Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors

Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors - [2006] NSWLEC 12 - NSWLEC 2006 case summary — Zoe

[14]

7 On or about 4 August 2004, North Angels lodged a development application with the Minister for Infrastructure, Planning and Natural Resources for development consent to subdivide land and build infrastructure on the site for the purposes of a 63 lot residential development. 8 There is no time frame set out in the NPW Act in which a s 90 consent must be issued. The Director-General has stated as part of her service "charter" that consents will be processed within three months of receipt. Issues 9 In their Amended Application Class 4 the Applicants seek the following declaration and orders:

A declaration that the National Parks and Wildlife Act 1974 s 90 Consent #1667 granted by the First Respondent to the Second Respondent on the 29th of May 2003, in respect of land described as Lot 208 DP 851318, Angels Beach Drive, East Ballina, NSW is invalid and of no effect.
An order that the Second and Third Respondents, their servants, agents and contractors, be restrained from carrying out any work involving clearing of vegetation, movement of soil and construction of infrastructure on the said land.
Alternatively, an order that the Second and Third Respondents, their servants, agents and contractors, be restrained from locating, identifying and recording Aboriginal objects on the said land without the involvement of the representatives of the Applicants along with their consulting archaeologist(s) and/or Aboriginal Site Officer(s).
Costs. 10 The Second Further Amended Points of Claim ("SFAPOC") dated 21 September 2005 outlined five challenges to the s 90 consent granted by the Director-General as follows: (1) The Director-General's decision to grant the s 90 consent was ultra vires and the decision was therefore void because the decision in not applying the objects of the NPW Act was made for an improper purpose; (2) In the alternative, the Director-General failed to take into account a relevant consideration because the power to destroy objects of significance to Aboriginal people can only be exercised for the purpose of conservation; (3) Racial Discrimination Act 1975 ("the RD Act"): (a) If the Director-General does have power to grant consent pursuant to s 90 of the NPW Act, the s 90 consent is invalid because it is contrary to s 10 of the RD Act; (b) In the alternative, the Director-General was bound to exercise her discretion in a manner consistent with the RD Act or failed to take into account the extensive purpose to be accorded to Aboriginal objects under the NPW Act. (4) The Applicants had a legitimate expectation that the Director-General would consult with interested parties in relation to applications for s 87 and s 90 consents under the NPW Act and failed to do so adequately; (5) The Director-General failed to consider relevant matters in granting the s 90 consent, namely: (i) the heritage significance of the site and final comments of Dr Weiner; (ii) the nature of the proposed development; and (iii) the opinions of the Applicants. 11 The Applicants amended their pleadings and arguments after the hearing to take into account the Court of Appeal decision in Country Energy v Williams; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426 dated 15 September 2005 in relation to issues (1) and (4) in the SFAPOC.

[28]

28 However, the Applicants submitted that the power of the Director-General must be exercised having regard to the objects contained in s 2A of the NPW Act. In exercising the power pursuant to s 90 of the NPW Act the Director-General was required to be objectively satisfied as to whether the Aboriginal objects on the site were of cultural value or significance to Aboriginal people. Having regard to the archaeological and anthropological studies before the Director-General as set out in par 26 above the Applicants argued that the Director-General could not have been objectively satisfied that the Aboriginal objects on the site were of no cultural significance, and in the circumstances the Director-General's decision to grant consent to destroy the Aboriginal objects was ultra vires. 29 This requirement was emphasised by the reference to ecologically sustainable development ("ESD") in the objects of the NPW Act. The Applicants argued that implementation of the precautionary principle and the principle of inter-generational equity supports the Applicants' arguments that there is no power within the NPW Act to allow the destruction of significant Aboriginal objects to facilitate land development. Contrary to the submissions of the Director-General, the reference to ESD in s 2A of the NPW Act does not establish that land development is a legitimate purpose for the exercise of the Director-General's power in s 90 of the NPW Act where consent is being granted to destroy objects of cultural value or significance. Director-General's submissions 30 The Director-General argued that she did have power to issue consent pursuant to s 90 by virtue of the objects in s 2A(2) of the NPW Act. While s 2A states that one of the objects of the NPW Act is conservation it also provides that the objects are to be achieved by applying principles of ESD. As the NPW Act explicitly contemplates the occurrence of development, it is wrong to suggest that s 2A requires that no decision made under the NPW Act can be made for purposes which include economic or development purposes.

[33]

36 Mr Condon and North Angels submitted that even if the Applicants' construction of s 90 was preferred, the argument would still fail. Mr Condon and North Angels argued that Mr Naden did consider whether the objects were significant and reached an objective conclusion about the significance of Aboriginal objects on the site. Finding on issue 1 37 The objects contained in s 2A of the NPW Act were introduced in 2001 by the National Parks and Wildlife Amendment Act 2001 ("the NPW Amendment Act"). In his Second Reading Speech (New South Wales, Legislative Assembly, Hansard, 16 November 2001 at 18762), the Minister stated that: Presently, the National Parks and Wildlife Act does not contain an objects clause. This is essential to establish a clear framework for the functions of the Minister for the Environment, the Director-General of National Parks and Wildlife, and the National Parks and Wildlife Service itself. Accordingly, the bill has a proposed set of objects for the Act. These are consistent with the present role of the National Parks and Wildlife Service and will better guide the Act's administration. This amendment will provide an unambiguous statement of the legislation's intent, as well as assist in legislative interpretation. Importantly, the objects will serve to reinforce the fundamental importance of the conservation of nature, including the conservation of ecosystems, biodiversity and significant landforms under the Act. They will also focus the Act on the conservation of our cultural heritage, both Aboriginal and historic. 38 In Williams v Director-General National Parks and Wildlife Service & Ors (2003) 127 LGERA 354 Bignold J stated at 363 to 365 that: 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 …

[39]

Secondly, it is possible to read too much into the obligation imposed on the Director-General, pursuant to s 2A(3), to "give effect to" the objects of the Act, in carrying out her functions under the Act. As was pointed out on behalf of the Director-General, s 2A(2) prescribes that the objects of the Act "are to be achieved" by applying the principles of ecologically sustainable development, being principles identified in s 6(2) of the Protection of the Environment Administration Act 1991. According to that provision, "ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes". These principles may not have direct application to the conservation of Aboriginal objects, but the reference to them in s 2A(2) provides an explicit recognition that the NP&W Act is but one piece of legislation which must operate in conformity with other legislation governing land development activities. … No doubt these provisions merely reflect the obvious, namely that there will often be a tension between development activities and environmental protection. Where, in the public interest, protection considerations prevail, the land will usually be set aside for public purposes or any absolute constraint on development of private land will be made explicit. Aboriginal objects may be found on land throughout the State, including private land, especially in rural areas where there has not been intensive development. The breadth of the definition of Aboriginal objects demonstrates that almost any land which has not been the subject of intensive development is likely to be affected. If the presence of such objects was to be a bar to the development of private land in any manner which might lead to damage, defacement or destruction of the objects, one would expect the statute to make that explicit and unambiguously clear. Whilst the NP&W Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the Director-General to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction, which would prevent the power being exercised in relation to development of private land.

[40]

41 In light of these findings the Applicants now argue, in the SFAPOC filed after Country Energy was handed down, that the Director-General's decision to grant the s 90 consent was contrary to the objects of the NPW Act because she could not have objectively been satisfied that the objects to be destroyed were of no cultural value or significance. The Applicants submitted that Country Energy does not preclude an argument that the Director-General is required to objectively determine the significance of Aboriginal objects before making a decision to grant consent. If her finding is that the objects do have cultural value or significance to Aboriginal people then a decision to grant a consent to destroy would be contrary to the object expressed in s 2A(1)(b)(i) of the NPW Act of conserving those significant objects. The Aboriginal Heritage Conservation Area set aside as a condition of the s 90 consent does not overlap at all with the four midden sites identified on the Aboriginal Heritage Information Management System. As a result of the s 90 consent being issued the majority of the site will be available to be developed for residential subdivision and all of the midden sites destroyed. Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 was relied on by the Applicant to argue that the objects clause should be given substantive efficacy. In Allianz McHugh J held at [48] that: … a construction that would promote the object of the Act is to be preferred to a construction that would not promote that object. 42 The Applicants maintained the argument that because the only purpose for which the s 90 consent was granted was for the facilitation of the residential subdivision of the land where the objects to be destroyed were identified as having cultural value and significance, then the power was exercised for an improper purpose. 43 In their submissions in reply the Applicants argued that while the principles of ESD are to be applied in order to achieve the objects of the NPW Act, their inclusion does not establish that land development is a legitimate purpose for the exercise of the Director-General's powers in s 87 and s 90 of the NPW Act where consent is being granted to destroy objects of cultural value or significance. The Applicants argued that Basten JA's findings at [65] do not detract from this submission but that is debatable in my view. In his judgment Basten JA notes that while the Director-General is required to give effect to the objects of the NPW Act this is to be done by applying the principles of ESD. Section 2A(2) of the NPW Act provides "the objects of the Act are to be achieved by applying the principles of ecologically sustainable development". He states that: These principles may not have direct application to the conservation of Aboriginal objects, but the reference to them in s 2A(2) provides an explicit recognition that the NPW Act is but one piece of legislation which must operate in conformity with other legislation governing land development activities . (at [65]). 44 In Country Energy at [64] Basten JA states that s 2A does not impose an express requirement that the Director-General have regard only to the proper care, preservation and protection of Aboriginal objects when granting a consent to destroy under s 90.

[41]

45 In Country Energy at [67] Basten JA held that: Whilst the NPW Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the DG to consent to their destruction should not be understood as subject to an implied restriction. 46 The NPW Act confers wide discretion on the Director-General in relation to the issue of s 90 consents to destroy. Country Energy is binding authority for the proposition that the Director-General and her delegates are able to grant consent to destroy Aboriginal objects under s 90 in the context of land development. This case is an extension of the legal issue considered in Country Energy which dealt with the issue of whether the Director-General can issue a s 90 consent at all in the context of land development. The Applicants are seeking to argue that if the Director-General or her delegate is aware that objects have significance for Aboriginal people she cannot consent to their destruction because of the objects of the NPW Act to which she must give effect. Reliance was placed on Basten JA at [52] in Country Energy where he states: For reasons which will appear below, the Director-General can consent to the destruction of Aboriginal objects where the destruction takes place in the course of development and is reasonably necessary for the purposes of the development. Nevertheless, the legality of a consent in those circumstances may depend upon the Director-General taking into account the actual or potential significance of the Aboriginal object for Aboriginal people, in accordance with s.2A of the NP&W Act. Accordingly, it would be arguable that a consent which permitted the destruction of an unknown object, regardless of whether it has no significance or high significance might well involve an error of law. However, that question will depend in part upon factual considerations as, for example, whether on the material before her, the Director-General was entitled to form the view that there was no realistic chance of any object of significance to Aboriginal people being at risk. In that case, the omission to take account of the theoretical possibility might not constitute a legal error. 47 It is accepted by the Director-General's delegate that he has responsibility to consider the conservation of Aboriginal objects when granting a s 90 consent to destroy. His argument is that he has done so by issuing the s 90 consent subject to the conditions set out at par 5 above. While the s 90 consent does have conditions said by the Director-General to be for conservation purposes, namely, the requirement for the defined special purpose Aboriginal Heritage Conservation Area, the Applicant argued that this condition did not advance a conservation or protective purpose because there were no known Aboriginal objects in the area and it was designated because it was the most suitable location to facilitate residential subdivision development. It is Mr Naden's evidence however that this area was identified early in the process of considering the s 90 consent because it was an area identified by members of the local Aboriginal community, including the Applicants, as a significant site as there was likely to be someone buried there. There is no evidence to suggest that the conservation measures imposed under the s 90 consent have any purpose other than conservation.

[42]

48 The Applicants relied on Packham v Minister for the Environment (1993) 31 NSWLR 65 and Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 to support their argument that the power of the Director-General pursuant to s 90 of the NPW Act could only be used to advance the objects and purpose of the NPW Act. The Court of Appeal in Packham, and in Woollahra, found the decision of the Minister was beyond power because the purpose underlying the exercise of the Minister's discretion did not advance the objects the NPW Act. However, in those cases the purpose underlying the exercise of the Minister's discretion was held to be inconsistent with particular purposes relating to national parks in the NPW Act. In this case, the grant of the s 90 consent did impose conditions which included measures for the conservation of Aboriginal objects to some extent, as is evidenced by the conditions set out at par 5. I therefore do not consider that these cases apply in this situation. 49 The Applicants' argument is that the Director-General or her delegate cannot exercise the discretion to allow the destruction of Aboriginal objects of cultural significance when measured objectively. In other words, if the Director-General's delegate receives an archaeologist's report which finds that there is an object or objects of cultural significance and/or the recognised traditional custodians tell her that the objects have cultural significance, she cannot exercise her discretion to allow their destruction in the context of land development. 50 Given the findings in Country Energy, I do not consider it is open for me to find that her discretion is so constrained. In this case the s 90 consent granted does have conservation conditions imposed. It cannot be said in light of Country Energy that the Director-General's delegate has acted on the basis of an improper purpose in issuing the s 90 consent and the decision to issue it is not void on this ground. The Applicants are unsuccessful on this ground. 51 Given that issues 2 and 5 both raise arguments concerning the failure to take into account certain matters I will deal with these together in the last section of this judgment. Issue 3(a) - Section 90 of the NPW Act is contrary to s 10 of the RD Act (SFAPOC 31-35) 52 Section 10 of the RD Act states: (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. …

[55]

Comparison of the NPW Act and Heritage Act 66 The Applicants argued that if inequality of Aboriginal persons is the result of the operation and effect of a State law the State law is inconsistent with a law of the Commonwealth and is therefore invalid. The comparison the Applicants' counsel seeks to make is between two different schemes, one under the Heritage Act and one under the NPW Act. The Applicants' case did not focus on one section in each of these respective Acts, that is s 90 of the NPW Act and an equivalent section or sections in the Heritage Act, but asked the Court to examine the general operation of both Acts. While on one view there is not a direct equivalent provision of s 90 of the NPW Act in the Heritage Act against which to compare s 90, the point I am seeking to emphasise is that it was the operation of the two statutory schemes which the Applicants argued showed the relevant discriminatory practice under the NPW Act. 67 The SFAPOC at par 33 identified the following broad areas as demonstrating the lesser protection afforded to Aboriginal objects under the NPW Act when compared to the Heritage Act: (a) The Heritage Act affords a greater protection to heritage items through the approval process under Part 4 Div 1, 2 & 3 of the Heritage Act than the approval process for the damage/destruction of aboriginal objects under Pt 6 of the NPW Act; (b) The Heritage Act affords public consultation in respect of approvals/consents to destroy that is not provided for under the NPW Act; (c) The NPW Act requires a higher standard of proof for criminal liability for destruction of items of aboriginal heritage (s90) compared to the equivalent provision of the Heritage Act for non-indigenous relics and objects (s139); (d) The NPW Act provides for a penalty regime for offences committed in relation to the destruction and damage of Aboriginal objects that is vastly inferior to that afforded to non-indigenous relics and objects under the Heritage Act; (e) The power to issue a stop-work order under the NPW Act is much narrower than under the Heritage Act; (f) The Heritage Act provides greater prospective protection measures for non-indigenous objects than those provided for under the NPW Act for Aboriginal objects; (g) Differences in the ownership of Aboriginal objects and non-indigenous objects under the respective statutory regimes operate to grant a lesser degree of protection to Aboriginal objects; (h) The Heritage Act provides greater access to information by the provision of a State Heritage Register under Pt 3A of the Heritage Act than the NPW Act which has no statutory Register of aboriginal cultural objects and places.

[70]

89 I do not therefore agree that the Applicants have demonstrated that s 90 of the NPW Act operates in a way which is discriminatory on the basis of race and no breach of s 10 of the RD Act has been demonstrated. The ultimate result is that the Applicants fail in their application that s 90 should be declared void in these proceedings. Areas of difference 90 There are some differences that can be identified between the two Acts. Under the Heritage Act, the Minister has a discretion to place relics, buildings or works on the State Heritage Register. However, no such register is available for Aboriginal objects under the NPW Act, although they are subject to a general requirement for protection under s 90 of the NPW Act. Obtaining interim or permanent protection for relics or buildings under the Heritage Act is not automatic but rather subject to the exercise of discretion. Whether that protection is ultimately provided under the mechanisms specified in the Heritage Act depends on the exercise of the Minister's discretion. Part 3A of the Heritage Act specifies the process for the listing of items on the State Heritage Register. Under s 32(1) of the Heritage Act the Minister may list an item on the State Heritage Register that the Minister considers is of State heritage significance, but only if the Heritage Council recommends the listing. Under s 33(1) of the Heritage Act, before recommending an item be listed on the State Heritage Register, the Heritage Council is required to give each person that it considers to be an affected owner or occupier written notice that it is going to consider whether or not to recommend the listing of the item concerned, and cause a notice of intention to consider listing to be published in a newspaper circulating in the area in which the item is situated, inviting submissions to be made with respect to the listing. The Heritage Council is then required to consider any submissions made before making a decision to recommend to the Minister that an item be listed on the State Heritage Register. 91 There are also differences in respect to the level of public consultation under the two Acts. Under s 61 of the Heritage Act, where an application for approval is made in respect of an item of environmental heritage and that application, if approved, would, in the opinion of the approval body, materially affect the significance of that item as an item of environmental heritage, the approval body must give public notice of that application in a daily newspaper circulating throughout the State. Pursuant to s 62, in determining an application, the approval body must consider any representations received within 21 days of the public notice. The NPW Act does not provide for a statutory public consultation process in respect of approvals or consent for activities in relation to, or the destruction of, Aboriginal objects or places. 92 I consider there may be issues as to whether there should be a remedy afforded to the Applicants in relation to the ability to utilise some mechanisms under the Heritage Act, but this falls outside the Applicants' case, requires further argument and evidence in any event, and is not a matter in relation to which relief is sought. The Applicants are unsuccessful on this ground. Issue 3(b) - The Director-General was bound to exercise her discretion in a manner consistent with the RD Act or failed to take into account the conservationist purpose to be accorded to Aboriginal objects under the NPW Act (SFAPOC 35A) Applicants' submissions 93 The Applicants argued that, in the alternative, the Director-General was bound to exercise her discretion in accordance with the provisions of the RD Act which required her to ensure that items of indigenous cultural heritage were treated in an equal fashion to non-indigenous items of cultural heritage. In the further alternative, the Director-General failed to take into account the protectionist purpose of the NPW Act.

[130]

148 Country Energy had similar, although not identical, facts. In that case Mr Williams argued that the NPWS Statement of Reconciliation and NPWS Cultural Heritage Community Consultation Policy gave rise to a legitimate expectation which had been denied him that Mr Williams would be involved in the identification of objects, through on the ground surveys of the whole of the land the subject of a s 90 application. At first instance the trial judge in this Court agreed. Upholding an appeal against that decision Basten JA (with whom Spigelman CJ and Giles JA agreed) stated at [91]: It is important to observe that the only public statement, the Statement of Reconciliation, was a brief and aspirational document involving no detailed guidelines or identified procedures. It is also significant that there was no evidence of a practice resulting from the adoption of any particular policy, whether internal or publicly available. A practice is a public statement of policy by conduct, although, taken by itself, it will often be imprecise as to when and how it operates. Nevertheless, there is an important distinction between an internal policy document and one which has given rise to a level of public knowledge. Where there has been a personal assurance given to an affected individual, one may readily infer that unfairness will result if the assurance is departed from without prior notice: see, eg, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; compare Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. However, where the expectation follows from public conduct or policy statements, subjective reliance is not required because the unfairness in a particular circumstance need not be appreciated at the time, by the affected individual: it is sufficient that others may identify the unfairness or that the individual concerned may realise at a later point that he or she has been unfairly treated. As the joint judgment of McHugh and Gummow JJ noted in Ex parte Lam , the use of the term "expectation" in this latter sense may be misleading: 214 CLR 1 at [90] and [91]. Their Honours referred to the remarks of Aickin J in Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 where his Honour spoke of "an expectation on the part of members of the public" that a customary permission to attend a racecourse on the payment of a fee would continue. In such cases, no subjective belief is required. Their Honours further referred to the discussion by McHugh J in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 641 of two specific cases, namely FAI Insurances Ltd v Winneke (1982) 151 CLR 342 and Heatley . The joint judgment in Lam continued at [94]: "The latter [ Heatley ] he described as an illustration of a course of conduct creating a legitimate expectation. The former concerned an expectation founded in the nature of the privilege or benefit required for continued conduct of a particular business. In Haoucher itself, the expectation was founded in the detailed policy statement by the Minister to the House of Representatives as to what would guide the exercise by the Minister of the statutory power of deportation." 149 Further, Basten JA held at [93] that the NPWS Cultural Heritage Community Consultation Policy did not give rise to a legitimate expectation: … there is no express statement in the Policy that the level of involvement in relation to the identification of the significance of Aboriginal objects includes involvement in the survey work by which the objects were identified. It is at precisely the point at which a detailed statement might be expected to bite that the vagueness and uncertainty of the Policy becomes apparent. Nor is that lack of detail surprising: consultation about cultural heritage could occur in numerous circumstances, with varying degrees of existing knowledge, need for inspection, temporal constraints and so on. A broad statement of principle is unlikely to give rise to any clear implication as to precise processes in particular circumstances. There is a danger in viewing a broad statement of principle through the glasses of particular known circumstances, so that an assumption is made that the Policy was intended to apply in these circumstances and, with the knowledge of the particular circumstances, in a particular way…

[132]

150 As the Applicants have pointed out, the facts in this case differ to those in Country Energy. I have already held that these Applicants would be likely to satisfy the "interest" test identified in Onus which Mr Williams was held not to satisfy in Country Energy. The Applicants are not seeking recognition of the same rights to participate in survey work as Mr Williams sought. The passage of Basten JA is instructive however in that it suggests caution must be exercised in applying broad policy statements to reach a finding that particular processes are required in specific circumstances, a matter I will return to. 151 As I understand the Applicants' case they argued that the NPWS Cultural Heritage Community Consultation Policy was a public document and, if it was not, in any event it underpinned the existing practice of consulting Aboriginal people undertaken by NPWS officers in relation to s 90 consents. The Applicants claimed there was evidence of this practice, the Director-General argued there was no such evidence. In cross-examination, Mr Naden stated that it was the policy of the NPWS to only issue s 90 consents after consultation with the Aboriginal community affected had taken place. Documents presented in evidence also, in my view, confirm that there was a practice of consulting with Aboriginal persons in the position of the Applicants by the Director-General's officers, whether directly or through the applicants and their consultants. The application form issued by the NPWS for s 90 consents suggests that consultation is a requirement. I agree with the Applicants that the practice of consultation was manifest in written and verbal communication between the NPWS and Mr Condon, North Angels and the Applicants whether in their capacity as individuals or in their capacity as members of Jali LALC (see par 79 of Applicants' written submissions and footnotes). 152 It is worthwhile noting my finding in Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 where I stated at [79] that: The NP&W Act does not impose any requirement on the Second Respondent to undertake consultation in relation to applications made for permits pursuant to s 90 of the NP&W Act. However, I accept, and the [Director-General] does not deny, that the [Director-General] had a policy or practice of consulting all relevant aboriginal groups in relation to all applications received by the [Director-General] for s 90 permits prior to determining these applications. It is clear that the existence of such a policy or practice can give rise to a legitimate expectation by affected persons that notice will be given to them and that any representations they make will be considered before any consent is granted, and that a failure to so do denies affected persons natural justice or procedural fairness: Somerville v Dalby (1990) 69 LGRA 422 and Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84. 153 I consider that the Applicants had a legitimate expectation that they would be consulted. The recognition of the interests of members of the Aboriginal community is clear having regard to the policy documents produced by the NPWS, including the NPWS Statement of Reconciliation and the NPWS Cultural Heritage Community Consultation Policy. This is so even if the NPWS Cultural Heritage Community Consultation Policy is not a public document. As identified by Mason CJ and Deane J in Teoh at 291: It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. 154 Further there is evidence of the practices adopted by the Director-General to consult members of the Aboriginal community when making decisions pursuant to s 87 and s 90 of the NPW Act. The issue to then determine is whether the consultation undertaken was adequate given the Director-General's obligation. (ii) Whether the consultation with the Applicants was sufficient 155 The Applicants argued in this case that the standard of procedural fairness required must be high, particularly where there is destruction of Aboriginal objects of significance being authorised. 156 It is clear from the evidence at par 101 and 115 particularly, that consultation had taken place with the Applicants and Jali LALC in relation to the s 87 application and then the s 90 application of North Angels. On several occasions, Mr Ferguson, identified as the Jali LALC sites officer attended and participated in the process. The Applicants argued that Mr Ferguson did not represent the Jali LALC but the evidence is to the contrary, that he was the Jali LALC sites officer until he was terminated from that position on 20 May 2003. On 12 February 2003 a meeting involving Mr Condon, Mr Ferguson and Ms Davies, as well as several others, took place at the Jali LALC office. In the minutes of that meeting Mr Ferguson was described as the "Jali LALC Sites Officer". On 18 February 2003, Mr Condon wrote to Mr Troy Anderson, chairperson of Jali LALC. In that letter, Mr Condon stated that while he was disappointed neither Mr Troy Anderson nor Ms Paden were able to attend, it was good to see Mr Ferguson as the "Jali Sites Officer" attending and participating in the process. A work agreement between North Angels and Jali LALC dated 6 January 2003 showed that Mr Ferguson was one of four monitors for Jali LALC who signed the agreement. The work agreement provides for members of the Jali LALC to monitor archaeological work undertaken by Ms Davies on the site in relation to the s 87 consent. Other meetings between the NPWS, North Angels and Jali LALC took place on numerous occasions in relation to the s 87 consent and the s 90 consent as detailed in par 101 - 124.

[135]

159 Examination of the relevant documents in evidence discloses no specific undertaking to provide the final supplementary report to the Applicants for comment before Mr Naden made his decision. While the Applicants' counsel argued that a specific undertaking was given to do so, the documents relied on in support of this argument do not so provide (see Exhibit A p 69C, 81 and 82 ). 160 The Applicants were both involved in the production of Dr Weiner's final supplementary report as he interviewed them in the course of its preparation. The additional work was undertaken at the request of the NPWS officer, Ms Edwards-Booth, who reported to the Director-General's delegate. On 27 May 2003 she asked that Dr Weiner undertake further work, including making reference to transcripts of interviews and to the context of the Anderson family's video referred to in the draft supplementary report (see par 120). Ms Edwards-Booth informed Mr Naden of her request for further information in a facsimile attaching the draft supplementary report on 27 May 2003. The Applicants also argued that as they were never told that the Director-General's delegate would make his decision before receipt of their comments on the final Weiner report, they were denied procedural fairness. As identified in the quotation of Basten JA in Country Energy at par 149 above, caution must be exercised in extrapolating from broad principle or practices specific requirements concerning particular circumstances. As there was no specific undertaking given to the Applicants that this would be done I do not consider there has been a denial of procedural fairness on this part of the Applicants' case. The Applicants were given the opportunity to comment on earlier reports of Ms Davies and Dr Weiner. On 1 May 2003 the Applicants were told of the procedure whereby any comments on the Davies and Weiner reports were to be made by 12 May 2003. 161 This approach is supported by the decision of the High Court in Lam. In Lam Gleeson CJ stated at [34] that: [I]t is clear that the content of the requirements of procedural fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed … But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.

[139]

Issue 2 - The Director-General failed to take into account a relevant consideration (SFAPOC 30) Applicants' submissions 166 The Applicants argued that in granting the consent the Director-General failed to take into account a relevant consideration, namely that the power to destroy objects of significance to Aboriginal people could only be exercised for the purpose of conservation, preservation and protection of Aboriginal objects. By exercising her power for another purpose, namely the purpose of facilitating development, which lies outside the objects of the NPW Act, the Director-General erred. Director-General's submissions 167 The Director-General submitted that the Applicants' arguments should be rejected, firstly, because s 2A(2) of the NPW Act explicitly contemplates the occurrence of development so that the purpose of facilitating development is not an improper purpose. The Director-General submitted that she had not failed to consider the objects of the NPW Act. Secondly, the evidence does not establish that the purpose of the Director-General was to facilitate development, as the creation of the conservation area exhibits. Thirdly, as the evidence establishes that at least one of the purposes of the grant of the s 90 consent was conservation, it is necessary for the Applicants to show that the NPW Act forbids all circumstances where the development leads to the destruction of Aboriginal objects. This argument is untenable given the reference to ESD in s 2A(2) of the NPW Act. Mr Condon's and North Angels' submissions 168 Mr Condon and North Angels submitted that the Director-General did not fail to consider that the power to destroy should be exercised in accordance with the objects of the NPW Act. This is made clear by having regard to the imposition of conditions that require the dedication of a special purpose Aboriginal Heritage Conservation Area, the requirement that representatives of the Jali LALC be given the opportunity to monitor the initial construction activities, and by other conditions directed to cultural heritage preservation.

[157]

184 In submissions in reply, the Applicants' approach changed to focus on Mr Naden's consideration of the material before him arguing that Mr Naden did not give proper, genuine and realistic consideration to the cultural significance of the Aboriginal objects. The Applicants noted that reliance was placed by Mr Naden (at par 82 of his affidavit) on the fact that there were no items of "high" cultural significance located in the "disturbed" middens and that no burials, bora rings or ceremonial objects were found on the site. This led to Mr Naden's conclusion (at par 83 of his affidavit) that the archaeological and anthropological reports did not support claims of burials, bora rings and spiritual sites. The Applicants argued that while Mr Naden's conclusions about bora rings may be correct, his conclusion that the anthropological and archaeological reports did not support claims of cultural significance was contrary to the material that was before him in the Davies and Weiner reports. In cross-examination, Mr Naden stated that he was aware of the findings about the significance of the site in the Davies and Weiner reports and that he accepted the conclusions of those reports. However, notwithstanding those findings, Mr Naden still issued the s 90 consent. The Applicants argued that this evidenced that he did not give proper, genuine and realistic consideration to the cultural significance of the objects located on the site. 185 In reply the Applicants also argued that Mr Naden's comments about the absence of objects of "high" significance suggested that his determination was premised upon the need to only protect or conserve those sites which were determined to meet that threshold which is not a threshold embraced by s 2A of the NPW Act. The inference to be drawn from Mr Naden's affidavit is that this was not sufficient to warrant protection. Applying such a high threshold was not consistent with the requirement to give effect to the objects of the NPW Act and indicates that even if Mr Naden turned his mind to the objects of the Act, then in so doing asked himself the wrong question. Director-General's submissions 186 While the SFAPOC refer to the cultural significance of the land, what is in issue is the significance of the Aboriginal objects on the site. The Director-General submitted that her delegate did not fail to consider the cultural significance of the Aboriginal objects on the site. The Director-General argued that her delegate took into account the February 2003 report and the draft supplementary report which summarised the pending final supplementary report. Further, Mr Naden gave evidence of a telephone call with Dr Weiner immediately prior to issuing the consent and in which he was made aware of the conclusions of the final supplementary report. In any case, the Director-General submitted that there was nothing in Dr Weiner's final supplementary report that altered the conclusions of his supplementary report which was taken into account. Mr Condon's and North Angels' submissions 187 Mr Condon and North Angels submitted that the cultural significance of the land was not a matter that the Director-General was obliged to have regard to, and accordingly, that any failure to consider the matter did not amount to an error. The s 90 application concerned Aboriginal objects, not an Aboriginal place as defined, nor land reserved as an Aboriginal area under s 30K of the NPW Act. While the significance of Aboriginal objects was a matter to which the Director-General's delegate had to have regard, as a matter of law, Dr Weiner's final supplementary report was not a matter to which Mr Naden was obliged to have regard. In any event, the substance of Dr Weiner's conclusions were considered, both by way of a lengthy conversation between Mr Naden and Dr Weiner and by Dr Weiner's draft report, which apart from interview transcripts, sets out virtually all the substantive matters contained in the final supplementary report.

[166]

199 There is no reference in Mr Naden's affidavit or oral evidence to the principles of ESD which he is required to apply under s 2A(2) in achieving the objects of the Act. One of the principles of ESD is that of inter-generational equity. He is not literally required by the NPW Act to refer to these but in the circumstances of this case it is striking that he has not referred to issues relevant to an assessment of significance from an inter-generational perspective. This is particularly so in light of the Applicants' claim that the reason this site was so important to them was because of the destruction on the other half of Angels Beach of Aboriginal objects significant to the Bandjalung people. A subdivision was built on that site in the early 1990s at which time a consent to destroy under s 90 was also issued. Inter-generational equity is the principle whereby the present generation should ensure that the health, diversity and productivity of the environment be maintained or enhanced for the benefit of future generations (Protection of the Environment Administration Act 1991 s 6(2)). A key matter attested to in the Applicants' affidavits and evidence in the case is the importance to Aboriginal people of sites where their ancestors have been present demonstrated by, inter alia, the presence of objects which they consider significant by virtue of that association. Obviously the fewer of these sites that remain the less opportunity there will be for future generations of Aboriginal people to enjoy the cultural benefits of those sites. 200 I have set out at par 173 the relevant parts of Mr Naden's affidavit dealing with midden sites where he states there are 126 registered midden sites for the Ballina, Byron and Tweed Local Government Areas. In cross-examination he said he was unaware of how many of these may have been the subject of a s 90 consent to destroy. In order for an essential analysis of significance to be undertaken as required by the ESD principles, Mr Naden should have undertaken or ensured was undertaken an analysis of how many intact middens relevant to the Bandjalung people remained in the immediate area. It would appear that a consideration of the cumulative impact of destruction of Aboriginal objects of significance to Aboriginal traditional owners is relevant to the assessment of significance of particular objects in any s 90 consent application. I consider there has been a failure on Mr Naden's part to take into account the significance of the objects in this context and that this is a relevant consideration to which he should have had regard before issuing the s 90 consent.

[171]

206 The primary relevant evidence could be considered to be the memorandum of Ms Edwards-Booth objecting to the grant of the s 90 consent. In her memorandum dated 28 May 2003 to Mr Naden stating her opposition to the grant of the s 90 consent, Ms Edwards-Booth stated that while NPWS policy in regard to processing s 87 and s 90 consents does not require that the applicant have an approved development consent prior to lodging an application, in her view it was NPWS best practice to await evidence of approval of the relevant development or building plans prior to processing s 90 applications. In Ms Edwards-Booth's view, the grant of a s 87 or s 90 consent prior to the grant of an approved development application, placed the NPWS in a weakened position with regard to the management and protection of Aboriginal objects if, for example, a developer chose to substantially change its proposal and the proposed impacts on the site. Accordingly, in her memorandum, Ms Edwards-Booth concluded that the s 90 application should be refused or resubmitted at a later date when a development application had been approved. 207 While there would appear to be sound policy reasons for Ms Edwards-Booth's views in her memorandum the fact that she disagreed with Mr Naden's approach in issuing the s 90 consent before development consent was granted on the basis of plans which would then be available to the NPWS, does not render those plans or similar information a relevant consideration. The Applicants are unsuccessful on this ground. (iii) The opinions of the Applicants Applicants' submissions 208 The Applicants submitted that as the Director-General failed to consider detailed comments provided by the Applicants in determining the s 90 application, the consent was invalid and of no effect. The Applicants argued that prior to the grant of consent, the Director-General failed to consider a centrally relevant matter, being the opinions of the Applicants and Jali LALC. Rather, the Director-General relied on letters in support of the s 90 consent from Mr Lewis Cook, the cousin of Mr Douglas Anderson, and Mr Ferguson, neither of whom represented the views of Jali LALC. On 12 May 2003, Ms Paden wrote to Mr Naden raising concerns about the adequacy of the archaeological surveys and the need for further detailed investigation. In the absence of consideration of any further detailed comments from the Applicants, the Director-General erred. Director-General's submissions 209 On the facts, the Director-General argued that the opinions of the Applicants were considered by the Director-General. Many attempts were made to obtain the views of representatives of Jali LALC, but these representatives generally did not attend the scheduled meetings. The Director-General argued that a proper reading of the evidence discloses that her delegate was at pains to involve the Jali LALC, including the Applicants, and that these efforts were ignored.

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Judgment (177 paragraphs)

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Cases Cited (24)