The appellants' submissions on the appeal should be rejected
63 The appellants' primary submission was couched in terms of the formulation of Giles JA in Weal which I have set out at [52] above. Although they had rephrased that formulation in the manner referred to at [53] above, their oral submissions kept returning to the formulation of Giles JA originally propounded. It was submitted thus that the first respondent had demonstrated no understanding of inter-generational equity and had failed to undertake any process of evaluation sufficient to warrant the description that he had taken inter-generational equity into consideration.
64 Reliance was also placed upon parts of the observations of Preston CJ in Broad Henry v Director-General Department of Environment and Conservation & Anor [2007] NSWLEC 722; (2007) 159 LGERA 172 at 200-201 [92]. However, it is necessary to set out [90]-[92] in full to appreciate what the Chief Judge was adverting to:
"90 For an application under ss 87 or 90 in relation to an Aboriginal object, however, the focus of significance is different. The Director-General is required to consider the actual or potential significance of the Aboriginal object for Aboriginal people, in accordance with s 2A of the Act: Country Energy v Williams (2005) 141 LGERA 426 at 443 [52]. The significance for Aboriginal people of the Aboriginal object, and the need for it to be protected under the Act, are not contingent upon the place in which the Aboriginal object is located being of special significance with respect to Aboriginal culture. An Aboriginal object can have significance independent of the place in which it is located.
91 This is not to say that an Aboriginal object cannot have significance by reason of a relationship with the land in which it is located. The relationship can work in two directions. First, the land may provide a context to understand and evaluate the significance of the Aboriginal object, including its value as evidence relating to the Aboriginal habitation of the area. The land may provide a reason for the Aboriginal object being located in the land. For example, the natural resources, such as biological resources, rocks, stones or clay in the area might have provided the source for the Aboriginal object and been the reason of Aboriginal habitation in the area. The land contributes in such ways to the significance of the Aboriginal object. Secondly, the presence of the Aboriginal object in a particular place may give that place significance with respect to Aboriginal culture. Aboriginal remains in the land may be one example.
92 Where there is a relationship between the Aboriginal object and the land in which it is located, in either of these ways, the significance of the land in which the Aboriginal objects are located and the impact that actions which disturb or move the Aboriginal objects or destroy, deface or damage the Aboriginal objects might have on that significance would be relevant matters to be considered in determining an application for a permit under s 87 or a consent under s 90 of the Act: see Anderson v Director General of the Department of Environment and Conservation (2006) 144 LGERA 43 at 89-90 [189] and Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 (26 July 2006) at [101] and [163]."
65 It was asserted by the appellants that there was a relationship between the Aboriginal objects in the present case and the land upon which they were located which had not been considered in the Report and, therefore, had not been considered by the first respondent in adopting its recommendation. In particular, it was submitted that there had been a failure to take into consideration the significance of the land comprising Lot 208 in which the Aboriginal objects were located and the impact that any damage to, or destruction of, the objects might have on that significance.
66 When requested to articulate the relationship of those objects to Lot 208 other than the fact that they evidenced some past occupation of the land, the appellants responded by referring to the opinion of Dr Weiner that the presence of the objects led him to think that Lot 208 had some involvement in Aboriginal culture due to the presence of bora rings in the area and to the movement of Aboriginals across Lot 208 when fleeing the massacre. At one point it was submitted that the presence of the objects was evidence of the "footprints of the ancestors", a factor acknowledged in the Report (see the third dot point at [40] above).
67 However, given the discounting by Mr Hood of each of the matters so relied upon as establishing some relevant relationship between Lot 208 and the Aboriginal objects located thereon, the reliance by the appellants on [92] of Broad Henry fails to gain any traction.
68 In any event, Preston CJ confined his remarks to those situations where there was a relationship between the Aboriginal object and the land on which it was located in either of the ways he had articulated at [91]. The second of those was the presence of the Aboriginal object in a particular place that gave that place significance with respect to Aboriginal culture such as Aboriginal remains. There was no such relationship in the present case except possibly in the northwest corner of Lot 208 where there was the possibility of a burial and which was intended to be conserved.
69 Further, in my opinion nothing with respect to Lot 208, in the circumstances adverted to in the Report, provided a context to understand and evaluate the significance of the Aboriginal objects. Thus there was nothing of significance with respect to the land which provided a reason for the Aboriginal objects being located thereon. It was not suggested that the example referred to by his Honour at [91] applied to Lot 208.
70 The appellants then took a slightly different tack. It was submitted that in order to illustrate an understanding of the principle of inter-generational equity, it was necessary for the Report to have focussed on two inquiries. The first required consideration of what leaving the Aboriginal objects on the land would mean for, first, archaeology; second, science; third, Australian history; fourth, the Australian public in general; and, fifth, the Aboriginal traditional owners or custodians.
71 The appellants accepted that apart from the fifth matter, consideration had been properly accorded to these matters. They submitted, however, that there had been no such consideration of what the objects in Lot 208 meant for the traditions, customs and observances of the people to whom the land traditionally belonged (such as the appellants).
72 The second inquiry was to focus on the impact that the removal of the objects from the land would have on those traditions, customs and observances. Both these inquiries were necessary for there to be a consideration of the ability of future generations of the Aboriginal community and, in particular, the local Bundjaling custodians, to enjoy their cultural heritage.
73 In the foregoing context much reliance was placed upon the final report of Dr Weiner. In particular, it was submitted that there had been a failure to take account of Dr Weiner's opinion that the "massacre sites", which included land across which local Aboriginal people had fled and upon which they "undoubtedly died", was ground which had been sacralised by the spilling of blood of Koori ancestors whose spirits still harboured the grief and anguish of their violent passing. Accordingly, the sites were particularly sensitive and must be treated with extreme reverence and respect.
74 The problem with the appellants' submission is twofold. First, the underlying factual assumption adopted by Dr Weiner was not accepted by Mr Hood or, for that matter, the Jali LALC. Second, there was no obligation on Mr Hood to accept Dr Weiner's conclusions provided he otherwise gave consideration to them, which he clearly did. The whole underlying thrust of the appellants' submission was that there could be no understanding of inter-generational equity and, therefore, no consideration of it without adopting and accepting uncritically Dr Weiner's conclusion that Lot 208 was of high cultural significance. When taxed with the proposition that they were arguing that there could be no consideration of inter-generational equity unless Dr Weiner's opinions were given determinative weight, the appellants' response was: "No, we don't put it as high as that".
75 Nevertheless, it was submitted that there must be a "minimum level of rationality" without which there must be a failure to take into consideration inter-generational equity. As far as I can detect from the appellants' submissions, that requirement could only be satisfied by acceptance of Dr Weiner's opinions. Such a submission is misconceived.
76 At the end of the day the appellants conceded that that part of the Report, which I have set out at [41] above, contained at least the beginnings of an analysis of inter-generational equity. However, although it was not suggested that Mr Hood had in that analysis taken into account an irrelevant consideration, nonetheless it was contended that he had failed to take into account an essential component of inter-generational equity, namely, the significance of the Aboriginal objects being left in situ to the traditional custodians of Lot 208, including the appellants.
77 The difficulty with this submission is that it does not stand up to factual analysis. As I noted at [42] above, the Report expressly dealt with the appellants' contention that Lot 208 was significant, indeed "sacred". They then identified a number of key issues in their affidavits and submissions to Mr Hood to support their contention. Each was considered in some detail in the Report including the cumulative impacts of development in the locality upon Aboriginal heritage. To maintain that the significance to the traditional custodians of leaving the Aboriginal objects intact in Lot 208 was not addressed in the Report is, with respect, a submission without merit.
78 It was also contended that that part of the Report which I have set out at [41] above was deficient in that it had, first, adopted a "count the middens" approach; second, had adopted a "straw doll" approach by, in effect, suggesting that if the massacre had taken place on Lot 208 then there would be a stronger case for its conservation; third, had adopted a "museum fallacy" by providing for a conservation area comprising only 14% of the site upon which there was to be a "Keeping Place" for Aboriginal objects salvaged from the balance of the land; and fourth, had adopted an "it's broken" approach based on the archaeological condition of those objects.
79 It was not suggested that the factors referred to above were irrelevant considerations. Rather the appellants' case was that there had been a failure to take into account the symbiotic relationship between the Aboriginal objects and the land within which they were located together with the significance of that relationship to the Aboriginal traditional custodians to which the land belonged. I have dealt with that submission above.
80 With respect to the "counting the middens" approach that the author of the CIA was said to have adopted, the appellants submitted that its findings focussed on the highly disturbed nature of the Aboriginal objects in Lot 208 as not justifying their protection when compared with other midden sites in the study area considered to be of superior archaeological and scientific significance. However, the NPW Act required, so it was submitted, that the first respondent do more than simply determine the number, environmental setting and archaeological integrity of similar Aboriginal objects in the area.
81 There are a number of difficulties with this contention. The first is that once one accepts (as one must) the factual findings in the Report with respect to the archaeological and scientific significance of the Aboriginal objects, the starting point of any consideration of inter-generational equity with respect to those objects must be that they were of low indigenous value (according to the Jali LALC) and, according to Mr Hood, of low to medium significance "at best" (referring to the assessment of Davies). A further aspect of the starting point for the consideration of inter-generational equity was the negative findings in the Report with respect to the location of the massacre, the existence of any Bora ring on or in the vicinity of Lot 208 or any relationship between Lot 208 and any Goanna increase site in the locality. The inquiry thus commenced at a low base.
82 Second, it can be accepted that the existence of middens and the like constitutes evidence of past Aboriginal habitation or occupation of the land on which they are found. But of itself that is no reason to reject an application for a s 90 consent with respect to those objects. The point was well made by Basten JA, with whom Spigelman CJ and Giles JA relevantly agreed, in Country Energy v Williams [2005] NSWCA 318; (2005) 63 NSWLR 699 at [67] where his Honour said:
"… 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 damages, 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."
83 In my opinion that was the "reality" to which the Report was referring (at [40] above) when stating that although artefacts and remains are evidence of "footprints of the ancestors" as Dr Weiner asserted, that fact must be balanced by the reality that Aboriginal objects are found across the totality of the New South Wales landscape.
84 Third, the suggestion that the CIA was an insufficient evaluation of inter-generational equity is without substance. In this context the appellants submitted that Pain J in Anderson No 1 had misunderstood the concept of inter-generational equity and had sent the second respondent off on a "wild goose chase" to obtain a cumulative impact assessment. With respect, in my opinion her Honour was correct to make the observation at [199] of her judgment, which I have emphasised at [15] above, and to have required the undertaking of such an assessment in the manner referred to in that part of [200] of her judgment that I have also emphasised. Its provision was no "wild goose chase".
85 It is difficult to see how inter-generational equity, being the obligation of the present generation to ensure that the relevant environment is maintained or enhanced for the benefit of future generations (in this case, of future generations of the local Aboriginal community), can be properly considered without the assessment of the archaeological and cultural significance of the Aboriginal objects on the one hand and the cumulative effect or impact which their destruction may have on the other. Inter-generational equity requires an evaluative judgment as to these matters for otherwise, as the appellants appear to submit, all Aboriginal objects found on land must be conserved for the benefit of future generations of the traditional custodians of that land. That cannot be so.
86 Fourth, it must be recognised that the relevant decision-maker is only required to consider the relevant matter; he or she is not required to adopt any particular outcome. Furthermore, provided that the relevant matter has been considered to the necessary degree (i.e. not merely adverted to), then the fact that a particular aspect of the matter was overlooked will not invalidate what was otherwise a substantive consideration of that matter.
87 That is not to accept that in the present case the appellants have pointed to any aspect of inter-generational equity which has been overlooked in the Report. In particular, it cannot be said that the Report overlooked what leaving the Aboriginal objects in Lot 208 would mean to the traditional custodians of that land: see [69] above. The appellants themselves detailed that matter in their affidavits filed in previous proceedings and in their submissions, both oral and written, to Mr Hood who evaluated them in detail: see [42]-[45] above. In so doing and in that part of the Report dealing expressly with inter-generational equity, Mr Hood had demonstrated a complete understanding of that concept and had undertaken an evaluation thereof which warranted the description of that matter having been taken into consideration.
88 Accordingly, in my opinion the Report's consideration of inter-generational equity was in all respects comprehensive and pertinent. Thus it does not assist the appellants' case to point to the apparent weaknesses of the CIA identified by Mr Hood and which he took into account when assessing the weight to be attributed to it. Nevertheless the appellants sought to attach significance to the statement in that part of the Report that dealt with the CIA that
"the review of the conservation of heritage values in the study area … should have considered, at a minimum , whether or not any of the sites were conserved in the formal reserve system managed by DECC, and preferably the zoning of the land on which they occur. This would have provided further information about the degree of formal protection which is provided to these sites. I have obtained additional information with respect to reservation which is discussed in (f) below, however it has not been practice to review the zoning aspect for each of the 128 sites due to the lack of access to data (I do provide an example of where two sites are located on land zoned for coastal protection)."
89 The appellants submitted that the failure of the CIA to have considered "at a minimum" whether or not any of the 128 sites in the study area were conserved in the formal reserve system managed by the Department constituted evidence of the failure of Mr Hood to consider inter-generational equity. In my opinion this submission only has to be so stated for it to be rejected as being without merit.
90 There were a number of subsidiary submissions advanced before this Court which in my view it is unnecessary to consider in detail. A contention that there was some form of error in failing to provide Dr Weiner with the opportunity to respond to the rejection by Mr Hood of his conclusion as to the high significance of Lot 208 does not advance the appellants' case. Nor does the contention that the fact that the summary of the considerations which founded the recommendation that the Permit be granted (set out at [50] above) contains no express reference to the expression "inter-generational equity" was indicative of a failure to understand the principle or to undertake a proper process of evaluation of same.
91 In my opinion, and as I foreshadowed at [57] above, it is readily apparent that the appellants, being dissatisfied with the merit assessment of the second respondent's application and the outcome of the exercise by the first respondent of the discretionary power to grant the Permit, have sought to disguise a challenge to the merits of that assessment by reference to one of the recognised grounds of judicial review, namely, a failure to consider relevant matters. Being conscious of the impermissibility of a slide into merit review, the appellants' submissions require careful analysis, which I have attempted to undertake, in terms of their relevance to the only permissible ground of challenge available to them. In my opinion that challenge fails.
92 As I have already indicated, in my view the Report adopted by the first respondent gave careful, detailed and comprehensive consideration to the principle of inter-generational equity from the perspective of the archaeological, cultural and heritage significance of the Aboriginal objects the subject of the second respondent's application for a s 90 consent.