Country Energy v Williams; Williams v Director-General National Parks and... [2005] NSWCA 318 | Case summary

Country Energy v Williams; Williams v Director-General National Parks and... [2005] NSWCA 318 | Case summary | Zoe

[45]

'Generic' consent 3 Section 90 of the National Parks and Wildlife Act 1974 ("the Act") contemplates that application for consent may be made and that consent may be given "for the purposes of subsection (1)". If it be correct to speak of a power to give consent, the power is conditioned by the words "for the purposes of sub-section (1)"; but these words simply define the field of reference for the consent, namely the destruction, defacement or damage to an Aboriginal object or Aboriginal place. 4 The Director General's expression of consent is of no legal consequence unless and until a person is charged with an offence under s 90(1) and there arises a question whether that person had first obtained the Director-General's consent to the destruction of the Aboriginal object the subject of the charge. The question then is whether the consent is a consent for the purposes of s 90(1). In a sense there is a question of power, but in relation to "generic" consent it is more correctly whether the consent as expressed is in terms which will exculpate the person. 5 Where it is said that consent can not be given to destruction of an unidentified Aboriginal object, therefore, what is meant is that in any prosecution for an offence under s 90(1) an expression of consent which does not identify the Aboriginal object the subject of the charge will not provide exculpation. That itself needs refinement. Must the identification be of an Aboriginal object known at the time the consent is given? If not, what level of identification is required, for example, a category of Aboriginal objects or the Aboriginal objects in a given area? The level of identification may turn on the facts, and for present purposes it can only be asked whether the identification must be of an Aboriginal object known at the time the consent is given; even that can involve what is meant by knowledge. 6 In the way s 90 works, there is no question of power to consent to the destruction of an Aboriginal object of which the person was unaware at the time of the destruction; and more generally, I would prefer to avoid the language of power. The issue is whether an expression of consent referring to an Aboriginal object or Aboriginal objects not known at the time the consent is given is sufficient for exculpation. There is a considerable element of advisory opinion in dealing with the issue. If Country Energy is charged with knowing destruction of an Aboriginal object, will it be unable to rely on (one of) the consent(s) to exculpate it? Ordinarily a court would not entertain such a question. Restraint in giving advisory opinion has not been raised in submissions, and I am prepared in this instance to deal with the issue. 7 That the offence involves the person "knowingly" destroying the Aboriginal object does not preclude consent expressed in the manner described above; the "knowingly" is directed to the state of mind of the alleged offender, not to the expression of any consent. There is nothing in the words of s 90 limiting a consent to destruction of Aboriginal objects known to exist, and the Act would be unworkable if that limitation were read into it. The width of the definition of "Aboriginal object", the extent to which Aboriginal objects as defined may be expected to be encountered and the necessity that consents may be expressed in terms of Aboriginal objects not known to exist, lest ordinary farming activity let alone projects such as the ETL be stultified, lead in my opinion to the conclusion that a consent may be expressed in that manner.

[51]

Appellant pay the second, third and fourth respondents' costs. 10 BASTEN JA: Barrick Gold of Australia Limited, through a subsidiary, is engaged upon an operation known as the "Cowal Gold Project", which comprises a proposed gold mine and processing plant on the shores of Lake Cowal in central New South Wales. Lake Cowal lies approximately 43 kilometres north-north-east of West Wyalong. To supply energy for the project, Barrick, or its subsidiary, has entered into an arrangement with an electricity supply company known as Country Energy. To provide power to the mine site, Country Energy proposes to construct a 132 kilovolt transmission line to Lake Cowal from a substation near Temora, which is approximately south-south-east of Lake Cowal. The proposed electricity transmission line is to follow a corridor approximately 105 kilometres in length and 200 metres wide. 11 The construction of the power line will require the sinking of foundations for the steel structures which will carry the overhead cables, together with access tracks and storage areas for the poles and equipment. The proposed development fell within Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act"), which required the preparation of an environment impact statement. That statement was originally prepared in December 1997, but approval was not granted to the transmission line development until after a Commission of Inquiry for Environment and Planning, directed to the "proposed Cowal Gold Project", reported in January 1999. 12 The approval, granted under s 115B(2) of the EP&A Act was given on 3 August 1999 by the Minister for Urban Affairs and Planning. The approval was subject to numerous conditions, including one requiring that a detailed archaeological assessment be made of access tracks and pole locations within areas identified to be archeologically sensitive. Any "archaeological sites" discovered were required to be avoided. Further, a condition required that a representative of the relevant Local Aboriginal Land Council should be present during "any ground clearing works or works involving subsurface disturbance" in archeologically sensitive areas. If artefacts or items of heritage significance were present "or suspected to be present", an archaeologist was to be engaged to assess the significance of the sites and the National Parks and Wildlife Service ("the NPWS") and the relevant Local Aboriginal Land Council were each to be consulted. The condition concluded: "Any required permit shall be obtained and the permit application shall be accompanied by appropriate supporting documentation." 13 Pursuant to that condition, on 4 April 2003 Country Energy entered into a consultancy agreement with Dr Colin Pardoe to conduct "relevant site archaeological assessment at power pole locations as identified from Country Energy plans". To that end, Dr Pardoe was required to: "Consult with Aboriginal groups in accordance [with] the NPWS requirements to identify suitable Aboriginal representatives for site archaeological assessment."

[52]

Dr Pardoe was required to prepare a report setting out his findings. 14 Dr Pardoe carried out survey activities in the transmission line corridor during the period April-June 2003. His report, entitled "Cultural Heritage Survey" was delivered on 2 April 2004. 15 As a result of Dr Pardoe's survey and report, and in compliance with the conditions imposed by the Minister in approving the development, on 5 April 2004 Country Energy made application for a permit to allow the disturbance and relocation of certain Aboriginal objects and a consent from the Director-General of National Parks and Wildlife permitting it to damage or destroy certain Aboriginal objects. The first set of proceedings before the Court is concerned with the permit and consent given by a delegate of the Director-General on 1 August 2004. 16 The challenges to the validity of the 2004 permit and consent were brought by Mr Neville Williams, an Aboriginal man who asserted that, as a member of the Wiradjuri people, he should have been involved in the survey pursuant to which Dr Pardoe sought to identify relevant Aboriginal objects which might be affected by the proposed development. Mr Williams brought proceedings in the Land and Environment Court, in which proceedings he was successful. On 5 November 2004 Lloyd J, the primary judge in the first proceedings, declared that each of the permit and the consent was invalid and that the Director-General had denied Mr Williams procedural fairness in reaching her decision to grant the consent and permit respectively. His Honour ordered Country Energy to abstain from carrying out work "in purported reliance upon the authority granted by" the consent and the permit. 17 On 3 December 2004 Country Energy appealed the decision of the Land and Environment Court. In the meantime, however, following the judgment of that Court, Country Energy had taken steps to provide Mr Neville Williams with an opportunity to undertake his own inspection of the transmission line corridor. Mr Williams availed himself of that opportunity and made submissions to Country Energy, which were duly forwarded to the Director-General, based on his inspection and views he had formed in relation to the proposed development. Throughout this further process, Mr Williams consistently asserted that the opportunity being accorded to him was inadequate to allow him to conduct an appropriate inspection or make comprehensive submissions. 18 Following this further process, and at the request of Country Energy, the Director-General issued a further permit and a further consent on 16 March 2005. 19 Each of the 2005 permit and consent became the subject of further challenges in proceedings brought in the Land and Environment Court by Mr Williams. With admirable expedition, those proceedings, commenced on 23 March 2005, were determined by Bignold J on 5 April 2005. By orders entered on the same day, the application was dismissed. From that judgment, Mr Neville Williams appeals, those being the second appeal proceedings presently before this Court.

[53]

Issues 20 The Court was initially of the view that, unless Mr Neville Williams could succeed in overturning the second decision of the Land and Environment Court, there would be a valid consent and a valid permit in place, rendering the decision in the first matter of no practical consequence. However, all parties before this Court joined in the submission that the appeal against the first decisions retained utility. That submission was accepted and, accordingly, it is necessary to consider both matters: it is convenient to consider them in chronological order. 21 The principal issue raised in relation to the first decision, being the appeal by Country Energy, is whether the primary judge was correct in finding that an obligation of procedural fairness was owed to Mr Neville Williams, imposing a requirement with which neither the Director-General nor the applicant, Country Energy, had complied. 22 A second issue, sought to be raised by way of a notice of contention filed on behalf of Mr Williams, asserted that the consent to destroy Aboriginal objects could not be given for the purpose of permitting development, that being a purpose extraneous to the statutory purposes for which the power was conferred. A similar complaint was raised in relation to the permit to relocate objects, but that argument was not pursued at the hearing of the appeal. 23 A subsidiary issue relating to the first contention is whether, the point not having been taken below, Mr Williams should be allowed to rely on it in this Court. In support of that objection, Country Energy asserted that to be material, the purpose complained of must have been the purpose of the Director-General and that raised a factual issue which could have been addressed had it been raised below. 24 A second contention relied upon by Mr Williams was that the consent to destroy objects could not properly be given on a generic basis and without identifying the specific objects which the applicant for the consent was entitled to destroy. In so far as this contention involved a pure question of law, depending on the construction of the terms of the consent and the statutory provision under which it was given, no objection was taken to it being raised for the first time on appeal. However, objection was taken to the manner in which the point was developed in the course of argument, to the extent that it went beyond the "pure" question of law identified. 25 In the second appeal, Mr Williams asserted that he had still not been accorded procedural fairness, because those additional steps which had been taken were, in the circumstances, inadequate to fulfil the legal obligation. Because both the source and nature of the obligation, said to have arisen following the first judgment in the Land and Environment Court, varied from the source and nature of the obligation as it arose prior to that judgment, separate questions were said to arise from those which governed the first issue, namely the fairness of the process leading to the first decisions. 26 Mr Williams separately asserted that the second consent was invalid because given for an improper purpose and because given in generic form. These arguments were not put differently from the contentions relied upon in relation to the first consent. 27 To the extent that a resolution of these issues requires reference to the factual circumstances, it is convenient to deal with the facts as necessary and to the extent that they arise in dealing with each issue. However, before turning to the first issue, it is necessary to deal with the statutory provisions which provide for the issue of a permit and the giving of consent and to note briefly the key features of, and the inter-relationship between, the consent and permit in each case.

[58]

(Section 88 has no relevance for present purposes.) 33 Two permits were issued by the Director-General pursuant to s 87(1), the first being issued August 2004 to Dr Colin Pardoe and the second in March 2005 to Dr Pardoe and Dr Scott Cane jointly. Dr Pardoe's consultancy agreement referred to the consultant as "Colin Pardoe Bio-anthropology & Archaeology"; the evidence did not reveal details of the arrangement with Dr Cane, but he is a well-known Australian anthropologist. The scope of the permits will be addressed below. 34 Further protection of Aboriginal objects is provided under the NP&W Act by the requirement imposed on all people to notify the Director-General of Aboriginal objects. Thus s 91 provides: 91 Notification of sites of Aboriginal objects A person who is aware of the location of an Aboriginal object that is the property of the Crown or, not being the property of the Crown, is real property, and does not, in the prescribed manner, notify the Director-General thereof within a reasonable time after the person first becomes aware of that location is guilty of an offence against this Act unless the person believes on reasonable grounds that the Director-General is aware of the location of that Aboriginal object. 35 Of central significance to these appeals is s 90 of the NP&W Act which relevantly provides: 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. … (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. … (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 prescribed some other period - that other period.

[59]

Regulation 89 in the National Parks and Wildlife Regulation 2002 provides that the period prescribed for the purposes of par (b) is 60 days from the date on which the application was received by the Director-General. It would appear that the consent was not provided within even the extended period in the present case, but nothing turns on that for the purposes of the appeal. The significance of sub-s (7) is that the statutory period of 7 days may provide an indication as to the nature of the process involved in giving such consent. 36 Although the primary focus of the argument was on the consents given under s 90, it is desirable to start by consider the terms of the permit given under s 87, dealing first with the 2004 permit. Further, before turning to the terms of the permit, it is necessary to refer to the nature of the application for the permit. That application, dated 5 April 2004, dealt with both the consent and the permit. In relation to the latter, it stated: "The s 87 component of this application seeks permission to relocate visible Aboriginal objects (outside of Sites TL3 and TL8) in the vicinity of Sproules Creek and Sandy Creek that will be impacted by the construction of the ETL, to a safe location in the vicinity of but away from the relevant disturbance area. This is designed to avoid any damage to the "Aboriginal objects" and keep them as close as possible to their present locations. This encompasses: · All pole footprints and other disturbance areas on Map 6 at attachment 6; · Pole footprints and other disturbance areas on the east/west section of the Application Area on Map 7 at Attachment 6; and · Pole footprints and other disturbance areas within 150 metres north and 150 metres south of Sandy Creek on Map 37 at Attachment 6. … This application does not seek a s 87 permit in relation to Registered Site D, the four EIS Archaeological Sites (TL3, TL7, TL8 and IF), the scarred tree or the three avoidance areas identified in the Pardoe Report."

[67]

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."

[68]

The reference to 'protection from litigation' is unclear but it may refer to protection from prosecution by the Director-General herself or by a police officer, pursuant to s 179 of the NP&W Act. The limited effect of the removal and relocation permitted under the permit was not adverted to and there was no reference at all to the terms of Dr Pardoe's recommendations, nor to the matters identified in the application for the consent. 51 The abstract question to which it is necessary to return is whether the power of the Director-General, incorporated by way of a conditional exception to the offence defined by s 90(1) extends to an authority to destroy Aboriginal objects unidentified at any time, and without reference to their nature. 52 It is, in my view, clearly arguable that the power to consent does not extend to an Aboriginal object, the existence of which is unknown and of which the applicant is unaware even when the damage or destruction occurs. However, because no offence would be committed in such circumstances, the fact that the consent extends so far is immaterial. In contrast, the legal issue which has some substance is whether consent could be given to objects of which Country Energy became aware, but whose identity and significance was simply unknown at the time the consent was given. 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 a development and is reasonably necessary for the purposes of the development. Nevertheless, the legality of a consent given 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 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 legal error. 53 Once this stage of the analysis is reached, there is force in the complaint raised by Country Energy that, this issue not having been addressed below and being one which could be addressed by evidence, it should not be entertained in this Court in accordance with the well known principles explained in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CLR 1. 54 The remaining point is whether the power of the Director-General to consent can never, as a matter of law, be exercised in relation to an Aboriginal object which has not been identified at the time of the giving of the consent although, at least for the purposes of s 90, it should be assumed that it will have been identified by the time it is destroyed. To test the point, as a 'pure' question of law, it must be assumed that the Director-General was satisfied on the facts that no object of significance would be found. 55 The Director-General invited the Court's attention to analogous provisions relating to the protection of fauna and flora and the power to grant licences to permit the destruction of flora or killing of fauna by the licensee. These provisions, it was suggested, demonstrated that the identification of a particular animal or plant, in advance of the grant of a licence is simply not contemplated. So much may be conceded: the question is whether the analogy is of assistance in relation to s 90. In my view, those provisions provide little assistance. 56 There are a number of arguments which can be marshalled in favour of either a restrictive or a more liberal construction of the section. However, three factors weigh in favour of not imposing any rigid restriction of the kind proposed by Mr Williams on the power of the Director-General to consent. The first is the very breadth of the definition of "Aboriginal object". Even the most mundane signs of Aboriginal habitation fall within the scope of the definition. A fireplace created this century may qualify, even if it has no cultural significance to Aboriginal people. If the Director-General's attention was drawn to one camping site of recent occupation in relation to which, in giving effect to s 2A(1)(b), she satisfied herself that the feature was of no significance to relevant Aboriginal people, and those people themselves pointed out that there were numerous, as yet unidentified, camp sites along the same stretch of river bank, there is no relevant statutory purpose which would be violated if consent were given to a project which might damage not only the known site, but also other sites expected to be discovered in the course of the development work. 57 Secondly, there is no doubt that Aboriginal people have left, and continued to leave, their marks across the face of the Australian landscape, so that there will be few areas as yet relatively undisturbed by modern activity, which will bear no imprint of the past. On the other hand, it is clear, in part from s 2A(2), that development generally was not intended to be brought to a halt until all material evidence of Aboriginal habitation is separately identified. 58 Thirdly, the fact that the power to give consent expressly includes the power to subject such consent to specified conditions and restrictions is at least consistent with the possibility that consent may be given in respect of Aboriginal objects which have not been identified or the significance of which has not been fully assessed: see s 90(2). Whilst that provision would have work to do even if the power was restricted to objects identified at the date the consent was given, it is reasonable to construe it as having a broader scope, consistent with the subject-matter and purpose of Part 6 of the NP&W Act. 59 For these reasons, I would reject the argument that no consent can be given to the destruction of an object which has not been identified at the date of the consent. That conclusion is sufficient to dispose of the point raised by the notice of contention, so far as it can properly be entertained. For reasons noted above, it is unnecessary to consider whether a consent to destroy an object which had not been identified by the applicant as an Aboriginal object at the time of destruction can be given, such consent being in any event immaterial. Nor does this ground raise the possibility that a consent to the destruction of objects which may be of high significance would reveal an error of law; that is not a matter which is raised on the appeal. 60 The same ground was raised in the appeal by Mr Neville Williams against the decision of Bignold J in relation to the second consent. The circumstances in which these grounds come to be considered are not materially different to those which arise in relation to the first consent. First, the terms of the consent are relevantly identical, although the delegate of the Director-General is a different officer. The terms and conditions attached to the consent vary in some respects from those attached to the original consent, but those of relevance for present purposes are in the same terms as in the earlier document. Secondly, as with the first consent, the argument was not raised below. Accordingly, I would reject that ground of appeal in Mr Williams' appeal.

[69]

Improper purpose argument 61 The second ground on which Mr Neville Williams seeks to support the decision of Lloyd J and challenge the decision of Bignold J, is that the decisions by the delegates of the Director-General to give consent under s 90 were beyond power because they were not given for the purpose of giving effect to her responsibilities for "the proper care, preservation and protection of any Aboriginal object", but for the purpose of permitting development, a purpose directly inconsistent with such care, preservation and protection. 62 There are a number of reasons for concluding that the obligations of the Director-General with respect to the protection of Aboriginal objects cannot be interpreted in an absolute way so as to preclude, for all practical purposes, the grant of consent to destroy objects. No doubt it is true to say that such a restrictive construction would not read the power to grant consent entirely out of the Act. Appropriate protection for a midden, for example, may require survey and research work which would have the effect of damaging the midden. A consent to conduct such research would, as was pointed out on behalf of Mr Williams, require consent and consent could properly be given consistently with the protective responsibility of the Director-General. 63 However, there are reasons to think that the power to consent is not so limited. First, if it were intended to operate in that way Parliament could have said so. An example of such a situation may be found in Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153, a case involving a challenge to a consent given by the respondent Minister to activities which would damage a world heritage property. Section 13(1) of the World Heritage Properties Conservation Act 1983 (Cth) provided: "In determining whether or not to give a consent …, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property."

[72]

The manner in which social and economic values might indirectly become relevant, even in that constrained statutory environment, was explained at first instance by Sackville J in Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 76C-77B. 64 In the present case, neither s 2A nor s 85 imposes an express requirement that the only considerations that the Director-General may have regard to in giving a consent under s 90 are "the proper care, preservation and protection of" the relevant Aboriginal objects. Indeed, this language, which is taken from s 85(2)(a), identifies a function of the Director-General in respect of objects and places "on any land reserved under this Act". There does not appear to be any reason to apply the geographical qualification to Aboriginal places only and not to Aboriginal objects. Accordingly, that provision has no operation in relation to Aboriginal objects on private property: the present case was not concerned with reserved land. 65 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. 66 Thirdly, the primary object in s 2A is "the conservation of nature" which presumably includes the protection of fauna and flora. In relation to fauna, s 92 of the NP&W Act provides that the Director-General "shall be the authority for the protection and care of fauna". Nevertheless, s 120 permits the issue of a licence authorising a person to harm protected fauna, including in the course of carrying out specified development: s 120(1)(e). Furthermore, as is recognised in s 90 itself, a consent under that provision may be given pursuant to s 91 of the EP&A Act, "in respect of integrated development". Pursuant to s 91A of the EP&A Act, a refusal to grant consent may result in refusal of the development application. However, if the Director-General should fail to inform the consent authority under the EP&A Act as to whether she would or would not grant the consent, the development application may be determined, with the result that the Director-General could no longer refuse to grant her consent under 90 of the NP&W Act: see EP&A Act, s 91A(5). 67 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. The conferral of the power of consent on the Director-General itself provides a high level of protection for Aboriginal objects, particularly when read in conjunction with the obligation of all people to inform the Director-General of the existence of Aboriginal objects of which they are aware (s 91), such protection allowing the Director-General to determine whether any particular objects or class of objects are "of significance to Aboriginal people" for the purposes of giving effect to the object identified in s 2A(1)(b)(i). This broader context in which the s 90 power operates demonstrates that no implied restriction of the kind asserted by Mr Williams should be accepted. 68 That conclusion is sufficient to dispose of this point in the notice of contention and the corresponding ground of appeal. However, before leaving the topic, reference should be made to a further argument presented on behalf of the Director-General and on behalf of Country Energy. The argument had two limbs. The first in effect conceded that the purpose of the consent must be the protection of Aboriginal objects, but argued that the consent, limited to particular areas and hedged with conditions, should properly be understood as having that purpose. The second limb to the argument was that, although Country Energy might have the purpose of carrying out a development, by way of construction of the transmission line, which was the purpose it sought to promote by seeking the consent, that was not the purpose of the Director-General in granting the consent. 69 Neither limb of this argument is, in my view, persuasive. First, it is necessary to bear in mind the different shades of meaning which can be encompassed by the phrase "improper purpose". As noted by Aickin J in The Queen v Toohey; Ex parte Northern Land Council (1980-81) 151 CLR 170 at 232-233, commenting on expressions such as "good faith" and "bad faith": "There are three distinct bases upon which an exercise of administrative power or authority and delegated legislative power or authority may be attacked: they are first the existence of a corrupt purpose, second the existence of an improper purpose and third ultra vires in the narrow sense of the act being done beyond the power of the body concerned, irrespective of the motive or intention of the person or body exercising the power."

[80]

The manner in which the obligation is said to have arisen is important, because it will affect the nature of the obligation in specific circumstances. 75 The first possible means may be put to one side in the present case. There is no suggestion that there was any express statutory requirement to consult with Mr Williams about the identification of Aboriginal objects on the transmission line. Nor was it suggested that any such obligation arose by implication from the statutory scheme for the provision of a consent or the issue of a permit with respect to such objects. 76 The second possible source of the obligation, namely a public statement or established practice, was relied on by Mr Williams. Although he himself was not aware of its existence at the time the first consent and the first permit were issued, he asserted that the basis of the obligation arose from a policy of the Department which was said to require consultation with relevant Aboriginal people, including, in this area, himself. Because he was unaware of the existence of the policy at the relevant time, he had no expectation, in a subjective sense, arising from its existence and accordingly could not be said to have relied upon it in any way. The question which therefore arises is whether it is sufficient to rely upon an internal administrative policy which may apply in relation to the decision in question, where the expectation is only created in the abstract sense that, if the person affected had known about it, he could reasonably have formed a subjective expectation. 77 The third category involves a statement or practice which has been made or adopted by the decision-maker to or in relation to the person affected. Again there will be a question as to whether a subjective expectation is required in law. In other words, would the person affected need to show that he in fact had an expectation that the decision-maker would act in a particular way and relied upon that expectation? This question does not, however arise, because no promise or representation was made to Mr Williams, nor any practice adopted in relation to him specifically. 78 Before turning to the material relied upon by Mr Williams in the present case, it is helpful to identify the nature of interests recognised in law in relation to Aboriginal objects, referred to in older legislation as "relics". Thus, s 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) made it an offence to deface or damage or otherwise interfere with a relic, either wilfully or negligently. In 1980, a group of Gournditch-jmara people became concerned that the construction of an aluminium smelter at Portland in western Victoria was likely to interfere with relics of former Aboriginal occupation, particularly lithic scatters, including stone tools and manufacturing debris or debitage. They took proceedings in the Supreme Court to restrain Alcoa of Australia Ltd from carrying out the proposed construction works. They failed in the Supreme Court to establish that they had standing to bring the proceedings, a finding that was reversed in the High Court in Onus v Alcoa of Australia Ltd (1982) 149 CLR 27. The High Court distinguished their circumstances from those held not to have a sufficient or special interest to justify the commencement of proceedings, based on an emotional or intellectual concern. As Gibbs CJ noted at 37: "The present is not a case in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except in so far as he hold beliefs or opinions about it. The appellants claim not only that their relics have a cultural and spiritual significance, but that they are custodians of them according to the laws and customs of their people, and that they actually use them. The position of a small community of Aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian."

[81]

Similar statements were made by Stephen J (at 42), Mason J (at 43), Murphy J (at 45, 57), Wilson J (at 62) and Brennan J (at 77). An interest sufficient to confer standing to commence proceedings to protect a relic does not necessarily confer a right to be accorded procedural fairness before the relic is destroyed, but it provides a useful analogy. 79 There are other bases, including statutory bases, upon which Aboriginal people claiming to be the traditional custodians of artefacts may have an interest in Aboriginal objects in particular areas. Thus, the Aboriginal Land Rights Act 1983 (NSW) established by statute a network of Local Aboriginal Land Councils across the State. Any adult Aboriginal person who resides within the area of the Land Council, or has an association with that area, may seek to become a member: s 54. One of the functions of a Land Council is "to promote the protection of Aboriginal culture and the heritage of Aboriginal persons in its area": s 52(1)(m). Country Energy accepted that the two Local Aboriginal Land Councils through whose areas the transmission corridor ran should be consulted, as they were, by Dr Pardoe. 80 Further, Aboriginal people who have maintained a traditional connection with land may seek to assert a statutory entitlement to be consulted about certain matters occurring on the land by making a native title determination application pursuant to s 61 of the Native Title Act 1993 (Cth). Where such a claim is registered under that Act, the registered native title claimants acquire statutory rights before the application is determined. Where a government party proposes to grant a right to mine, or to compulsorily acquire land, a registered native title claimant may have a "right to negotiate" pursuant to Part 2, Div 3, Subdivision P of the Native Title Act: see s 26(1). Failure to comply with the requirements of that subdivision, if they apply in relation to a particular act, will render the act invalid: s 28. Applications for mining tenements must be advertised and native title claims are not infrequently lodged in response to such advertisements. Whether or not they are registered, so as to trigger the substantive rights to negotiate, will depend upon whether they satisfy the requirements for registration set out in Part 7 of the Native Title Act. 81 In the present case, at least two native title claims were lodged over the area of the proposed mining tenement. One of those claims was registered but a second claim, lodged on behalf of a group of which Mr Neville Williams was a member, was not registered. The unregistered claim was informally known as the Mooka and Kalara claim. However, no claim was lodged by that group over the transmission line corridor. That may have been because native title had been extinguished by the grant of earlier interests or because interested Aboriginal people had been advised that the approval given to Country Energy did not involve the creation of a right to mine or, if it did, it was one "created for the sole purpose of the construction of an infrastructure facility … associated with mining" and was excluded from the scope of the right to negotiate under the Native Title Act: see s 26(1)(c)(i). But these are not the only rights conferred on registered native title claimants. Other subdivisions in Part 2, Div 3 confer lesser rights in relation to specified "future acts", being acts apt to affect native title rights detrimentally. 82 It will be necessary to return below to the question whether the Director-General (through Country Energy) was required to consult with Mr Williams because he had, or may have had, an interest of a kind identified above. At this stage it is appropriate to identify what in fact took place, which may be understood as the reason, or at least part of the reason, for the present proceedings. The consultation undertaken was described by Dr Pardoe in his report of 2 April 2004 in the following passage: "The Approved Corridor traverses different indigenous social and political groupings. The Local Aboriginal Land Council regions affected include the West Wyalong and Young Local Aboriginal Land Councils … . At the time of the survey, the Approved Corridor only affected the area of one registered native title claim, that of the Wiradjuri Condobolin people over the area of Cowal Gold Project … . This claim encompasses only a very small proportion of the Approved Corridor (the top 2.5 kilometres (approx) of the total 105 kilometres). At the time of the survey, the Cowal Gold Project area was also subject to an unregistered claim by Mr Neville Williams referred to as Mooka #2 … . The registered native title claim group identified their boundaries as the boundaries of the Condobolin and West Wyalong Local Aboriginal Land Councils… . Accordingly, the registered native title claim group's region encompasses the northern section of the Approved Corridor. The southern section of the Approved Corridor lies within the boundaries of the Young Local Aboriginal Land Council. There is no native title claim over this area. In the light of the above, consultation was carried out prior to the survey with the Wiradjuri Condobolin people, via their representative …, the West Wyalong Local Aboriginal Land Council, the Young Local Aboriginal Land Council. … The [Wiradjuri and Condobolin people], Young Local Aboriginal Land Council and Mr Neville Williams on behalf of the Mooka #2 claim group were consulted about the findings of the survey and the recommendations made in this Report."

[92]

In substance, it would seem that Mr Williams' concerns were that a blanket consent to destroy Aboriginal objects was being sought without those objects being identified and without a sufficient inspection being undertaken to allow a reasonable level of satisfaction that all objects of significance had been identified. On one view, there might have been merit in such a complaint, but it appears not to have been made in those terms. Rather, the focus of Mr Williams' complaint was on the failure of Dr Pardoe to involve him in the pre-survey consultations, despite the fact that his interest, at least in relation to the mine site, was known to Dr Pardoe at all relevant times. 86 It is necessary to turn to the question agitated in the Land and Environment Court, namely whether the failure to involve Mr Williams in the consultation process prior to the survey was a fatal flaw, which invalidated the grant of the consent. 87 An important step in the reasoning of the primary judge was that a combination of the NPWS "Cultural Heritage Community Consultation Policy" ("the Policy") and the "Statement of Reconciliation", either separately or in combination, gave rise to a legitimate expectation that Mr Williams would be consulted in relation to the survey of the corridor, before it occurred. The Statement of Reconciliation is a two page document which was apparently available on the NPWS website prior to April 2003 when the survey work commenced. It was, thus, publicly available, although there is no evidence that Mr Williams had actually read it at that time. In form, the statement constitutes a public recognition by the staff of the NPWS that the Indigenous people are the original custodians of the country and the Statement expresses a commitment to carry that recognition into the daily work of the Service. Two specific statements were relied upon. The first, relating to research, read as follows: "We will observe the principle that research into Aboriginal heritage should not be carried out without the informed consent of local Aboriginal communities and that these communities should have the opportunity to participate as partners in such research."

[97]

So much may be conceded: the relevant issues are to identify the precise nature of the expectation said to arise in the present circumstances and the degree of involvement envisaged and the identity of the Aboriginal people who are entitled to be involved. 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 Honour 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." 92 In the present case, the statement of the primary judge, at [50], that whether a policy will give rise to a legitimate expectation is likely to depend on "the formality and detail with which they are framed and the nature of the subject matter", may be accepted. For the reasons just noted, it will also depend on the public nature of the document or practice. His Honour further expressed the view that the Policy in the present case contained "a significant level of detail". His Honour concluded, at [51]: "I am satisfied on both a subjective and objective basis that the NPWS Cultural Heritage Community Consultation Policy and accompanying matter of practice gave rise to a legitimate expectation by Mr Williams that he would be given the opportunity to be involved in the identification and assessment of the significance of Aboriginal objects within the ETL corridor. Involvement in the identification and assessment means involvement and consultation at the time that such processes were carried out, not at a later stage."

[98]

There are a number of aspects of this statement which require comment. 93 First, it is unclear what his Honour meant by "both a subjective and objective basis": if he meant that Mr Williams placed actual reliance on the matters identified, no such evidence was drawn to the attention of this Court, nor was reliance placed upon such a proposition. The highest the evidential material rose was a bald statement by Mr Williams that he expected to be consulted, without reference to the source of the expectation. Secondly, to the extent that his Honour referred to "accompanying matter of practice" there was, again, no reliance placed on that suggestion in this Court, nor was relevant evidence referred to. Thirdly, his Honour did not consider whether the Policy was publicly available: there was no suggestion in this Court that it was. Fourthly, 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. Fifthly, there is a question as to why the expectation so engendered would inhere for the benefit of Mr Williams. At [53] his Honour referred to the failure to invite Mr Williams to be involved in the survey, "despite an awareness of his interest in the matter". The interest identified was earlier expressed in the following terms, at [48]: "It is clear that Mr Williams is an interested party as an individual Aboriginal person, but more importantly, as a representative of the Mooka and Kalara united families. This was apparent to the NPWS from the meeting of 6 February 2003."

[99]

With respect, it is doubtful that being an Aboriginal person was sufficient to give Mr Williams an interest in the Aboriginal objects that might be found in the transmission line corridor. If Mr Williams had no traditional connection or historical association with the area, it would be most unlikely that he could satisfy the test of "interest" as articulated in Onus v Alcoa . Nor was his interest put on that basis in the present appeal. 94 The reference to the meeting of 6 February 2003, should be put in context. The meeting was attended by the officer of NPWS who signed the first consent as the delegate of the Director-General. It was described in the minutes as "Mooka Traditional Owners and Condobolin community members Condobolin meeting". Mr Williams is identified as having been present and as having spoken at the meeting on more than one occasion. However, the subject of discussion was primarily directed to the significance of Lake Cowal and surrounding areas. A further meeting was held the following day in Sydney with the Wiradjuri Council of Elders, which included, it would seem, the claimants under the registered native title claim. The subject matter of the meeting appears to have been the same topic as that debated the previous day. Whether, for the reasons noted above at [83] NPWS should have assumed, or inquired as to whether, Mr Williams and his group had interests extending down the length of the transmission line corridor is unclear: however, it would seem to overstate the evidence to suggest that NPWS officers were positively "aware" that such interests existed. 95 For all these reasons, his Honour's conclusions were, in my view, at least attended by significant doubt. However, even if all these matters are assumed to be correct, in favour of Mr Neville Williams' position, there is a further assumption underlying his Honour's conclusion which, in my view, cannot be accepted. The assumption is that once it is found that Mr Williams had a legitimate expectation that he would be involved in an inspection of the whole corridor prior to the giving of any consent to destroy Aboriginal objects, a consent would be invalid unless that expectation was given effect. With respect, that is to elevate an expectation into a procedural right. 96 The reasons for rejecting that conclusion are based on both principle and authority. As noted in Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 395: "A second purpose for which the concept of legitimate expectation has been used is to lessen the unfairness which results from the courts' reluctance to uphold arguments of estoppel based on the undertakings and representations of public officials."

[101]

Of course, where the expectation is limited to consultation, there would need to be some particular onerous or time-consuming aspect to an obligation in order for it to be sensible, in practical terms, to speak of the need to consult about withdrawing the expectation of consultation. However, the principle applies to departure from an expectation of consultation: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. 98 There is another, and more important qualification, which needs to be borne in mind, distinguishing the use of the term "legitimate expectation" from the essential requirements of procedural fairness. Thus, if procedural fairness requires a person to be given notice of, and an opportunity to comment on, material from which the decision-maker may draw an inference adverse to the applicant's interests, that is not the kind of expectation which can be departed from so long as notice of intended departure is given. Rather, that is a legal requirement which derives either from the general law or by way of statutory implication, assuming it is not an express requirement imposed by a statute. The circumstances of Teoh may be used by way of illustration. If a domestic law had required the decision-maker to give primary consideration to the best interests of the affected children, the decision-maker could not depart from that obligation, by giving notice of such an intention. But the Convention requirement, not being a requirement of domestic law, did not rise to that level and thus could be departed from upon appropriate notice being given. It follows that the Director-General can abandon a policy or procedure which she has adopted, so long as the new procedure or policy is itself lawful and not in contravention of some statutory or general law obligation, and gives notice, as necessary, to those who have a legitimate expectation that the policy will be followed. 99 Because principle and authority operate in partnership, it is unnecessary to provide a more extensive justification from the approach identified above. The relevant case law was discussed in the judgments of Gleeson CJ and Beazley JA (Powell JA agreeing) in Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33. No different approach has been adopted in more recent decisions. For example, after noting that an early use of the phrase "legitimate expectation" was to identify an interest sufficient to attract obligations of procedural fairness, Hayne J in Ex parte Lam continued at [117]: "Later, legitimate expectation was said to explain why a decision-maker might be required to receive representations before departing from some policy or intended course of conduct which it had announced. Those affected by the policy or intended course of conduct were said to have a legitimate expectation of having a hearing before the decision-maker decided whether to alter that policy or course of conduct." (Footnotes omitted.) 100 In the present case, Mr Williams was given precisely that kind of opportunity. In September 2003 his exchanges with NPWS officers were replete with complaints that he should be allowed to survey the transmission line corridor himself. In the memorandum counter-signed by the delegate who granted the consent, his position was summarised in the following terms: "Mr Williams said that: · He was the traditional owner and only he can understand Wiradjuri culture. · The consultant archaeologist was not a suitable person to have undertaken the survey because he is racist and aligned with the developers. · The survey was inadequate for the task and needed to be completely redone with involvement. · The existing registered native title claimants were the wrong people to deal with and that their claim would be struck out by the Federal courts."

[104]

Procedural fairness: the 2005 consent 101 The fact that, following the decision of the primary judge with respect to the 2004 consent, Country Energy set about obtaining further material for a new application, raises a question as to the interaction of the two consents, if both are valid. However, that was not a question which was agitated in either of the proceedings before this Court. Nor was it argued that if the first consent was held to be valid, that was a reason for disregarding the second consent or setting it aside. On the other hand, it is difficult to conceive of a basis upon which, if procedural fairness were accorded to Mr Williams in relation to the first consent, the additional steps taken prior to the second consent being granted could result in invalidity. 102 In November 2004, immediately following the decision of Lloyd J setting aside the first consent, Country Energy took steps to accord Mr Williams that opportunity which he had complained of being denied prior to 1 August 2004, namely an opportunity to survey the corridor himself. His legitimate expectation of such an opportunity was supposedly based on the finding of the primary judge in the first case. One difficulty with this position is that, if this Court holds that no such obligation existed at law, the exercise undertaken in November 2004 can be seen to be superfluous, from a legal perspective. 103 In any event, it is a novel proposition that the judgment of a court could give rise to a "legitimate expectation". The analysis which achieves that result would appear to reflect the mistaken understanding of the doctrine of legitimate expectation, as identified above. In particular, it appears to equate legitimate expectation with the minimum content of procedural fairness. But even if that understanding were correct, the legitimate expectation does not arise from the judgment, but from the underlying legal principle applied in the judgment. Alternatively, if the legitimate expectation arises from a policy adopted by the Director-General, the source of the legitimate expectation remains the policy, and not the judgment of the Court. This distinction is important because the Director-General cannot affect the judgment of the Court, but she can adopt a different lawful procedure. 104 Mr Williams complained that the further opportunity accorded him by Country Energy, pursuant to which he was ultimately allowed some 10 and a half days to survey the corridor, remained inadequate. As noted in its submissions in this Court, that which Country Energy accorded him was an opportunity co-extensive with that initially proposed Mr Williams' own archaeologist. As a matter of fact, the suggestion that he was not given an adequate opportunity to assess the significance of any Aboriginal objects which may remain unidentified on the corridor lacked substance and was properly rejected by Bignold J in the Land and Environment Court. However, for the reasons given above, which follow from the judgment of this Court in relation to the other appeal, the challenge is in any event without substance. 105 Mr Williams' appeal should be dismissed.

[105]

Costs 106 In his written submissions in this Court, Mr Williams sought that his appeal should be upheld with costs and that Country Energy's appeal should be dismissed with costs. No submission has been received as to the appropriate order, should the contrary result obtain. 107 In the first proceedings, before Lloyd J, it was ordered that costs were reserved. Because the judgment in favour of Mr Williams has been set aside, there would appear to be no basis on which he can obtain his costs of those proceedings and accordingly that order should be set aside. Bignold J made no order as to costs in dismissing Mr Williams' application in the second proceedings. No challenge is made to that aspect of his Honour's orders and accordingly the appeal in the second set of proceedings can simply be dismissed. 108 Although Country Energy has been successful in defending the validity of the permits and consents it obtained, there are troubling aspects to this case which may warrant departure from the usual order as to costs. The consent should not, in my view, have purported to extend to "inadvertent" damage or destruction. It should probably have been limited to Aboriginal objects of the kind identified by Dr Pardoe as likely to be found elsewhere in the corridor. It should not, by reference to "desecration" have impliedly consented to the destruction of objects having sacred significance. It should have followed more closely the terms of the application made. Those criticisms may more obviously lie at the door of the Director-General and her officers, than with Country Energy. Nevertheless, Country Energy obtained the benefit of the permit and a second permit without, apparently, seeking correction of these possible anomalies. 109 Further, the policy by which NPWS sought to consult Aboriginal communities was clearly put into practice through consultation undertaken by Dr Pardoe, on behalf of Country Energy. While it is true that Mr Williams' declared interest was in relation to the Lake Cowal area, the matters noted at [81] and [83] indicate that Dr Pardoe was at least on notice that Mr Williams and his group might assert interests in the corridor. No explanation has been given as to why Country Energy decided to consult Mr Williams after the survey had been completed, but not before. An inference which may be derived from the minutes of the meetings of 6 and 7 February 2003 is that Mr Williams was more strongly opposed to the Lake Cowal Gold Project than were the representatives of other Aboriginal groups. That would not, of course, justify a refusal to consult. Mr Williams' complaint was legally misconceived, but the conduct of Country Energy may have led him to believe that he was being arbitrarily and inappropriately excluded from a legally essential process. 110 These matters are sufficient, in my view, to depart from the usual order as to costs. I would make no order as to the costs of either appeal. 111 In these circumstances, I would propose the following orders:

Country Energy v Williams; Williams v Director-General National Parks and Wildlife

At a glance

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