Power to grant generic consents
44 Before turning to the highly contested issues concerning the procedure adopted prior to granting the s 90 consents, it is convenient to deal with the more confined arguments relating to the validity of the consents in the terms granted. The first such challenge concerned the power to grant what were described as "generic consents".
45 The argument raised in this Court, but not before the primary judge, was that the Director-General could not, pursuant to s 90(1) and (2), give consent to the destruction or defacement of, or damage to, an Aboriginal object which had not been identified. Because the consent given in the present case related to "all Aboriginal objects" within the corridor, it was said that the consent failed to satisfy the terms of s 90. In support of the view that a consent can only properly be given in relation to identified property it was put on behalf of Mr Neville Williams that the consent provided an exception to the offence created by that section, being an offence committed only where a person "knowingly" destroys, defaces or damages an Aboriginal object. The offence can only be committed in relation to an identified object: accordingly, it was submitted, consent to that conduct can only be given in relation to an identified object.
46 The alternative approach, relied upon by Country Energy and supported by the Director-General, commenced with the proposition that to identify a consent as "generic", as opposed to specific, created a false dichotomy. Relevant objects could be identified by different criteria and with varying degrees of precision. At one extreme, it would be possible to identify, for the purposes of a consent, the whole of the statutory class, namely Aboriginal objects in New South Wales. There might be a question as to whether the statute envisaged that such an exemption should properly be given, but that was a different question from the question of identifying relevant objects. Arguably, if the statutory description was sufficiently precise to permit the creation of an offence, it was also sufficient for the purposes of providing an exemption from the offence.
47 Further, it was argued, a consent could be given to a class of Aboriginal objects falling within identified confines, being a sub-class of all Aboriginal objects in New South Wales. The restriction on the class could operate by reference to the area covered, the period for which consent is given, the particular activity which is expected to cause damage, or by excluding specific objects or categories of object from the consent. Each of these criteria was adopted in the present case. Thus, the consent was limited by reference to an area, namely the transmission line corridor, subject to the exclusion of certain sensitive areas or sites; the period for which the consent operated was, in its terms, two years, conditional upon the continuation of the approval under the EP&A Act, although no doubt the two year period might be varied, and, at least implicitly, the consent was confined to such damage or destruction as might result from the construction works provided for in the approval. No doubt the consent could have been given in terms which expressly and more appropriately reflected these limitations. Thus, the terms in which the consent was sought by Country Energy were as follows:
"Consent under section 90 to damage or destroy:
(a) those Aboriginal objects identified in the Pardoe Report or during the archaeological works or monitoring activities as not requiring protection or relocation; and
(b) those Aboriginal objects which are not identified in the EIS, the Pardoe Report or during the archaeological works or monitoring activities such that their precise characteristics and location are not known to Country Energy and they are inadvertently damaged or destroyed by construction, maintenance or operation of the ETL Project."
48 If the terminology of the application had been followed by the Director-General, a question might have been raised as to why consent was required for "inadvertent" damage or destruction where, prior to the occurrence of such damage or destruction, the object had not been identified as an Aboriginal object. It is, perhaps, one of the ironies of this case that if, as Mr Neville Williams submitted, consent could only be given to the destruction of identified Aboriginal objects, consent to the destruction of unidentified objects would have achieved, on one view, no added protection because neither the obligation imposed by s 91, nor the offence created by s 90, were engaged in relation to Aboriginal objects of which Country Energy was not aware; the damage or destruction thereof would properly be described as "inadvertent" and could not have been done "knowingly" in the sense identified by this Court in Histollo Pty Ltd v Director-General of National Parks and Wildlife (1998) 45 NSWLR 661 at 665G (Spigelman CJ), 667D-E (Sperling J) and 695B-E (Greg James J).
49 Careful consideration of the terms of the application made by Country Energy would not only have raised a question as to whether consent was required or appropriate in relation to inadvertent destruction, but would also have focused attention on a narrower question than that presently raised, namely whether consent could be given in relation to destruction of identified objects, but before identification occurred. In my view, that is a question of considerable importance because Country Energy pressed upon the Court the great practical difficulties which would arise if consent needed to be obtained every time an object was identified. Although the Director-General gave no reasons for her decisions, one may infer that reliance was placed on Dr Pardoe's conclusions set out at [37] above and particularly his expert opinion that any Aboriginal objects which existed in the corridor but had not been identified were "highly likely to be single or small quantities of stone flakes like the ones described above". If that be the correct inference, it seems unfortunate that the consent was not expressed in those terms. Given the considerable care taken by Country Energy in seeking the necessary approvals in relation to the construction of the transmission line, it seems most unlikely that if, in the course of the carrying out of the works, it became aware of an Aboriginal artefact of high significance, it would wish knowingly to destroy it. It does not appear that it ever sought permission to allow it to do so. It is almost more unlikely that, had Country Energy sought permission in those terms, the Director-General would have given her consent. In the result, these proceedings have been conducted on an abstract and artificial basis, apparently as a result of the inept drafting of the document of consent.
50 This view obtains some support from the Departmental memorandum which appears to have provided the basis upon which the delegate of the Director-General signed the consent on 1 August 2004. That document identified the "issue" in the broadest terms, namely that Country Energy had "applied for a Consent to Destroy, Damage or Deface Aboriginal objects under Section 90". No reference was made to the actual terms of the application. The memorandum then set out over several pages the history of consultation which had been undertaken with various Aboriginal groups. By that stage, Mr Neville Williams' concerns were well known and no doubt firmly fixed in the mind of the Departmental officer as the source of potential objection to the consent, were it to be granted. The history of that consultation process will need to be addressed below: for present purposes it may be seen as having almost completely obscured the substantive issues to be addressed by the Director-General or her delegate. The only other reference to the purpose and scope of the consent is contained in the penultimate paragraph to the Minute which read:
"The Section 90 Consent to Destroy component seeks to provide protection from litigation given that there is a possibility of impact to Aboriginal objects that may remain following the completion of permit works."