Williams v The Director-General of the National Parks and Wildlife Service
[2003] NSWLEC 121
•05/19/2003
>
Reported Decision: 127LGERA 354
Land and Environment Court
of New South Wales
CITATION: Williams v The Director-General of The National Parks And Wildlife Service And Ors. [2003] NSWLEC 121 PARTIES: APPLICANT:
RESPONDENTS:
Williams
The Director-General of The National Parks And Wildlife Service And Ors.FILE NUMBER(S): 40964 of 2002 CORAM: Bignold J KEY ISSUES: Aboriginal :- Cultural heritage-Judicial Review. LEGISLATION CITED: National Parks and Wildflife Act, s 2A, s 87, s 90 CASES CITED: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24;
Re Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502;
Weal v Bathurst City Council (2000) 111 LGERA 181;
Williams v Director-General (2002) NSWLEC 154DATES OF HEARING: 5-7/03/03, 10-13/03/03, 18/03/03, 20/03/03 DATE OF JUDGMENT:
05/19/2003LEGAL REPRESENTATIVES: FIRST RESPONDENT:
APPLICANT:
A Oshlack, Agent
SOLICITORS
N/A
A Pearman, Barrister
2ND AND 3RD RESPONDENTS
N J Williams SC
4TH AND 5TH RESPONDENTS
M Brennan, Solicitor
SOLICITORS
FIRST RESPONDENT
National Parks and Wildlife Service
2ND TO 5TH RESPONDENTS
Blake Dawson Waldron
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Matter No . . 40964 of 2002
Coram : Bignold J
19 May 2003
NEVILLE WILLIAMS
Applicant
v
THE DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE
First Respondent
BARRICK AUSTRALIA LIMITED ACN 007 857 598
Second Respondent
BARRICK GOLD OF AUSTRALIA ACN 008 143 137
Third Respondent
JUDGMENT
A. INTRODUCTION
1. These are my reasons for judgment following the final hearing of class 4 proceedings in which the Applicant has challenged the validity of a related permit and consent respectively issued by the first Respondent (the Director-General) pursuant to s 87 and s 90 of the National Parks and Wildlife Act 1974 (the NP&W Act) in respect of Aboriginal objects situate on lands comprising Mining Lease Area 45 situate at Lake Cowal (“The Permit” and “the Consent”).
2. On 3 December 2002, I granted interlocutory relief suspending the operation of the Permit and the Consent and restraining the second and third Respondents (the Mining Companies) from carrying out activities in reliance upon the Permit and the Consent. My reasons for granting interlocutory relief are contained in my Reasons for Judgment published on 5 December 2002: see (2002) NSWLEC 235.
3. For the sake of brevity I adopt those parts of those reasons that provide (i) the nature and scope of the Applicant’s challenge to the validity of the Permit and the Consent, (ii) the bases for that challenge; (iii) the documentary evidence; and (iv) the background facts to the litigation because all these matters have not changed on the final hearing, which was expedited and was concluded on 20 March 2003.
4. For the reasons that follow, I have concluded that the Applicant’s challenge to the validity of the Permit and the Consent has failed on all grounds and that accordingly, the application must be dismissed resulting in the automatic discharge or dissolution of the interlocutory relief granted on 3 December 2002.
B. THE GROUNDS FOR THE APPLICANT’S CHALLENGE TO THE VALIDITY OF THE PERMIT AND THE CONSENT
5. According to the Amended Points of Claim, the following 10 grounds of invalidity were asserted—
(i) denial of procedural fairness or breach of the rules of natural justice (par 7 of Amended Points of Claim);
(ii) failure to take into account relevant considerations (par 8);
(iii) taking into account irrelevant considerations (par 8);
(iv) bias against the Applicant (par 10);
(v) error of fact concerning Aboriginal Community consultation (par 9);
(vi) disappointment of a legitimate expectation held by the Applicant (par 14);
(vii) lack of evidence to support opinion that the area was not socially or culturally significant for the Wiradjuri peoples (par 15);
(viii) error of law in failing to appreciate the requirements of the Commonwealth Native Title Act 1993 (par 16);
(ix) ultra vires in that the s 87 Permit and s 90 Consent were re-issued without there being a supporting application made therefor ( par 17 ).
(x) decisions are manifestly unreasonable (par 11);
C. THE EVIDENCE AT THE FINAL HEARING
6. All of the documentary evidence tendered at the hearing of the interlocutory claims was re-tendered on the final hearing. The majority of the documentary evidence comprises the official files of the National Parks and Wildlife Service (the Service) (Exhibit 1).
7. It is this documentary material and in particular, the briefing note that recommended the issue of the Permit and the Consent, that is relied upon by the Applicant in support of all of the grounds challenging the validity of the Permit and the Consent. Because of its central importance in the case, I think it necessary to annex the entire document (other than the annexed materials) to these reasons (Annexure A).
8. In addition to this undisputed documentary evidence, there was evidence by Mr Terry Korn, the Director-Western who issued the Permit and the Consent pursuant to delegated authority, which explains the circumstances in which the Permit and the Consent were issued by him twice—originally on 23 November 2002 and again on 27 November 2002. Again, there is no dispute concerning this evidence.
9. Additionally, but even more importantly, Mr Korn’s evidence (affidavit and oral) goes to the only disputed evidentiary issue in the case, namely what occurred and what was said at Lake Cowal on 14 October 2002 when he, accompanied by a Service Archaeologist, Mr Alan Hutchins, held an arranged meeting with the Applicant and the Applicant’s advisor and helpers to hear the Applicant’s case against granting the Consent.
10. This evidence was in rebuttal of affidavit evidence relied upon by the Applicant at the interlocutory hearing on 29 November 2002 in support of the Applicant’s allegation of bias by pre-judgment by the decision-maker. This particular matter is discussed at pars 25 to 56 of my reasons for judgment on the interlocutory hearing where I concluded at par 44 that the Applicant’s affidavit evidence (untested by cross-examination or evidence in rebuttal) was “capable of supporting an inference of apprehended bias”.
11. Most of the final hearing was occupied by the oral examination of the relevant witnesses on the issue of what occurred at the meeting held on 14 October 2002 at Lake Cowal.
12. Although at the end of the evidence there remained direct conflict on the issue as to what Mr Korn said on that occasion, I am assisted in evaluating the conflicting evidence by virtue of having in evidence a video recording of that meeting taken on behalf of the Applicant, though that video evidence does not assist on what was or was not said by Mr Korn to Mr Ron Gardner and the Applicant, when at the conclusion of the meeting, those three men went for a little walk onto the bed of Lake Cowal.
13. Since the dispute on the evidence is confined to what Mr Korn said to Mr Gardner after the 14 October meeting at Lake Cowal had concluded I should at once make my factual findings on the disputed evidence and leave consideration of the undisputed documentary evidence until I come to determine each of the Applicant’s grounds for invalidity of the Permit and the Consent.
D. FINDINGS ON THE DISPUTED EVIDENCE
14. The conflict in the relevant affidavit evidence is that between the affidavits of Mr Gardner (sworn 28 November 2002) and the Applicant (sworn 29 November 2002) and the affidavit of Mr Korn (sworn 21 February 2003).
15. The relevant passages in Mr Gardner’s affidavit are as follows:
- 4. On the 14 October 2002, I attended a meeting with Neville Williams, other members of the Mooka Traditional Owners Council, David Johnson and Ellie Golbert, with Terry Korn and Allen Hutchins of the NPWS. The meeting was held under a red gum tree on the Game Reserve at Lake Cowal.
5. At the meeting I asked Terry Korn and Allan Hutchins with words to the effect If this place is destroyed who will take responsibility for the deaths that will come from our Peoples’ belief in our own culture and spirituality? Terry Korn and Allan Hutchins agreed with words to the effect”, We will share it around the government agencies.
6. I said to Mr Korn and Mr Hutchins with words to the effect – We want the Director-General, Brian Gilligan, to be sitting in your place so his spirit will be present and the full story about the significance of Lake Cowal can be told. Terry Korn said words to the effect OK.
7. During the meeting a large willy willy was heading in our direction and Mr Korn made the comment with words to the effect Here is a demonstration of Aboriginal spirituality. Here’s a bit of culture in action. I replied with words to the effect – Do you know about it then? He replied – I know about these things because I was hooked up with the Hindmarsh Island case and Lake Victoria.
8. At the end of the meeting I invited Mr Korn to walk with Mr Williams and myself towards the centre of the Lake. When we stopped, Mr Korn said to us with words to the effect – It’s my job to get the s 90 Consent to Destroy signed for Lake Cowal.
9. On our return from the walk we rejoined the rest of the group and walked towards the cars. At the cars Mr Korn said to the group with words to the effect – it took me four years to get the Consent to Destroy for Lake Victoria because I wanted it done properly.
16. In one of his two affidavits sworn on 29 November 2002, the Applicant states as follows:
- 2. I have read the affidavit of Ron Gardner of the 28 November 2002.
3. I refer to paragraph 8 of that Affidavit and say that it is a true and correct statement of events that occurred on October 14 2002.
17. The relevant passages in Mr Korn’s affidavit are as follows:
- 6. At the end of the meeting Ron Gardner said to me words to the effect of: Got time for a walk? I went on a walk with Ron Gardner and Neville Williams 200-300 metres out onto the lakebed. This took us beyond the range of the microphone.
7. I have read the affidavit of Ron Gardner dated 28 November 2002 and the two affidavits of Neville Williams dated 29 November 2002. I do not recall saying the words reported of me in paragraph 8 of Mr Gardner’s affidavit, or any words to that effect. As at 14 October 2002 those words were untrue.
10 Before our walk Mr Gardner said to me words to the effect of: I think that you understand the spirits. I think that you can understand what this is about. After we had been walking for some time he said to me words to the effect of: Can you feel the spirit rising up from the lake from under your feet? I could not. I said words to the effect of: No I can’t. When I was at Lake Victoria I could feel its importance. This place isn’t the same for me.
11. Mr Williams and Mr Gardner also pointed out to me aspects of the mine site and Mr Williams occasionally walked away from Mr Gardner and me to look for artefacts. Neither Mr Williams nor Mr Gardner informed me of anything I considered new about Lake Cowal during our walk together on the lake bed. I said words to the effect of: It’s my role to help get this matter resolved.
18. All deponents were extensively cross-examined.
19. Under cross-examination, Mr Gardner stated that Mr Korn had spoken to him again when the persons who had attended the meeting were getting into their vehicles to depart from Lake Cowal at the conclusion of the meeting and his words were to similar effect to what he had said during the walk on the Lake Cowal bed.
20. However, he conceded that Mr Korn may have said words to the effect that his job was to “get the matter resolved”.
21. Ultimately, I have concluded that Mr Korn did not say, on either of the occasions alleged by Mr Gardner, that his job was to get the s 90 Consent to Destroy, signed for Lake Cowal.
22. In so concluding, I do not find that the contrary testimony of Mr Gardner or the Applicant was deliberately false or untrue.
23. Rather, I think that their recollections of the conversation were influenced by what they felt or perceived on the occasion of the meeting held at Lake Cowal on 14 October, concerning the words and actions of Mr Korn and Mr Hutchins. The dialogue at the meeting had not inspired confidence in Mr Gardner and the Applicant that their views would be ultimately accepted. Both Mr Korn and Mr Hutchins had stressed the importance of the Applicant’s case to establish the social and cultural significance of Lake Cowal and Mr Hutchins had virtually said that the case for the archaeological significance of the site could not carry the day based upon the known archaeological assessments.
24. The video recording of the meeting provides considerable assistance because it reveals not only what was said in dialogue but the manner and demeanour of the participants. It also supports Mr Korn’s recollection of other aspects of the discussion upon which there is some dispute in the affidavit evidence. But again this finding implies no criticism of the witnesses and their genuine attempts to recollect the discussion at the meeting which occupied some two hours sitting outdoors under some trees. The video recording itself is far from being perfectly clear with more than one person talking at the same time on occasions and background noises intruding.
25. In the light of the subsequent events—namely the facts that (i) the Permit and the Consent were issued; and (ii) they were issued by Mr Korn—it is natural and merely human for Mr Gardner and the Applicant to reflect, and to interpret, Mr Korn’s words as indicating some prejudgment on his part. But this is in truth their interpretation, affecting their recollection, rather than what Mr Korn had said on that particular occasion. Moreover, it must not be overlooked that Mr Korn at the time had no idea that he would be the person who would issue the Permit and the Consent. This is dealt with in par 9 of his affidavit where he states:
- As at 14 October 2002 the Director-General had not told me that I was to make the decision whether or not to issue a consent for Lake Cowal. My role on that day was to attempt to elicit information that would form part of the material on which someone else (I had assumed either someone in the Cultural Heritage Division or the Director-General) would make the decision. I had not myself formed any view on that day whether or not a consent should be issued, and did not consider it necessary for me to form any view.
26. I accept this evidence, which is corroborated by his evidence (which was not disputed) as to how it came about that he was asked on 23 November 2002 to exercise delegated authority and determine the applications for the Permit and the Consent, and that he did so on that occasion and did so again a few days later on 27 November 2002. (in circumstances explained hereafter).
27. Accordingly, for the reasons that I have given, I do not accept the evidence of Mr Gardner and the Applicant as to what Mr Korn said to Mr Gardner at Lake Cowal after the conclusion of the meeting held on 14 October 2002.
28. Rather, accepting the evidence of Mr Korn, I find that he did not say that it was his job to get the s 90 Consent to destroy signed. I accept his testimony that he said words to the effect that it was his “role to help get this matter resolved”.
29. These words spoken by Mr Korn in the circumstances prevailing on 14 October 2002 are simply not capable of providing evidence of bias by prejudgment on the part of Mr Korn, who, in any event on the particular occasion, did not consider that he ultimately would be the person who issued the Permit and the Consent.
E. ADJUDICATION ON EACH OF the GROUNDS ALLEGING INVALIDITY OF THE PERMIT AND THE CONSENT
- Ground (i) — denial of procedural fairness or natural justice
30. The particulars supporting this ground are wide ranging and disparate. To the extent that reliance is placed upon the fact that the Permit and the consent were issued twice (as earlier noted) this raises no question of denial of procedural fairness or natural justice.
31. Next, it is asserted that the re-issue of the Permit and the Consent was to affect the hearing of part-heard proceedings in this Court. Again, this assertion does not involve any question of denial of procedural fairness or natural justice. (In point of fact, those proceedings have recently been heard without any reliance upon the existence of the Permit and the Consent).
32. The suggestion that the Applicant was denied procedural fairness because he did not, (although apparently the Wiradjuri Council of Elders did) receive prior notice from the Service that the issue of the Permit and Consent “were imminent” is not sustainable in law. The part-heard proceeding resumed on Monday 25 November 2002 by which time the Applicant had been made aware that the Permit and Consent had been issued on Saturday 23 November 2002.
33. Finally, it is claimed that by failing to investigate allegations made by the Applicant that the Mining Companies had damaged artefacts in beach of the earlier s 87 Permit (issued in May 2002), the Applicant was denied procedural fairness. In my judgment, this claim is not legally sustainable. Neither the Applicant’s allegation nor its investigation by the Service, were relevant to the determination of the Mining Companies’ pending applications for the issue of the Permit and the Consent.
34. For all the foregoing reasons, this ground has not been substantiated.
Ground (ii)—taking into account irrelevant considerations
35. I shall postpone until my consideration of the next ground, the important question of what are the relevant considerations for the issue of a permit under s 87 or the issue of a consent under s 90.
36. The Service briefing paper containing the recommendation for the issue of the Permit and the Consent attached as Annexure “A” the issues paper prepared for the previous permit (May 2002).
37. The only reference in the briefing paper to Annexure “A” is under the heading “Background” and under the heading “previous Aboriginal Consultation”.
38. Apart from these limited references, the issues paper relevant to the issue of the earlier s 87 Permit plays no part in the briefing paper or in the decisions that were made on it.
39. In this sense, it cannot be said that issues paper had any meaningful function in the briefing paper or in the decision made in respect of it. It was rightly referred to as “background” and ‘previous Aboriginal consultation”.
40. This ground has not been established.
Ground (iii)—failure to take into account relevant considerations
41. Neither s 87 nor s 90 specify what considerations are relevant to the issue of a permit or a consent respectively.
42. This feature of the legislation led the Director-General to submit that he was vested with an “unfettered discretion”. This submission, in my opinion, is too widely stated and must be rejected.
43. The Mining Companies relied upon the following passage from the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39:
- What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd (1979) 144 C.L.R. 45, at pp. 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation. v. Bradbury (1937) 56 C.L.R. 746, at pp. 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 C.L.R. 492, at p. 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
44. It may be noted that this statement of principle does not accommodate later developments in the concept of “legitimate expectation” to refer to what matters the decision-maker should take into account in making a decision: per Hayne J in Re Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 at par 118.
45. Subject to the potential operation of that doctrine extending the field of relevant considerations that must be considered it is appropriate to examine the NP&W Act to ascertain whether there is an implication that the Director-General is bound to take particular matters into account in issuing a permit under s 87 or a consent under s 90.
46. It is not necessary to look far into the NP&W Act because s 2A (inserted into the Act by the National Parks and Wildlife Amendment Act 2001) declares the objects of the Act and gives effect to them by providing as follows:
- (1) The objects of this Act are as follows:
(a) the conservation of nature, including, but not limited to, the conservation of:
(i) habitat, ecosystems and ecosystem processes, and
(ii) biological diversity at the community, species and genetic levels, and
(iii) landforms of significance, including geological features and processes, and
(iv) landscapes and natural features of significance including wilderness and wild rivers,
(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:
(i) places, objects and features of significance to Aboriginal people, and
(ii) places of social value to the people of New South Wales, and
(iii) places of historic, architectural or scientific significance,
(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,
(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.
(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.
(3) In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following:
(a) the objects of this Act,
(b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.
47. Subsection (3) of course translates the objects beyond the level of implication by mandating that “in carrying out of functions under this Act, the Minister the Director-General and the Service are to give effect to the declared objects”.
48. The Mining Companies argued that since the Act distinguished between powers, authorities, duties and functions (eg see s 21(1)) and since s 2 A(3) was expressed to only apply to “functions” what was conferred upon the Director-General by s 87 and s 90 was properly regarded as a power or discretion. Hence, it was not a function and in carrying out his statutory role, the Director-General was not bound to give effect to the objects of the Act by force of s 2A(3).
49. In my view, this argument should be rejected. The texts of s 87 and s 90 do not compel the conclusion that the Director-General is vested with a power or discretion in contradistinction to a duty or function. Nor, properly analysed in the context of Part 6 of the NP&W Act, is it appropriate to classify the Director-General’s role under s 87 or s 90 as merely a power or discretion. If resort to such terminology be sought, then I would conclude that the Director-General is vested with a power or discretion coupled with a duty. That duty is founded upon the plain terms of s 85 which provides as follows:
- (1) The Director-General shall be the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.
(2) In particular, the Director-General shall be responsible:
(a) for the proper care, preservation and protection of any Aboriginal object or Aboriginal place on any land reserved under this Act, and
(b) subject to section 87, for the proper restoration of any such land that has been disturbed or excavated for the purpose of discovering an Aboriginal object.
50. In my judgment, s 85 read in the light of the declared objects of the Act (s 2A) and the statutory functions conferred upon the Director-General (s 8) is a pivotal and foundational provision of Part 6 of the NP&W Act which deals with “Aboriginal objects” and “Aboriginal places”, and gives colour and content to other specific functions conferred upon the Director-General by Part 6, including the functions conferred by s 87 and s 90 which are in the following terms:
- 87. Permits relating to Aboriginal objects
(1) Subject to section 88, the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e).
(2) Terms and conditions imposed by the Director-General under subsection (1) may include terms and conditions relating to the proper restoration of land disturbed or excavated.
(3) A failure to comply with a term or condition authorised by subsection (2) shall be deemed to be a contravention of section 86.
(4) The Director-General may, at any time:
(a) revoke a permit issued under this section, or
(b) vary the terms and conditions of such a permit.
90. Destruction etc of Aboriginal objects or Aboriginal places
(1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation).
(1A) Subsection (1) does not apply with respect to an Aboriginal object that is dealt with in accordance with Aboriginal tradition pursuant to section 85A.
(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.
(3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister.
(4) The Minister:
(a) may refuse to grant the appeal, or
(b) may grant the appeal wholly or in part, and may give such directions in the matter as seem proper.
(5) The decision of the Minister on the appeal is final and is binding on the Director-General and the appellant, and shall be carried into effect accordingly.
(6) Where the regulations prescribe:
(a) the manner in which an appeal is to be made under this section---the appeal shall be made in that manner, or
(b) the period within which an appeal is to be made under this section---the appeal shall be made within that period.
(7) Where the Director-General fails to grant an application (other than an application for approval in respect of integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979) for consent, the application shall, for the purposes of this section, be deemed to be refused upon the expiration of:
(a) subject to paragraph (b)---7 days after the application was received by the Director-General, or
(b) where the regulations prescribe some other period---that other period.
51. Finally, simply as a matter of statutory interpretation, there is simply no valid reason to interpret “functions” in s 2A(3) in a manner that confines it to things, other than powers, discretions, authorities or duties. Clearly, in the context of s 2A, the word “function” is employed with its ordinary meaning in a statutory context. The context requires a broad meaning to be ascribed.
52. Accordingly, I conclude that the duty imposed by s 2A(3)(a) to give effect to the objects of the Act applies to the role of the Director-General in issuing a permit under s 87 or a consent under s 90.
53. This means that such functions are to be carried out in a manner that “conserves” objects, places or features of cultural value within the landscape including places, objects and features of significance to Aboriginal people (s 2A(1)(b)(i)) and in a manner that fosters “public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation” (s 2A(1)(c)).
54. Whereas the giving of effect to such objects may the more readily be realised in issuing a permit pursuant to s 87, it is not so apparent how that can be done in the case of the grant of a consent under s 90 to destroy.
55. Despite this apparent difficulty, s 90 expressly empowers the Director-General to grant such a consent and the express grant cannot be nullified by the introduction into the Act of s 2A.
56. However, in the present case, it is to be noted that there is an interplay and interdependency to some extent between the Permit and the Consent and in the briefing paper the recommendation for the adoption of Option 3 explained it as follows:
- Option three allows the mining company blanket consent to destroy all sites across the MLA but provides for specific protective measures for the nominated sites, by covering them with a geo-textile blanket. However, if the area of any of these sites is proposed to be utilised by Barrick for activities other than vehicular passage, Barrick will be required to give NPWS 21 days notice, prior to undertaking salvage and collection works. This would provide NPWS with sufficient time to amend the permit if deemed necessary by NPWS considering the changed circumstances.
In lieu of absolute site preservation, Barrick have discussed the option of offsets with NPWS and have previously given an undertaking to the Wiradjuri council of Elders that they will sponsor a regional stud of Wiradjuri heritage and publish the results on completion. In an effort to obtain broader conservation outcomes for the loss of 31 sites (not withstanding generally low significance), Consent conditions associated with option three would commit Barrick to a range of culturally holistic undertakings in addition to the afore mentioned book and includes;
· The curation of all material collected under the conjoined S 87 permit in accordance with the wishes of the Wiradjuri people and provision of funding for the construction of a Keeping Place.
· Fostering a survey to identify Wiradjuri cultural materials held in museums and other organisations and funding for the repatriation of said articles back to Wiradjuri country as appropriate.
· The identification of areas within Barrick’s landholdings in the Lake Cowal area which are of high cultural value to Aboriginal people and may be subject to future conservation agreement.
57. It follows from what I have held concerning s 2A (and especially subsection (3)) that matters relevant thereto must be taken into consideration by the Director-General in issuing a permit under s 87 and a consent under s 90.
58. But in addition to those matters, the Director-General by his representations to the Applicant (both written and oral) was bound to take into consideration matters advanced by the Applicant in opposition to the grant of the Consent.
59. This is because those representations by the Director-General gave rise to a legitimate expectation on the part of the Applicant that matters he raised in opposition to the grant of the Consent would be considered in the decision-making process: see Ex parte Lam.
60. In particular, the representations made by Mr Korn and Mr Hutchins at the meeting with the Applicant at Lake Cowal on 14 October 2002 required the Director-General to take into consideration the Applicant’s case against the grant of the Consent based upon the social and cultural significance for the Wiradjuri people of Lake Cowal.
61. These representations made to the Applicant brought into account in the decision-making process more specifically the case he made against the grant of the Consent than otherwise would have been the effect of the Service’s Policy concerning the necessity for Aboriginal Community consultation by an applicant for a s 87 permit or s 90 consent. That policy had been communicated to the Applicant in earlier letters from the Director-General dated 23 April 2002 and 21 May 2002, which were to the forefront of the earlier proceedings in which the Applicant unsuccessfully challenged the validity of the s 87 Permit issued in May 2002—see Williams v Director-General (2002) NSWLEC 154.
62. The more particular representations made to the Applicant which give rise to the legitimate expectation that I have held to exist commenced with Mr Korn’s letter to the Applicant dated 21 August 2002 advising him of the receipt of the Mining Companies’ application for s 90 Consent where it is stated:
- The Service is proceeding to assess and determine the application. It is noted that you wish to consult with NPWS officers in relation to this matter independently of Barrick Gold representatives. Could you please contact Mr Bob Sutherland, Manager, Western Aboriginal Heritage Unit….at your earliest convenience to arrange a mutually convenient time
63. In his letter to the Director-General dated 3 October 2002, the Applicant reminded the Director-General that the Applicant had always stressed the need for the Director-General personally to attend Lake Cowal He stressed the need for the consultation to take place at Lake Cowal.
64. By facsimile transmission dated 9 October 2002, Mr Korn advised the Applicant that the Director-General would not personally be involved in the consultation “since his responsibilities as Director-General are exercised by delegation”. He advised that he, as Director of Western, and Mr Hutchins, Archaeologist would attend the meeting at Lake Cowal arranged for 10 am on 14 October 2002.
65. At that meeting, Mr Korn and Mr Hutchins made representations to the Applicant that his case of the social and cultural significance of Lake Cowal for the Wiradjuri people would need to be significant if his opposition to the grant of the s 90 consent was to prevail.
66. At that meeting, the Applicant had revealed the existence of his documentary case (in final stages of preparation) that he intended to submit to the Federal Minister for the Environment and Heritage in support of his intended application for a declaration under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s 9 that the Mining Lease Area at Lake Cowal was a “significant Aboriginal area that is under serous and immediate threat of injury or desecration”.
67. At that meeting, the Applicant had indicated that the final documentation would be available by 16 October 2002. As it happened, a copy of the document was supplied to Mr Korn at the Service’s Dubbo Office on 18 October 2002.
68. In his letter dated 28 October 2002 to the Director-General, the Applicant advised that his application was currently under consideration by the Federal Minister. His letter again stressed the need for the Director-General personally to read the contents of the application (which was a voluminous document occupying a very full spring back finder) and that there was a need for the Director-General’s “spirit to be present at Lake Cowal before you make any decision on the application for s 90 Consent”.
69. In that letter, the Applicant complained about the lack of response on the part of Mr Korn and Mr Hutchins when the Applicant informed them at the meeting that he and his consultant Archaeologist, Mr David Johnston, had earlier that morning found four artefacts on the drill line in the Game Reserve.
70. Complaint was also directed at the lack of official attire worn by the Service Officers and the intimidating effect of Mr Hutchins jacket displaying a “Murray Bridge Rifle Club” badge.
71. The Applicant’s letter included the following passages—
- On 14 October we also made it very clear to Terry Korn and Allan Hutchins that if the NPWS need a demonstration of the spiritual and cultural significance you, personally, have to be at Lake Cowal. Once again I invite you to Lake Cowal before you even consider issuing a section 90 Consent to Destroy.
As Director-General of the National Parks and Wildlife Service, you have a statutory responsibility to exercise your duty of care. I find that there is a perceived bias exercised by you and your officers in favour of the mining company and against the advice of the Wiradjuri people.
72. In his response by letter dated 8 November 2002, the Director-General advised that the information contained in the application to the Federal Minister was currently being considered by the Service in determining the Mining Companies’ application for s 90 Consent, which matter was still pending, and that the Applicant would be notified “once a determination has been made”.
73. This letter again contains a relevant representation that the detailed information supporting the Applicant’s application for an emergency declaration under the Commonwealth Act would be considered by the Service in its determination of the Mining Companies’ pending application for s 90 Consent.
74. However, it contains no representation that the Director-General would personally determine the pending application and by its silence it necessarily implies a negation of the Applicant’s insistence that the Director-General should personally attend Lake Cowal before making a decision on the pending s 90 application.
75. In the light of the foregoing discussion, I am now in the position to determine whether each of the matters particularised in support of the Applicant’s ground of failure to consider relevant matters was a matter that the decision-maker was bound to take into consideration in determining the Mining Companies’ pending application for s 90 Consent. Those particulars are as follows:
- a) Any of the results of the collection of artefacts that have been carried out by the Fourth Respondent pursuant to Permit 1361 and supplied to the First Respondent.
b) The affidavits and any assessments or reports from the prior s 87 work.
c) The request by the Applicant for the First Respondent to be there in person to meet with him to discuss matters to be told in relation to the significance of Lake Cowal to the Wiradjuri Nation.
d) In concluding in the attached Review of Environmental Factors for the activity that it would not likely significantly affect the environment and that the environmental effects arising from the work have been in any way properly assessed in the REF-
e) The fact that almost every Wiradjuri person that was consulted opposed the issuing of a s90 Consent or deferred the decision to the Wiradjiuri Council of Elders who did not give endorsement to it being issued
f) The First Respondent did not accurately report the consultation meeting it held on the 14 October 2002, by Stating that the "ladies" at the meeting did not speak, when the fact of the matter was that Beryl Smith, a Wiradjuri Elder, made comments to the effect that she did not wish the mining to go ahead.
g) During the consultation meeting of the 14 October 2002 referred to above, the First Respondent did not take into consideration the display of Wiradjuri culture and spiritual belief when he saw a very large and dense whirlwind called Willie Willie in the Wiradjuri language, travel from the drill rigs on top of the Lake escarpment straight for him. Terry Korn said words to the effect -here is a demonstration of Aboriginal Spirituality. There was common agreement within the group- As the Willie Willie approached the group it clearly changed course and circled the group.
h) The First Respondent issued the Consent and Permit after failing to consider the fact which was put before him that the water licences for the construction and operation of the mine had lapsed and that the mine could not proceed until the lengthy process to obtain new licences was carried out.
i) That artefacts have been subjected to adverse environmental impacts since the time when the previous mine owners, North Ltd, carried out exploration activities which in all likelihood would have caused damage and destruction to artefacts.
j) The First Respondent failed to consider at all the view of expert archaeologist David Johnson that there was a large need for additional research to be undertaken which could validate the social and spiritual significance of Lake Cowal.
k) In it's consideration of the previous archaeological findings, the First Respondent made an error of fact in Stating that additional archaeological study is unlikely to improve the understanding of Aboriginal usage of the area. when in fact at page 48 and 49 of the report by Scott Cane Campsites at Lake Cowal of March 1995. he gives seven topics that are worthy of future investigation.
l) The Director General has failed to consider the Native Title rights that may exist on the land in reaching its decision.
m) Previous archaeological findings in respect to the assessment of the archaeological record:
That the sites reveal various occupations in different time frames from at least 2000 to 4000 years old.
· That the use and ownership of chert resources may indicate cultural markers along with the distinctive carved trees of the region helping to define cultural patterns between the Lachlan and Murrumbidgee tribes of the Wiradjuri Nation.
· The earlier archaeological reports reveal a settlement pattern which incorporated locations used for artefact manufacture (tool making). base camps and hunting.
- n) The First Respondent failed to give proper consideration and regard to the joint expert witness consulting archaeologists report by Wilfred Shawcross and David Johnson of the 17 October 2002:
· That there is the potential for subsurface archaeological deposits which had not been archaeologically assessed let alone tested.
· To consider the opinion of Professor Chapell that subsurface archaeological material is likely to occur.
· That artefacts were being unearthed by tracks being used by mining vehicles which clearly show that artefacts are indeed situated in subsurface on the land.
· That there have been no archaeological reports prepared by Barrick Gold since the exploratory operations and the salvage of artefacts from across the site complex began.
· They believed that work should stop so the extent of subsurface archaeological potential can be tested and a more thorough expert scientific significance assessment can be determined.
· Their observation from their consultations that the Aboriginal social significance for those Wiradjuri People such as the Applicant and others who have traditional affiliations and or knowledge of Lake Cowal appear to be very high.
· The fact that mining activities were occurring prior to the issuing of the original s 87 Permit 1361.
· Their opinion that the Aboriginal values for the Lake as a whole and the current mining impact by Barrick Gold and or NPWS and that the Aboriginal social significance which is regarded as being very high by a number of Wiradjuri people is currently being destroyed.
76. In my judgment, the decision-maker was not relevantly bound to consider the matters particularised in pars (c), (d), (f), (g), (h), (i), (k) and (l). These are not considerations which fall within the ambit of mandatory considerations flowing from either the NP&W Act, s 2A(3), or the Applicant’s legitimate expectation created by the various specific representations (written and oral) made to the Applicant by or on behalf of the Director-General that I have earlier identified.
77. In respect of the other matters particularised, I am of the opinion for the reasons given that they were mandatory considerations for the decision-maker in determining the s 90 application in the sense that they clearly fell within the ambit of mandatory considerations sourced either in the NP&W Act, s 2A or in the Applicant’s legitimate expectation that his case against the grant of consent would be considered by the decision-maker. In my judgment, the only reasonable inference to draw from the content of the briefing paper is that these matters were relevantly considered by the decision-maker. In so concluding, I accept the proposition that Mr Korn, as the decision-maker by virtue of delegated authority, was entitled to rely upon the assessment of archaeological, social and cultural significance made by other officers of the Service which assessment obviously informed the content of the briefing note. Mr Korn is the second most senior officer of the Service (a rank that he shares with the other officers who head other divisions in the Service including Mr Jason Ardler, Director Cultural Heritage).
78. He does not personally possess qualifications in archaeology. In his role as Director Western he is not personally responsible for work undertaken by archaeologists employed by the Service such as Mr Hutchins who are physically stationed at the Dubbo Office of the Service, but who are part of the Service’s Cultural Heritage Division which is presided over by Mr Jason Ardler stationed at the Sydney Head Office of the Service.
79. The Applicant does not attack the competence, by virtue of delegated authority, of Mr Korn to issue the Permit and the Consent. However, he draws attention to the very unusual circumstances in which Mr Korn issued the Permit and the Consent in their original form on Saturday 23 November 2002 when Mr Korn was attending a special session or gathering of senior Service officers at Woolgoolga on the NSW’ mid north coast. During the lunch break he was asked by the Director-General to determine the applications for the Permit and Consent. Mr Korn had not previously contemplated being so asked. He discussed the briefing note with the Director General and Mr Jason Ardler. He had assumed that the latter would probably be responsible for determining the applications but had learned that Mr Ardler did not possess the requisite delegated authority. He discussed the contents of the briefing note with Mr Ardler and the Director-General before determining the applications in the manner that had been recommended in the briefing note. He considered himself free to decline to exercise the delegated authority but was satisfied that he should exercise it.
80. He did not read the background or supporting documents. He read the briefing note and the form of Permit and Consent annexed to it, and was content to adopt the recommendation which had been endorsed by the Director-General. Mr Korn was a co-signatory (with Mr Ardler) of the briefing note. Both his signature to the recommendation and the Director-General’s endorsement bear the same date that appears on the Permit and the Consent that Mr Korn issued (in the original form) on 23 November 2002.
81. Although Mr Korn had not been involved with the case since he had attended the meeting at Lake Cowal on 14 October 2002 (other than to soon thereafter orally report the outcome of the Meeting to the Director General) he felt satisfied after discussion with the Director-General and Mr Ardler that he could determine the applications by relying upon the contents of the briefing note.
82. When the same briefing note was re-submitted to Mr Korn a few days later by Mr Ardler to “re-make the decision” (because the original Permit and consent had not included the relevant plans referenced therein and because the Permit and Consent contained typographical errors) Mr Korn again considered the briefing note and the revised form of Permit and Consent and re-issued them on 27 November 2002.
83. The Applicant accepts the fact that Mr Korn was the true decision-maker but questions the competence of Mr Korn to rely upon the contents of the briefing note especially since Mr Ardler, himself, possesses no qualifications in archaeology or social anthropology.
84. Mr Korn admitted that he did not know whether the Service’s Cultural Heritage Division had the resources of a social anthropologist but was satisfied that the resources within that Division were competent to express the opinions and evaluations that were contained in the briefing note.
85. In my judgment, there is scope for the application of the presumption of regularity to the contents of the briefing paper, including its evaluation of the archaeological, social and cultural significance to the Wiradjuri peoples of Lake Cowal.
86. The Applicant’s attack on the nature and content of the evaluation of the social and cultural significance of Lake Cowal is in truth a grievance with the merits of the findings, which were adverse to the Applicant’s case.
87. It is to be noted that the conclusion contained in the briefing note in respect of the social/cultural significance of Lake Cowal is not greatly different from the conclusions reached by the Federal Minister in deciding not to make an emergency declaration pursuant to the Federal Act, s 9. In his published reasons for that decision (Exhibit F(2)), the Federal Minister had stated, inter alia—
- 24. Most of the evidence relating to significance in Mr Williams’ application did not relate to the specified area, but rather the broader Lake Cowal area, with the exception of several sites previously registered by the New South Wales National Park and Wildlife Service (NSW NPWS). It was clear that Mr Williams, in his application, provided detailed information on the significance of the broader Lake Cowal area in accordance with Aboriginal tradition. It was not clear whether these assertions of significance related to the specified area.
25. In my consideration of the application, I recognised that the wider Lake Cowal area might be of particular significance to Aboriginals in accordance with Aboriginal tradition. However, the evidence presented in the application did not satisfy me that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition.
Finding with regard to significance of the specified
area
26 On the basis of the evidence before me, I was not satisfied that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition.
Reasons for decision
I was able to make a declaration under section 9 of the Act only if I was satisfied that the specified area was a significant Aboriginal area, and that it was under a serious and immediate threat of injury or desecration.
In light of my finding that I was not satisfied that the specified area was a significant Aboriginal area, I declined to make a declaration under section 9 of the Act.
88. It may be that the Federal Minister’s findings recognising that “the wider Lake Cowal area might be of particular significance to Aboriginals in accordance with Aboriginal tradition” is a more generous evaluation than that made by the Service officers in their briefing note, but that fact does not demonstrate reviewable error in the briefing note.
89. In making these comparisons in the respective evaluations of social and cultural significance of Lake Cowal, it is important to bear in mind that both evaluations were addressing the same documentary materials which were contained in the Applicant’s s 9 application under the Federal Act.
90. The relevant legal obligation imposed upon Mr Korn, as the decision-maker, that arises from my earlier holdings and findings is that he “consider” those matters. This necessarily means that his consideration must have been “proper, genuine and realistic”: per Mason P in Weal v Bathurst City Council (2000) 111 LGERA 181. But it does not mean that the consideration could only lead to one result. The decision on the merits was for the decision-maker alone. There is no legitimacy in the process of judicial review for the Court to trespass on the decision-maker’s discretion or merits decision.
91. The only inference that is available on the relevant contents of the briefing note is that the case of the social and cultural significance of Lake Cowal being advanced by the Applicant was properly considered, albeit with a result that differs from the result that the Applicant’s case was seeking to establish.
92. For all the foregoing reasons, I find that the Applicant has not substantiated this ground of invalidity.
Ground (iv)—bias by decision-maker against the Applicant
93. My findings in respect of the disputed evidence concerning what Mr Korn said to Mr Gardner after the meeting held at Lake Cowal on 14 October 2002 had concluded, means that there is no basis in fact for founding on the words and actions of Mr Korn on that occasion, any claim of bias by pre-judgment.
94. It is to be recalled that on that occasion, Mr Korn did not expect to have any further role in the decision-making process on the Mining Companies’ pending application for the s 87 Permit and s 90 Consent, far less that he would ultimately prove to be the decision-maker.
95. The Applicant asserted other forms of bias by the decision-maker against him, namely (i) the criticisms of the Applicant made in the briefing note; (ii) the failure of the Director General to investigate the alleged breaches by the Mining Companies of the earlier s 87 Permit alleged by the Applicant at the meeting held at Lake Cowal on 14 October 2002; and (iii) the failure of the Service to scrutinise and appraise the nearly 2000 artefacts or potential artefacts collected at Lake Cowal pursuant to the earlier s 87 Permit.
96. Additionally, the Applicant asserted an “institutional” form of bias based upon the statistics provided by Mr Jason Ardler (Exhibit 19) of the outcomes in the 2002 calendar year of s 87 permit applications and s 90 consent applications.
97. In my opinion, the Applicant’s allegation of bias on the part of the decision-maker has not been substantiated.
98. It is to be recalled that Mr Korn, who was the relevant decision-maker, was exclusively cross-examined. It was not put to him that either he or the Service was biased against the Applicant.
99. More importantly, the course of events reveal that the Applicant was given every opportunity to put his case against the grant of the s 90 Consent. He availed himself of that opportunity fully. It is true that there were time constraints in the process, but these were not unusual since the Service had a policy for the expeditious determination of applications for s 90 Consent. (Indeed the NP&W Act, s 90(7) deems an application to be refused 7 days after it is received or where the regulations prescribe some other period after that other period).
100. It is also true that the Applicant was consistently urging the Director-General to undertake his statutory responsibility to protect Aboriginal objects and was urging the Director-General to become personally involved in the decision-making process.
101. But these were matters for considered action by the Director-General and he could not legally be dictated to by the Applicant.
102. Moreover, the overall context in which the applications for the Permit and Consent were processed and concluded includes the obvious fact that the Applicant was litigating against the Director-General and the Mining Companies and the continuance of this chain of litigation throughout 2002 obviously created difficulties for all of the parties in the processing of the applications for the Permit and the Consent.
103. Ultimately, I have concluded that the opportunities for the Applicant to put his case to the Director-General against the grant of the s 90 Consent were fair and reasonable, and that they were genuinely extended to the Applicant and that his case against the grant of the s 90 Consent was fairly evaluated by and on behalf of the Director-General, though he was profoundly disappointed with the result.
104. Even if I had held (as at one point I was close to holding) that at the meeting at Lake Cowal on 14 October 2002 Mr Korn and Mr Hutchinson had made implied representations that it was the Director-General himself who would determine the Mining Companies’ pending applications for the Permit and the Consent, I would still have been satisfied that no relevant unfairness had been caused to the Applicant by virtue of the fact that the relevant decisions were not taken by the Director-General personally: see Ex parte Lam.
105. For all the foregoing reasons, I hold that this ground has not been established.
Ground (v) — Error of Fact concerning the Aboriginal Community Consultation Process
106. The particulars in support of this ground are twofold—
(i) failure to obtain confidential information which the Applicant would only divulge to the Director-General personally;
(ii) failure by the Service to investigate the allegations of breach by the Mining Companies of the earlier s 87 Permit.
107. In my judgment, these matters, even if established, would not establish any relevant vitiating error of fact.
108. As to the first matter, the evidence does not establish that the Applicant has any relevant information that he has deliberately withheld because he will only divulge it to the Director-General.
109. Although the notes apparently compiled by Mr Hutchins of the meeting held at Lake Cowal on 14 October 2002 contains the following extract—
- T Korn asked if they could provide any specific information, as culturally appropriate, on stories and the importance associated with the places that they mention. This brought the response that the information was certainly available but that they were concerned about confidentiality matters. The Mooka group consensus was articulated as the Director-General is ultimately responsible for the determination, therefore we will divulge this information only to him when he is sitting here with us as you are doing.
my observation of the video recording of the meeting does not yield that outcome. Rather, the video reveals that it was Mr Gardner who suggested that if the Director-General were “fair dinkum” he would attend Lake Cowal and listen to the views of the Wiradjuri people that Mr Gardner was representing.
110. In any event, it has not been established that the Applicant has confidential information which he has withheld from the meeting with Mr Korn at Lake Cowal or from his comprehensive documentary case for the s 9 emergency declaration under the Federal Act.
111. Finally, even if the contrary were the case, the fact that the Applicant had deliberately withheld the confidential information from the Director-General (because of the latter’s apparent unwillingness to become personally involved in the case) does not mean that therefore he has been denied procedural fairness.
112. The same conclusions apply in respect of the Applicant’s complaint that the Service did not investigate the Applicant’s allegation of breaches by the Mining Companies of the earlier s 87 Permit. In any event, Mr Korn responded to the Applicant’s complaint by letter dated 8 November 2002 inviting the Applicant to substantiate his claim of breach of the existing s 87 Permit, noting that the “Service would be happy to consider any information you are able to provide”. No follow up action appears to have occurred thereafter.
113. For all of the foregoing reasons, this ground has not been made out.
Ground (vi) — disappointment of legitimate expectation
114. The particulars in support of this ground assert a failure by the Service to consider the Applicant’s views “with due diligence”, a failure by the Service to investigate alleged breaches of the NP&W Act by the Mining Companies and a failure to supply the Applicant with the Service’s policy documents for the management and conservation of Aboriginal Cultural Heritage sites.
115. In my judgment, the evidence does not support particulars (i) and (ii) and there is no basis for claiming a legitimate expectation in respect of the matters particularised in item (iii).
116. I have already made findings in respect of the decision-maker’s consideration of the Applicant’s case against the grant of the Consent and the Service’s response to the allegation of breaches of the existing s 87 Permit by the Mining Companies. These findings are relevant to the present claim.
117. My findings of the opportunity extended by the Director-General to the Applicant to make his case against the grant of the Consent are also relevant to the present claim.
118. In my judgment, these claims have not been substantiated.
Ground (vii) — lack of evidence to support finding that area not socially or culturally significant for the Wiradjuri peoples
119. Here the Applicant asserts that there were no facts to support the conclusion expressed in the briefing paper that the area was not socially and culturally significant.
120. I have already held that the evaluation of this matter in the briefing note properly considered (but rejected) the case sought to be made out by the Applicant.
121. This was the process employed leading to the conclusions reached. The process did not involve the Service in conducting original investigations or research. Rather, like the process considered by the Federal Minister, it involved an evaluation by the Service of the documentary materials advanced in the Applicant’s case. In rejecting the case, it is apparent that the author(s) of the briefing paper had not been persuaded by the Applicant’s case. That being the result of the process, it cannot be criticised on the ground that there was not evidence to the contrary or no independent investigation undertaken by the Service.
122. In this respect, it is to be noted that the Service’s policy requiring Aboriginal Community Consultation in respect of applications for s 87 permits or s 90 consents is expressly designed to enable interested Aboriginal communities to demonstrate cultural or social significance to them.
123. The second basis for criticism by the Applicant is the absence of investigation by the Service of the 2000 or so artefacts that had been collected pursuant to the earlier s 87 Permit.
124. This allegation has not been established in the evidence. It is apparent that the Service had received information concerning the nature of the collected artefacts, although it is apparent that the Service had not investigated that collection for itself in any detailed or systematic fashion. It was open to the author(s) of the briefing note to reach the conclusion that Aboriginal sites were of low to moderate significance.
125. For all the foregoing reasons, I hold that this ground has not been established.
Ground (viii) — error of law in failing to appreciate the effect of the Native Title Act 1993
126. In my judgment, there is nothing in the operation of the Commonwealth Native Title Act 1993 that legally precluded the decision-maker from granting the Permit and the Consent.
127. Even if it were possible for Native Title to exist in respect of Aboriginal objects (which were deemed to be the property of the Crown by virtue of the National Parks and Wildlife Act 1967, s 33D), there is nothing in the Commonwealth Act which excludes the operation of the NP&W Act, ss 87 and 90. Conversely, there is nothing in ss 87 and 90, or in the grant of the Permit and Consent, that would undermine that native title if it exists.
128. The NP&W Act, ss 87 and 90 clearly operate independently of any question of ownership of the relevant Aboriginal objects and any Permit or Consent granted thereunder does not derogate from the true ownership of the Aboriginal objects.
129. In passing, I should note the existence of the NP&W Act, s 85A which operates in respect of Aboriginal objects “that are the property of the Crown”, despite any other provision of the Act (which expression of course includes s 83 providing for the divesting and vesting of Aboriginal objects).
130. For all the foregoing reasons, the issue of the Permit and the Consent was not invalidated by the operation of the Commonwealth Native Title Act 1993.
131. Accordingly, this ground fails.
Ground (ix) — Re-issue of the Permit and the Consent were ultra vires
132. The sole basis for this ground is the assertion that the Permit and the Consent issued on 27 November 2002 were invalid because there was not in place any relevant application therefor.
133. But according to the documentary evidence, the Solicitors for the Mining Companies had applied for the Permit and the Consent by facsimile transmission sent to the Service at 14-52 hours on 26 November 2002. That letter had stated:
- We refer to the s 87/ s 90 permit/consent granted by the Director-General on 23 November 2002.
We understand that the Director-General is proposing to re-issue the s 87/ s 90 permit/ consent.
For the avoidance of doubt, this letter constitutes an application for the s 87/ s 90 permit/ consent incorporating the applications lodged on 8 August 2002 and all material lodged subsequently in support of these applications as subsequently amended.
134. Accordingly, as a matter of fact, applications for the Permit and the Consent had in fact been made prior to Mr Korn issuing them on 27 November 2002.
135. It is also to be noted that s 87 does not in terms refer to “any application” required to generate the issue of a Permit but s 90 does in terms refer to “an application” for consent.
136. For the reasons given, this ground fails.
Ground (x) — decision to issue Permit and Court manifestly unreasonable
137. The particulars in support of this ground are set forth in pars 11, 12 and 13 of the Amended Points of Claim. They are wide ranging.
138. A number of related particulars concern the decision-maker’s consideration of the environmental assessment of the activities sanctioned by the Permit and the Consent. These in truth constitute a separate claim and I shall separately consider that matter a little later.
139. This means that the particulars in support of the present ground are as follows—
(i) the Director-General should have required assessment reports of the artefacts collected pursuant to the earlier Permit before determining the applications for the Permit and the Consent;
(ii) the Director-General should have made an independent inquiry into the significance of the Aboriginal objects having regard to the known conflict between the Applicant and the Mining Companies; and
(iii) the applications for the Permit and the Consent were known by the Director-General to contain some anomalies and discrepancies.
140. In my judgment, even if the evidence had supported findings vindicating these particulars, they would not demonstrate that the decision to grant the Permit and the Consent was “manifestly unreasonable” in the legal sense of that expression: see Peko-Wallsend at pp 40 to 42 per Mason J.
141. The outworking of the earlier permit was not, in my opinion, a condition precedent to the consideration of the Mining Companies’ pending applications for the Permit and the Consent. The pending applications went far beyond the scope and purpose of the existing s 87 Permit and in truth were entirely independent of it and its outworkings. That Permit imposed no obligation upon the Service for ongoing monitoring of the outcomes of the implementation of that Permit.
142. There was no legal obligation on the Director-General to conduct an independent enquiry into the dispute that existed between the Applicant and the Mining Companies as to the archaeological, social and cultural significance of Lake Cowal. The Director General was well aware of that dispute because he was also a party to the litigation in this Court between them, which continued throughout 2002.
143. In any event, it is apparent from the briefing note that the Service evaluated the competing cases being advanced by the Applicant and the Mining Companies concerning the archaeological, social, cultural and scientific significance of Lake Cowal.
144. Such an evaluation was obviously part of the Director-General’s statutory function in determining the pending applications. But there was no legal compulsion for the Director-General to undertake some independent investigation or inquiry, other than the evaluative processes that were undertaken by the Service, as is reflected in the briefing note.
145. The acknowledged discrepancies and anomalies in the application for the Permit and the Consent have not been demonstrated to be other than minor matters carrying no real significance.
146. For all the foregoing reasons, this ground has not been established.
Additional grounds for alleged invalidity of the Permit and the Consent
147. As just mentioned, the Applicant asserted a relevant breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act), s 111 by the decision-maker in granting the Permit and the Consent.
148. The briefing note had noted that the Mining company “has complied with all statutory requirements to this point of time in terms of the environmental assessment and approval process. The proposal has been subject to a Commission of Inquiry and development consent has been granted for the mine. In addition, the NPWS has been provided with a REF (Review of Environmental Factors) for a number of supplementary issues, a copy of which is provided at Annexure “C”.
149. A copy of that REF is annexed hereto and marked ‘B”.
150. That REF identified in Section 1 the activity requiring assessment under the EP&A Act, Part 5 prior to the grant of the s 87 permit and s 90 consent namely the works sanctioned by the Permit and Consent (then in contemplation). Section 3 contains the review of environmental factors by reference to cl 228(2) of the Environmental Planning and Assessment Regulation 2000 and Section 4 contains the following “Conclusion”:
- The work is not likely to significantly affect the environment and the environmental effects arising by reason of the work has been assessed in the REF and in the s 87/ s 90 consultation and application process pursuant to s 111 and clause 228
(The REF bears the date “November 2002”)
151. In the recommendation contained in the briefing note for the endorsement of option 3 the following statement is made in respect of the REF:
- While fencing and signposting of the sites was considered in the REF, the NPWS now requires geo-textile blanketing. However, this is also not considered to have a significant effect on the environment, talking (sic) into account the matters raised in the REF.
152. On the assumption that the “work” the subject of the REF, as amended by the ultimate requirements imposed in the s 87 Permit and s 90 Consent is (either wholly or partly) relevantly an “activity” to which the provisions of Part 5 of the EP&A Act apply, I am of the opinion that the decision-maker relevantly complied with the duty imposed by the EP&A Act, s 111(1) which provides as follows:
- For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
153. It follows that in issuing the Permit and the Consent, Mr Korn relevantly complied with the obligations imposed by the EP&A Act, s 111(1) in respect of the activities authorised by the Permit and the Consent. (Those works are to be distinguished from the mining infrastructural works and mining works which were sanctioned by the Minister’s grant of development consent in 1999).
F. CONCLUSIONS AND ORDERS
154. It follows that the Applicant’s challenge to the validity of the Permit and Consent has failed on every ground advanced. There is not basis for granting relief in respect of the original versions of the Permit and the Consent, the former having been revoked and the latter being self-evidently inoperative upon the revocation of the Permit. The true an only challenge has been directed to the Permit and Consent issued on 27 November 2002.
155. For all of the foregoing reasons, I order that the application be dismissed and the question of costs be reserved.
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