that Permit nugatory because the breaches meant that the Permit could no longer be implemented according to its terms.

16 The evidence in support of the alleged invalidity of the amendments made to Permit No 1468 was entirely documentary, as was the evidence in respect of the alleged invalidity of Permit No 1681 and Consent No 1680.

17 Finally, the evidence in support of the allegations of the first Respondent’s racial discrimination committed against the Applicant and was in the form of affidavits (upon which the deponents were cross-examined). It is to be noted that the evidence in support of the allegations of racial discrimination said to have been committed by the first Respondent on 24 May 2003 was substantially the same evidence that had been adduced at the hearing of the Applicant’s claim to interlocutory injunction (although at that time the Applicant’s claims did not include any allegation of racial discrimination against the Applicant—rather the evidence had been relied upon as proof of breach of the conditions of the Permit).

18 Having regard to the nature of the evidence and the manner that it was given and to the need for it to be distributed to the several claims made by the Applicant against the first to third Respondents. I propose to summarise the evidence and my findings on it (as they are relevant to each of the Applicant’s several claims) by first noting the uncontested documentary evidence concerning the relevant s 87 Permits and s 90 Consents and then noting the contested evidence which is confined to the allegations of breaches of conditions of Permit No 1468 and allegations of racial discrimination against the Applicant.

19 The allegations of breach of statutory duty against the fourth Respondent were vague and the evidence adduced by the Applicant was patchy. The fourth Respondent ultimately submitted that the claim of breach of statutory duty was beyond the Court’s jurisdiction. I shall consider all these matters after I have adjudicated upon the claims made against the first to third Respondents.

20 There is no dispute in the evidence concerning the facts (i) that the abovementioned s 87 Permits and the s 90 consents were granted by the Director-General; (ii) what the terms and conditions of the Permits and Consents are; (iii) how the assessment processes were undertaken; (iv) that the s 87 Permit (No 1468) was subsequently amended by the Director-General.

(i) Permit No 1468 and Consent No 1467

21 Permit No 1468 and Consent No 1687 were granted by the Director-General on 27 November 2002 in respect of Aboriginal objects principally situate on lands comprising Mining Lease Area 45 at Lake Cowal. The Mining Lease Area comprises some 2,400 hectares and is situate some 38 km south-east of West Wyalong and 60 km south-west of Forbes.

22 In addition to the lands comprising the Mining Lease Area, the Permit and the Consent also applied to specified lands comprising a proposed water pipeline running from a bore field situate to the north-east of the Mining Lease Area to that Area.

23 Although the evidence is not entirely clear on the point (but nothing turns on it) it appears that the lands to which the s 87 Permit and s 90 Consent apply is not identical with the lands to which the respective applications seeking the Permit and the Consent applied inasmuch as those applications had included (i) the road upgrade area from Wamboyne Road situate to the south-east of the Mining Lease Area to that Area; and (ii) the relocation of the Travelling Stock Reserve flanking parts of the northern and southern boundaries of the Mining Lease Area and the western boundary of that Area. (As will presently be related, it is in respect of these two additional areas that the further s 87 Permit (No 1681) and s 90 Consent (No 1680) were subsequently granted by the Director-General in respect of further applications that had been made in respect of the whole of the Mining Lease Area soon after this Court had made interlocutory orders on 3 December 2002 suspending the operation of Permit No 1468 and Consent No 1467).

24 The s 87 Permit No 1468 which was granted jointly to Dr Colin Pardoe and Dr Johan Kamminga (both professional archaeologists) authorised (subject to 15 stipulated “General Terms and Conditions” and 18 stipulated “Specific and Special Terms and Conditions”) the following activities:

To:

· Disturb or excavate any land, or cause any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object within the meaning of that term in section 5(1) of the National Parks and Wildlife Act 1974 (NSW) (Aboriginal object); and

· To disturb or move on any land an Aboriginal object that is the property of the Crown,

Application

25 In the present case, it is only necessary to recite the Special and Specific Conditions of Permit No 1468 that the Applicant alleges to have been breached by Dr Pardoe. These are the following:

Research Design and Study Plan

· A permit holder and/or his instructed delegates shall inspect the land in these site locations and identify surface Aboriginal objects. The Wiradjuri Council of Elders, West Wyalong Local Aboriginal Land Council and Mooka Traditional Owners Council (hereafter the Aboriginal community) shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in recording and collection works.

· A representative sample of Aboriginal objects from each site shall be taken. Their position shall be recorded by a GPS and material type and size characteristics shall be noted. They shall then be dealt with in accordance with the procedures outlined in Special Condition 12.

· The collected Aboriginal objects shall be replaced in a location as close as possible to their original location at a time when the works within the specific area do not pose a future threat to them. Replacement will be supervised by a permit holder and/or his instructed delegates. The Aboriginal community shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in replacement works.

· Remaining Aboriginal objects shall be collected with the soil during soil stripping operations and temporarily stored in soil stockpiles before being replaced during rehabilitation activities.

· The Land, Environment and Wiradjuri Heritage Officer shall undertake routine monitoring following replacement as a threat abatement measure. Should this officer identify a likely threat, the officer shall be empowered to halt proceedings. Barrick Australia Limited shall immediately upon notification, investigate the matter, and should the threat be verified, take necessary action to remove or mitigate the threat.

9. Additional works on the Back Plain (as that term is described in the Research Design and Study Plan) – Areas outside of the sites on the Back Plain that are identified in the Application shall be inspected to identify, where possible, other concentrations of surface Aboriginal objects within the Permit Area. The Aboriginal Community shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in inspection and recording works.

· Where concentrations of Aboriginal objects are encountered, artefact densities in those concentrations shall be measured across areas of approximately 10m x 10m. Their position shall be recorded by a GPS and the concentrations of Aboriginal objects shall be individually measured and described to provide supplementary detail for subsequent spatial and technological analysis.

· The Aboriginal objects shall be left where found to be collected with the soil during soil stripping operations and temporarily stored in soil stockpiles before being replaced during rehabilitation activities.

26 Condition 2 of Permit No 1468 refers to “the Research Design and Study Plan that is Attachment 5 to the application”. This is an eight page document stipulating procedures for “the collection, salvage, excavation, curation and/or replacement of relics from within the Application Area”. That Plan designates the relevant land into five separate Zones and stipulates the relevant collection, salvage etc procedures for each zone. The relevant procedure in the present case is that relating to archaeological works at nominated sites situate in the “Lake Edge Ridge Zone”. Such works are required to be carried out in the stipulated manner which included the following:

27 The validity of Permit No 1468 and Consent No 1467 was challenged by the Applicant in proceedings brought in this Court. Although the Applicant succeeded in obtaining an interlocutory injunction on 3 December 2002, that injunction was discharged on 19 May 2003 when in my reserved judgment after the final hearing I dismissed the Applicant’s challenges to the validity of Permit No 1468 and Consent No 1467: see Williams v Director-General National Parks and Wildlife Service (2003) LGERA 354.

(ii) Permit No 1681 and Consent No 1680

28 Permit No 1681 and Consent No 1680 were granted by the Director-General on 28 July 2003 in respect of Aboriginal objects situate within the defined areas of (i) the proposed road upgrade; and (ii) the proposed relocated Travelling Stock Route relating to the Lake Cowal Gold Mine Project.

29 On 17 December 2002, the Solicitors acting for the first to third Respondents lodged with the Director-General applications for a s 87 Permit and a s 90 Consent for the Lake Cowal Gold Project in respect of lands including the Mining Lease Area 45, the borefield, the water pipeline, the relocated travelling stock reserve and the road upgrade. In their covering letter it was stated that the applications were the same as the applications that had been made on 16 August 2002. (It was these earlier applications that had resulted in the issue of Permit No 1468 and Consent No 1467).

30 On 18 December 2002 the Director-General by separate letters advised the present Applicant, the Wiradjuri Regional Aboriginal Land Council, the West Wyalong Local Aboriginal Land Council and the Wiradjuri Council of Elders of receipt of these applications. The Director-General’s letter to each of those persons contained the following invitation:

31 Included in the responses to this invitation was a letter dated 7 January 2003 from Specialised Native Title Consultants acting for the Wiradjuri Council of Elders which sought clarification on a number of issues, including the following:

32 In his reply dated 20 January 2003, Mr Ardler, the Director of Cultural Heritage, answered each of the matters that had been raised on behalf of the Council of Elders. The answers included the following advice:

National Parks and Wildlife Act

………..

Given my inability to agree to your request for an extension of time in which to provide new information, it is considered reasonable that, as the registered Native Title claimants, the Wiradjuri Council of Elders be afforded an opportunity to meet with the decision-maker to inform him on matters of relevance to the decision to be made. That is, the decision-maker is interested in information about the significance of the area subject to the application, the impact of the proposed activities on that significance and the adequacy of any proposed mitigation.

On this occasion, the NPWS decision-maker is Mr Michael Wright, Director, Policy & Science. Mr Wright is available to meet with the Council on Friday 31st January 2003.

33 On 10 January 2003 the Applicant responded to Mr Ardler’s invitation and requested a copy of the new applications “so that I have an opportunity to make an input to the consultation process if I consider it appropriate” and on 15 January 2003 Mr Ardler provided a copy of the applications (except for “information of a personal nature including outcomes of community consultation…”).

34 The Applicant, by letter faxed to Director-General on 24 January 2003 advised that he and other traditional owners whom he had consulted, were “of one mind that Lake Cowal must not be destroyed in any way”, that there was a perception that Barrick and the Service had not fully consulted and that there had not been a proper enquiry into the significance of Lake Cowal to the Wiradjuri Nation and that the traditional owners insisted that the Director-General personally must meet with the traditional owners and visit Lake Cowal “where we are prepared to reveal matters concerning the significance of Lake Cowal”.

35 In his letter in reply dated 29 January 2003, the Director-General advised the Applicant that he had delegated his role as decision-maker to determine the current s 87/s 90 applications to Michael Wright, Director Policy and Science, and that that officer would be available to meet with members of the Condobolin Aboriginal Community on 31 January 2003 at Condobolin but was unlikely to have the time to be able to visit Lake Cowal. The Director-General’s letter included the following comment:

In addition, this matter has been on-going for some time and while the Service is providing an opportunity for new information to be received, it is assumed that interested parties would have provided any relevant information known to them prior to the issue of the existing consent and permit….

36 In a further letter to the Applicant dated 4 February 2003, the Director-General advised as follows:

While there is no provision in the National Parks and Wildlife Act 1974, for the NPWS to revoke s90 consent once issued, the Act also does not prevent the NPWS from considering a new consent application for the same activity in the same area.

In fact, the National Parks and Wildlife Regulation provides that any application under s90 of the Act, unless granted or refused earlier, is taken to be refused on the expiration of 60 days after the date on which the application was received. Such refusal is then appealable to the Minister for the Environment.

I note your objection to the involvement of Mr Terry Korn and Mr Jason Ardler in the determination of the current application. As you are aware, the role of decision-maker previously undertaken by Mr Korn, has now been delegated to Mr Michael Wright, Director Policy and Science. Mr Ardler will, however, continue to provide advice to Mr Wright in this matter.

37 On the same day, the Applicant, by letter faxed to the Director-General stated:

Also the meeting is scheduled for only one and three quarters of an hour, leaving no time for the meeting at Lake Cowal.

We consider it a breach of your duty of care for you to consider the Consent to Destroy application without also viewing the wealth of very significant artefacts that have been collected at Lake Cowal against Wiradjuri Law.

38 On 6 February 2003, a meeting was convened at Condobolin by Michael Wright and Bob Sutherland (representing the Service) with members of the Mooka Traditional Owners (of which the Applicant is Chairperson) and the Condobolin Aboriginal Community. The Applicant was one of 14 Aboriginal attendees. Minutes of the meeting were prepared by the Service in the form of short points attributed to each person who spoke (this included the Applicant) and a CD of the meeting was later provided by the Service to each attendee.

39 The next day (7 February 2003), the same Service officers met in Sydney with the Wiradjuri Council Elders and their consultants (SNT Consultants). Minutes of the Meeting in short point form were prepared by the Service.

40 By letter dated 13 February 2003, four of the five members of the Wiradjuri Council of Elders Negotiating Team advised Mr Ardler, the Service’s Director Cultural Heritage, that the decision-maker in respect of the current ss 87 and 90 applications be informed that the Negotiating Team and Barrick had reached “agreement in relation to the principles that will govern the relationship between the parties in relation to Cultural Heritage of Condobolin Wiradjuri as it relates to Barrick’s proposed operations” and that the terms of the agreement “do not require any changes to the application by Barrick”.

41 By letter dated 20 February 2003, the Applicant made further representations to the Director-General which included the following content:

, a definition of genocide in the international criminal court and division 268 of the Commonwealth Criminal Code.

3. How can Michael Wright demonstrate to us that he is not biased, when he has already signed the section 87 consent against our wishes and against Wiradjuri Law? Can you assure us that if you or he is given the full significance the Consent to Destroy will be refused, knowing that will stop the mine from ever going ahead? Is that even possible?

4. Over such an important matter to us you are prepared to delegate your head of science and policy, when he is not even an

in Aboriginal culture. He’s not even an anthropologist or an archaeologist. It is insulting to us for you to delegate a public servant to make a decision which will affect the future health of the Wiradjuri nation.

5. Our invitation still stands for you to come to Lake Cowal, but we are always told that you are a very busy man. Are you so busy that in the last year you have not been able to come to our sacred heartland of Lake Cowal? Instead, your lawyers have spent numerous trial days in court, which uses up so much resources.

42 At this point of time there is in the documentary evidence a time gap until 28 July 2003 when Permit No 1681 and Consent No 1680 were issued. It was during this interval that the final hearing of the Applicant’s challenge to the validity of Permit No 1468 and Consent No 1467 took place and my reserved judgment was delivered on 19 May 2003 dismissing the Applicant’s challenges.

43 On 28 July 2003 Mr Terry Korn, Director Western issued Permit No 1681 and Consent No 1680. Both the Permit and the Consent were expressed to apply to any Aboriginal objects situate within the lands described as (i) the area of the proposed road upgrade; (ii) the area of the proposed relocated Travelling Stock Reserve. The Permit, which was issued to Dr Pardoe and Dr Kamminga, authorised the following activities “in the course of undertaking salvage, collection and storage/curation of Aboriginal objects as described in Attachment 5 to the application dated 15 August 2002” namely—(i) the disturbance or excavation of land for the purpose of discovering an Aboriginal object; and (ii) the disturbance and movement of Aboriginal objects that were the property of the Crown. The Permit was issued subject to a number of “Special and Specific Conditions” and to “General Terms and Conditions”.

44 The s 90 Consent which was issued to Barrick Australia Limited authorised the destruction of Aboriginal objects. It too was issued subject to “Special and Specific Conditions” and to “General Terms and Conditions”. The consent to destroy Aboriginal relics was subject to prior certification that archaeological works and salvage works that were authorised by the Permit (No 1681) had first been undertaken. (Like Permit No 1468 and Consent No 1467, it is apparent that Permit No 1681 and Consent No 1680 were interrelated and the authorisation conferred by the s 90 Consent was subject to the prior satisfaction of the archaeological and salvage requirements of the s 87 Permit).

45 Since the present proceedings do not involve any allegations of breaches of Permit No 1681 or Consent No 1680, it is not necessary to refer in detail to the relevant regimes imposed by the conditions. (It is to be recalled in this respect that I refused leave for the Applicant to further amend his claims by including a fresh claim alleging a breach of conditions of Permit No 1681: vide par 8 of these reasons).

46 It is necessary however (in view of the Applicant’s claim founded on alleged defect in procedure), to refer to the Issues Paper containing the recommendation by Mr Sutherland (the Manager Western Aboriginal Heritage Unit) and Mr Ardler (Director Cultural Heritage) that the applications be approved. That Issues Paper explains the circumstances how the then current ss 87 and 90 applications (which had undergone the assessment process by the Service in the manner that I have described), ultimately were considered to require only a determination in respect of so much of those applications that related to the proposed road upgrade and the relocated Travelling Stock Reserve.

47 This was because, in the course of that assessment process, this Court on 19 May 2003 delivered its final decision in proceedings challenging the validity of Permit No 1468 and Consent No 1467 in which it dismissed the Applicant’s challenges and discharged the interlocutory injunctions that had been granted on 3 December 2002: see Williams v Director-General National Parks and Wildlife Service (2002) 127 LGERA 354. This outcome meant that Permit No 1468 and Consent No 1467 were in force according to their terms and apparently the Service considered that there was therefore no need to determine the then current applications in their entirety, but rather only in respect of the matters not covered by Permit No 1468 and Consent 1467.

48 The Issues Paper after noting that final outcome in that litigation states:

As a result, the road upgrade and relocation of the travelling stock route remain undetermined

49 The Issues Paper next considers “Aboriginal Consultation”. Firstly it notes “previous Aboriginal Consultation” by reference to Annexures A and B to the Paper which are copies of the Issues Papers that were prepared by the Service in respect of the previous decisions to issue Permit 1361 and Permit 1468 and Consent 1467. (Permit 1361 was the first of the s 87 Permits issued in respect of the Lake Cowal Gold Mine Project. The validity of that Permit was also challenged by the Applicant in earlier proceedings and that challenge was dismissed on 6 September 2002: see Williams v Director-General of National Parks and Wildlife [2006] NSWLEC 154.) Under the heading “Current Aboriginal the Consultation” Issues Paper states:

The following day the same NPWS representatives met with the Wiradjuri Council of Elders and Specialised Native Title Consultants who are providing specific assistance to the Elders. The WCE believe they have the mandate to speak for the wider Aboriginal community since they are the only body to have passed the Native Title Registration test as being a representative group.

This group did provide some new information however, NPWS is comfortable that their concerns are addressed by these consent conditions. This group has subsequently entered into a separate agreement with Barrick Australia to manage cultural heritage concerns for themselves.

50 After briefly noting the then current position with respect to (i) the Applicant’s pending application to the Federal Minister for an Emergency Declaration under the Aboriginal and Torres Strait Island Protection Act 1984; (ii) matters concerning Native Title; (iii) the Applicant’s pending application for declaration of an Aboriginal Place pursuant to the NP&W Act, s 84 the Issues Paper concludes with the following recommendation:

51 By letter dated 18 September 2003 faxed to the Director-General, the Applicant complained that he had only just learned (from the contents of a copy of the draft Indigenous Archaeology and Cultural Management Plan that had been provided to him by the first to third Respondent’s Solicitors) that Permit No 1681 and Consent No 1680 had been issued on 28 July 2003 “without giving the Mooka and Kalara Traditional Owners any opportunity to be consulted”. The Applicant’s letter continued:

Despite your negative attitudes to the Mooka and Kalara traditional owners generally, you have always at the very least stated that the policy of the NPWS was for a consultation process to be carried out usually by the proponent.

As you may be aware, on an occasion when there was tension between myself and the company, the NPWS had carried out the consultation. You have given me the expectation that a consultation process would be carried out if consents and permits are to be issued.

52 By letter dated 24 September 2003 Mr Ardler responded to the Applicant’s letter by advising as follows:

Although the road upgrade works were not included in the original permit/consent issued, the NPWS is satisfied that they form part of the activity subject to previous community consultation by Barrick Australia. It is on this basis that the NPWS determined to issue the consent/permit for the access road upgrade without requiring additional consultation.

53 The Applicant, by letter dated 8 October 2003, informed Mr Ardler that his response was “totally unsatisfactory” saying

ASK FIRST

54 His letter continued:

I am not satisfied that Colin Pardoe is a fit and proper person to hold such a permit and I will be making a complaint to HREOC over his discriminatory behaviour.

I am against the way you have acted, particularly as you are an Aboriginal person and have shown complete disregard and disrespect to traditional owners of the area. You have never once attempted to have a meeting with me to discuss my ongoing concerns.

A number of these consents have been granted on your advice, which is misleading and false regarding the significance of Lake Cowal, which is our sacred heartland. This was made clear from the very beginning.

55 The Acting Director-Cultural Heritage replied by letter dated 28 October 2003 stating:

The Department of Environment and Conservation (formerly NPWS) will not enter into your allegations of discriminatory behaviour on behalf of Dr Pardoe as permit holder. Clearly you have identified an appropriate organisation in which to pursue this matter if you choose.

56 On 27 October 2003, the Director-General amended Permit No 1468 by issuing an Amended Permit. The Permit was amended in response to a number of requests made by the Solicitors acting for the first to second Respondents following the commencement on 29 May 2003 of the present proceedings. The written requests sought specific amendments to a number of the special conditions that had been imposed by the Permit.

57 There is no need to recite the content of these amendments at this stage in the proceedings because that content is not relevant to any of the Applicant’s claims in these proceedings. In particular, it is not relevant to the Applicants’ allegations of breaches of the conditions of Permit No 1468 all of which allegations relate to conduct that occurred prior to the amendments being made to the Permit. (However, the amendments may become relevant to the question of the Court’s discretion in granting or withholding relief in the event that the Applicant substantiates any of his allegations of breaches of the conditions, but that question, if it arises, will be reserved in accordance with the common position adopted by the parties that I have earlier noted).

58 However, it is necessary to note the process whereby Permit No 1468 came to be amended in order to adjudicate upon the Applicant’s claim that the amendments are void because of alleged defect in procedure.

59 By letter faxed to the Director-General on 12 June 2003, (which principally raised allegations based upon evidence that had been given at the hearing of the Applicant’s claim to interlocutory relief that the Permit conditions had been breached by Dr Pardoe in his work undertaken between 23-29 May 2003) the Applicant advised that he had been informed by the Mining Company that its Solicitors had requested amendments to Permit No 1468 and that he wished to be consulted about these changes and “expect you to contact me about such consultation”. In his letter dated 13 August 2003, the Director-General replied in the following terms:

I generally require that applicants for permits demonstrate to the Service that they have consulted with the Aboriginal community. Beyond this, consultation either by applicants or the Service itself is something that depends on the particular circumstances. An example of when I would not normally consider that further consideration would be valuable was when all that was proposed was clarification of language to remove ambiguity or express more clearly the decision that had been made. Accordingly while I do not exclude the possibility that you may be consulted in relation to any amendment application, I do not give you any undertaking that you will be. You are of course aware that I am able to vary the conditions of s.87 permits at any time, and you are not limited to any formal consultation process in making submissions for changes to any condition.

60 By separate letters each dated 26 September 2003, Mr Bob Sutherland (Manager Western Aboriginal Heritage Unit) advised (i) the Applicant; (ii) the Wiradjuri Condobolin Culture and Heritage Company Pty Ltd (the WCC); and (iii) the West Wyalong Local Aboriginal Land Council in the following terms:

Please find attached copies of:

1. letter dated 28 May 2003 seeking amendment to special condition 6 relating to the timing of conservation works;

2. fax dated 5 June 2003 seeking amendments to special condition 6 relating to collection of Aboriginal objects;

3. letter dated 8 August 2003 seeking amendment to various special conditions;

4. fax dated 12 August 2003 seeking amendment to condition 9;

5. copy of how Permit 1468 would look if amendments were made.

The decision to vary a condition of a permit is solely the responsibility of the Director-General under the NPW Act. That responsibility can however be exercised by a delegate.

If you wish to make any comment about the requested amendments, please put them in writing and ensure that they are received at PO Box 2111, Dubbo 2830 no later than 7th October 2003.

A decision in relation to this request to vary will be made in the week commencing 13th October 2003. Any representation or submission you may wish to make can only be considered in relation to this request for variation if it arrives in time. Anything that arrives too late for this decision whether or not to vary may however be considered at some future date as the Director-General’s power to vary may be exercised at any time.

61 In the Issues Paper (Exhibit A/4 Document 8) culminating in the recommendation that Permit No 1468 be amended in the manner sought by the first to third Respondents under the heading “Background” the following is included:

Aboriginal and Torres Strait Island Heritage Protection Act

These challenges have come from a very vocal minority group of Aboriginal people referring to themselves as the Mooka Traditional Owners. None of the challenges have thus far been upheld but court ordered stoppages while matters were investigated has meant that the developers have been unable to comply with the timing of some parts of the permit conditions. Specifically this relates to certain protection works being completed within 90 days of issue of the permit. Since works were suspended by court order beyond this timeframe compliance was not possible.

62 Under the heading “Consultation” the Issues Paper states:

No response was received. A copy of the correspondence sent to the chairman of the Mooka Traditional Owners is attached as appendix A for your information.

63 The Issues Paper contains the following “conclusion” and “recommendation”:

Modification of this condition would benefit the Cultural Heritage Branch operationally since it would negate the requirement for all attendance by DEC Cultural Heritage Branch staff unless assistance is specially requested from the Aboriginal community. Thus it would allow greater workability and ensure consistency between approvals.

Recommendation

It is recommended that the Permit 1468 (Attachment B) be amended as presented and issued.

64 The Issues Paper is signed by no fewer than six designated officer holders including Mr Korn who signed and issued the amended Permit No 1468 on 27 October 2003.

65 Factual disputes are confined by the evidence to the following claims made by the Applicant in these proceedings—

(i) Allegations of breaches of Permit No 1468 between 23 and 29 May 2003

66 According to the Applicant’s Further Amended Points of Claim filed in Court on 16 March 2004, it is alleged (vide paragraphs 7, 8 and 9), that during the abovementioned period the first Respondent failed to comply with Special Conditions 2, 5, 6, 9, 10 and 12 of Permit No 1468. The terms of these Special Conditions are recited in par 25 of these reasons. The following particulars were provided in support of these allegations:

67 At the hearing, particulars (iii) and (v) were not pressed by the Applicant in support of his allegations of breaches of Special Conditions 2, 5, 6, 9 and 10.

68 In addition to these allegations, par 10 of the Further Amended Points of Claim alleges a failure by the first Respondent to comply with Special Condition 12 “by not maintaining a master inventory of the collected Aboriginal objects”.

69 The only evidence relied upon by the Applicant in support of his particular of breach of condition that Aboriginal objects were “not described before they were bagged” is par 51 of Mr Pardoe’s affidavit sworn 5 June 2003 which states the following:

Yesterday when preparing my affidavit I recognised an issue about the operation of special condition 6 which had not previously registered with me. It is the requirement contained in the third paragraph for the

of Aboriginal objects to be noted. There is an identical requirement in the first sentence of special condition 12. The practice Dr Kamminga and I followed in implementing permit 1361 dated 23 May 2002 was to bag lithic items in the field and record their GPS location but defer documenting

until the analysis stage which also involves expert determination as to whether a collected lithic item is in fact an Aboriginal object. If special condition 6 requires

to be recorded in the field rather than during the analysis stage, that is an inappropriate and unreasonable requirement. It is inappropriate because the recording of this data is only germane once an item has been identified as an Aboriginal object. The bagging of items and the GPS recording of them ensures that the analysis and identification of

can be performed later in time without any attendant disadvantage. If an archaeologist had to record

in the field it would disrupt the inspection and collection phase and would result in inactivity for the Wiradjuri assistants and other parties. It is more accurately and reliably done on a workbench with the assistance, where required, of binocular microscopy. If the recording of

is deferred to the analysis stage it has the benefit of permitting me and Dr Kamminga to train the Wiradjuri assistants to weigh and measure objects and maintain database entries whilst I or Dr Kamminga are making the determinations as to the material type and as to whether particular lithic items are Aboriginal objects. Because it is unclear to me whether I am permitted or not permitted to defer recording

until the analysis stage, I will correspond with the National Parks and Wildlife Service today requesting that the operation of the Permit be clarified by deleting the reference to

from special condition 6.

70 The context of this evidence is Dr Pardoe’s description of the archaeological works that he undertook or supervised during the period 23-29 May 2003. His description of those works (which was not challenged or rebutted and which can readily be accepted) includes the fact that all potential Aboriginal objects that were observed during the inspection process were collected (even though the obligation imposed by Special Condition 6 was that a “representative sample” be collected).

71 In this respect, the contents of par 49 of the affidavit should be noted where Dr Pardoe opines that there will be a percentage of items thus collected which at the analytical stage will be found to be not Aboriginal objects and for that reason the collected materials should, before analysis is undertaken, be more appropriately regarded as “lithic items” (rather than Aboriginal objects).

72 The only evidence adduced in support of the allegation that the first Respondent did not “separately bag” each object collected is some documentary material that appears to have emanated from Dr Pardoe presenting either to the Service or his client (or both) in computer print-out format, details of lithic objects (a total of 1094 separate items) collected during the inspection and collection process undertaken in the period 23-29 May 2003. That print-out material includes in one of the columns of the tabular format the heading “pieces”, and in that column there are numbers recorded presumably indicating a number of pieces eg 1, 2, 3, 4 of which the highest number recorded is 100.

73 This documentary evidence had also been tendered at the hearing of the Applicant’s claim to interlocutory injunction (see paragraph 23 of my earlier judgment [2003] NSWLEC 150). However, it is significant that although there was direct evidence very relevant to this matter given at that hearing by Dr Pardoe (under cross-examination) that evidence was not repeated or otherwise adduced during the present hearing. Hence, the only evidence was the documentary material that I have described.

74 The only evidence adduced in support of the particular of breach that the first to third Respondents “used untrained security personnel to collect Aboriginal objects” is contained in the transcript of the evidence that was given at the hearing of the Applicants’ claim to interlocutory relief by Mr Harry Browne, an employee of the security company providing services to Barrick at Lake Cowal. That transcript which was tendered at the final hearing (Exhibit A/1) includes the following testimony given under cross-examination by Mr Browne:-

Q. During the inspection did you touch or collect any artefacts?
A. No. I just pick up a couple of stones and I asked Dr Pardoe to have a look at it.

Q. Why were you picking up stones?
A. -----Which I thought it was artefact.

Q. How many days did you work between 23 May and May – sorry, during that six-day inspection period? Were you on duty all those days – the whole week?
A. Yes.

Q. At other times had you collected – picked up stones and talked to Dr Pardoe?
A. Yes. I collect artefacts before with another Aboriginal gentleman

Q. Who is that person?
A. Max.

Q. Max Lam?
A. Yes

Q. So you were going out with Max, doing those things. Max was on his own then and you were helping him – together?
A. Yes.

Q. Dr Pardoe wasn’t there during those collections?
A. No.

Q. Was there any other archaeologist out there with this other collection?

A. No.

Q. During this inspection you also collected stones and showed them to Dr Pardoe. Did Dr Pardoe indicate to you that any stone you collected may have been a lithic item or an Aboriginal lithic item and artefact and was subsequently bagged – GPS’d and bagged?
A. You mean when we find one?

Q. You say you found one. You say, Ive found one. What do you think of this, Dr Pardoe? And did he say, This looks like an artefact. We should – or It may be, could be, possibly – and it was put in the bag?
A. He’ll see this artefact and then we lock it, put it in a bag and then GPS – just where we found it.

Q. Where you found it. So you were basically assisting with the work with the other Wiradjuri assistants who were there – similar work?
A. Similar, yes, but not – not so many times.

75 This evidence should be understood in the light of the affidavit evidence of Mr Browne (sworn 5 June 2003) when he states that he has been working as a security guard at the Lake Cowal Site since Christmas 2002.

(ii) Allegations of breaches of Permit No 1468 between 12 and 20 August 2003

76 According to the Applicant’s Further Amended Points of Claim filed in Court on 16 March 2004, it is alleged in paragraph 15 that the first Respondent breached Permit No 1468 on 12, 13 and 20 August 2003.

77 The following Particulars of the alleged breaches are provided:

78 These particulars are amplified in the Applicant’s response to the first to third Respondent’s request for further and better particulars (Exhibit 1) as follows:

no not in the white way

he will not be able to participate in the inspection and will have to leave the premises

Mr Powell is recognised within the Wiradjuri Community as a person with specific knowledge in relation to Aboriginal Objects.

Re Particular (ii)
The proper notification required that the Aboriginal community be notified of the program for inspection, location and identification of Aboriginal objects on land which included the area of the proposed water pipeline. No communication was sent by the First, Second and Third Respondents that the above work was to be carried out. On August 13 2003 the Applicant asked Dr Pardoe where an inspection was to be carried out that day in which he responded with words to the effect about 30km across to the east side of the lake to the bore field. The Applicant submits that proper notification should have been by writing properly setting out the time, place and nature of the inspection under the permit that is to be carried out.

Re Particular (iii)
The particulars of unscientific and unreasonable manner carried out work on 20 August 2003, are as follows:

i. the First Respondent said with words to the effect to the archaeologists and the workers don’t pick up anything smaller than a fingernail.

ii. Artefacts weren’t collected but thrown into a heap the size of 10 square metres.

iii. Once measured and identified, they were scattered back on the ground.

iv. An artefact which was believed to be a core was handed to Dr Pardoe in which he said without consulting the other archaeologists or field workers that’s a pebble. That’s gravel which he then threw away.

v. Further the general approach by the First Respondent has been unscientific. His approach is that he never provides any maps to identify where archaeological work is to be carried out, work was carried out in an arbitrary manner without using any perceivable scientific methodology, when asked under what sections of the permit artefacts are being collected he refuses to reply.

79 The evidence concerning the first Respondent’s refusal to allow Mr Mark Powell to participate in the inspection conducted on 12 August 2003 was given in the affidavits of the Applicant, Mr Powell and Dr Pardoe (upon which the deponents were cross-examined).

80 This evidence is generally consistent as to the circumstances leading to Mr Powell being excluded from participation. But in addition to the affidavit evidence there was the evidence of a video recording of the entire incident (including all that was said by each of the deponents in the course of the incident). Accordingly, even if there were any conflict in the affidavit evidence as to what was or was not said and as to what occurred, it is dispelled by the video evidence. Of course, the video evidence does not reveal the feelings or emotions of the Applicant and Mr Powell and it is these matters that are relied upon in support of the Applicant’s claim that he suffered racial discrimination from Dr Pardoe (a matter that I shall later need to consider).

81 The evidence concerning the Applicant’s allegation of inadequate notice being given to the Applicant of the proposed inspections conducted in August 2003 starts with the written notice given to him in the first to third Respondent’s Solicitors letter dated 4 August 2003 which was in the following terms:

Permit 1468 requires the Mooka Traditional Owners Council to be notified of proposed archaeological works and to be invited to send a representative to observe and where appropriate participate in recording and collection works. You are hereby notified that archaeological works will be carried out pursuant to special conditions 6, 9 and 10 of Permit 1468, commencing at 8:00 am on Tuesday 12 August 2003. it is currently anticipated that this program will continue for approximately 3 days. The program includes:

· The inspection of a number of areas of land for the purpose of identifying surface Aboriginal objects and the collection of a representative sample of such objects in accordance in special conditions 6 and 10 of Permit 1468; and

· The inspection of a number of areas of land within the back plain zone for the purpose of identifying concentrations of surface Aboriginal objects and the recording of those concentrations in accordance in special condition 9 of Permit 1468.

If a representative of the Mooka Traditional Owners Council wishes to observe and participate in the recording and collection works, the person should telephone Bill Shallvey of Barrick on (02) 6975 3406 as soon as possible to confirm his or her attendance and be at the Cowal Gold Project site office at 8:00 am on Tuesday 12 August 2003 to commence the works.

82 According to the Applicant’s affidavit affirmed 6 September 2003 he attended the inspections conducted at Lake Cowal on 12, 13 and 20 August 2003.

83 Moreover, when at the end of the second day’s inspection the Applicant informed Dr Pardoe that he would be unavailable to attend the scheduled next day’s inspection Dr Pardoe agreed with the Applicant’s suggestion that the inspection be postponed until 20 August 2003 (when it took place with the Applicant’s attendance).

84 In the light of the foregoing evidence, the Applicant’s complaint is not that he was not notified but that notice was inadequate in the manner particularised (which reflects the Applicant’s views as recorded in his affidavit evidence that he was not assisted in his observer role).

85 Dr Pardoe’s affidavit affirmed 12 May 2004 contains a very detailed account of the archaeological works programme that he conducted on the three days in August 2003 in which the Applicant participated as an observer. That account also responds to the Applicant’s various criticisms of the manner in which Dr Pardoe undertook the inspections and archaeological works.

86 The particulars of the allegation that Dr Pardoe conducted his inspection and archaeological work on 20 August 2003 in an “unscientific and unreasonable manner” are supported by the Applicant’s affidavit (pars 48 to 57) containing his summary, observations and criticism of the manner that the inspection was conducted on that occasion.

87 Dr Pardoe responds to that evidence in pars 51 to 54 (inclusive) of his affidavit which state the following:

· Special Condition 9 of Permit 1468 requires the permit holder to identify, measure and record new concentrations of surface Aboriginal objects within the Back Plain Zone. It does not require Aboriginal objects from within these concentrations to be collected.

· On 20 August 2003, I carried out the following archaeological works in relation to the Back Plain Zone within the ML Area with the assistance of archaeologists Emeritus Professor Frederick James Allen and Mr Pat Faulkner and 3 Wiradjuri field assistants (which Barrick arranged through the WCC). Neville Williams observed, but did not participate in, these works:

· 53. In response to paragraphs 48-57 of Neville Williams’ affidavit dated 6 September 2003 I state that:

· I certified the completion of these archaeological works in my letter to Barrick Dated 27 August 2003 (see Annexure “M”)

(iii) Allegations of breach of Special Condition 12

88 The Applicant alleges in par 10 of his Further Amended Points of Claim that the first Respondent failed to maintain a master inventory of the collected Aboriginal objects.

89 The evidence adduced by the Applicant in support of this claim is a facsimile transmission sent to Dr Pardoe from Dr Jim Allen (a consultant archaeologist assisting Dr Pardoe) on 1 July 2003. It is apparent that at that time (when Dr Pardoe was absent overseas), Dr Allen was undertaking some technical analysis work in respect of the collected lithic objects. His facsimile transmission indicates his discovery of “some duplications, omissions and inconsistencies” in the “variable list” and that progress was “slow” (only 70 pieces were examined on the first day). The transmissions continues:

Tomorrow will be a better test of how long it takes. However, because of possible time constraints, I have ducked doing length, breadth, thickness even though I have a pair of callipers. This is partly because I notice in the master inventory that these types of measurements haven’t been taken previously…..The overall logic is that what I’m doing will satisfy the conditions of the permit, which is Roger’s main concern, making it intellectually satisfactory may mean another trip through the bags later on, but that’s life.

90 In his affidavit affirmed 12 May 2004, Dr Pardoe responded to the Applicant’s complaint expressed in his affidavit affirmed 5 April 204 (vide pars 26-27) that there was at that time (29 March 2004) no complete master inventory of all of the collected Aboriginal objects in the following terms:

irresponsible and unprofessional

no proper evaluation of the artefacts

(There next follows the detailed Table which it is not necessary to recite here).

91 In the course of his cross-examination, the content of Dr Allen’s facsimile transmission was put to Dr Pardoe as evidencing the fact that the required technical analysis of the collected Aboriginal objects had not been undertaken.. Dr Pardoe’s answer was that was a temporary problem that arose during his absence and that when he returned to Lake Cowal the required technical analysis was undertaken.

92 It was put to Dr Pardoe that Dr Allen’s work had been done to comply with the conditions of the Permit but did not provide the proper technical analysis. Dr Pardoe affirmed that the work was done to comply with the conditions of the Permit and that that work did provide the proper technical analysis.

(iv) Allegations of Racial Discrimination

93 In par 16 of his Further Amended Points of Claim, the Applicant alleges:-

The First Respondent had also discriminated against the Applicant in breach of ss 9 & 10 of the Racial Discrimination Act 1975 by using demeaning, overbearing and patronising behaviour with the intention of causing him embarrassment and ridicule to deny his human rights to protect his cultural heritage.

94 The Applicant alleges two separate incidents of racial discrimination by the first Respondent (i) on 24 May 2003 during the Applicant’s participation in the inspection conducted at Lake Cowal and (ii) on 12 August 2003 immediately prior to the Applicant’s participation in another inspection conducted at Lake Cowal.

95 Affidavit evidence concerning these two incidents was given by the Applicant and the first Respondent (upon which they were cross-examined). Additionally, Mr Browne gave affidavit evidence (and his cross-examination at the hearing of the Applicant’s claim to interlocutory relief was re-tendered) concerning the May incident Mr Powell gave affidavit evidence (upon which he was cross-examined) concerning the August incident.

96 Since the incidents are unconnected, I shall separately refer to the evidence given in respect of them.

97 The evidence of what the May 24th incident involved (in terms of words and actions) is fairly straightforward and is generally consistent. According to the Applicant’s evidence of the incident (i) he felt the inspection party was moving too quickly under Dr Pardoe’s instructions and leadership and (ii) as the inspection was underway he began to speak to the two young Wiradjuri persons who were assisting Dr Pardoe in the inspection and collection process informing them that what they were doing was culturally inappropriate and that it was against Wiradjuri law for anyone to collect the artefacts and that they were meant to be left where they were in and on the land where they had been left by their ancestors; and (iii) as a result of Dr Pardoe protesting to the Applicant that he was intimidating the Wiradjuri young people and unsuccessfully calling upon him to desist, Dr Pardoe called upon the security guard (Mr Browne) to accompany the Applicant back to the compound.

98 The only element of doubt in the evidence concerns the manner in which the Applicant quit the inspection party. In this respect, the Applicant says that “he left the group under duress with Harry Browne” (par 25 of his affidavit). Mr Browne denied employing any force in escorting the Applicant off the site. Dr Pardoe categorically denied the alleged duress. Dr Pardoe’s affidavit includes his recollection of his saying the following words to the Applicant in the context of asking him to “stop harassing the Wiradjuri field assistants”:-

123 A further reason justifying a purposive approach to construing the relevant Special Conditions lies in the nature and function of the conditions, namely as controlling the manner in which the archaeological discovery, collection and salvage works that are authorised by the Permit are to be undertaken. The purposive construction more amply fulfils that purpose.

124 Finally, it is to be recalled that the National Parks and Wildlife Act, s 86 creates a criminal offence for a person to carry out specified activities in relation to Aboriginal objects “except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87”. The risk of exposure to criminal liability created by s 86 requires the terms and conditions of a relevant s 87 Permit to be expressed with as much clarity and certainty as can be fairly mustered and if conditions are drafted in a manner that creates some doubt or ambiguity (such as arises in the present case by virtue of the overlapping of the requirements of Special Conditions 2, 6 and 12) they should fairly be interpreted in a manner that avoids the exposure to criminal liability based upon doubtful or ambiguous foundations cf Beckwith v the Queen (1976) 135 CLR 569 at 576 (per Gibbs J).

125 For the foregoing reasons, I find that no relevant breach of the conditions of Permit No 1468 has been established.

126 The next alleged breach of Conditions of Permit No 1468 is the failure to separately bag each collected Aboriginal object.

127 The requirement for separate bagging is contained in the relevant provisions of the Research Design and Study Plan referred to in Permit No 1468 and adopted by Special Condition 2 “as modified by the Special and Specific Conditions”.

128 The first to third Respondents submit that there is no sufficient evidence to support a finding of breach of Special Condition 2 especially having regard to the fact that such a finding would be a finding in civil litigation that an offence against the National Parks and Wildlife Act, s 86 had been committed and that the Court would not lightly make such a finding on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

129 I am not prepared to make such a finding upon the basis of the fragmentary and unexplained documentary evidence relied upon by the Applicant to prove his allegation.

130 This conclusion based upon the insufficiency or lack of cogency of the evidence means that it is not necessary for me to consider whether the relevant requirement contained in the Design and Study Plan has been modified by the Special Conditions. In this respect it is sufficient to note that Special Condition 6 which imposes a requirement for a representative sample to be taken (the Design and Study Plan required “all” objects to be collected) is silent on the question of separate bagging at the time of collection and Special Condition 12 requires separate bagging only after the collected items have been technically analysed and classified by an archaeologist as Aboriginal objects.

131 These features of the Special Conditions provide a plausible basis for concluding that the Design and Study Plan requirement for separate bagging at the time of collection has been relevantly “modified” within the meaning of Special Condition 2. However, I need not finally determine the question in view of my finding based upon the insufficiency or lack of cogency of the evidence.

132 The final allegation of breach of the Conditions of Permit No 1468 is that an untrained security officer was used to collect Aboriginal objects.

133 The only evidence in support of this allegation is the cross-examination of Mr Browne that I have extracted at par 74 of these reasons.

134 That evidence is neither clear nor compelling and if it establishes that Mr Browne was engaged in some isolated collection activity during his attendance at the May 2003 inspections, albeit in a casual and occasional if not accidental capacity, the result of that participation appears to be de minimis (recalling that some 1094 lithic items were collected in the May inspections).

135 However, even if such a finding were made, the Applicant has not established that any relevant breach of the conditions of Permit No 1468 would arise from this finding because Special Condition 6 stipulates that the “permit holder and/or his instructed delegates shall inspect the land….” and there is no evidence, one way or the other, whether Mr Browne was an “instructed delegate”.

136 General Condition 5 of Permit No 1468 stipulates that the permit holder “shall be responsible for the manner in which the work covered by the Permit is performed”.

137 Accordingly, I hold that the Applicant has not substantiated his allegation of breach.

Allegations of Breaches of Conditions during August 2003 inspections

138 The first allegation of breach is based upon the exclusion of Mr Powell from the inspection party on 12 August 2003.

139 The evidence clearly establishes that Dr Pardoe deliberately excluded Mr Powell and the reasons why he took this action.

140 The question in dispute is whether this action involved a breach of the conditions of the Permit.

141 It is clear that Dr Pardoe’s exclusion of Mr Powell was largely based upon the Protocol that had been prepared by the first to third Respondents with a view to the Applicant’ participation in, or observation of, the archaeological works authorised by Permit No 1468. In particular, clause 3 of the Protocol states that a “Mooka representative may be accompanied by his or her archaeologist, but not other persons”.

142 It must however be appreciated that the Protocol is not incorporated in or otherwise adopted by the Permit. Accordingly, to the extent that Mr Powell’s exclusion was based upon Dr Pardoe’s implementation of the Protocol, that fact provides no ultimate justification and it can have no bearing on the question whether his exclusion of Mr Powell involved a breach of the Conditions of the Permit.

143 The conditions of Permit No 1468 contain a number of references to the “Aboriginal Community”. In the Special Conditions, the term occurs frequently (see Special Conditions 6, 7, 8, 9, 13 and 15). In the General Conditions the reference is to “the local Aboriginal community” (see Conditions 12 and 13).

144 Special Condition 6 contains a reference to “The Wiradjuri Council of Elders, West Wyalong Local Aboriginal Land Council and Mooka Traditional Owners Council” and that reference is collected by the words “hereafter the Aboriginal Community”. That expression occurs later in Special Condition 6 where it obviously includes the extended reference and it also occurs in the other Special Conditions that I have referred to, where again it should be interpreted as the extended reference.

145 However, it is to be recalled that Mr Powell is not a member of the Mooka Council and for this reason he would not readily qualify as a “representative” of that Council. Accordingly, I find that Dr Pardoe’s exclusion of Mr Powell from the Inspection party did not involve any breach of the conditions of Permit No 1468 because there is nothing in these conditions that entitled Mr Powell to participate otherwise than as a “representative” of one of the three specific Aboriginal groups defined by Special Condition 6 as the “Aboriginal Community” since he was not represented to Dr Pardoe as such a representative nor did he claim to be such a representative.

146 The next allegation of breach is that the Applicant was not adequately notified of the archaeological programme conducted in August 2003.

147 The evidence clearly establishes that he was notified of the programme and of its scheduled timing and of its likely duration (three days). Whereas I can appreciate his complaint about the lack of precise information concerning lands to be inspected (particularly in light of the vastness of the area requiring inspection), such complaints coming from the Applicant whose interest has been demonstrated to be far greater than that of a casual observer, do not establish any relevant breach of the Conditions of the Permit requiring notification to the Aboriginal Community of the conducting of the archaeological programme.

148 The allegation that Dr Pardoe breached Special Condition 9 by the unscientific and unreasonable manner in which he conducted archaeological works on 20 August 2003 is fully rebutted by Dr Pardoe’s affidavit evidence (upon which he was not cross-examined and which I accept) concerning the manner in which he conducted the inspection on that occasion. This allegation has not been substantiated.

149 The final allegation of breach of conditions concerns the requirements of Special Condition 12 in respect of a “master inventory” comprising information, data and technological analysis of each collected Aboriginal object. Although Special Condition 12 stipulates that the master inventory “must be maintained at all times” its basis and content is entirely dependent upon the prior existence of the required information (data, technological analysis). Accordingly, the requirement to maintain the master inventory, properly construed, arises after all of the relevant “information” has been completed. Dr Pardoe’s evidence to the effect that the master inventory is completed was not challenged and should be accepted. The alleged breach has not been established.

150 For all of the foregoing reasons, I must dismiss all of the Applicant’s claims alleging breaches of conditions of Permit No 1468.

(ii) Permit No 1468 is Rendered Nugatory

151 Since this claim is entirely founded upon the Applicant substantiating his claim(s) of breach of Conditions of Permit No 1468, his failure in that behalf means that his claim that the Permit was rendered nugatory is wholly lacking support and substance and it must be dismissed.

152 This conclusion means that it is not necessary to consider the first to third Respondent’s argument based upon the decision of the Court of Appeal in Tynan v Meharg (1998) 101 LGERA 255 that the claim that the Permit was nugatory was misconceived in law.

153 In leaving this particular claim I would only add the observation that even if it were legally and factually possible for a permit to be rendered nugatory by virtue of breaches of conditions governing the ambit of the permit, none of the alleged breaches in the present case (whether considered individually or collectively) if they had been substantiated by the Applicant, would be such as to render Permit No 1468 nugatory in the sense contended for by the Applicant.

154 This claim must be held to fail.

(iii) The Amendment to Permit No 1468 was void

155 In my judgment, this claim, which is based upon the allegation of denial of procedural fairness has not been substantiated.

156 This is because the evidence clearly establishes that the Applicant was afforded the opportunity to comment on the proposed amendments (in respect of which he had been given a copy of each of the applications made seeking amendment).

157 For whatever reason, the Applicant did not take up the reasonable opportunity afforded to him to comment on the proposed amendments.

158 This conclusion presupposes the right of the Applicant to be consulted by Director-General in connection with the exercise of his statutory power conferred by the NP&W Act, s 87(4)(b) “at any time (b) vary the terms and conditions of such a permit”.

159 Included with the Service’s “Cultural Heritage Community Consultation Policy” document (Exhibit 7) is the following statement:

In determining whether a permit under s 87 and/or s 90 of the Act should be issued, NPWS needs to consider the significance of the Aboriginal object or Aboriginal place. The involvement of Aboriginal people in the assessment of the significance of the object or place, although not required by the Act is sought as a matter of practice.

160 The rival cases have been presented upon the common assumption that the Applicant had a right to be informed or consulted with respect to proposed amendments and I am content to adjudicate upon the basis of that assumption.

161 The Applicant has not substantiated his claim of denial of procedural fairness or natural justice. The evidence establishes that he was consulted and afforded a fair and reasonable opportunity to comment on the proposed amendments but chose not to do so.

(iv) Permit No 1681 and Consent No 1680 were void

162 Here again the Applicant’s claim is based upon denial of procedural fairness or natural justice or lack of consultation by the Service in the processing of the relevant applications seeking the s 87 Permit and the s 90 Consent.

163 Again, the undisputed evidence demonstrates that the Applicant was consulted by the Service soon after the relevant applications were lodged, thereafter he requested and received a copy of the applications (which would have disclosed the full extent of the applications) thereafter he attended and contributed to a meeting arranged by the Service with the Condobolin Wiradjuri Community to discuss the applications (which were the same as the applications that had been processed by the Service in the preceding 6 months leading to the issue of Permit No 1468 and Consent No 1467).

164 This undisputed evidence clearly demonstrates that the Applicant was relevantly notified of the applications and relevantly consulted and that the entire process and outcome of Aboriginal Community consultation was considered by the decision-maker when issuing Permit No 1681 and Consent No 1680.

165 How, in these circumstances, does the Applicant seek to make his case that he was denied procedural fairness and on that account the Permit and the Consent that were issued are void?

166 I mention at the outset that some of the correspondence to the Applicant from the Service after the Permit and Consent were issued is confusing on the question of consultation with the Aboriginal Community.

167 However, representations (including apparently erroneous ones) made after the Permit and Consent were issued cannot change the facts that occurred before the Permit and the Consent were issued and these facts, according to the undisputed evidence, are that the Applicant was consulted and was given the opportunity to comment and did so comment to the Service.

168 Next, I should note that the Applicant’s case of denial of procedural fairness is not founded on the fact (previously referred to in these reasons) that Permit No 1681 and Consent No 1680 were granted only in respect of the road upgrade and the relocated Travelling Stock Route, whereas the relevant applications applied to the whole of the lands affected by the Lake Cowal Gold Mine Project.

169 Nor is the Applicant’s claim founded on the related fact that the processing of the applications (including all of the consultations with the Aboriginal Community, including the Applicant), was in respect of the whole of the lands affected by the Lake Cowal Gold Mine Project (including, of course, the road upgrade and relocated Travelling Stock Route).

170 I refer to these matters for completeness without any suggestion that these are matters of some substance for it is very clear (as I have already explained) how Permit No 1681 and Consent No 1680 came to be limited to the two areas comprising the road upgrade and the relocated Travelling Stock Route.

171 Rather, the Applicant’s claim appears to be founded on the fact that his insistence that the Director-General personally determine the applications but only after he had met with the Applicant and other traditional owners at Lake Cowal did not prevail with the Director-General and the fact that neither he nor the Mooka Council was included in the Aboriginal community that was given some consultative involvement by the conditions imposed on Permit No 1681 and Consent No 1680.

172 In my opinion, these are complaints that the Applicant was not accorded substantive rights rather than matters that go to the question whether the Applicant was denied procedural fairness or natural justice.

173 Accordingly, to the extent that these complaints of the Applicant assert a denial of substantive rights, they are unavailing in the advancement of his claim of denial of procedural fairness since neither that doctrine nor the related doctrine of “legitimate expectation” operates to confer substantive as opposed to procedural rights: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

174 In my judgment, the Applicant has not substantiated his claim of denial of procedural fairness.

175 Moreover, once it is recalled that the Applicant’s unsuccessful challenges to the validity of Permit No 1468 and Consent No 1467 were based upon grounds that included claims of denial of procedural fairness and disappointment of legitimate expectations (see Williams v Director-General of National Parks and Wildlife Service (2003) 127 LGERA 354) and once it is appreciated that the activities that Permit No 1681 and Consent No 1680 authorised in respect of Aboriginal objects within the road upgrade area and the area of the relocated Travelling Stock Route were included in the applications that culminated in the issue of the earlier Permit and Consent, my conclusion that the Applicant’s present claim fails for the reasons that I have given, becomes an a fortiori conclusion.

(v) Alleged Racial Discrimination

176 In my judgment, the Applicant’s claims that he was twice subjected by Dr Pardoe to racial discrimination within the meaning of the Racial Discrimination Act 1975, ss 9 and 10 have not been substantiated on the basis of the relevant facts of the present case (even if those facts be taken to be according to the Applicant’s own version of the two incidents that occurred on 24 May 2003 and 12 August 2003).

177 However, since the first to third Respondents ultimately objected to the jurisdiction of the Court to determine these claims, I should first examine that question because if the objection is sound, it will not be appropriate for me to make a finding on the allegation because it may be liable to be considered in another forum.

178 In my judgment, the Court plainly does not have jurisdiction to make the declarations sought by the Applicant that he has suffered racial discrimination in terms of ss 9 and 10 of the Federal Act. My reasons for so concluding are founded upon the express terms of that Act and the relevant provisions of Part 11B of the Human Rights and Equal Opportunity Commission Act 1986.

179 Although Part 11B (which was inserted into the Human Rights Act by Act No 133 of 1999) occurred after the decision of the High Court of Australia —Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108 the present legislative regime has not materially changed the relevant content of laws concerning racial discrimination that led the joint judgment of the High Court in Re East to say at 116 that the Federal Act “provided its own, exclusive regime for remedying contraventions”. In these circumstances, this Court has no jurisdiction to make the declaration sought by the Applicant: cf Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80.

(vi) Alleged Breaches of Statutory Duty by the Director-General

180 It will be apparent from the recited contents of the Applicant’s many communications with the Director-General concerning Aboriginal objects at Lake Cowal that the Applicant is bitterly disappointed with the decisions made by the Service to issue the s 87 Permits and s 90 Consents that have been issued and that the Applicant has truculently expressed no confidence in the Director-General and officers in the Service who have been involved in the Lake Cowal case.

181 The Applicant’s allegations of breaches of statutory duty by the Director-General fasten onto his statutory responsibilities under the NP&W Act in respect of Aboriginal objects (vide s 85) and to the express objects of the Act contained in s 2A. These sections were considered and applied in my earlier decision dismissing the Applicant’s challenges to the validity of Permit No 1468 and Consent 1467—see Williams v Director-General of National Parks and Wildlife Service (2003) 127 LGERA 354.

182 To the extent that the Applicant’s present allegations seek to re-raise the same issues that were determined in that case (or to raise issues which could and should have been raised in that case) he is met with the doctrine of estoppel per rem judicatam or the extended doctrine recognised in the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Property Ltd (1981) 147 CLR 589. In particular, it is not open to the Applicant in this proceeding to re-open the decision of the Director-General to issue Permit No 1468 or Consent No 1467 or Permit No 1361 (which last mentioned Permit was itself the subject of a separate challenge to validity unsuccessfully brought by the Applicant).

183 As I understood the Applicant’s allegations of breach of statutory duty made against the Director-General, they come down to two complaints—firstly that the Director-General did not himself take any action against the first to third Respondents in respect of the Applicant’s allegations of breaches of Permit No 1468 committed by the first to third Respondent and secondly, that the Director-General had a particular statutory duty (imposed by the NP&W Act, s 8(5)) in respect of the Lake Cowal Game Reserve.

184 Although the Director-General has denied the alleged breaches of statutory duty, it has also been submitted on his behalf that this Court has no jurisdiction to entertain the claim.

185 Because the claims were vaguely framed, the submission of lack of jurisdiction is understandable especially if by asserting the claim the Applicant is asserting that some private right of action is conferred upon him in respect of the alleged breaches of statutory duty. However, despite the vagueness of the claim, I think that it is not asserting a private right of action but rather it asserting the vindication of the public duty. So understood, the allegations are capable of coming within the ambit of the NP&W Act, s 176A whereunder this Court has jurisdiction to restrain or remedy “a breach of this Act”.

186 Although an argument has been advanced on behalf of the Director-General that the Lake Cowal Game Reserve is not relevantly land “reserved or dedicated under this Act” within the meaning of the NP&W Act, s 8(5), I propose to consider the Applicant’s claim on the assumption that it is relevantly “reserved or dedicated land”.

187 In my judgment, no relevant breach of statutory duty in terms of the NP&W Act s 8(5), has been demonstrated. In particular, it is not open to the Applicant to contend that in granting Permit No 1361 (which applied to lands expressly including the Lake Cowal Game Reserve) or Permit No 1468 or Consent No 1467 (which apply to the whole of the Mining Area, including the Game Reserve), the Director-General breached the duty imposed by s 8(5).

188 This is because even if the duty existed, the exercise by the Director-General of his powers under the NP&W Act, ss 87 and 90 cannot, in fact or in law, involve a breach of that statutory duty. The NP&W Act, must be read as a whole and the provisions of Part 6 of the Act (which include ss 85, 86 87, and 90) conferring express responsibilities and powers on the Director-General, on conventional principle of statutory interpretation, undoubtedly would prevail over any inconsistency with s 8(5).

189 For these reasons, no breach of statutory duty has been substantiated.

190 Finally, in respect of the Applicant’s allegation that the Director-General has breached his statutory duty by failing to supervise the implementation of the conditions of Permit No 1468 and by failing to investigate and take action in relation to the Applicant’s allegations that the first to third Respondents had breached conditions, again the Applicant has not substantiated his claim.

191 Firstly, the fact that I have held the Applicant’s allegations of breach of conditions have not been substantiated means that the Applicant’s allegations made to the Director-General were, and always will remain, as “allegations”.

192 Secondly, the Applicant has not demonstrated the existence of a duty (on the part of the Director-General) to supervise or superintend the conditions of Permit No 1468. In this respect, I do not think that s 85(1) translates into such a specific duty.

193 The supervision and enforcement by the Director-General of relevant conditions of a s 87 Permit or s 90 Consent must always involve the Director-General with a legitimate discretion rather than impose upon him the duty to do so: cf Ryde City Council v Echt (2000) 107 LGERA 317.

194 Finally, there is documentary evidence of attendances of the Services’ Officers at Lake Cowal to observe progress with the archaeological works.

195 For all of the foregoing reasons, I have concluded that the Applicant has failed to establish any of his allegations made against any of the Respondents.

196 Accordingly I make the following orders:-

Citations

Williams v Pardoe and Ors. [2005] NSWLEC 119

Cases Citing This Decision

0

Cases Cited

15

Statutory Material Cited

2

Beckwith v the Queen [1976] HCA 55

Brown v The The Queen [2022] NSWCCA 116

Keet v Ward [2011] WASCA 139

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CITATION:	Williams v Pardoe and Ors. [2005] NSWLEC 119
PARTIES:	APPLICANT: Williams RESPONDENTS: Pardoe and Ors.
FILE NUMBER(S):	40626 of 2003
CORAM:	Bignold J
KEY ISSUES:	Administrative Law :- challenge to validity of Permit and Consent in respect of Aboriginal objects-alleged denial of procedural fairness-alleged breaches of Conditions of Permit-alleged racial discrimination
LEGISLATION CITED:	National Parks and Wildlife Act 1974, s 2A, ss 87, 90 Racial Discrimination Act 1975, ss 9 and 10
CASES CITED:	Beckwith v the Queen (1976) 135 CLR 569; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Port of Melbourne Authority v Anshun Property Ltd (1981) 147 CLR 589; Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Ryde City Council v Echt (2000) 107 LGERA 317; Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80; Tynan v Meharg (1998) 101 LGERA 255; Williams v Barrick Australia Ltd (2003) 128 LGERA 80; Williams v Pardoe (2003) NSWLEC 150; Williams v Director General National Parks and Wildlife Service (2003) LGERA 354; Williams v Pardoe (2003) NSW LEC 363; Williams v Pardoe (2004) NSWLEC 71
DATES OF HEARING:	24-31/05/2004, 2,4,8/06/2004
DATE OF JUDGMENT:	03/18/2005
LEGAL REPRESENTATIVES:	APPLICANT: A Oshlack, Agent SOLICITORS N/A 1ST-3RD RESPONDENTS: Mr N Williams SC 4TH RESPONDENT Mr A Galasso, Barrister SOLICITORS: 1ST - 3RD RESPONDENTS Blake Dawson Waldron 4TH RESPONDENT Solicitor for National Parks and Wildlife Service