Darkinjung Local Aboriginal Land Council v Minister for Planning and... [2015] NSWLEC 1465 | Case summary

Darkinjung Local Aboriginal Land Council v Minister for Planning and... [2015] NSWLEC 1465 | Case summary | Zoe

[7]

Lay witnesses

The Court has also had regard to the written and oral evidence of the people who have lodged written submissions in response to the notification of the project application (the lay witnesses).
The written submisions and material provided by the lay witnesses has been collated by the Minister's legal team and are at (Exhibit R4). The Court has also had regard to the water report prepared by Ian Sutton tendered during his oral evidence (Exhibit R7).
The notes of the oral evidence given by the lay witnesses on site, which have been agreed between the parties, are at (Exhibit 5). The oral evidence given by the lay witnesses in Court regarding Aboriginal heritage is found at the following transcript references: Barbara Grew (TD3 42.5 to 43.22); Lief Gratton Wilson (TD3 44.5 to 46.20); Peta Lonsdale (TD5 274.34 to 281.18); Deirdre Jinks (TD6 286.5 to 287.30); and Kelia Keogh (TD6 295.5 to 297.14).
The oral evidence given by the lay witnesses in Court regarding non-Aboriginal heritage issues is found at the following transcript references: Deirdre Jinks (TD6.5 to 287.30); Ian Sutton (TD6 288.3 to 291.2); Jake Cassar (TD6 292.5 to 294.25); Keilia Keogh (TD6 295.5 to 297.14); Margaret Pontifex (TD6 6298.5 to 299.35); Simone Glover (TD6 300.5 to 302.13); Graeme Osborne (TD10 667.5 to 670.45); Margaret Dupile (TD10 671.5 to 674.36); Angela Hellyer (TD10 675.5 to 678.36); Justice Suthers (TD10 679.5 to 681.29); Paul Burton (TD10 682.5 to 685.37); Barton Lawler (TD10 686.5 to 692.49); Dr Kate da Costa (TD10 694.5 to 696.10); Peta Lonsdale (TD11 813. 25 to 817. 35); Donna Bartlett (TD11 818.5 - 819).
With a few exceptions, the Court considers that the relevant parts of the lay witnesses' evidence are encompassed by the submissions made by the applicants, and need not be responded to separately.
The exceptions include the constitutional issue raised only by Peta Lonsdale and Donna Bartlett and the water licence issue raised by Ian Sutton. We address Ian Sutton's concerns later, but must deal with the constitutional issue at the outset.

[8]

Constitutional issue

Peta Lonsdale (otherwise known as 'Gabitja') together with Donna Bartlett, gave evidence that the issues of water, visual impact, noise, vibration and biodiversity are not severable to culture and heritage issues - nor are they severable to religion (TD11 816. 45 - 817 ).
On that basis, they told the Court that the decision of the PAC to approve the application under the EPA Act directly prohibited the free exercise of their religion and, as such, the PAC's decision constituted a contravention of s 116 of the Australian Constitution.
Accordingly, they said the Court, in exercising the same functions, must deal with this constitutional issue - in accordance with s 78B of the Judiciary Act 1903.
Each requested that the Court stop the hearing and advise the Attorneys General of each State of the consitutional matter in accordance with s 78 B.
Peta Lonsdale and Donna Bartlett are not parties to the litigation. Based on their submissions and the legal authorities including the current approach of the High Court to these matters, Mr Hutton, Counsel for the Minister, informed the Court that the Minister did not propose to issue any s 78B notices (TD12 823.5).
Rocla and AWWP advised us that they did not wish to be heard on the matter.
While Ms Pritchard, Darkinjung's Senior Counsel, stated that s 78B imposes a duty on the Court not to proceed once a matter involving the Constitution or its interpretation arises, she indicated that her client was not in a position to be heard on the merits of the point, although she acknowledged that questions of triviality, frivolity, and vexatious complaint are relevant to the Court's consideration of whether or not the duty is enlivened (TD12 825.5 - 826).
The Court decided that the applications as made did not provide any impediment to proceeding with hearing evidence and argument concerning matters severable from any matter arising under the Constitution: s 78B(2)(c).
Subsequently, the Registrar issued the relevant s 78B notices to each of the Attorneys General of the States and not one of them elected to pursue the matter.
In the circumstances, we are satisfied that the submissions made by the two lay witnesses do not raise any relevant constitutional impediment to our final determination of these proceedings.

[9]

Procedure in the Class 1 jurisdiction of the Court

The procedure to be followed in a Class 1 appeal of the Court's jurisdiction is stated in s 38 of the LEC Act. It provides: Procedure 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person. (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing. (5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.
While the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits - the rules of evidence, for obvious reasons, are still relevant.
Not surprisingly, objection was had to the hearsay and opinion evidence received by the Court during the course of the hearing. The parties also filed Lists of Objections - generally raising objection to the form and/or relevance - to the affidavit evidence. For example, Darkinjung raised objections to the relevance of the evidence of Margaret Katherine, a Dalabon woman from Barunga in the Northern Territory; AWWP and Darkinjung raised objection to the relevance and form of much of the evidence of Professor Smith.
In the ultimate, our general position was to accept the evidence tendered, noting the objections were generally as to form or relevance, and assigning appropriate weight.
Set out below is an overview of the litigation in respect of the 'Aboriginal cultural heritage issues'. It does not discuss in any detail the 'non-cultural heritage issues' because - although they are still agitated by some of the lay witnesses to the application - those issues were ultimately withdrawn by AWWP during the hearing (although we note the final terms of some of the conditions dealing with those matters is yet to be resolved). We address the non-cultural heritage issues and evidence separately and at a later time.
In separating these topics, we are mindful of the submissions made by some witnesses that the Aboriginal cultural landscape does not allow for a separating out of the elements such as water, air, dust and noise from the non-tangible values of the landscape. Each informs the other. However, in order to address the statutory framework in which we find ourselves, it is necessary to separate these issues into manageable topics; and in this regard we have followed the parties' lead.

[10]

Overview of the litigation

Proceedings number 10075 of 2014 was commenced by Darkinjung against the Minister and Rocla on 13 February 2014. 1. Darkinjung is a statutory corporation having been incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The membership of Darkinjung is Aboriginal people who are resident in, or are accepted by the members as having an association with, the Land Council's area: ss53-54 of the ALRA. 2. Pursuant to s 52(4) of the ALRA, the statutory functions of the Darkinjung include taking action to protect and promote awareness of culture and heritage and to promote awareness in the community of the culture and heritage of Aboriginal persons in its area. 3. The Project application site is within Darkinjung's area. 4. Proximate to the proposed Stage 4 excavation area is the rock engraving site commonly referred to by all parties as the 'Women's Site', (Aboriginal Heritage Information System, Office of Environment and Heritage (AHIMS) site card reference # 45-3-00119 or # 45-3-2195) and another site referred to as the 'Stone Arrangement' site (Calga SA1). They are of high cultural significance to Aboriginal people. 5. There are also a number of other sites - some of which have been identified on or in the vicinity of the Rocla site, which, it is accepted, are also of particular significance for an understanding of the Aboriginal cultural landscape. 6. Darkinjung opposes the proposed expansion of the sand quarry on the Rocla land for several reasons. 7. Darkinjung's first position, on the basis of the cultural heritage values that have been identified, is that the Court could comfortably conclude that the proposal will have an unacceptable adverse impact that is unable to be avoided, mitigated or compensated or acceptably managed through conditions of consent (DFS p 45 at [162]). 8. Darkinjung contends that the project disturbance area (which is 30m deep and 500m wide) will isolate or 'island' the 'Women's Site' and the 'Stone Arrangement' and isolate the known engravings including 'the Emu' (# 45-3-1794), 'Shield /Kangaroo Foot engravings' (# 45-31794) - located on the rock platform near the proposed entrance to the Quarry from Peats Ridge Road. In short, it will destroy the landscape in which these sites exist and which form part of their cultural significance. 9. The end result, for these known engravings, will be a haul road on one side and the quarry pit on the other (DFS p 46 at [165] - [168]). 10. For the reasons best summarised by Senior Law Man, Paul Gordon, the Darkinjug contends that if the project application is approved "the site will become almost like an island and will lose connection to the surrounding Country" (Exhibit A11 Experts' Joint report - Aboriginal Heritage at p 6). It further submits, as Sharon Hodgetts explains in her evidence, that this excavation will not only isolate the engravings but will also remove the surrounding landscape; and that this "… landscape degradation compromises the spiritual and cultural connection that Aboriginal people have to the land or the site". This, in turn, will exacerbate further the process of fragmentation of Aboriginal heritage that has occurred on the Central Coast and on the Somersby Plateau, in particular (Exhibit SH1 Tab 7 Hodgetts' report June 2010 p 35, p 65). The ridge line that connects the 'Women's Site' and the 'Stone Arrangement' to the Somersby Plateau will be largely removed; and the effect will be to completely transform the cultural landscape of which the 'Women's Site' forms part. 11. In the ultimate, Darkinjung submits that an approval of the project will result in the destruction of Aboriginal cultural heritage, including engravings within the project area, and the cultural landscape in which they exist. For Aboriginal people, the destruction of this site (# 45-3-3635) is not merely destruction of artifacts but rather; "the erasure of an occupation area which informs the significance of surrounding engravings, and is part of the cultural landscape as a whole" (DFS p 47 at [169] - [170]). 12. Alternatively, as Darkinjung's second position argues, there is not sufficient information provided to the Court to allow a proper consideration of the development application. The Land Council argues, moreover, that the Court cannot be satisfied that the lack of information can be addressed by way of conditions of consent. 13. The Land Council argues, furthermore, the proposal is not in the public interest under s 39 (4) of the LEC Act. The protection and the preservation of Aboriginal cultural heritage is part of the public interest: Garrett v Williams [2007] NSWLEC 96 (2007) 151 LGERA 92 per Preston CJ at [67]). 14. The Land Council further submits that it is not Darkinjung's intention to sterilise the site from all development; but the nature of the proposed development and its inevitable impacts on Aboriginal culture and heritage is the point at issue. 15. Aboriginal cultural heritage is not a renewable resource. The Land Council submits that friable sandstone, suitable for most applications, is not in short supply in New South Wales. 16. The Director General's (DG's Requirements) Requirements - dated 9 March 2009 and issued pursuant to s75F of the EPA Act for the Project application - specify that the Environmental Impact Assessment for the Project application must take account of relevant State Government technical and policy guidelines. 17. In relation to Aboriginal heritage, the DG's Requirements referred to the Draft Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation [DEC] (the 2005 Heritage Guidelines ); and in relation to non-Aboriginal heritage, inter alia the Burra Charter (the Australia ICOMOS Charter for places of cultural significance (Burra Charter). At the hearing, the experts for the parties also had regard to these Guidelines together with additional guidelines, policies and procedures in an agreed tender bundle (Exhibit R3). 18. The Guidelines acknowledge that, for Aboriginal people, Aboriginal cultural heritage consists of places and items which are of significance because of their traditions, observations, customs, beliefs and history. They also acknowledge that Aboriginal heritage is dynamic and may comprise physical or non-physical elements. Therefore, it follows that the significance of individual features is derived from their inter-relatedness within the cultural landscape. This means that the features cannot be assessed in isolation and that assessments need to consider the feature and its associations in a holistic manner. 19. Darkinjung contends, in respect of Aboriginal cultural heritage and in this case, that the precautionary principle is engaged; and that Rocla bears the evidentiary burden to demonstrate that the threat does not exist or is negligible. The two threshold tests identified in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (2006) 67 NSWLR 256 at [150] namely: a) a threat of serious or irreversible environmental damage; and, b) the requisite degree of scientific uncertainty are both presumptive on the facts of this case. 20. Therefore, their argument runs, approval of the carrying out of the Project - without having first obtained a full understanding of the heritage values of the Project site - would be contrary to the precautionary principle: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347 (Warkworth) as per Preston CJ at [59]. 21. Darkinjung contends that Rocla's investigations and assessment of the Aboriginal cultural heritage values of the Rocla site are inadequate and incomplete. Consequently, Darkinjung maintains it is premature for the Court to approve the Project application because there is insufficient information before the Court to assess the application. 22. Rocla's proposed retrospective consultation to overcome the inadequate investigations, assessments and consultation to date, fundamentally, deviates from the purpose of consultation, which is to inform heritage values and the significance of place. Darkinjung joins with AWWP to submit that an approach of "approve first and assess and consult later predetermines that the conservation of the Stage 4 area is not an appropriate outcome and that the quarry is an appropriate land use" (AWWP WS dated 17/2/2015 at [82] - [83]). 23. In short, Darkinjung submits that the findings of the investigations, assessment and consultation process proposed by Rocla are not known to the Court and, thereby, they cannot inform the Court's decision to approve the Project or that the Court can be satisfied that the - as yet unknown mitigation measures - will satisfactorily protect against unknown impacts on Aboriginal cultural heritage. 24. Accordingly, Darkinjung submits that the Court should not grant approval for the destruction of Aboriginal cultural heritage in circumstances where the nature and significance of what is to be destroyed is unknown. Such a determinant is present here. The Statement of Significance, under the Burra Charter, must be completed in order to appreciate the significance of a site and its cultural landscape. Article 6.2 of the Burra Charter provides:"… policy for managing a place must be based on an understanding of its cultural significance." 25. In this case the Statement of Significance is incomplete. For example, there is little ethnographical and historic investigation, no survey for sites such as rock art sites concealed by vegetation, and no subsurface investigation of sites identified in the Rocla Stage 4 area, or of such sites which may exist in the Stage 4 area despite the agreement of all experts that such sites will probably be located by further investigation. Until that work is done, the CMP cannot be completed and the level of significance identified to inform the CMP. In these circumstances, the project should not be approved with an incomplete CMP. 26. Criticisms of Aboriginal people's failure to bring forward information in a timely manner (Exhibit S9 Smith report at [12.12]) are unfair and do not withstand scrutiny on the facts. 27. For those reasons and more, Darkinjung seeks orders that the Project application be disapproved.
Proceedings number 10024 of 2014 was commenced by AWWP against the Minister and Rocla on 13 February 2014. 1. AWWP owns the land immediately to the south and to the east of the land the subject of the Project application. AWWP also holds the Crown lease for land further south of its own land. 2. It operates the Australia Walkabout Wildlife Park on that land. 3. AWWP seeks orders that the Project application be disapproved for the reasons articulated by Darkinjung as already outlined. 4. However, AWWP also raises the issue of intergenerational equity - and claims that an approval of the Project will stop Aboriginal people from practising their religious practices and customs and impede their ability to pass them onto future generations. 5. Following a consideration of the weighted matters to be balanced, each against the others as a qualitative exercise, and including the economic grounds as pressed by Rocla, AWWP contends that the extraction of sand from the Stage 4 area of the quarry cannot be justified. They seek further that it be noted an approval of the Project application is against the public interest - as demonstrated by the community opposition to the application to be seen in some 2827 submissions in response to the project; the further 19 submissions following exhibition of the PRR; and the evidence given by the objectors to the application. 6. When the proceedings were commenced, AWWP pressed a number of 'non-heritage issues' as a basis for a disapproval of the Project application. 7. AWWP submitted that the Project would cause adverse impacts to their land - namely, adverse noise (from plant operations, hours of operation); poorer air quality (dust); degradation of visual amenity; traffic and transport problems; socio-economic, ground water and regional water impacts (perched aquifers, groundwater-dependent consequences on ecosystems, and water resources generally, and water licences). Ecological and other offsets were nominated; however, as noted, these contentions were withdrawn by AWWP subject to the imposition of its agreed conditions of consent. 8. These issue remain a concern for a number of the lay witnesses. 9. Darkinjung criticisms of the proposed conditions of consent are outlined in its Alternative Submissions in Annexure B to its Final Submissions.
The Minister and Rocla's (the respondents') position - Aboriginal cultural heritage 1. Rocla anticipates, given the heavily vegetated environment of the proposed Stage 4 extraction area, that future investigations of the Rocla land may uncover new sites which may further inform the cultural landscape - and/or possibly heighten - the significance of the 'Women's Site'. However, Rocla contends that its proposed CMP and the proposed conditions of the consent appropriately manage this outcome. 2. Rocla concedes that the 'Women's Site' and the recorded 'Stone Arrangement' site are linked to a broader cultural landscape that includes other archeological sites and cultural practices and traditions. 3. However, it submits that an acknowledgement of a broader cultural landscape does not have the consequence that all land in between those sites must be preserved; and that the exercise of power under s 75J of the EPA Act requires a balancing of the impacts of the Project. Relying on the Court's decision in Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008];(2008) 160 LGERA 20 at [95], Rocla submits: "Environmental impact assessment involves a prediction of likely future impacts of a project that has not yet occurred on an environment about which there will invariably be imperfect knowledge. Where the environment is hidden … the uncertainty is necessarily heightened. Nevertheless decisions need to be made. The question is whether there is sufficient, credible information upon which to assess the impacts of a project and make a decision". 1. Rocla submits that this question, based on the evidence, deserves an affirmative answer. 2. Rocla contends that, in the context of Pt 3A, there is a wide power to impose conditions, including a power to approve of a Project conditional upon the completion of a CMP, provided it does not impermissibly defer consideration of important matters. Such an approach, it submits, recognises the need for flexibility for large-scale projects; and allows the opportunity to respond to the unusual circumstances of the present case, which includes the relatively recent recognition of the Aboriginal significance of the 'Women's Site' which is still evolving. Rocla submits that the proposed draft CMP and the detailed heritage conditions set out a clear policy for the responsible and respectful management of the heritage significance of the Rocla land. The proposed ongoing consultation with stakeholders and recommended limited further archaeological investigations, according to Rocla, ensures opportunity for necessary adjustment to be made prior to any quarrying commencing in the Stage 4 Extraction Area. 3. The Minister and Rocla accept that a consideration of the precautionary principle is part of the public interest and that it is an appropriate consideration. The DG's report refers to that principle (Exhibit R3 Vol 3 Tab 23 p 2118). 4. However, it is just one of the factors to be weighed up in the balancing process: Telstra at [179] - [181]. 5. Rocla rejects the application of the precautionary principle on the facts and submits that it fails at the first step. If the Project (based on the amended application (Exhibit S27)) is carried out in accordance with the agreed draft conditions, there will not be a threat of serious or irreversible environmental damage. 6. Rocla contends that the Applicants' submission proceeds on the basis that the excavation of Stage 4 Extraction Area will necessarily have an unacceptable impact upon the cultural landscape of the Rocla land. However, there is no basis to draw such a conclusion from the evidence. It is Rocla's contention the evidence does not support a finding that excavation of the 'free land'* damages the cultural landscape in the way suggested by the Applicants (*a term used by Margaret Katherine in respect of land within her own country). 7. Rocla accepts that assessing the seriousness or irreversibility of the environmental damage demands a consideration of many factors, including the spatial scale of the threat, the magnitude of possible impacts, the perceived value of the threatened environment, the manageability of possible impacts, the rationality and level of public concern based on scientific and other acceptable evidence; and, of course, the reversibility of the possible impacts - including the difficulty and expense of reversing such impacts: Telstra at [131]. 8. However, having adopted a cautious approach pursuant to the Burra Charter (as opposed to a precautionary one under ESD principles), Rocla contends that the risks of possible impacts on the Aboriginal cultural heritage values attached to the Stage 4 Extraction Area and beyond can be successfully managed. Any potential impact on an item/site that has not yet been identified will be managed as part of the method of its discovery. In short, Rocla offers that, on the discovery of an item or site of significance, after clearing the vegetation it will rectify/reverse the impact by replacement of vegetation or some other form of preservation, including salvage of archeological material. 9. Concurrently, Rocla proposes that, if acting on the assumption there was a threat of serious or irreversible damages as a result of the work the Court were to disapprove the Project, a second consideration relevant to that determination would be invoked, the second precondition relating to the applicability of the precautionary principle - that relating to scientific uncertainty as to the exact consequent environmental damage. The "uncertainty" required in relation to the second precondition is "as to the nature and scope of the threat of environmental damage": Telstra at [140]. However, the level of scientific uncertainty required is not an "all or nothing" proposition - some uncertainty is permitted before the condition is triggered: Telstra at [141] - [149]. 10. The level of the uncertainty required is proportionate to the magnitude of the potential environmental damage: Telstra at [146]. 11. Bearing on this, Rocla insists substantial steps are to be taken to reduce any uncertainty of impact. For example, through the design of the project in light of what is already known about the Rocla land and the scope and detail of measures to be included in the CMP. 12. Rocla submits that the threats of environmental damage in this instance, to Aboriginal cultural heritage, are known with a high degree of certainty. It is known that if a cautious approach is not adopted and the detailed protocols designed are not implemented, there could be substantial injury to unknown items and sites. The only unknown, it is maintained, is the nature of the items and the sites that are likely to be discovered via further investigations; and this is not the relevant threshold to trigger the application of the precautionary principle. 13. Given the proposed protocol under the CMP - which is "stop, notify, record, assess threats, manage" (Exhibit S17, p 42) - when any item or site is discovered the Respondents contend that there is no risk that an item or site of substantial cultural significance will be damaged in a way not currently understood. 14. The Respondents reject the claim by AWWP that the Project would unfairly and inequitably affect Aboriginal people's ability to continue their religious practices/customs and to pass them on to future generations. There is no intergenerational equity issue raised on the facts of these proceedings. The Project facilitates access to the 'Women's Site' which, together with the 'Stone Arrangement', is preserved and protected in perpetuity for the benefit of current and future generations. 15. This Project has an end date. The land will be revegetated and, while the topography of Stage 4 area will be different from today, it is submitted that the difference will not be so adverse on future generations as to warrant disapproval of the Project application. 16. The Respondents' submit that there is sufficient evidence before the Court to justify conditional approval pursuant to s 75J of the EPA Act. The investigation and consultation over a period of nine years is well above industry standard and is sufficient to enable a decision to be made with respect to the tangible and intangible cultural significance of the 'Women's Site', and the Rocla land more generally. The 60m buffer (or larger if required) around the 'Women' Site' is appropriate to protect that site and its core cultural landscape boundaries. 17. According to Rocla, the site's cultural connections are fundamentally spiritual and, therefore, do not prevent the quarrying of Stage 4 Extraction Area. 18. Rocla submits that the exercise of s 75J requires a balancing of the impacts of the project. The requisite information exists and should lead to conditional approval of the Project which would result in an environmentally sustainable outcome; and a reasonable compromise that acknowledges that Aboriginal people are the primary determinants of the cultural significance of their heritage but not the sole determinants of land use, planning or management. 19. The respondents jointly submit that, with the approval of the Project, access will be provided to the site and Rocla will incur the expense of investigating the area. Aboriginal people will be guaranteed an ongoing role in the management of the site through the conditions of approval and, in particular, the CMP process (Rocla FWS at [6.5.59]) and Minister's FWS at [73] - [74]). 20. There are also economic benefits to be derived from the Project, including employment and ensuring affordable regional sand supplies. Other benefits relied upon by Rocla are detailed in the DG's report (Exhibit R3 Vol 3 Tab 23 p 2162). 21. All of these factors need to be included in the weighing up process - the impacts (as addressed by the mitigation and management measures outlined in the evidence) and benefits to be derived from the Project, not least of which is the preservation and protection of Aboriginal heritage. 22. In the ultimate, the respondents submit that the appeals should be dismissed and the Project application (as amended) should be approved generally in accord with the proposed agreed draft conditions (Minister's comments on the proposed conditions at [26]). It is entirely consistent to accept that the current state of knowledge is sufficient but, that some aspects of the significance of the site are unclear; the understanding of further significance may evolve in the future; and,were this so, Rocla would introduce a proposed range of measures to mitigate and manage the impacts of the Project on Aboriginal cultural heritage (Rocla FWS at [6.6]). The Ministers adds …
As indicated, the Minister's general position is that the amended Project application should be approved subject to conditions. As to the non-heritage issues - ultimately withdrawn by AWWP- the Minister agrees with and adopts Rocla's closing submissions on non-heritage filed on 2 March 2015.
The Minister's conditions of approval (Annexure A to the MFS) largely reflect the conditions proposed by Rocla subject to some modifications which are discussed in Section G of the MFS. For example, the Minister does not accept the proposed conditions which give preferential treatment to AWWP's land over other members of the public. 1. The Minister only filed one expert report on hydrology by Dr Franz Kalf, of Kalf & Associates. 2. Dr Kalf had previously been engaged by the Department to provide an independent review of assessment submitted by Rocla and to address residual groundwater issues and concerns (Exhibit R3 Vol3 Tab 23 pp 37, 43 and 47). 3. With respect to the lay witness evidence, the Minister endorsed the submissions made by Rocla and only raised one additional point in relation to the evidence of one objector, Mr Sutton (TS D6 288-291; Exhibit R7). 4. Mr Sutton contends that Rocla's water licensing arrangements are deficient. 5. In response the Minister, based on advice from the Office of Water in its letter dated 29 August 2014 (Exhibit R4 Tab 21), submits that the water licensing arrangements are adequate. 6. The Minister did not file any evidence on the issue of Aboriginal heritage. However, the Minister made a number of submissions on the topic. These matters are set out in Parts B-G of the MFS. 7. The Minister does not dispute that the Rocla site and, in particular, the 'Women's Site', has cultural significance for Aboriginal people. What the Miniser does dispute is the proposition that the significance of the area is not sufficiently understood to enable a decision to be made on the Project application; and whether the mitigation and management measures proposed are sufficient to address the impacts on the area; and whether the Project should be approved. Adequacy of investigations 1. It is the Minister's position that there is sufficient information to enable a decision to be made, that the impacts can be sufficiently mitigated and managed, and that the approval of the Project is in the public interest. 2. To be clear, his stated position is that there is sufficient historical, social and archaeological evidence available sufficient to enable informed decisions to be made about the Project application. 3. The Minister contends (together with Rocla) that any perceived inadequacies in the expert reports by Appleton, Atkinson and Ross must be considered in light of the further information available today - including that obtained through the hearing. Accordingly, the Court must decide "whether there is sufficient information today to enable a decision to be made on the Project application." 4. Contrary to Darkinjung's submission (at [144]) the Minister contends that Part 3A "contemplates giving an approval first and further investigations, assessment and approval at a later date". The distinction (as argued by Darkinjung between an approval under Divisions 2 and 3) is rejected. 5. Furthermore, the Minister contends that Pt 3A was designed to streamline the approval of state-significant projects - including the need to remove certain approvals such as those under the National Parks and Wildlife Act 1974 (NPW Act): ss 87 and 90. Consequently, to require more information at the application stage would undermine the purpose of removing the requirement for certain approvals (i.e. s 90 NPW Act). 6. The Minister joins with Rocla to submit, in respect of the adequacy of information, that no inference can be drawn in respect of Rocla not calling Anne Ross, John Appleton or Amanda Atkinson to address the Court in this case: Jones v Dunkel [1959] HCA 8; 101 CLR 298; 76 WN (NSW) 278; 32 ALJR 395; (1959) ALR 367. The Minister submits that Prof Claire Smith is more than qualified to express a view about those earlier reports and opine on the ultimate question at issue; on the whole of the available evidence upon which the necessary investigations have now been undertaken. Sufficiency of Consultation 1. While the Minister contends that the extent of consultancy undertaken prior to the approval was adequate - because the OEH held it to be compliant with the requisite 2005 Draft Guidelines (Exhibit A11 p 27), and the DG in issuing the statement of compliance clearly indicated satisfaction with the consultation undertaken by Rocla (Exhibit R3 Vol 3 Tab 23 pp 2118 - 21154) - the Minister submits the Court must determine on the facts as they presently stand whether the consultation (including the proceedings) has been sufficient. 2. With that in mind, the Minister submits that any concern the Court might have about the adequacy of earlier consultation has been addressed by the further opportunities for consultation that have been afforded since the Project approval - including through Sharon Hodgetts, Tracey Howie, Paul Gordon and the opportunity for objectors to make submissions and give evidence in these proceedings. 3. It is the Minister's position that there must be a finite consultation process and that the Aboriginal Cultural Heritage Consultation Requirements for Proponents 2004 anticipates as much (Exhibit S18 Vol 1 Tab 4 p 69). The fact that there are some people in the community who, despite the extensive notification of the application, have not become aware of it or have decided not to come forward does not mean that consultation has been inadequate. Nor is it necessary for Rocla to achieve an idealised level of consultation over and above industry standard. 4. Rocla submits that the Court can be satisfied that the consultation todate has met the industry standard. 5. The Court only needs be satisfied of that fact and the proponent cannot be expected to achieve some undefined higher ideal of the concept of consolation as discussed by Mr Gordon: (TS D8.489-44 to TD8.492-5). 6. Adequacy of assessment of Aboriginal cultural heritage 7. As earlier stated, the Minister accepts (as does Rocla) that the site has cultural significance for Aboriginal people and that it forms part of a cultural landscape. 8. The evolution of the understanding of the significance of the Rocla site has obviously taken place in the context of the proposed development. Therefore, based on the evidence of Prof Claire Smith, the Minister submits that the significance of the site is likely to have been heightened by the threat posed by this development. As Prof Smith observed: 'I think significance - when people give statements of significance and especially in this instance, the purpose for which the land is - proposed purpose of the land is informing the statements of significance. I don't think that is a bad thing. I am just saying that's how I read the reports by Mingaletta, by DLALC, by Guringai, the first things they say is in the recommendations we do not want quarrying." (TS D9.594-48) 1. In support of the above proposition the Minister invites the Court to appreciate the different positions taken by the Darkinjung Aboriginal Land Council in respect of the protection of sites on the AWWP land as compared to the Rocla land. The protection afforded to several engravings on the AWWP site i.e. by low ropes or nothing - in respect of the large sandstone rock platform believed by Mr Gordon to be a women's birthing site - (TS D6 374.38) evidences this proposition. The Minister submits that "This does not seem to have been the cause of any particular concern on the Darkinjung's part" (Minister's closing submissions (MCS) dated 10 March 2015 p 17 at [52]. 2. With respect to the precautionary principle, the Minister invites the Court to appreciate the effect of the principle. Even if it were to apply to this case, the Minister submits that such application does not mandate the refusal of the project. Darkinjung's submissions at [151] are mistaken in that respect. 3. Rather, at MCS [76], the Minister submits that the principle is just one of the factors to be weighed up in the balancing process. As Preston CJ observed in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (2006) 67 NSWLR 256 at [179] - [181]: The precautionary principle, where triggered, does not necessarily prohibit the carrying out of the development plan, programme or project until full scientific certainty is attained. The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option. One way of complying with the precautionary principle is to adopt an adaptive management approach." Telstra at [163] - [165]). 1. According to the Minister (and Rocla) the present case is one where, through the conditions of approval and the statement of commitments, an acceptable adaptive management approach of the type contemplated by Preston CJ can be put in place.

[11]

Contentions - in respect of the Aboriginal cultural heritage

The Court accepts that the Aboriginal cultural heritage contentions in these proceedings can, for purposes of its consideration, be "distilled" into six main issues as proposed by Rocla (and as slightly rephrased by us).
They are: 1. Whether the investigations undertaken to date have been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(a); Darkinjung Contention 34(b),(c),(d),(e),(f),(g),(h),(i),(j); 2. Whether the consultation with relevant stakeholders to date has been adequate to grant approval to the Project application: AWWP Contention 22(h);Darkinjung Contention 34(i); 3. Whether the assessment of the cultural significance of the Rocla land (and, in particular, the Stage 4 Extraction Area) has been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(b); Darkinjung Contention 33(a); 4. Whether the assessment of the impacts of the Project on the Aboriginal cultural heritage of the Rocla land has been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(e); Darkinjung Contention 33; 5. Whether the proposed mitigation measures appropriately ameliorate any impacts on Aboriginal cultural heritage: AWWP Contention 22 (d),(f) (g); Darkinjung Contention 33; 6. Whether the Project is in the public interest: Darkinjung Contention 35.
These contentions, however, collectively inform one critical factual question for us as the decision makers: namely, whether there is sufficient credible information upon which to assess the nature and extent of the Aboriginal cultural heritage, and the impacts of the project upon it, and to make a decision as to whether to consent to the development.
The Part 3A assessment process was explained by Mr Hutten, Counsel for the Minister, at the beginning of the hearing at the Gosford Courthouse. He spoke to the Minister's written submission filed on 10 March 2015.
Fortuitously, the parties generally embrace the Minister's summary of the relevant matters which must be considered under the assessment process mandated by Part 3A of the EPA Act. They are discussed below.

[13]

The Power of the Minister to approve or refuse

The Minister's power to approve the carrying out of the project is in s 75J(1) and is preconditioned on there being an application and a DG's report: s 75J(1)(a) and (b).
The power extends to approval with modifications or subject to conditions -including compliance with a statement of commitments: s 75J(4) and (5).
Relevantly, the power to impose conditions under s 75J is wide (Ulan Coal Mines Ltd v Minister for Planning (2008)160LGERA 20 at [74], [75]). It is not confined in the manner specified for conditions of development consents granted under Part 4 of the EPA Act. However, a condition or conditions must fall within the class of conditions expressly or impliedly authorised under s 75J, and this involves a consideration of the construction of the section and its application to the circumstances of the particular project: Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185 (2008) 160 LGERA 20 at [50], [51]; Rivers SOS Inc v Minister of Planning [2009] NSWLEC 213 (2009) 178 LGERA 347 at [133]; Barrington-Gloucester-Stroud Preservation Alliance Inc.v Minister for Planning and Infrastructure [2012] NSWLEC 197 (2012) 194 LGERA 113 at [76].
It is important to appreciate that the Minister, in exercising the power under s 75J(1) - is required to consider: 1. The DG's report and matters contained in that report, including the statement relating to compliance with environmental assessment requirements; 2. If the proponent is a public authority advice provided from the Minister having portfolio responsibility; and 3. Any findings or recommendations of the PAC following a review of the project: s 75J(2).
However, in this case only s 75J(1)(a) is relevant.
Accordingly, the Minister is bound to take into account in making a determination under s 75J those matters which s 75J(2) of the EPA Act expressly demands; and those matters raised - by implication from the subject matter, scope and purpose of the EPA Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (1986)162 CLR 24 at [40].
The Minister submits that the starting point in identifying such matters is the Objects in s 5 of the EPA Act. The section provides: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
Relevantly, the objects of the Act in s 5 are not weighted in any particular order; such that some should necessarily be regarded as more important than others: Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (2007) 158 LGERA 349 at [127] per Jagot J. Accordingly, the weighting to be given to any relevant consideration is, therefore, a matter for the Court, based on the evidence.
The Minister is also required to consider the public interest: Minister For Planning v Walker [2008] NSWCA 224 (2008) 161 LGERA 423; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527;(2014086 NSWLR 527 at [295], [296] and, mandated by cl 8B of the Environmental Planning and Assessment Regulations: Walker at [39] - [40], and cl 2A of Schedule 6A.
The public interest naturally includes the community responses regarding the project for which approval is sought, including considerations of principles of ecologically sustainable development (including the precautionary principle); if relevant: Barrington-Gloucester-Stroud Preservation Alliance Inc. v Minister for Planning and Infrastructure [2012] NSWLEC 197 (2012) 194 LGERA 113 at [169] and Warkworth CA at [269].
However, in considering such responses, the Court must evaluate the reasonableness of the claimed perceptions of adverse effect on the amenity or the locality. Any evaluation of reasonableness involves the identification of the evidence that can be objectively assessed to determine if, in fact, it does support a finding of such an adverse impact. A fear or concern without rational justifiable foundation is not a matter which, by itself, can be considered as an amenity or social impact: Telstra at [192] - [195].
The matters that the Minister is required to take into account when exercising the power under s 75J are stated and affected by s 75J(2) and (3).
Subject to s 75J(3) Parts 4 and 5 of the EPA Act do not apply to an approved project (including the declaration of a project as a project to which this Part applies and any approval or other requirement under Part 3A for the project: s 75R(1)).
However, Part 3 of the EPA Act (planning instruments) and State Environmental Planning Policies (SEPPs) do apply to the declaration of a project as a Part 3A project and the carrying out of the project (although environmental planning policies (other than SEPPS) do not apply to or in respect of an approved project: s 75R(2) and (3)).
In exercising the approval power the Minister may take into account the provisions of any environmental planning instrument that would not apply to the project if approved because of s 75R: s 75J(3). On that basis, the Minister may take into account the provisions of any LEP, IDO or other instrument that would otherwise apply. Furthermore, because SEPPs apply to the declaration of a project as a Part 3A project and to the carrying out of the project, but not to the grant or refusal of the project approval, a provision in a SEPP requiring certain things to be taken into account is not binding on the Minister but may be considered by him or her under s 75J(3): Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 at [25] (Appendix B to the DG report; Exhibit R3 Vol 3 Tab 23 p 2167).

[14]

The right of appeal

As noted at the outset of this judgment the right of appeal that has been exercised in these appeals is the right of objector appeal in s 75L.
Relevantly, the parties accept that the preconditions in s 75L(1) have been satisfied and, as the project has not been the subject of a 'review' by the PAC, the Court has jurisdiction to deal with these applications. (The legislation draws a distinction between the PAC exercising its review function under s 23D(1) (b) of the EPA Act and the PAC acting as delegate of the Minister under s 23D(1)(a) and actually making a determination under s 75J).
In determining the appeals under s 75L(3) of the EPA Act, pursuant to s 39(2) of the LEC Act, the Court has all the functions and discretions available to the Minister (as outlined above) in determining project applications under s 75J of the EPA Act.
In short, on appeal the Court re-exercises the statutory power originally exercised by the Minister. The Court stands, metaphorically speaking, in his shoes and determines for itself, on the facts and law that exists at the time of the determination of the appeal, whether to approve or disprove the application: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347 at [7]-[8].
These appeals include a hearing de novo and fresh evidence, or evidence in addition to, or in substitution for the evidence given previously, in the context of the Minister's decision on the appeal is permitted: s 39(3) of the LEC Act. The Court is required to determine the appeal on the issues raised and on the evidence given in the appeal: Bulga at [9].
However, the Court is not limited by the contentions advanced by the parties if it is of a mind to determine the proceedings by reference to matters beyond the issues identified by the parties; but procedural fairness requires that all parties be given notice of these additional matters and accorded the opportunity to be heard upon them: Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd (2013) NSWLEC 203 at [33] - [35].

[22]

Actions of the Respondents and determination

On or about 20 October 2006, the Rocla lodged the Project application, together with a Preliminary Project Outline (PPO) and EA.
On or about 4 March 2009, the DG issued DG's Requirements pursuant to s 75F of the EPA Act.
The DG's Requirements provided that the EA to be prepared by the Rocla must include the following "a detailed assessment of the key issues which includes: a description of the existing environment; and an assessment of the potential impacts of the project".
One of the key issues specified in the DG's Requirements was "Heritage - both Aboriginal and non-Aboriginal".
In November 2009, Rocla lodged an EA.
From 27 November 2009 to 19 February 2010, the Department of Planning & Infrastructure (the Department) exhibited the EA. The Department received 2,827 submissions, including 7 from government authorities, and 7 from special interest groups.
Under Ministerial delegation dated 14 September 2011, the Project application was referred to the Planning Assessment Commission (PAC) for determination.
In November 2012, Rocla provided its Formal Response to Submissions (FRS) and PPR, including further archaeological and anthropological assessment reports.
From 16 November 2012 to 25 January 2013, the Department exhibited the Response to Submissions (RTS) and PPR, and received 19 submissions, including 5 from government authorities, 6 from special interest groups and 8 from local residents.
On or about 23 January 2013, Darkinjung made a submission in the nature of a formal objection to the Project application.
In September 2013, the Director-General's Assessment Report (DGAR) pursuant to s 75I of the EPA Act assessed the Project application, and recommended that the PAC approve the Project application subject to conditions.
On 5 November 2013, the female member of the PAC (Ms Jan Murrell) and a planner working on the Project met on the Site with Aboriginal women and elders to inspect places of Aboriginal cultural heritage significance, particularly the 'Women's Site' # 45-3-0119.
On 18 November 2013, the PAC visited the Site and held a meeting with Rocla, followed by a meeting with Gosford City Council, and then a scheduled public meeting at which 32 people presented. The key issues raised at the public meeting included impacts on Aboriginal heritage and culture, in particular the erosion of the landscape context for significant Aboriginal heritage sites.
On 23 December 2013, the PAC determined that the Project should proceed subject to conditions, including conditions to the following effect: 1. granting approval for Stages 3 and 4 only, as described in the EA and shown conceptually on the plans in Appendix 1 (condition 7); 2. requiring Rocla to "ensure that the Project does not cause any direct or indirect impact on the identified Aboriginal heritage sites located outside the approved disturbance area for the project" (condition 21); 3. effectively approving the disturbance of one identified Aboriginal heritage site, described as "Site 7 - an artefact scatter", and all other Aboriginal sites and Aboriginal objects within the project disturbance area; 4. requiring a minimum 40-metre vegetation buffer to be kept around "heritage item # 43-3-0119" (condition 22); 5. requiring Rocla to prepare and implement an Aboriginal Cultural Heritage Management Plan for the Project to the satisfaction of the DG (condition 23), which plan must include "a detailed archaeological salvage program for Aboriginal sites/objects within the project disturbance area" (condition 23(d)).

[23]

Rocla's assessment of Aboriginal heritage

During the course of the assessment of the Project application, Rocla obtained two archaeological assessment reports and one anthropological assessment report: 1. Aboriginal Heritage Assessment dated July 2009 prepared by Archaeological Surveys & Reports Pty Ltd (the 2009 Appleton report), being an archaeological assessment report; 2. Aboriginal Cultural Heritage Assessment dated 19 December 2011 prepared by UniQuest Pty Ltd (the 2011 Ross report), being the anthropological assessment report; and 3. Supplementary Aboriginal Heritage Report dated July 2012 prepared by Forward Planning Heritage Solutions (the 2012 Atkinson report), being supplementary archaeological assessment report.
The 2009 Appleton report reviewed surveys which were undertaken over several days in December 2005 (the December 2005 survey) and October 2006 (the October 2006 survey). According to the 2009 Appleton report: 1. the survey strategy for the December 2005 Survey was to attempt "to investigate any area on the Site above the 150 metre AHD contour to which there was access". This was because: 1. it was assumed that disturbance associated with the Project would not occur at or below this elevation; and 2. vegetation below this elevation "was so dense as to make archaeological investigation totally ineffective" (ref 4-28); 1. within the survey area (i.e. above the 150 metre AHD contour), the understorey and ground cover was so dense in many places that it was only possible to perform a sample survey, while in other places the vegetation was "totally impenetrable" (ref 4-29), and an "insurmountable obstacle to surveying" (ref 4-31); 2. within the survey area (i.e. above the 150 metre AHD contour), "vegetation was extremely dense wherever there was soil or weathering deposits, and many of the outcropping rock surfaces were concealed beneath an accumulation of leaf and twig detritus" (ref 4-31); 3. in summary, the results of the archaeological investigations were such that "although the survey occurred in an area in which there was a potential for sites to occur, the limitations to undertaking an effective survey imposed by the vegetation meant that there was only a very low potential for the survey area to contain observable archaeological material" (ref 4-42); 4. there remained the possibility of "other engravings and axe-grinding grooves concealed beneath detritus ... yet to be recorded" (ref 4-43); 5. there was a potential for the existence of buried archaeological material in the place referred to as "Popran Art1"(ref 4-42), a shelter with art and intact occupation deposits. The latter were considered to "have potential to contain datable material, and evidence of particular site activities, and information useful in providing a greater understanding of intra-site spatial activity, knapping techniques, subsistence strategies, diets, as well as be a potential repository of cultural material" (ref 4-45); 6. as a consequence of the investigation, the survey area was believed to contain five sites of Indigenous cultural significance, namely three previously recorded sites (a group of axe grinding grooves and two rock engravings), and two new sites, being a shelter with art and occupation deposits (site Popran Art1) and a stone arrangement (Calga SA1) (ref 4-7, 10); 7. there was a probable direct association between the stone arrangement (Calga SA1) and the engraving site # 45-3-0119 (also recorded as # 45-3-2195) (ref 4-39); 8. of the approximately 1400 sites listed in the AHIMS database for the Mangrove Mountain/Calga area, there was only one other stone arrangement (ref 4-39); 9. 1992 analysis of 7,804 recorded engravings in the Sydney Basin Area (including the Gosford, Mangrove Mountain, Somersby and Calga areas) had concluded that: 1. 79 depicted women, representing in percentage terms approximately 1 percent of the recorded engravings; 2. of those 79, only one other engraving was associated with a stone arrangement, representing in percentage terms approximately 0.01 percent of the recorded engravings (ref 4-39).
The 2012 Atkinson report reviewed surveying which was undertaken over 5 days in July 2011. According to the 2012 Atkinson report: 1. of the 4 archaeological survey units used to identify parts of the survey area, Survey Unit 4 was not surveyed due to concerns for the safety of the survey team (at 32); 2. as to Survey Units 1-3, although the survey successfully obtained 90-100% coverage of most survey units, "the archaeologically visible area was extremely low and usually less than 5%" (at 31). The data appearing in the table at page 32 of the report shows: 1. for units 1 and 3, "visibility" assessed as 2%; 2. for unit 2, "visibility" assessed as 10%; 3. for unit 1, "effective coverage" assessed as 8%; 4. for unit 2, "effective coverage" assessed as 20%; 5. for unit 3, "effective coverage" assessed as 3 %. 1. the local area, including the study area, was "extremely rich in archaeological sites which represent both occupation and ceremony" (at 51); 2. during the supplementary heritage assessment, a total of 10 previously unrecorded archaeological sites were identified in addition to those identified in the first archaeological assessment report (at 7-9); 3. sites 2, 3, 4, 8, 9 and 10 were identified as making up a "larger site complex, or archaeological cultural landscape, which is of high archaeological significance" (at 9, 56); 4. this type of site complex "which displays intense occupation of an area in such close proximity" was "rare and uncommon in the local area" (at 55); 5. when these sites were analysed "as one larger complex of sites and within their environmental context a picture of concentrated occupation of the area" was revealed (at 51).
If datable material was discovered from any of the sites on the southern ridge line, "the longevity of this intense occupation could be determined" (at 51) but, to date, this had not occurred. In November 2011, Darkinjung wrote to Amanda Atkinson, the consultant engaged by Rocla, to prepare the 2012 Atkinson report.
Darkinjung: 1. objected to the Project; 2. noted that there was a high probability for further undiscovered sites to be located on the Site; 3. noted the poor survey coverage due to the Site's terrain and vegetation; 4. requested that a number of rock platforms on the Site with a high potential for Aboriginal heritage sites be further investigated: 1. after being cleared of leaf litter and debris; and 2. in early morning or late afternoon, or after rain. 1. requested that night recording take place at site # 45-3-0119 and at other rock platforms on the Site considered to have Aboriginal cultural heritage potential.
The 2011 Ross report, being the one anthropological assessment report prepared for Rocla, focused upon the social significance of site # 45-3-0119 and its cultural landscape setting. According to the 2011 Ross report: 1. no formal Aboriginal cultural heritage site survey was undertaken as part of the anthropological assessment of site # 45-3-0119 (at 5); 2. to determine whether other motifs had been engraved at site # 45-3-0119 and on nearby apparently "blank" rock platforms, the technique of night recording was employed (at 9). The results of night recording of site # 45-3-0119 were: 1. additional detail of the engraving of the woman and the emu were discerned; and 2. the engraving, previously reported as a hand, was discovered to be, in fact, a footprint pointing towards the figure of the engraved woman (at 15). 1. the Aboriginal people consulted during the assessment described a complex cultural landscape including, but not limited to, site # 45-3-0119 (at 18); 2. site # 45-3-0119, the immediate area, and the wider region are "clearly of high archaeological significance" (at 21); 3. site # 45-3-0119 is of very high archaeological (rock art) significance due to: 1. the rarity of the "woman" motif in the region; 2. the likely association of the motif with a specific culture's hero female figure (Biami's / Daramulin's wife); 3. its likely association with a stone arrangement; 4. its potential relationship with other art and occupation sites in the immediate cultural landscape (at 21); 1. site # 45-3-0119 and its immediate cultural landscape are of high (anthropological) research potential, and its anthropological significance is consequently also high (at 21); 2. site # 45-3-0119 has a very high social (Aboriginal) significance (at 21); 3. site # 45-3-0119 is "an important element within a suite of heritage sites that together comprise a cultural landscape that reflects Aboriginal Law and custom" (at 22); 4. the Aboriginal women consulted during the assessment had concerns that "further sites, particularly engravings, may exist in the area of the proposed southern extension of the Calga Sand Quarry - faint engravings that are not apparent in normal light" (at 23), in addition to what was identified in the two archaeological assessment reports prepared for the Second Respondent; 5. Consequently, a buffer around site # 45-3-0119 was needed, which buffer must take into account the cultural landscape setting for the site (including the other identified archaeological sites and the associated stone arrangement). The extent of this buffer "could not be determined purely on scientific grounds" (at 23); 6. the Aboriginal women consulted during the assessment "indicated that they would not be in a position to give clear guidance on matters such as boundaries and buffer zones until they had first determined the precise extent of the physical Aboriginal cultural heritage in the area" (at 23).
During the course of the assessment of the Project application and as a result of this appeal, and in addition to the archaeological and investigations mentioned above, the Applicants and Respondents brought forward a number of further investigations and other relevant reports which, taken together along with oral evidence, establish the current state of knowledge about Aboriginal sites and Aboriginal heritage within the area proposed for development. In addition to its previous investigations, Rocla tendered the following reports:

Expert report of Prof Claire Smith, Flinders University August 2014 (the Smith report) (Exhibit S9 ) and appendix G to the above (women's eyes only) (Exhibit S10)
Affidavit of Margaret Catherine (women's eyes only) 5 August 2014 (Margaret Catherine affidavit) (Exhibit S14 )
Expert report of Mary Dallas, Mary Dallas Consulting Archaeologists, August 2014 (the Dallas report) (Exhibit S12)
Appendix 9 to expert report of Mary Dallas (Draft Conservation Management Plan) (Exhibit S17)
Redacted Aboriginal cultural Heritage assessment report (September 2014 (Exhibit S29) and complete copy (Exhibit S30)

Darkinjung tendered the following reports:

Affidavit of Sharon Hodgetts, Senior Project Officer Culture and Heritage, Darkinjung Local Aboriginal Land Council (Aboriginal witness), including an Aboriginal Cultural Heritage Site Visit and Assessment, Calga Sand Quarry Proposed Southern Extension June 2010 (June 2012 Hodgetts report) (Exhibit A4 ) and (Exhibit SH1) to the above (Exhibit 5)
Affidavit of Sharon Hodgetts, 10 June 2014) (Hodgetts 10th of June affidavit), together with sealed envelopes containing documents and images culturally sensitive to Aboriginal women (Exhibit A7) and redacted sections of the June 2010 Hodgetts report (Exhibit A8)
Affidavit of Paul Gordon June 2014 prepared in accordance with the Expert Witness Code of Practice (the Gordon report) (Exhibit A3)
Expert report of Prof Josephine Joy McDonald, Aboriginal Cultural Heritage Management Proprietary Limited June 2014 (the McDonald report) (Exhibit A9)

AWWP tendered the following reports:

Expert report of Sharon Veale, GML Heritage, 16 June 2014 (the Veale report) (Exhibit B8) (women's eyes only) and Exhibit S12 (redacted)
Witness statement of Tracy Lee Howie, 25 June 2014 (Aboriginal witness) (the Howie report) (Exhibit B13)
Expert report of Dr Timothy Owen, GML Heritage, June 2014 (the Owen report) (Exhibit B7)

[24]

Agreed findings of Aboriginal heritage investigations

Area descriptions used in this judgment are those adopted in the Joint Experts' Report relating to Aboriginal Heritage (Exhibit A11). The Project Application Area (PAA) was amended during hearing and is depicted in Figure 2.1 (amended on 29 August 2014 Project Site Layout, Exhibit S27 as outlined in blue).
At the commencement of these proceedings, there was substantial disagreement between the experts concerning the location of various sites. The experts agreed that some reports were based on incomplete records (Exhibit A11 p 3) and that the site records for this area, held in the Aboriginal Heritage Information System, Office of Environment and Heritage (AHIMS), were seriously deficient, with inaccuracies and duplication (Exhibit A11 p 3).
To resolve this situation, sites recorded on the AHIMS Register and other sites identified in the course of surveys to date within the PAA were ground- truthed by Mary Dallas and Claire Smith for Rocla (Exhibit S10(h)(iii)). Map 4 below is taken from Appendix 6 of the Dallas report (Exhibit S12) and it identifies the currently known sites on Lots 1 & 2 DP 80358 ground-truthed by Dallas.
Experts agreed that the Dallas report had effectively reviewed the inconsistent data relating to the existence and location of known sites and that her report provided a reliable ground-truthing of the position of known sites, and agreed that the location of known sites within the PAA are as defined by Dallas (Exhibit S12 maps 2 and 4) and described by her at Table 4 p 24 ff. We accept the reliability and accuracy of Mary Dallas's reporting of sites in the area and are satisfied that the available archaeological record for known sites within the PAA and Stage 4 which is located within the area of the PAA is now correct. These included engravings, rock shelters with art, rock shelters with occupation deposit, axe-grinding grooves, and potential archaeological deposits (PADs).
Within Stage 4, quarrying will directly impact one known Aboriginal site, # 45-3-3635. This is a small scatter of artefacts on the surface in an area on the floor of the valley which was previously used for farming/orchards (Exhibit S12 Dallas report p 17 and Map 4). Atkinson describes the area as "highly disturbed" and argues that, therefore, a PAD is unlikely to exist here (Exhibit R3 Vol 3 Tab 17 Atkinson report p 1927).
This site has been recorded but has not been the subject of any subsurface investigation. The proponent proposes that this site be managed by excavation and appropriate research and salvage, following approval and in accordance with a CMP. There is dispute amongst the experts about the research potential and significance of this site. (Discussed further below.)
The known tangible extent of the engravings at the 'Women's Site' # 45-2195/453 or 45-3-2195 (recorded twice in the AHIMS Register, because of the difficulty of identifying sites situated in dense and quickly growing vegetation systems) (Exhibit S12 Dallas report p 20) consists of rock engravings located on a sandstone platform. The rock engravings consist of motifs interpreted by Appleton (after Sim) of a woman, an emu and a stylised hand (Exhibit R3 Vol 1 Tab 5 Appleton report pp 609 - 610). Ross, in her night-time recording of the site, discovered that the motif of the woman had what Ross interpreted as an 'elaborate headdress' made up of 15 lines radiating from her head, and five small drilled holes in her face. The emu appeared in more detail, and was seen to also have five small drilled holes in its face. The motif which Sim and Appleton describe as a stylised hand appeared to be a human footprint (Exhibit R3 Vol 3 Tab 18 Ross report p 2763 - 2765). These findings are undisputed.
This site is associated with a stone arrangement comprising a circle of eight variously sized sandstone boulders around a centre stone. This site is referred to as Calga SA1 (Exhibit R3 Vol 1 Tab 5 Appleton report pp 610).
Additionally, the 'Women's Site' and stone arrangement are close to a pair of standing stones which were located relatively late in the investigations relating to the proposed development. Dr Tim Owen and Tracie Howie, inspecting known sites in the course of investigations on behalf of AWWP, located this site, referred to as 'sentry stones' in Owen's report (Exhibit B7 Owen report p 13(h) and Howie D5/272/0 - 15. This site has not been investigated or recorded in detail (Exhibit S12 Dallas report p 27), nor yet entered into the AHIMS Register and Smith considers that Owen provided no criteria for how he determined that these stones were cultural rather than natural (Exhibit S9 pp 12 - 13). There is a range of other recorded sites on the periphery of Stage 4 (Exhibit S12 Dallas report map 4). There was some debate amongst the parties about the level of impact that is likely to occur on these sites and the effectiveness of protective measures proposed for them (Exhibit A11 Joint Experts report). It was common ground that more sites would be found in the course of further investigations. There was debate amongst the experts as to the potential nature and significance of these sites (Exhibit A11 Joint Experts report).

[27]

The 'Women's Site' in its cultural landscape, and what can be deduced of its significance from the information before the Court

Some aspects of traditional knowledge relating to this site are gender restricted (Hodgetts Affidavit A4 p6). The Court and parties have taken suitable precautions to respect these gender restrictions.
The 'Women's Site' is north of and close to the proposed direct impact area (Exhibit S12 Dallas report map 4). As mentioned above, Rocla proposes a number of measures to protect its values, including the creation of a buffer zone around it and the provision of legal rights of access to Aboriginal women to visit the site by way of an agreed designated path (Exhibit S12 Dallas report pp 37 - 8).
In archaeological terms, the 'Women's Site' is rare in the large corpus of rock engravings recorded in the Sydney Hawkesbury Sandstone Region. In an analysis of 7804 engravings in the Sydney Basin area, Professor Josephine McDonald found that only 79, or 1% ,were of women. Of those, only one was associated with a stone arrangement and that was at Ku-ring-gai Chase. Of 1400 sites previously listed on the AHIMS Register for the Mangrove Mountain-Calga area, there was only one stone arrangement (Exhibit R3 Vol 1 Tab 5 Appleton report p 610). As mentioned above, a further possible associated stone arrangement, as yet unstudied and referred to as 'sentry stones', was located by Owens in recent investigations (Exhibit B7 Owen report p 13 (h)). Atkinson, also referencing McDonald, points out the even rarer occurrence of emus in Sydney rock engravings (0.9% of motifs) (Exhibit R3 Vol 3 Tab 17 p 1937). Additionally, the discovery by Ross of extra details such as a headdress on the woman and engraved holes in the figures of the woman and the emu, and of a human footprint, add to the rarity of the engraving and its motifs (Exhibit R3 Vol 3 Tab 19 pp 1983 - 1984).
It was common ground that the 'Women's Site' and associated stone arrangement was very significant to Aboriginal people.
Experts agreed that: The Women's Site and stone arrangement are highly significant and that these are linked into a broader cultural landscape that includes other archaeological sites and cultural practices and traditions …" (Exhibit A11 Joint Expert's report p 4)
Aboriginal witnesses agreed: The 'Women's Site' and the associated stone arrangement are of great importance to the Aboriginal community, especially Aboriginal women and have important links to other sites within the Calga area and beyond". (Hodgetts Affidavit Exhibit A4, p 8).
The Rocla land, and the 'Women's Site' within it, is situated in an area rich in Aboriginal sites. Appleton, using the data from the AHIMS Register, provided a listing of 180 sites within a 10km x 7km area (Exhibit R3 Vol 1 Tab 5 Appleton report p 592). Hodgetts, in her report, lists, describes and maps numerous sites including engravings, rock shelters with art, rock shelters with occupation deposit, and axe-grinding grooves. She estimates that there are 181 Aboriginal sites within a 10km x 7km area, 44 within 1 to 2 km of the 'Women's Site' and 21 sites within approximately 1 km of the 'Women's Site' (Exhibit A5, SH1 42 - 47 and map p 10).
The Court notes that while Sharon Hodgetts was not appearing as an archaeological expert in these proceedings, she has extensive experience and expertise in site location, recording and assessment, and arguably is more familiar in some respects with Aboriginal culture in this area than any of the experts. She holds a Diploma in Indigenous Archaeology, University of New England, has been involved in site assessment and site survey in this area since 2006, and is the senior Aboriginal Project Officer, Culture and Heritage at Darkinjung. She has been involved in a number of site surveys and inspections within and around the Rocla site and has carried out her own research in this area (Exhibit A4 Hodgetts Affidavit pp 4 - 5). There was no disagreement with her assessment of site density within the area and it was generally agreed that the identified sites form part of an extensive cultural landscape (Exhibit A11 Experts report p 4) and this was specifically commented on by McDonald (Exhibit A9 p 20).
The evidence indicates that the area was a very important route and a place of significant associations for Aboriginal people at the time of European settlement. Peats Ridge is established as being a traditional pathway for Aboriginal people and there is evidence that the earliest road follows this pathway and that sites are associated with it (Exhibit A4 Hodgetts Affidavit p 39: Exhibit B13 Witness Statement of Tracie Howie p 2, and Sim report in Exhibit B13 Annexure B p 3). Not far off is the extremely important cultural landscape of Mount Yengo, which has been recognised as an Aboriginal Place under the National Parks and Wildlife Act (NSW) 1974 because of its traditional and contemporary significance to Aboriginal people as a place related to the culture hero, Baiame (Exhibit A3 Affidavit of Paul Gordon pp 11 - 12 and attachments PG5 and PG 6).
Atkinson assessed the ethnographic and early research information available. He notes that RH Matthews documented important Darkinjung and other ceremonies in the region involving culture heroes Baiame and Daramulin. Baiame is described as being the creator and Daramulin is variously referred to as Baiame's emissary, son or brother. Daramulin was thought to have a wife, with various names attributed to her. These culture heroes are common to Aboriginal groups throughout South-Eastern Australia (Exhibit R3 Vol 3 Tab 17 pp 1903 - 4).
Matthews did not record any specific information about the portrayal of Baiame or Daramulin in rock engravings, but AP Elkin recorded information from an Aboriginal man from the Central Coast, who stated that rock engravings in this area represented culture heroes in the same way as figures modelled in relief from earth at an initiation ground did, and that the stories and significance of the engravings would be explained to newly initiated men. Early rock art recorders such as McCarthy and Sim have also suggested that culture heroes such as Baiame and Daramulin are portrayed in the rock engravings and are distinguished from ordinary anthropomorphs through their extreme size and the degree of interior decoration (Exhibit R3 Vol 3 Tab 17 Atkinson report p1903 - 4).
The existence of ethnographic evidence which directly links engravings with these culture heroes was questioned to some extent by Smith and McDonald. Prof Smith, in oral evidence, disputed that there was firm ethnographic evidence relating to the association of rock engravings with the figures of Daramulin and Baiame, and the association of rock engravings with initiation (D6/354-356). Prof McDonald agreed that in her view though there were ethnographic and anthropological accounts which related rock engravings to initiation, she did not accept that this had been demonstrated by the ethnography (D6/361/40).
The Court accepts that there are differing views about the validity of the specific association made by 19th and early 20th century ethnographers and rock art recorders linking Sydney rock engravings, portrayals of Daramulin & Baiame, and initiation ceremonies. The remainder of the ethnographic evidence is undisputed, including the importance of Daramulin and Baiame in south-eastern Australian culture and the ceremonies associated with them. The Court concludes that, on the available evidence (including the ethnographic record) and in the published opinion of experts over a long period, the whole area is associated with the culture heroes Biame and Daramulin.

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Contemporary Aboriginal knowledge about the 'Women's Site' in its cultural landscape

The cultural traditions which informed the first recorded knowledge of Baiame & Daramulin continue as traditions in the Aboriginal community of today as illustrated by the explanations of Aboriginal witnesses in the case who were articulate and consistent in their views on the significance of the 'Women's Site', and of the broader cultural landscape in which it existed. The Court accepts the evidence of Paul Gordon, Sharon Hodgetts and Tracie Howie (Aboriginal stakeholders as defined by OEH) relating to their understanding of the importance of Baiame and Daramulin in contemporary New South Wales Aboriginal society in this area, in particular, and their understanding/interpretation of the expressions of these culture heroes in the rock art and landscape under discussion.
There was some questioning of the consistency of specific details of Paul Gordon's oral testimony by counsel for Rocla. For instance, it is asserted by Rocla that Paul Gordon's: evidence was apparently in contradiction to what was said to men at the 'Stone Arrangement' during the site view. However, the Court was not present at the time of the alleged conversation and we are unable to resolve this dispute. However, it was accepted by all parties that Paul Gordon was an expert witness with specialised knowledge and we accept his testimony as truthful. He is a Senior Law Man, with a deep knowledge of contemporary Aboriginal culture and an impressive experience of Aboriginal ceremony. He has assiduously pursued opportunities to attend contemporary men's ceremonies, including an initiation ceremony as near as Wollombi (Exhibit A3 p 7, and to learn from Elders throughout south-eastern Australia (Exhibit A3 pp 4 - 12). He has wide acceptance in this role. For instance, the description and citation for the Mt Yengo Aboriginal Place created and protected under the National Parks and Wildlife Act (NSW) 1974 as a place of particular significance to Aboriginal people relies in part on his evidence and his joint research with Jones (Exhibit A3 pp 11 - 12 and attachments PG5 PG 6).
Hodgetts's and Howie's evidence also provides a detailed contemporary local Aboriginal perspective. Hodgetts is from the Wiradjuri group. Members of the Wiradjuri hold the same traditions and beliefs regarding the culture heroes Baiame and Daramulin, their travels through the landscape and their connection to ceremony as do the Darkinjung and other Aboriginal groups in the area under discussion (Exhibit A3 Affidavit of Paul Gordon p 8). Hodgetts has lived and worked on the Central Coast of New South Wales since 1984 and has been involved with the Aboriginal community in a range of ways. She is fully accepted as a knowledgeable local Aboriginal person and, as mentioned above, is the Senior Aboriginal Project Officer, Culture and Heritage at DLALC (Exhibit A 4, Affidavit of Sharon Hodgetts pp 2 - 4 and Exhibit A5, SH1 p 30). She backs up and illustrates her traditional beliefs and their use in the interpretation of the sites in the Rocla area with evidence which includes research into the area under discussion (Exhibit A4 Affidavit of Sharon Hodgetts p 5), and as demonstrated in Exhibit A5, SH1 Tab 7 pp 16 - 75 Aboroginal Cultural Heritage Site Visit and Assessment.
Howie is the senior female Aboriginal Cultural Heritage Officer for the Guringai Tribal Link Aboriginal Corporation. She is a Wanangine/Guringai person who has lived on the Central Coast for 33 years and has been involved in the Aboriginal community since 1991. She has learned the stories of the area through knowledge gathered over the years and by listening, as a child, to stories being told by family members and elders and looking at and listening to the natural landscape (Exhibit B13 Witness Statement of Tracy Lee Howie p 4 - 20).
The combined evidence of Aboriginal witnesses about contemporary Aboriginal cultural traditions, and about the significance of the sites in the area to Aboriginal people today, including the 'Women's Site', is convincing.
The evidence before the Court from Aboriginal witnesses is that Baiame today is considered by Aboriginal people over a large part of New South Wales, including the Calga area, to be a creator figure (Exhibit A3 Paul Gordon Affidavit pp 8 - 9, 39 - 41 and 49, Exhibit A4, Affidavit of Sharon Hodgetts pp 11 - 12, 51 - 54 and Exhibit B13 Witness Statement of Tracy Lee Howie pp 4 - 5).
Contemporary Aboriginal belief firmly links engravings with culture heroes in this area: "In our view engravings are not made by people they were made by Baiame" (Exhibit A3 Gordon p 13). The OEH description of the Aboriginal Place, Mt Yengo (Exhibit A3 Gordon Affidavit PG5 p 39) refers to it as "the central point of connection for major rock engravings in the area". Interpretation of rock engravings has been handed down orally, including to Paul Gordon. For instance, information was given to Paul Gordon by elders Leeton Smith, Lenny De Silva and Alfie Drew in relation to a similar site at Waramalong (Exhibit A3 Paul Gordon p16, 78-79).
Baiame travelled through the country and left places in the land (his footprint) which tell people where he has travelled (Exhibit A3 Gordon p 9, Exhibit B13 Tracey Howie p 4 - 5 22). Baiame's wives were associated with women's law (Exhibit A3 Gordon p 12 55). Daramulin is the son of Baiame (Exhibit A3 Gordon Affidavit - p 12, 54). Daramulin and his mother are emu totem and are often depicted in emu form (Exhibit A3 Gordon p 12 57 and p 13 64, Exhibit A4 Hodgetts p 11 53, Exhibit B13 Tracy Howie p 5 23).
Baiame and Daramulin are important in men's ceremonial law (Exhibit A3 Paul Gordon Affidavit pp 12 - 13; Exhibit B13, Affidavit of Tracie Howie, p 4 21). Ceremonies involved a number of tribes (Exhibit A3 Gordon p 5 22 p7 30) and the stories associated with them were also significant to Aboriginal people over a broad area (Affidavit A3 p 8 39).
In this cultural landscape, the 'Women's Site' itself is interpreted by all three witnesses as a very significant site associated with Baiame and part of the creation story of the travels of the ancestral heroes. The engraved footprint is considered to be made by Baiame, the engraving of the woman portrays Baiame's wife, and the emu figure is interpreted as Baiame or Daramulin or as being consistent with this association (Exhibit B13, Affidavit of Tracie Howie, p 5, 23; Exhibit A3 Affidavit of Paul Gordon pp 15 - 16, 76). Gordon considers this to be a site related to the birth of Daramulin (Exhibit A3 Gordon pp 16.77) and Howie similarly believes "this could be the place of Daramulin's creation" (Exhibit B13 Affidavit of Tracie Howie p 526). They consider this to be a very important site.
For Aboriginal people, immediately upon its rediscovery the site, in its cultural landscape, became a focus of attention and interest. Atkinson states (Exhibit R3 Vol 3 Tab 17 p 1889) that her survey was undertaken as a result of issues raised by Aboriginal people during the public exhibition of the EA for the project, including that the significance of the 'Women's Site' was not properly recognised and that the width of the proposed 'Women's Site' buffer zone was not sufficient to protect the site. Immediately after its rediscovery, its finding stimulated a heightened interest by Aboriginal women in their culture, and research into it and discussion about it. As Ross suggests, the site quickly acquired a high level of significance, as reflecting and demonstrating known Aboriginal traditions (Exhibit R3 Vol 3 Tab 18 Ross report p 1987).
The information given by Aboriginal witnesses about contemporary significance and normative Aboriginal beliefs was unchallenged by other witnesses except Prof Smith who, relying on her reading of the ethnography relating to Baiame and Daramulin, disputed some of the evidence given by Gordon about particulars of the Baiame and Daramulin story, in particular, the reference to a Daramulin birth site (D6/359 10 - 43). She agreed however that Baiame and Daramulin are a significant part of contemporary Aboriginal mythology in New South Wales (Smith, D6/354.10) and that, at present, Aboriginal people interpret the emu or birdlike like images at the 'Women's Site' as Daramulin, that the woman is Baiame or Daramulin's wife, and that there are also regional interpretations of footprints as being where Baiame travelled (Smith D6/356/20-50).
Ross carried out the only anthropological work in the investigations with the Aboriginal informants and her report summarises the views of local Aboriginal women on the significance of the Rocla site, generally, and the 'Women's Site', in particular. In October 2011 Dr Ross conducted interviews, and visited the site, with women representatives of each of the three major Aboriginal groups which had made representations concerning the sites - the Mingaletta Women's Group, the Guringai Tribal Group and Darkinjung. As mentioned above she also conducted a night-time recording examination of the engravings which revealed significant new features (Exhibit R3 Vol 3 Tab 18 Ross report p 2759). Ross notes that the 'Women's Site' itself was unknown to the local Aboriginal community until its rediscovery as a result of Rocla's due diligence studies (Exhibit R3 Vol 3 Tab 18 p 2768).
Ross reported that the Mingaletta Women's Group and the Guringai Tribal Group have been using the site as a place of teaching and learning since its rediscovery, and they noted its close geographic association with a number of other sites. They were particularly aware of the role of footprint motifs in Sydney rock art, and of the wider connections provided by Sydney rock art traditions generally (Exhibit R3 Vol 3 Tab 18 p 1979).
The representatives of the Guringai tribal group spoke of the contemporary importance to them of totemic animals and how they form the main marriage moieties of the area, and are still assigned to people today and dictate marriage relationships (Exhibit R3 Vol 3 Tab 18 p 1979).
The information from Darkinjung which Ross provides is from their representative, Sharon Hodgetts, and is consistent with that given in her affidavit (Exhibit A4, Exhibit A5 SH1). Hodgetts stressed to Ross the importance of the site in its cultural landscape. She, too, mentioned the connection with footprints in Ku-ring-gai, Brisbane Waters and in the immediate vicinity. Footprints suggest that Baiame or Daramulin were travelling through the landscape and leaving their mark, thus connecting the sites. The interconnectedness of the sites made this an area of significance for contemporary Aboriginal people. Ross comments that Sharon Hodgetts had undertaken her own quite extensive research and concluded that the entire landscape is of cultural significance. Sites are interconnected and relate to law and totems and the existence of the stone circle supports the suggestion that the area could be ceremonial. Sites in the area as a whole are connected with ancestral figures (Exhibit R3 Vol 3 Tab 18 pp 2761 - 2).
Ross then analyses the archaeological and anthropological evidence relating to the site which she considers to support the women's general views. The engravings of female figures are rare in the Sydney Hawkesbury sandstone and the site is associated with a stone circle which, according to Ross, is unlikely to be natural and is similar to other stone arrangement sites from a range of different places throughout Australia (Exhibit R3 Vol 3 Tab 18 p 2765). Gordon (TS D9/599 15-23) also refers to the possibility of ceremonial activities in the cultural landscape surrounding the site. There is a variety of engraving sites in the immediate area. Ross notes that of particular relevance is # S45-3-0961, a rock engraving site containing the images of two emus, which she says supports the significance of emus in the Aboriginal cosmology of this area - both in the past and the present, because: Baiame/Daramulin's wife is an emu; emus are one of Baiame/Daramulin's totems; an emu is one of the motifs on the 'Women's Site', and emus continue to be totemic animals in the region today (Exhibit R3 Vol 3 Tab 18 p 2765 - 6). Ross describes wider connections between the motifs here and throughout the northern Sydney area. Strong traditional connections with each other, claimed by the three women's groups, are supported by the ethnographic and historic evidence (p 2771).
The rarity of female figures in Sydney rock art (as identified by McDonald 2008) has reinforced the conviction of all the traditional custodians interviewed for this project that the 'Women's Site' is associated with women (Exhibit R3 Vol 3 Tab 18 p 2765). Ross concludes that all the women's groups she spoke to on site were very attached to this particular site and to the landscape within which it is situated. Ross found that the Aboriginal women she interviewed, who identify strongly as traditional owners, have demonstrated knowledge of their clan and tribal affiliations, and of their totems and traditions generally (see for instance Exhibit R3 Vol 3 Tab 18 pp 2759, 2760, 2766).
Aboriginal stakeholders interviewed by Ross are in clear general agreement about the high Aboriginal significance of the site. There is no evidence before the Court that other Aboriginal stakeholders held different views, or that any known stakeholders were excluded from the Ross' consultation process (though there is a suggestion from the experts that there may be other knowledge holders who could be interviewed (A11 p 3)). The women are unanimous in their general views about the significance of the site and its association with women. The Burra Charter and relevant OEH policy documents mandate that Aboriginal people are the relevant knowledge holders to consult in the significance assessment process (Exhibit S18 Vol 1 Tab 11 Burra Charter Practice Notes p 310 and Consultation Guidelines, Tab 4 pp 56 - 58).
Mary Dallas noted that the Aboriginal groups have not been consistent in their interpretation and their understanding of the meaning, function and mythological importance of the site (Exhibit S12 Dallas report p 16). Smith comments that the perceived threat to the 'Women's Site' is likely to have enhanced its significance (TS D9/594 - 595).
With respect to this issue, Ross outlines how the ascription of contemporary significance to a place upon the location of tangible evidence in this way in a relatively short time is well documented in Aboriginal cultural heritage literature, and comments that such contemporaneousness of meaning does not necessarily reduce the significance of the meanings being assigned. The discovery of such a site, previously recorded as purely archaeological, corroborates a general sense of connection to country and acts to "map" people physically onto country. In a sense the tangible site supports the associations that people already experience and which previously were reported as vaguer feelings of connection and traditional beliefs. Each of the three Aboriginal groups interviewed by Ross stressed their connection to the country around Calga regardless of the existence of particular archaeological sites but the existence of the site acts as a tangible aspect of this connection. It is through the existence of this site that the women's existing knowledge about the country is reified and gives a specific point of connection to place. Ross explains that this kind of mapping onto country and place is a common occurrence in an ecological approach to Aboriginal cultural heritage management (Exhibit R3 Vol 3 Tab 18 Ross report pp 2766, 2768). In these circumstances, the inconsistency in interpretation as described by Dallas over this period of rediscovery and sorting through of significance by Aboriginal people would be expected and Dallas does not dispute this, accepting that the site is now very significant (Exhibit S12 Dallas report p 16). Ross comments that in the intervening period Aboriginal informants had become acquainted with the archaeological and anthropological literature, which has to some degree informed the social significance that they now attached to the site, (Exhibit R3 Vol 3 Tab 18 Ross report p 2768).
Smith did not question the significance of the 'Women's Site' but did question 'the robustness of how stories concerning the site are put together. In my view this speaks to robustness of the cultural logic that informs Aboriginal management recommendations' (Smith p 31.5 (b)).
There is a variety of views in gender-sensitive evidence from Aboriginal witnesses and stakeholders about issues such as the traditional use of the site, but this variation in detail about the story, the Court considers, is to be expected in south-eastern Australia, which has been colonised for more than 200 years. Sharon Hodgetts testified: … some of the stories have been lost, some people have written pieces of the stories, some people are given one layer of the story where another lot of people are given another layer, so collectively that means that just because somebody has a slightly different story doesn't mean that it is not correct. (Sharon Hodgetts TS D4/168/35 - 40) And Howie states, 'The precise details of the ceremonies associated with the significant sites in and around the Rocla land have been lost' (Exhibit B13 P 5.24). Similarly, Paul Gordon testified: Different groups have different stories about all these things, but they all sit in the ngurrumpaa [camp] together and we share them stories. We don't argue about what one's right what one is wrong we accept each other's story. (Paul Gordon TS D7/394/10-15)
McDonald also comments in similar terms on this issue: I think individual people who have talked about the site are not consistent internally in their views of what the site may be there is certainly conflicting information in terms of different people's views but in my understanding of how values are ascribed to sites that is quite consistent with different communities having major different views about how the site is going to function. You have just heard Prof Smith talk about it, I mentioned about the Western Desert, depends on people's knowledge systems, what level of initiation, what their connection you know the nature of their connection to place and you would expect there to be multiple interpretations depending on those particular views. So I agree with you that there are multiple interpretations but that doesn't necessarily surprised me. (TS D6/363/10 - 20)
The Court accepts that current Aboriginal interpretation of traditional belief which may incorporate elements of earlier ethnographic and rock art research and the details of which may vary from person to person are a valid and normal development of the oral tradition in these circumstances.
The experts supported Ross's general view on the site. They agreed: We acknowledge that there are a range of interpretations about the use function and importance of the 'Women's Site' and these values are evolving. We acknowledge that cultural values are dynamic, not static and may not be captured at any one time. There is a renewal and revival of cultural practice by Aboriginal people on the Central Coast. The 'Women's Site' and the surrounding landscape have become really important as part of that renewal, revival and return. (A11 p 3)
Ross concludes by assessing the significance of the 'Women's Site' in accordance with the Burra Charter (p 2769). She first looks at the scientific significance of the site. She notes that both Atkinson and Appleton found that the site had high research significance but that Appleton argued that the site was unlikely to provide any additional information other than that given in his report. He describes the 'Women's Site' and Stone Arrangement complex as "low in potential research opportunity" (Exhibit R3 Vol 1 Appleton report p 616). Atkinson concurred with Appleton's finding, stating that the engravings are similar to other engravings in the region and that there is minimal research potential for the site and that no further information can be gained from it (Exhibit R3 Vol 3 Tab 18 Ross pp 1988 - 1989, citing Exhibit R3 Vol 3 Tab 17 Atkinson Appendix B).
Ross disagrees with these assessments. She considers that the site, in the immediate area and the wider region, is clearly of high archaeological significance, especially of rock art research significance. She points out that scientific significance is not solely restricted to archaeological excavation potential. She argues that the site has rock art research potential and that is cultural catchment is significant for archaeological research. She also cites information that it has anthropological significance which is another component of scientific significance (Exhibit R3 Vol 3 Tab 18 Ross report p 2770).
McDonald, the author of the regional study used by Appleton and Atkinson to deduce the rarity of motifs at the 'Women's Site' (Exhibit R3 Vol 1 Tab 5 Appleton report p 610 and Exhibit R3 Vol 3 Tab 17 Atkinson report p 1937) - and of numerous other studies relating to the rock art of the Sydney region (Exhibit A 9 McDonald report P 4) - agrees with Ross. She outlines a number of avenues of research into rock art which could be undertaken with respect to the site which would appear to have the capacity to provide more detailed information about the site itself and its relationship to other engraved sites nearby in terms of motifs and stylistic associations and, hence, to enhance information about its scientific or research significance, its connection with these other sites and perhaps its social significance. See, for example, Exhibit A9 McDonald report pp 14, 16, 23. Smith recommends similar studies (Exhibit S9 p 1(c)), as part of the CMP. Based on the evidence of Ross and McDonald on this matter, it does not appear to the Court that at this stage the complete archaeological research value of the site has not been established by the investigation undertaken to date, and there is convincing evidence that further scientific study of the site has the potential to augment information about its significance.
A key related issue is whether, as suggested by McDonald and Ross, further archaeological investigations in the area generally may reveal more information about the 'Women's Site' and whether this may in turn change or augment the established scientific social value of the site in its cultural landscape.
There is a possibility that further sites such as rock engraving sites, or archaeological deposits might be discovered, which, while not in themselves as significant in a comparative sense, might provide more information about the scientific/research value of the 'Women's Site' and whether in an archaeological sense its significance relates to its place as part of a complex of sites, all of which contribute to its research value and potentially to its social value, and which may be threatened by the development. (This is discussed further below.)
With respect to the social value of the site, Ross assesses significance using the Burra Charter definition and concludes that the site in its cultural landscape setting appears to have become, in a short period of time, a place that embodies high social significance for the women consulted. She notes that the women consulted felt a strong sense of responsibility for the site and emphasised its importance as a place of teaching and learning. An important part of the social value is the contemporary associations which people assigned to the site and its surrounding cultural landscape. They also recognised its archaeological significance and saw it as playing an important role in the reification of Aboriginal culture in the region (Exhibit R3 Vol 3 Tab 18 p 1989).

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The cultural landscape

Experts agreed that they accepted the definition of "cultural landscape" used in the OEH document "Cultural Landscapes a Practical Guide for Park Managers (2010)" (Exhibit S 18 p 164 (RFS p 74 6.4.104)): Those areas which clearly represent or reflect the patterns of settlement or use of the landscape over a long time, as well as the evolution of cultural values norms and attitudes towards land.
The Court also drew to the attention of the parties a more detailed definition of an Aboriginal cultural landscape in the relevant policy documents (Exhibit R3 Vol 1 Tab 5 p 70 "What is An Aboriginal Cultural Landscape?") as being a definition of which the Court should have regard (TS. D8/513/ 30 - 35). As defined by OEH, an Aboriginal cultural landscape is: … a place or area valued by Aboriginal groups because of their long and complex relationship with the land. It expresses the unity with the natural and spiritual environment. It embodies their traditional knowledge of spirits, places, land uses and ecology. Material remains of the association may be prominent but will often be minimal or absent. (p 70)
The document explains further: For Aboriginal people the significance of individual landscape features is derived from their interrelatedness with in the cultural landscape. This means features cannot be assessed in isolation and any assessment must consider the feature and its associations in a holistic manner this may require a range of assessment methods and will always require the close involvement and participation of Aboriginal people. By consulting with Aboriginal people and using the concept of cultural landscapes the story behind the features can be told which demonstrates the association that may exist between Aboriginal objects and other features within the landscape. (p 71)
Collectively, these definitions of the cultural landscape make clear that the physical aspects of a site (in this case the engraved figures and stone arrangement) should not be considered in isolation but in association with its surrounding spiritual, cultural and physical environment. Justice Toohey, in the Walpiri and Kartangarurru Kurintiji land claim (Exhibit A 18) at [69] - [70], cautioned that : the word [site] may mislead by generating a tendency to think of sites as particular features of the landscape occupying relatively little space and rendering unimportant the country around them.
Paul Gordon makes this distinction clear: The carving on the rock is not the site. The site is the carving and the surrounding area and cultural practice that took place at the site. (Exhibit A11 p 31) We look at an object on rock and we call it a woman site ... Why is it a woman on the rock? It's because of story attached to it and the journey that brings people to her and the journey that she keeps going on, and that's the cultural landscape which we haven't considered at all. We are just looking at an object, right there referring to that woman as an object when to us she is a living ancestral being who is still participating and is still doing things in country. (TS D7/394/26-33)
Rocla does not dispute that the 'Women's Site' is significant, nor that it exists in and is part a cultural landscape, at a range of scales, encompassing Rocla land, citing evidence from a range of experts on this point (RFS p 74 - 75).
Rocla argues instead that there is no adequate evidence of the existence of a cultural landscape beyond the immediate physical limits of the 'Women's Site' (defined as the engraving and the gender buffer) of such importance that it would preclude the proposed development. Rocla's submission is that the areas between the significant sites on the Rocla land or further afield could be 'free land' that may be used as part of the proposed quarry. In Rocla's submission, evidence that Aboriginal people may have walked through the Stage 4 extraction area (or camped there on the way to ceremony) is not sufficient evidence of the level of cultural significance that would require quarrying to be precluded in the Stage 4 extraction area (RFS p 77 6.4.144). In effect, Rocla considers that the proposed 90m buffer zone will protect the 'Women's Site' in its cultural landscape, and that the rest of the land within Stage 4 should be considered as 'free land'.
Whether this proposition can be shown to be the case on the basis of evidence before the Court is the key question which needs resolution.
Rocla's reasons for asserting that the cultural landscape can co-exist,without significant diminution of its cultural values, with the proposed quarry extension, are based on a critique of the claims made for the importance of this cultural landscape with respect to the accuracy and certainty of its described characteristics. They may be summarised as follows: 1. There is a degree of confusion in Aboriginal evidence about the extent and scale of the cultural landscape; 2. There is no demonstrated connectivity between the individual sites on the Rocla land that would preclude quarrying on the land between them and lack of information about the exact nature of cultural activity such as ceremony and ritual pathways in this area; 3. Consequently, there is 'free land' within the cultural landscape on Rocla's Stage 4 proposed development area which may be utilised for quarrying without significantly affecting the cultural landscape; 4. This is supported by the fact that investigations have been thorough and have demonstrated there is a lack of physical evidence of significant Aboriginal sites in the immediate amphitheatre below the 'Women's Site' and between identified sites.

[30]

Considering these arguments one by one:

Rocla argues that there is confusion between the evidence of Aboriginal people concerning the extent of the cultural landscape, and cites Hodgetts as saying that some aspects of the cultural landscape go outside the Rocla borders and likening the landscape to ripples, while Howie expressed the view that the area within the ridge line is a feature of the cultural landscape and that she felt that a range of sites bordering on Stage 4 were important. Also, as submitted by Rocla, she appeared to consider that the area outside the Rocla land was part of the cultural landscape, while Mr Gordon alluded to the cultural landscape extending to the Mooney Mooney sites and to Mount Yengo (RFS p 78).
The Court does not find that these citations demonstrate confusion amongst the Aboriginal witnesses. Rocla itself argues, based on the evidence of experts, there are various scales on the cultural landscape that may operate (RFS p 75 6.4.106) and the evidence of Aboriginal people corroborates this.
In addition to Paul Gordon's evidence about a regional cultural landscape cited by Rocla above, Hodgetts explains: The Woman site … is part of the network of sacred Aboriginal teaching and story sites where indigenous knowledge was passed down. It is part of the cultural landscape. These places within Calga and the Somersby Plateau are a complex series of sites and paths linking the coastal and inland clans that extends across Darkinjung country and to the culturally significant Mt Yengo area, the religious centre of spiritual social and cultural beliefs for many tribes adjacent and inland of the central coast area. (Exhibit A5, SH-1 Tab 7 p 63) Similarly, at p 36, Hodgetts discusses OEH's view on these matters.
Within this broad traditional landscape which recounts the journeys of ancestor figures across a landscape which encompasses a range of Aboriginal groups and key sites such as Mount Yengo and Mooney Mooney, Aboriginal witnesses consider that there is a local cultural landscape focusing on the 'Women's Site', and covering Rocla land and extending outside Rocla land. This surrounding landscape contains rock engraving sites which are also associated with Baiame and with the 'Women's Site' according to current Aboriginal tradition. Howie states that: Biame walked all over our country and left footprints in His favourite places as He travelled through the country He had created. He left His footprints behind to show where He had been and where He was going. Biame's footprints are large. There are Biamie footprints in the following locations around the Rocla site: the AWWP site, along Peats Ridge Road, and near the female engravings at the 'Women's Site'. The Baiame footprints within AWWP and the surrounding area indicate to me that this area was important to Baiame (Exhibit B13, pp 4 - 5.22)
Darkinjung sketched out the possible boundaries of the local cultural landscape in its nomination of the area as an Aboriginal Place in June 2013. Under s 84 the National Parks and Wildlife Act 1974, the Minister for the Environment may "declare land as an Aboriginal place where it is or was of special significance to Aboriginal culture". Such an area can have spiritual, historical, social, educational value or significance or could have been used for its natural resources. Aboriginal Places protect ceremonial and spiritual values and areas containing objects such as middens, burials, reburials, Bora rings and rock art (Exhibit R9).
The nominated Place was described as the Calga Aboriginal Site and Anthropomorphic Sites. In August 2013, in acknowledging receipt of the nomination Ms Kathleen Schilling, of the OEH acknowledged the place as consisting of Lot 1 DP 805358, located at the Rocla Calga Sand Quarry (Exhibit A17). Rocla argues, on this basis, that this application does not capture the whole of the amphitheatre, being limited only to that part of the Rocla land on which the Stage 4 extraction area is proposed (RFS. P 88 6.4.145).
However, as noted by Counsel for the Minister (TS, D17/1179/ 1 - 29), careful examination of the form itself showed that notes on the form indicate that Darkinjung described the landholder as: Rocla and possibly one private landowner (maybe one or two) and possibly Popram National Park, Australian Wildlife Park (Exhibit A 19 p 2) The Aboriginal cultural significance of the place for the community is summarised as a significant 'Women's Site': Most significant Women's Site in New South Wales, along with anthropomorphic sites, significant and special' Notes on the AIHMS file which accompanied Ms Schilling's letter indicate: Darkinjung put the nomination on hold as they now want to apply for Aboriginal Area to cover all the sites known as the corridor of sites. (Exhibit A 17)
This 2013 nomination demonstrates the importance for Aboriginal people of a cultural landscape at a local level, as distinct from a regional level.
Within this nominated local cultural landscape, Sharon Hodgetts describes the immediate cultural landscape thus: Within - around a significant site it's like, I explained yesterday, it's like a ripple if the female site was the you know, the focal point and you threw a pebble in the water and on top of that site and it rippled out the rippling would be like the immediate area. (Sharon Hodgetts TS D3/105/30)
Gordon explains: Now there's an immediate ceremonial cultural landscape around that site and that's the one that the Aboriginal people are concerned about, the immediate cultural landscape around the site .It's part of - the woman is a part of that immediate cultural landscape, the stone arrangement is a part of that immediate cultural landscape, and practices that took place there in the valley in that amphitheatre, attached to any other sites in the area, that's the immediate cultural landscape. (TS D9/599/15-23)
Overall, Ross, after a careful analysis of the information available (Exhibit R3 Vol 3 Tab 18 p 2770), considers that the interpretation of the sites and landscapes provided by the three groups is clearly a description of a complex cultural landscape of very high social (Aboriginal) significance. Ross comments that the links between tangible and intangible aspects of the Aboriginal cultural heritage further support an interpretation of significance beyond the individual sites. Ross concludes: The 'Women's Site' is an important element within the suite of heritage sites that together comprise a cultural landscape that reflects Aboriginal law and custom. The existence of any one site within the cultural landscape enhances the individual value of the other sites. The significance of this cultural landscape is greater than the sum of its parts. (Exhibit R3 Vol 3 Tab 18 p 2771
The Court, relying on the testimony of Aboriginal witnesses as the determinants of Aboriginal culture in accordance with OEH policy guidelines, considers that Aboriginal people explain the cultural landscape clearly and consistently. There is no evidence that all three witnesses do not accept a range of scales of cultural landscapes. Considering the inherent complexity of the concept of cultural landscapes, and the fact that this is an area in which Aboriginal culture is being revived after loss and fragmentation, the Court considers that Aboriginal evidence is remarkably consistent. The cultural landscape in this case, as described by Aboriginal witnesses, is seen as an integrated whole but there is a distinction between regional, local, and immediate, radiating out from a very important site (the 'Women's Site'), in much the same way as the protected cultural landscape at the Mount Yengo Aboriginal Place encompasses the site itself, surrounding stories and natural features covering an area of 1825ha (Exhibit A11 PG5 p 39).
Rocla also argues that there is a lack of demonstrated connectivity between the known sites surrounding the 'Women's Site' on or in the vicinity of the Rocla land (RFS p 80 6.4.117). Rocla considers that connectivity between the various sites on Rocla land was said to arise because of sightlines between culturally significant sites and/or a ceremonial pathway that passes through the Stage 4 extraction area and other parts of the Rocla land.
The Court agrees that evidence before the Court on sightlines and specifically designated ceremonial pathways was confused, lacked convincing detail and was speculative to some extent, though with respect to the issue of sightlines it notes that Hodgetts explains there is sometimes a direct visual relationship between sites, and in other cases a direct visual relationship is not required. The environmental integrity of the area between sites is a second part of the concept of sightlines as explained by Hodgetts (Exhibit A10 p 6 28 - 29).
Rocla also argues that the fact that Aboriginal people traditionally walked between sites or that they may have had held ceremonies camped in the vicinity is not sufficient evidence to necessarily exclude quarrying within this cultural landscape (RFS p 77, 6.4.114). Rocla further argues, relying on Smith, that the distinction should be made between the 'Women's Site' and stone arrangement, which are of a ceremonial nature, whereas the artefact scatter and the grinding grooves are evidence of past life. The physical context of the former is therefore likely to be more important than the physical context of the latter (RFS p 86 6.4.135). Rocla argues that Prof Smith's understanding and application of the cultural landscape does not restrict the broader cultural landscape to those areas that are physically connected. Rather the focus is on spiritual connections between places which may operate at various scales These scales consist of a broad landscape capturing the 'Women's Site', Mooney Mooney and Mount Yengo (characterised above as the regional cultural landscape), without prohibiting developments in between, and a more localised landscape consisting of the 'Women's Site' (a 'hotspot') in its immediate bushland context (RFS p 75 6.4.109 and p 86 6.4.136), which is proposed to be protected by a buffer zone.
Despite these arguments the Court does not consider that Rocla demonstrated that what Rocla refers to as 'hotspots' in the landscape are not traditionally connected or that the intervening land between sites at the local level within and around the Rocla land is not an important part of the cultural landscape. Darkinjung points out that the concept of Aboriginal cultural landscapes is central to OEH policy guidelines relating to Aboriginal cultural heritage, and the emphasis in all its documents is on the interrelatedness of individual features in a broader cultural landscape, as is the case here (DFS p 30102).
The current known situation is summarised by Dallas thus: ● The undisputed significance of the 'Women's Site' and nearby stone arrangement includes the intangible: ● sites connectedness which is based on Darramulan distribution and triangulation (Owen 2014) ● sight lines and storylines (Mingaletta and Gordon 2014) and ● Cultural Landscape (DL A LC.) (Exhibit S12 Dallas report p 53)
There is convincing evidence which indicates interrelatedness of the elements of the cultural landscape within and around Rocla land. Dr Ross and Aboriginal witnesses have brought forward a range of other factors, besides sightlines and exact locations of ceremonial pathways, which could contribute to the connectivity between sites, and which suggest that the local and immediate area has characteristics of an integrated cultural landscape.
These may be summarised as follows:

In Aboriginal belief the culture heroes themselves travelled across the landscape, between sites, and were active between sites in this creation journey, creating a cultural landscape which still exists. For instance, Gordon TS D7/394/26-33.
The extent of sites in the area, including those which relate to the evidence of past life, points to the fact that Aboriginal people traditionally, actively and intensively utilised an area which includes the Rocla land and probably stretching beyond. The area contains elements such as traditional food and water sources, walking routes, camping places, and abundant rock art, much of it relating to the travels of cultural heroes.
Aboriginal witnesses referred to ceremonies, camping and other activities performed in and around the actual sites.
They describe it as the habitat of traditionally important, and in some cases, totemic features of the natural environment. The natural features of this landscape have traditional associations.
Aboriginal people see this landscape in a holistic way, rather than as dots on a map, and feel a strong attraction to it and a need to protect it as a whole.
The fact that development has taken place in the regional cultural landscape does not negate its importance in Aboriginal eyes, nor does it mean that it is necessarily appropriate to conduct a quarrying operation within this landscape.

Hodgetts sums up her view of the connectedness of the physical and spiritual elements of the cultural landscape existing between sites : The cultural landscape includes Aboriginal sites, however it also includes the area between sites consisting of the natural and spiritual landscape. This includes plants, animals, creeks and streams, natural features spirits and our ancestors (totemic and ancestral beings). The area between sites and moving from one site to another through the landscape is a journey of connection and learning. This is part of the intangible aspect of our spiritual cultural belief system religion there is no conceptual division between nature and culture. It is a spiritual experience. (Exhibit A4 p13 60)
With respect to 177 above, Rocla argues that the existence of a number of sites in the area does not imbue the area as a whole with such a high degree of cultural significance that it would preclude quarrying (RFS p 74 6.4.103). In effect, the argument is that development can be permitted within the broader landscape, and that the immediate localised cultural landscape in which development cannot proceed is limited to the engraving site in its proposed buffer zone (RFS p 86 6.4.136). Rocla describes the cultural landscape as consisting of 'hotspots' such as the 'Women's Site' in its buffer zone with 'free land' between them (RFS 75, 6.4.109) (quoting Smith) and relies upon this assumption to argue that quarrying within the established cultural landscape could be appropriate with the safeguards of the development of a CMP, and further necessary survey and salvage, after approval was given. Rocla's assumption appears to be that the cultural landscape which is sensitive to development is limited to the proposed buffer zone around the 'Women's Site'. As Darkinjung suggests, this implies that the concept of a connected cultural landscape is capable of application only at a regional level, or at a very local level such as described by the 'Women's Site' and the proposed buffer zone (DFS p 30 102).
The Court considers that such a conclusion is undemonstrated. It is unsafe to rely on the evidence of Margaret Katherine to define a buffer zone which would be appropriate to protect the 'Women's Site', in its cultural landscape, as suggested by Rocla (RFS p 63 6.4.49) or on her evidence relating to 'hotspots' and 'free land' within this cultural landscape as Rocla does. The Court does not rely on her evidence generally as Rocla does. The Court found Margaret Katherine a convincing and transparent witness with deep knowledge of, and a concern for, matters relating to Aboriginal culture. However, Margaret Katherine herself confirmed that in giving evidence she was only sharing her own story, and deferred to the knowledge of local Aboriginal people in relation to local issues and decisions (T4 .9 .14p 190 .20 and T4 .9 .14 pp 189.50, 190.13 and 198.12) and that she was not aware of the key feature of the Calga 'Women's Site', in particular the engraving of a footprint (T4 .9 .14 pp 189.20 and 197.27). She did not visit any of the engravings in the immediate vicinity of the Rocla site considered by Aboriginal people to be of significance. In any case, the 90m buffer to which Rocla refers, and upon which it relies to define the limits of physical protection for the site, is referred to by Rocla and Smith as a 'gender buffer' and this seems to have been what Margaret Katherine was describing rather than a management buffer, or a limit to a level of significance relating to the cultural landscape. As Darkinjung points out, Margaret Katherine also expressed concern learning of the depth of the proposed excavation and its proximity to the Calga Women's engraving (T4.914 p 195.30 - 37).

[31]

Findings

With reference to the list of contentions outlined above, the Court accepts that investigations so far, and information from experts and Aboriginal witnesses, have provided convincing information about the significance of the 'Women's Site' in its cultural landscape, demonstrating that it has high social significance and research potential in terms of the Burra Charter, and that its cultural landscape encompasses the Rocla land. There is convincing evidence of the existence of a cultural landscape surrounding the 'Women's Site', connecting to other nearby sites and encompassing tangible and intangible elements as described in the relevant OEH policy documents, significant elements of which may extend outside the proposed buffer zone .
The Court also considers that information available at present about the details of some of the elements of this cultural landscape, about the connectedness between sites, the relationship between sites, and about the existence of further sites within the landscape and of activities conducted there, is in some cases sketchy or incomplete. The nature and extent of the cultural landscape has not been fully defined. To the extent that this is the case, the Court does not consider that enough evidence has been presented to definitively rule out Rocla's contention that its operations can be conducted as proposed without the danger of significantly compromising the Aboriginal values of the cultural landscape.
However, conversely, the Court's conclusion when considering the 'Women's Site' in its cultural landscape, and what can be deduced of its significance from the information before the Court, is that in summary the Court considers that Rocla has not demonstrated that there is not a range of cultural and traditional connections between sites, as outlined above, which make the area an integrated cultural landscape. The Court does not accept that Rocla's definition of 'free land' is relevant in this context but, even if it did accept this definition as relevant, the Court concludes on the evidence that Rocla has not demonstrated that there is 'free land' available for quarry development in this cultural landscape.
As the OEH guidelines indicate, for Aboriginal people the significance of individual features is derived from their interrelatedness within the cultural landscape. This means that features cannot be assessed in isolation and that assessments need to consider the feature and its associations in a holistic manner. This may require a range of assessment methods with the close involvement and participation of Aboriginal people. (Exhibit R3 Vol 1 Tab 3 p 35)
In all these circumstances, the question of the the adequacy of the investigation of Aboriginal heritage conducted by Rocla within the PAA to respond to these uncertainties becomes a key issue. Rocla's argument summarised at 169, that investigations have been thorough and have demonstrated there is a lack of physical evidence of significant Aboriginal sites in the immediate amphitheatre below the 'Women's Site', and between identified sites, is the subject of significant disagreement between the experts which is discussed further below.
Rocla says that Veale and Darkinjung blindly accept Aboriginal views without synthesis, and also do not test the intellectual and evidentiary rigour of the stories told. Further, Rocla's attempts to consult with Aboriginal stakeholders - to test this rigour was, in their view, frustrated by the decision by the Aboriginal people not to participate. But, on careful analysis, the Aboriginal response was that it was premature to finalise the proposed buffer zone. In our assessment there is no evidentiary basis to discredit the Aborigial views stated to the Court .

[33]

Historic and ethnographic enquiry

The Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation (2005) (Exhibit S18 Tab 3 p 38) indicate that investigation should include "the history of the peoples living on that land (including archival and oral sources)" (page 36 step 1 para 1). The gathering of such information will involve "a range of methodologies, such as cultural mapping, oral histories, archival documentation and specific information provided by the Aboriginal community". The Court notes that the preliminary research notes prepared by Howie in the one-page document headed 'Heritage Assessment' provides potential ethnographic and historical research sources and archival information for the Guringai (Exhibit S12 Guringai Tribal Link Aboriginal Corporation Aboriginal Cultural Heritage Plan p73) but this is brief and preliminary: 1. Howie says she was brought up on traditional stories. In and around the Rocla site there are a number of significant sites ... I believe that the ceremonial sites in and surrounding the Rocla sites are associated with creation stories and traditions. I have learned the stories from the knowledge I have gathered over the years by listening to stories told by family members and elders as a child and looking at and listening to the natural landscape (Howie page 4). 1. Howie also said in oral evidence that her grandmother told her that the area was significant for women (Howie T5.9 ...14pp224 .35 - 50, 231.35 - 45, and 269.50 - 270.40). In Rocla's submission the evidence of Howie in this regard ought to be given very little weight. Rocla was critical of her bringing forward this specific reference to her grandmother only late in the proceedings (REF) However, the experts, (Gordon T 11.9 .14 pp 657.45.658.10; Veale T11.9.14 p 657.25-40; Owen T 11.9 .14p 657.15-25 Dallas T11 .9 .14 65 8.10.15; Smith T 11.9.14 p 658 21-35) were inclined to accept Howie's evidence as a genuine recollection, but there was disagreement as to its significance. 2. Experts also noted that there may be Aboriginal people who may hold cultural knowledge of Aboriginal sites within the area who are yet to be identified through the process to date (Exhibit A11 pp 3 - 4 ). 3. These statements are inconclusive and brief. There is no evidence before the Court arising from a focused investigation of ethnographic and historical research which could reveal more about the Aboriginal significance of the cultural landscape, or provide historical or cultural context for the current statement of Aboriginal cultural significance. 4. For instance, the post contact history of the Aboriginal people of the area, including information on post contact movements, genealogies, official records and oral history has not been pursued and there has been no anthropological study of present local Aboriginal culture in general, including kinship systems, traditional and augmented beliefs. Atkinson gives a very brief history of traditional Aboriginal social connections in the area, discusses the work of early ethnographers and rock-art recorders and devotes several paragraphs to providing some fragmentary information about the history of Aboriginal people in the 19th century in this area (Exhibit R3 Vol 3 Atkinson report pp 1909-1911). There is no reference of any further information about the history of Aboriginal people in the 20th century, up to the present time, or any anthropological work relating to the same period. This information, if available, could possibly provide more precise information relating to the traditional connections with this land as it relates to the present Aboriginal understanding of the cultural landscape and investigation of such information may have had the potential to provide further information about the contemporary significance of tangible and intangible heritage values within the study area.

[34]

The adequacy of the archaeological investigations

The Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005 (Exhibit S18 Tab 3 p 38) stipulate that archaeological investigations should be based on the outcomes of the preliminary assessment, the gathering of sociocultural and archaeological information, archival information, a description of the landscape, within the study area and the vicinity, and a physical inspection of the proposed development area (Exhibit S18 Tab 3 p 38).
In summary this process includes:

undertaking a preliminary assessment to determine if the project is likely to have an impact on Aboriginal cultural heritage;
identifying the Aboriginal cultural heritage values associated with the area through consulting with Aboriginal people with cultural knowledge or responsibilities for country in which the proposed project occurs, and written and oral research and field investigations;
understanding the significance of the identified Aboriginal cultural heritage values;
assessing the impact of the proposed development on Aboriginal objects and Aboriginal places;
describing and justifying the proposed outcome and alternatives; and
documenting the Aboriginal cultural heritage impact assessment and the conclusion and recommendations to afford appropriate protection for Aboriginal cultural heritage.

The guidelines note that the close and ongoing investigation and participation of Aboriginal people will be needed during the collection of the information and the development of management outcomes (Exhibit S18 Tab 3 pp 35 - 38).
The Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales (Exhibit S 18 Tab 7 pp 109 - 121 September 2010) provides more detail relating to these requirements.
Requirement 1 of the Code is the review of previous archaeological work, which requires the report to synthesise previous archaeological and ethnographic studies. This work must synthesise known archaeology and ethnic history of the region using relevant published and unpublished sources. It should evaluate the results of any previous reports for the subject in the light of current knowledge, describe the range and nature of Aboriginal sites and features present within and near the subject area, and describe existing predictive models that are relevant to the project and subject area, such as models of past Aboriginal land-use strategies and cultural systems, together with models of relevant taxonomic processes that highlight the main issues and regional character of the archaeology; depending on the scale of the project and the information available (Exhibit S18 Tab 7 p 114, and for the list of requirements in more detail see p 118).
Requirements 2 and 3 ask respectively for a review of the landscape context, and a summary discussion of the local and regional character of Aboriginal use of the area. Requirement 4 asks for the presentation of a model or series of testable statements about the nature and distribution of evidence of Aboriginal land-use in the subject area based on the information collected from Requirements 1, 2 and 3. This is termed a predictive model. Depending on circumstances predictive models may range from simple to complex (Exhibit S18 Tab 7 pp 109 - 121).
The Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales 2010 (Exhibit S18 Tab 7 p 119) describes predictive analysis thus: In archaeology, predictive modelling refers to a process that considers variables that may influence the location, distribution and density of sites, features or artefacts across the landscape. As well as a review of the results of previous archaeological work and any available ethnographic information (to make judgments about past Aboriginal settlement of the landscape) variables often included in a predictive analysis are environmental and topographic variables such as soils, distance from landscape features, slope landform elements and cultural resources. (Orton 2000:77) regardless of its size every project that assesses the archaeological significance of an area of land will require predictive modelling of some sort. Smith, in assessing the adequacy of the archaeological assessments, provides further detail of the requirements for predictive analysis as outlined in this document (Exhibit S9 p 21). The predictive model provides a basis for sampling strategies to be developed for the archaeological survey and, if required, archaeological test excavation.
As described above there have been numerous investigations of the Rocla land over a considerable period. However, there is no agreement among the experts concerning to what extent the investigations conform to relevant policies and guidelines, whether there has been a sound methodology developed and implemented with respect to the development of a predictive model of Aboriginal heritage sites in the area, and the subsequent surveying of the site with respect to Aboriginal heritage. A significant critique of the methodology of the archaeological investigations was that they did not ground these investigations in a framework of known archaeological information for the region, or use this information in the design of a predictive analysis for field survey and in conclusions generally.
Rocla defended the series of investigations carried out on its behalf, arguing that repeated investigations took place over a long period of time, the criticisms were dismissive of the physical constraints of the Rocla land, undervalue the outcomes of these surveys, and overstated the value of additional investigative tools. In particular, they undervalued Rocla's predictive model and the additional information gathered during these proceedings (RFS p 29 to 30). Rocla further argued that Darkinjung has also contributed to the survey process, carrying out eight site surveys over seven years (TS/D15/1097/5-20), and acknowledges that there was a likelihood that additional sites may be found within Rocla land, but argues that this is likely to be the case in any heritage landscape which is heavily vegetated (RFS p 31 6.2.8). Dallas concludes that 'collectively there has been adequate surveying undertaken across the Rocla land' (Exhibit S12 p 17). Smith concluded that there had been 'extensive investigation' of the Rocla land that 'largely complied with the required methodologies, technical and policy guidelines'.
Appleton reviewed archaeological assessments which had been prepared in the past in the vicinity of the Rocla land (Exhibit R3 Vol 1 Tab 5 pp 592 - 596) and considered regional ethnographic studies up till the 20th century but did not review the considerable body of published literature on archaeological investigative research and findings in the region, which provide a substantial body of information concerning Aboriginal land-use as outlined by McDonald (see below). From his review, Appleton developed a predictive model (Exhibit R3 Vol 1 Tab 5 p 600.) which was reviewed by Atkinson (Exhibit R3 Vol 3 Tab 17 p 1912) who, however, did not add to information about regional land use patterns or use them as part of the predictive analysis. Atkinson considered general guidelines that would suggest the possible location of sites within the Rocla land. On this basis, she predicted where sites were most likely to be found, and adopted Appleton's predictive model with some supplementation (Exhibit R3 Vol 3 Tab 17 p 1912). Smith notes that new sites located in the survey conform to this predictive model (Exhibit R3 Vol 3 Tab 17 p 1917 and 1933).
McDonald was a witness with extensive experience of survey and excavation work in the Sydney Basin, and the witness with the most experience of the archaeological investigation of rock art in this region (Exhibit A9 Josephine McDonald, Curriculum Vitae Appendix 1). Her criticisms of the survey methodology were trenchant.
McDonald stated that the major problem was that the reports did not provide a convincing scientific appraisal due to a failure to define a relevant predictive model, through ignorance of relevant major archaeological projects and research subjects which have been undertaken in the vicinity (Exhibit A9 p12). She cites quite numerous previous regional and local projects which have developed serious research questions relating to a range of issues which could be applied to this particular area. For example chronology, changes in artefact use in technology, changing human settlement patterns through time, and questions of archaeological scale and use of local catchments. She considers that Atkinson's and Appleton's defined predictive models are generic lists of likely site types to be encountered. In her opinion they do not meet industry standard (Exhibit S9 p 10).
Nor do the reports identify or recognise local landscape features or research issues of relevance to this part of Sydney - for example, McDonald cites information that the Calga/Peats Ridge ridge line is identified by early settlers as an Aboriginal access track, is close to an identified linguistic boundary, that there are a number of identified volcanic quarry sites in the vicinity which have been identified as regional sources for artefacts traded across the Sydney region (Exhibit A9 p 12), and that the high number of grinding grooves in this area could be part of a regional axe production network, as research issues which could have been considered.
McDonald described Atkinson's assessment that the open sites in the Project area are "… common throughout Australia" as "incomprehensible" (Exhibit A9 p 11), and evidencing a lack of research knowledge about this site type. McDonald was of the opinion that the high research potential of these sites was indicated, for instance, by the fact that they are unique in the local area, that they contain a high proportion of chart/indurated mudstone (which is a material which dominates early assemblages in the area), and that the small assemblages contain a high proportion of material indicating complex knapping activity (Exhibit A9 pp 11 - 12).
She commented that neither consultant had deployed the recognised industry standard relating to open Potential Archaeological Deposits (PAD's) (Exhibit A9 p 10). Neither predictive model identifies the likelihood of PAD's in the open associated with a range of site types, nor paid any attention to the published predictive models for the existence and nature of sites in the immediate area, which are very well developed (Exhibit A9 p 13).
Similarly, she comments that a range of rock-art research questions relating to style, ethnic identity, diachronic change, information exchange and the relationship between languages and cultural identity have also been explored in recent years, many of which focused on rock-art sites within a 20km radius of the project area (Exhibit A9 p 12), but are not pursued here. She notes that none of the rock-art sites in the study area or the local area have been recorded by a recognised rock-art specialist, which would have provided an extra range of information (Exhibit A9 p 16).
In short, McDonald argues that the sites which have been located have not been examined within their archaeological and cultural context, in the light of a range of well-published regional and local archaeological research questions, and have not been subject to predictive analysis relating to these research questions. McDonald makes a clear case for the research potential of the entire area, which might lead to a deeper understanding of the cultural landscape and of connections within it. (Here she is referring to the entire study area, not just to the sites which will be directly impacted by the quarry.)
Dr Owen, who was retained by AWWP, concurs with this view - he considers that Appleton and Atkinson provide some of the basic environmental information that is required but that neither report correlates this data with known Aboriginal sites within and surrounding the study area. Therefore, they do not provide the appropriate integrated analysis and consideration of the geomorphology, geology, soil landforms, land-use history and landscape (Exhibit B7 Owen report p 11).
For those reasons, Owen does not consider that the landscape and its resources has been properly assessed as required in the Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation (2005) (Steps 2 and 3) (Exhibit S18 Tab 3 pp 37 - 38). The research lacks a description of the landscape and its resources and of the local and regional character of Aboriginal land use and its material traces. As a result Aboriginal heritage sites are not correlated with the environment or landscape context, which flows onto the effectiveness of the predictive modelling (Exhibit B7 Owen report p 11). Dr Owen contends that accurate predictive modelling has not been developed and that consequently the Aboriginal heritage significance assessment is unlikely to be underpinned by resolved understanding of appropriate context (Exhibit B7 Owen report p 14). In his opinion, none of the predictive modelling requirements defined in the Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales (Exhibit S18 Tab 7 pp 109 - 121) are presented by Atkinson. In summary, he concludes that that the Appleton and Atkinson reports do not comply with the requirements of the Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005 (Exhibit S18 Tab 3 p 38; Exhibit B7 Owen report p 6).
Professor Smith undertook a detailed analysis of the predictive models and criticisms of them by Professor McDonald and Dr Owen (Exhibit S9 Smith report pp 21 - 28).
Smith concludes that the approach of Owen and McDonald to the development of predictive analyses is overly prescriptive. She notes that the code of practice allows for flexibility as to the form of a predictive model (p 22) and considers that Appleton and Atkinson 'largely comply' with Step 2 of the Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005 (Exhibit S 18 Tab 3 p 38). She considers that minor additional work could be included in a CMP in order to be fully compliant.
Smith outlines Step 2 in the Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005 and Requirement 3 in The Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales (2010) (Exhibit S18 Tab 7) which, as noted above, requires that the main issues and regional character of Aboriginal land use and the material traces that it has produced be synthesised. Smith notes that Owen and McDonald argued that the effect of the limited background research on the region meant that the predictive model developed by Appleton and modified by Atkinson was flawed (Exhibit S9 Smith report p 21).
Smith considers that neither Appleton nor Atkinson fully meet Aboriginal Cultural Heritage Impact Assessment and Community Consultation (2005) requirements to map landscape and landform units at the different levels of landscape, though both reports take landscape landforms and topographic units into account in their analysis. She concludes that the effect of this is that the interpretations are largely localised in that the significance of some sites within their wider regional context may have been underestimated (Exhibit S9 Smith report p 21). This is in agreement with McDonald's comments above.
Smith (Exhibit S9, p 22(g), and p 20 - 21(j)-(m)) reviews the predictive model used and concludes that while Appleton and Atkinson developed detailed predictive models, these models were not strictly in accordance with the requirements outlined in Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005 and in the Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales (Exhibit S18 Tab 7 pp 109 - 121). In her opinion the advisory note in this document (p 118) allows room for professional judgment according to the particular situation.
Smith goes on to argue that predictive models are most valuable for targeted surveys in large areas when a sampling strategy has to be developed, and considers that this is not the case for the subject area which was pedestrian surveyed (Exhibit S9 Smith report p 26 5.13 (c)).
However, all experts agreed 'that dense vegetation and field conditions mean that archaeological visibility was so low as to impede the usefulness of survey - and any further pedestrian survey' (A11, p 4).
Smith, in apparent contradiction to her opinion given above, also clearly states that predictive models are needed to produce a series of testable statements concerning the nature and distribution of physical evidence regarding Aboriginal land-use, citing the Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales (Exhibit S18 Tab 7 p 118) and argues that the information derived from predictive analyses is fundamental to the location of sites in a field survey, and that in terms of the Calga area she considered the quality of the predictive model to be particularly important given the extremely low archaeological visibility throughout the study area as described by Appleton and Atkinson (Exhibit S9 p 21 5. 10(b)). She states: I agree that a wider regional literature review and a more detailed summary of the regional character of Aboriginal land-use and its material traces may have changed the predictive models used by Appleton (2009) and Atkinson (2012) and elsewhere. (p 26)
However in her statement which follows, she argues that the thoroughness with which Atkinson's pedestrian survey was undertaken offset any limitations in the predictive models that were used. (p 27 .5 .13 (e).
She notes that Appleton and Atkinson did not include PADs in open areas as part of their predictive models but that Atkinson consistently considered PADs as part of her survey. Smith provides a table of PADs on Exhibit S9 pp 22 - 23. She comments that none of them are in the land which will be quarried. No subsurface investigation was undertaken of any of these PADs. She concludes, that as outlined in a CMP, any unidentified PADs should be properly identified as part of day-to-day quarrying operations.
Smith concludes that: 'there is additional information that should be sought to obtain a complete understanding of the history, setting, use and fabric of places of Aboriginal cultural heritage significance in the subject area. This included investigation and analysis of original ethno-historic documents for the area, subsurface archaeological investigations and the stylistic analysis of rock art' (Exhibit S9 Smith report p 84,14.37).
However, her view is that this work will not produce additional information which would augment or change the significance of the Aboriginal heritage of the area and can be conducted as part of a development and salvage operation (Exhibit S9 p 36, 7.8, and p 1, 1.2). This is discussed further below.
Smith states that problems relating to a lack of regional analysis and the predictive surveys in the Appleton and Atkinson surveys are overcome by the work of herself and Mary Dallas (Exhibit S9 Smith report p. 21(m)) but Dallas's report does not discuss these issues.
The Court appreciates that it needs only to have regard to relevant policy and procedural guidelines and that these guidelines themselves mention the need for flexibility in their interpretation. As submitted by Mr Hutton on behalf of the Minister it does not follow that the development needs to be refused if they have not been met (TS D17 p 1181 - 1182).
The Court agrees. It is not so much concerned with a forensic investigation of whether the guidelines have been met but, rather, whether the investigations have been sufficient to satisfy the Court as to the extent, nature and degree of the significance of Aboriginal cultural heritage, including the possible extent and significance of so far undiscovered sites predicted to occur within the area.

[35]

Findings

The Court concludes that while it is arguable that the predictive analysis work of Appleton and Atkinson meets the aforementioned guidelines in general, though with some caveats, after a consideration of all of the evidence it appears that there is little consideration of the Aboriginal landscape use in its regional setting, especially taking into account the available range of reports on regional archaeological work and developed research questions for the area, as discussed by McDonald. The Court is concerned about this, and is of the view that this is a fundamental flaw in the present application, considering the significance which all parties, in their arguments, place on the question of the importance, extent, and nature of the cultural landscape, which necessarily must be considered in a regional as well as a local and immediate context.
As far as the Court is concerned there are two problems with the lack of effective predictive analysis. As Prof Smith (S9 p 21 50.10(b)) explained a predictive analysis may be helpful and relevant in situations where visibility is low (as in this case), as well as when the area to be covered is so large as to preclude complete survey. In the case where visibility is low the predictive analysis is clearly intended to guide ground surveys. Counsel for AWWP Hemmings articulated the issue succinctly: I make the submission that the self -evident consequence of an inadequate predictive model is that in a heavily vegetated environment such as this, the findings of a survey will be incomplete, and the significance and the values of the place may be underestimated. (TS D18/1237, 25 - 45)
The shortcomings of the predictive analysis, therefore, go towards the question of whether the area has been examined to such an extent as to satisfy the Court that the full extent of the sites within the area and their significance is known, and that the occurrence of further sites has been effectively predicted.
In this case there appears to have been little analysis of the research or information potential of the known sites, especially in their regional context, and this is a problem in itself. It makes it difficult to determine the level and nature of the archaeological significance of the area, especially in a comparative context, which in turn could provide information about and the nature and extent of the cultural landscape. Setting aside for a moment the question of the predictive analysis and its effect on the adequacy of the survey, a lack of coherent analysis of the known sites in their regional archaeological research context also goes towards the question of whether the significance of the Aboriginal cultural heritage of the area can be said to have been fully determined.
McDonald notes that archaeological questions and answers can have the capacity to affect the nature of Aboriginal and social significance (Exhibit A9 pp 10 and 18 and McDonald, T9.9.14 p 425 5 - 25). Indeed, a good example of the importance of looking at regional evidence, and previous research, is that the limited amount of regional archaeological work which has been cited has added to the significance of the 'Women's Site', by demonstrating the rarity of the motif of a woman, in association with a stone arrangement, in Sydney rock art is a direct result of earlier regional rock art studies.
In the ultimate, Rocla has not demonstrated that the design of the investigations did not have significant weaknesses which may have affected the outcome.

[36]

The adequacy of the assessment of the potential for the discovery of further Aboriginal heritage items within the site

Regardless of their views on the adequacy of predictive models and site investigation techniques, all experts agreed that the dense vegetation and field conditions made archaeological visibility very low (Exhibit A11 p 4) and that the PAA will contain further Aboriginal sites beyond those recorded to date (Exhibit A 11 p 2. (8). They agreed: More archaeological work including clearing sandstone surfaces, night recording and sub surface investigation is required to more completely understand whether there are more sites to be included in the assessment of heritage values in the PAA (including Stage 4 area). This requirement includes knowing more about the nature and integrity of the soils (three different soil landscapes) and the archaeological potential across the PAA (including Stage 4 area). (Exhibit A11 p 4)
It is also agreed that the project will result in 'the likely destruction of other places and objects of Aboriginal cultural significance on the site regardless of the level of significance' (Exhibit A 11 p 9).
Aboriginal witnesses supported this conclusion. For example, in Hodgetts's opinion and the opinion of Darkinjung, there is a high likelihood of further sites being identified in the area. She supported this view by referring to the fact that the area is heavily vegetated, that a number of open rock platforms with potential for engraving sites have not been cleared and examined, and that there is also a potential for archaeological deposits, and Aboriginal camping grounds. A previously unknown rock engraving site (# 45-3-3638) was located in the near vicinity of the extraction area during the course of investigations (Exhibit A4 Hodgetts Affidavit p 15). There was overall acceptance of the density and variety of sites in the general area. Hodgetts describes the density of sites in the area (Exhibit A4, Hodgetts Affidavit pp 42 - 47 and map p 10), and McDonald, having conducted a comparative analysis, comments similarly on a very high density for this general landscape, which increases the research potential and hence the archaeological significance of these sites (Exhibit A9 McDonald report p 20).
It is clear that both experts and Aboriginal witnesses agree that archaeological investigations of Aboriginal cultural heritage in Stage 4 were not thorough and comprehensive enough to preclude there being a high probability that the area (including the direct impact area) will be shown to contain other sites of unassessed value. As well as the issue of the adequacy of the predictive analysis, this was due in in practical terms to problems with ground visibility and the unexplored possibility of the occurrence of subsurface deposits. The question for the Court is the extent to which other sites, which experts predicted would be found in further surveys and archaeological excavations, will be found within Stage 4, whether they are significant, in themselves, or whether they can contribute information which will enhance and further explain the significance of the 'Women's Site' in its cultural landscape and/or the Aboriginal heritage values of the site generally.
Experts and parties disagreed on this point. For this reason they also disagreed as to whether it was necessary to conduct further investigations to locate such sites, prior to consideration of the granting of project approval.
Generally, experts and Aboriginal witnesses in their evidence concentrated on the likelihood of two types of Aboriginal sites occurring in the area. These were engravings, and subsurface deposits, though they did not preclude the discovery of other types of sites common to the area.

[37]

Rock engravings

With respect to the discovery of further rock engravings, Rocla experts, Mary Dallas, considered that collectively there had been adequate surveying undertaken across the Rocla land. She cites the previous surveys by Sim (1960s), Lough (1970s) and Bluff (1980s) (primarily surveying for rock art), and Atkinson's 90-100% ground inspection, which would have uncovered stone platforms and overhangs (Exhibit S12 Dallas report p 17).
Dallas considers that it is likely, based on her ground-truthing with Claire Smith, that additional archaeological material or sites may be located within the Rocla land upon progress in clearing and further archaeological investigation. (Presumably she is referring to the impact area here.) She considers, for example, that targeted investigation should be carried out in the rock platform to the west of the 'Women's Site' as recommended by Sharon Hodgetts in her 2012 report (Exhibit S12 Dallas report 17 to 18), underneath the transmission line near 45 -3 - 1794 and at the shield engraving site (as reported in Exhibit S9 Smith report p 23). Despite this, Mary Dallas does not believe there is a high probability that sites of significance will be located within the Stage 4 project area because such sites are, in her view, likely to be located in the context of elevated sandstone benches or along ridge lines (p 42). She considers that the likelihood of finding another site in the order of significance of the 'Women's Site' within the Stage 4 Project Area is unlikely, post vegetation removal (Exhibit S12 p 53).
Smith concludes that, taken together, the investigations represent a concerted effort to investigate the history, setting, use and fabric of places of Aboriginal cultural significance on the site. She considered however that further work could be undertaken to obtain additional information. This included investigation and analysis of original ethno-historic documents for the area, and a stylistic analysis of rock art at the 'Women's Site' within its wider context (Exhibit S9 Smith report p 1 (c)). Smith also agreed with Dr Owen and Prof McDonald that: An absence of rock platform clearance … may have limited assessment of archaeological potential of the area surveyed and consequently of the cultural significance of the area. (Exhibit S9 Smith report p 24)
In her view, it was essential that this research is included as part of a CMP (Exhibit S9 p 1 (d)), but she felt that it could be carried out 'as part of the quarrying operations' (Exhibit S9 p 24).
Smith dismissed the need for further investigation prior to approval of the development. This was on the same basis as Dallas, that is that any further engravings located would not be as significant as the 'Women's Site' engraving (p 83 14.33 (f) - (g)). This was because, 'in a system of knowledge with a single religious system … it is highly unlikely that a place of high cultural significance would be located next to a place of comparable significance' (p 83 14.33 (a - g).
On the other hand, experts and Aboriginal witnesses for Darkinjung and AWWP have argued that rock engravings are likely to occur within Stage 4 and that they may add considerably to the significance of the area.
McDonald, arguing against the Rocla position that engravings were most likely to be found on higher areas, stated that it is generally accepted that 45% of engravings are located on ridge lines, 45% on slopes and 10% on low areas. She was of the opinion that there are likely to be platforms obscured by leaf litter and vegetation in the areas proposed for disturbance (McDonald TS/D7/p 419 35 - 45). Sim supported this view. He said that engravings and rock shelters can be found in all sorts of locations in the Sydney sandstone region and that, depending on local conditions, very prominent outcrops are quite often the least likely places to find them (Exhibit R3 Vol 4 Tab 66 p 2922). McDonald states that recommendations should have been made to undertake further investigation by instituting a focused effort to remove leaf litter and encroaching sediments from rock platforms around the project area and to explore the possibility of undiscovered engravings and/or grinding grooves. Her opinion was that there are a large number of sandstone platforms in the north-east and south of the study area which would benefit from clearing and night-recording to ensure that all engraved art has been located. She suggested that air photo interpretation would assist (Exhibit A9 McDonald report pp 10, 15).
Owen undertook a review of the sites in the AHIMS Register for the area and a landscape review, and deduced from this a range of predictive statements which he considered were applicable to the PAA. This included that engraved sites may be found on any flat sandstone platform with suitable quality rock, especially on extended and raised terraces associated with the northern and southern ridge lines between the 180m and 220m contours. He also considered that certain engraved sites may contain images of Aboriginal ancestral beings connected with ceremony or tradition (Exhibit B7 Owen report p 14, 4.30 (b) - (c)).
Hodgetts similarly identified areas with potential for further engravings in the immediate vicinity. She stated that, during survey work to date, a number of open rock platforms with a potential for engraving sites were not cleared of encroaching vegetation or leaf litter and were not recorded. In particular, she mentioned a site 300m west of the 'Women's Site' and associated stone arrangement, and also felt there was potential for sites to be located on smaller, low, isolated sandstone platforms located at the proposed southern entrance (Exhibit A4 p 15 - 72 - 73).
Paul Gordon gave evidence that there was potential for perhaps finding some more engraving sites as well as rock platforms on Rocla land (Paul Gordon, TS/D6/312.40). He referred, as a comparative example, to the important men's site of Burragurra which is on top of a big rock platform, and is accompanied by at least another dozen rock carvings lower down the slope. In his experience of working with rock art: 'You find lots of other images not far away from you know, what might be perceived as the main image.' (TS/D7/p 463/35 - 50)
Evidence of the problems of locating rock engravings in the thickly vegetated terrain is that Appleton had great difficulty in locating again the 'Women's Site', even with assistance of a previous discoverer of the same site, Warren Bluff (Exhibit R3 Vol 1 Tab 5 p 600). The difficulty of ensuring that all the rock engravings within the area have been located is also indicated by the recent and continuing discoveries of new sites and new aspects of sites. The recent apparent rediscovery of an engraving at Camp Calga (# 45-3-3638) and of engraving sites on AWWP land - including a footprint - which was recently identified by removal of vegetation and exposure of the rock platform is an example (Tracey Howie, TS/D5/25/25-40).
No nighttime recording has been conducted in the area except at the 'Women's Site'. This revealed that a figure, recorded and published by Sim as being a stylised hand, is actually a footprint which, in Aboriginal tradition, relates to the Baiame Daramulin. It was also discovered that the motif of the woman had what Ross interpreted as an 'elaborate headdress' made up of 15 lines radiating from her head, and both the woman and the emu were seen to have five small drilled holes in their faces (Exhibit R3 Vol 3 Tab 18 Ross report p 2763 - 2765). Though the significance of this finding is not mentioned or discussed in evidence before the Court, the way in which Aboriginal women have responded to these discoveries is an example of the way in which a relatively small archaeological discovery can add considerable information relating to Aboriginal or social significance (Exhibit R3 Vol 3 Tab 18 Ross report p 2765 8.1).

[38]

Findings - rock engravings

Rocla's key argument, with respect to the discovery of further rock engravings, and based on the evidence of Smith and Dallas, is that with reference to rock engravings no site will be found which is of comparative significance to the 'Women's Site'. The Court is not satisfied on the evidence outlined above that this is necessarily the case.
In any case, the fact that another engraving site of the same significance as the 'Women's Site' may not be located within the project area does not demonstrate that significant other sites may not be located, or that the location of other sites, especially engraving sites, would not augment the significance of the sites already known or throw light on elements of the cultural landscape. As discussed above, the significance of the 'Women's Site' does not only relate to the actual engraving. One of the key reasons why the site is significant to Aboriginal people is that it is considered to be related to the stories of Baiame and Daramulin and part of a broader journey of mythological beings across the landscape. Clearly, as Darkinjung points out (DFS p 40, 138), it would be highly significant, and would provide more information and clarification about the nature and extent of the cultural landscape if engravings related to Daramulin figures or footprints or totemic figures were located in the area. Such engravings may have the capacity to provide important new information about the nature and extent of the cultural landscape, utilising the research techniques recommended by Prof McDonald. Indeed, the location of any new engravings in the area has the potential to add to information about the cultural landscape, and to broaden and deepen the story of the area.
In summary there is credible evidence before the Court that there are extensive areas which may contain rock engravings which are yet to be explored, and all agree that these investigations should be carried out. There is no certainty that such research will not present significant additional evidence which may elucidate the nature and extent of the Aboriginal heritage, including the significant cultural landscape already demonstrated to exist in the area, and the Court concludes that therefore this research should be carried out before a decision is made about granting consent to the project.

[39]

Subsurface deposits

No archaeological investigation of the potential for open subsurface deposits has been carried out in this area.
Dallas has recommended that an additional targeted investigation at # 45-3-365 (the surface scatter of artefacts) should be undertaken as part of a CMP to investigate the possibility of additional archaeological deposits and/or undisturbed artefact-bearing deposits, as suggested by McDonald and Owen, but notes that 1954 aerial photographs shows this site has been impacted by the creation of substantial orchards, and she also considers that the previous use of the Stage 4 Project area as an orchard makes it 'very unlikely' that any further undisturbed sites will be located in the Stage 4 Project area (Exhibit S12 Dallas report p 53). She concludes, therefore, that development may proceed with measures proposed in the CMP to appropriately manage any additional archaeological material or sites located (p 18).
Smith considered that subsurface archaeological investigations at the 'stone scatter' site (# 45-3-3635) should be undertaken as part of salvage procedures (Exhibit S9 Smith report p 1,1.2(d)).
In summary, Rocla argues that previous disturbance in areas which might provide archaeological deposit makes the discovery of significant archaeological deposits unlikely.
McDonald considered however that the two open sites within the PAA are unique in the local area (Exhibit A9 McDonald report pp 10 - 11 also TS/D7/414/20 - 25) and that these open sites, located in areas of surface disturbance on the open slopes flanking the creek lines and hanging swamp, indicate that this general area has excellent potential for buried, intact archaeological deposits in undisturbed areas. She states, at p 10, that archaeological deposits in undisturbed as opposed to disturbed areas are not likely to appear on the surface. This is why subsurface sampling is required (TS/D7/p 413/5 - 28).
From the point of view of scientific significance, McDonald also suggested that, from her knowledge of the regional archaeological patterns, potential deposits may be scientifically significant to the extent that they record the movement from rock shelters into open occupation sites at a relatively early age (Exhibit A9 McDonald report p 11 and TS/D7/p 415/15-40).
McDonald further indicates that findings from nearby (Mangrove Creek) support her view of the potential for significant information being found, and suggests lines of enquiry which have been undertaken as standard practice elsewhere in the Sydney Basin (Exhibit A9 pp 13, 15 - 16).
In summary, McDonald considers the fact that there may be further evidence within the project site obscured by soils, leaf litter and vegetation which means that the interconnectedness of all the site within a broader cultural landscape cannot be discounted (Exhibit A9 McDonald report p 22).
Owen (D7 9.9 .14 p 422.30-36), in commenting on the likely occurrence of subsurface material in Stage 4, referred to the fact that Ian Sim, who located many of the recorded rock-art sites in the area, refers to information from a local that the earliest ploughing "down the back' in this area had brought to light what he called a 'blackfellows ground'. This was on Willing's farm, roughly in the northern half of the study area. This suggests evidence of subsurface occupation in the area There was some discussion amongst experts as to where this "blackfellows ground" might be what amount of land in the area had been affected by ploughing, and what the effect of ploughing on potential Aboriginal sites in the area might be. (D7 9.9 .14 p 422 ff). However, further information, for instance, about the cadastral information relating to Willing's farm was not available to the Court. Sim suggested that considering all the evidence this part of the study area could be more intensively investigated or monitored in relation to possible buried archaeology. The Court considers that this view has some merit.

[40]

Findings - subsurface deposits

On the subject of the possible occurrence of subsurface deposits, the Court considers that, in all the circumstances, it would have been prudent for test excavation to have been conducted as part of the investigations into the Aboriginal heritage of the Rocla land.
In general with reference to the occurrence of further sites within the PAA, while all experts agree that more sites will be found and that further investigations should be conducted to achieve this, Rocla argues that their investigations have demonstrated that there is sufficient information available at present to characterise the nature, type, location, extent and archaeological and social significance of known sites, and that the discovery of more currently unknown sites in the process of planned investigations as part of the CMP will not change the basic assessment of the Aboriginal cultural heritage of the area. Rocla accept that investigations to locate, assess and manage these sites are necessary and proposes to undertake them, but only after the granting of consent and, sequentially, as different stages within the proposed quarry area are prepared for quarrying.
The discussion about the existence or otherwise of further Aboriginal heritage within the Project area is important for two reasons. Firstly, it appears from the evidence that there is no guarantee that more sites of significance in themselves, either rock engravings or subsurface deposits, will be discovered which cannot be protected by the mitigation proposed. Secondly, there is evidence that the discovery of further sites may have a significant affect on the assessment of the significance of the 'Women's Site' and the cultural landscape as we now know it.
Though McDonald cautions that there is no certainty that more archaeological evidence will necessarily enhance our understanding of the landscape which in turn may increase the social significance (for Aboriginal people of the 'Women's Site'), her general view is that obtaining such archaeological evidence as she proposes may well achieve this. See Exhibit A9 McDonald report p 10 and McDonald D7 p 425 9/9/15 5-25.

[41]

Findings - adequacy of investigations take to date

Taken overall, the evidence of experts and Aboriginal witnesses demonstrates that there is a good chance of gaining more information from a more detailed targeted examination of known sites, and of finding currently unknown significant sites or (sites which will augment our information relating to key questions about the significance of sites already known), and of the cultural landscape. The Court concludes that the investigations undertaken to date have not been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(a); Darkinjung Contention 34(b),(c),(d),(e),(f),(g),(h),(I),(j).
Rocla argues that work needed to undertake further investigations would be excessive and that, because of visibility problems and the nature of the terrain, it would of necessity be unduly destructive to sites which may not be impacted by quarrying (see, for instance, Rocla D16 24/3/15 p 1099 10-25). Rocla notes the Aboriginal women stated that they could not make a decision on the buffer zone until they understood the full physical extent of the archaeology (D16 24/3/15 p 1099 38-53.) Counsel for AWWP, however, pointed out that there is established methodology for how Aboriginal cultural assessment is to be undertaken in accordance with OECD policies, such assessment should start with a predictive model with targeted surveys of the type that were suggested by Prof McDonald in her evidence with respect to, in particular, scientific values, and by Dr Owen, in particular, with respect to targeting investigation of clearing platforms (D18 26/3 15.p 1238 4-25).
The Court accepts the outline by Prof McDonald of the series of investigations which she considers could and should be undertaken to redress deficiencies (Exhibit A9 pp 15 - 17). These include focused efforts to remove leaf litter and encroaching sediments on rock platforms, subsurface investigation of open PAD landscapes and identified shelters with a series of test pits, and more analysis of the rock art. Contrary to Rocla'a submission such further investigations would not require the complete removal of surface material throughout the area. The Court does not consider that Rocla makes a convincing case that such investigations would be unduly destructive, considering the proposed methodology and the risks involved in not undertaking them, in circumstances where the subject land combines poor ground surface visibility, with an already known high density of sites in the area, and the existence of a significant cultural landscape. In terms of the Burra Charter, subsurface investigations in this instance would constitute investigations necessary to ascertain the level of significance of the Aboriginal heritage of the area and consequent appropriate management decisions (Exhibit S 18 Tab 10 p 305 Burra Charter Article 28.1 and Tab 31 p 992 - 993 Burra Charter Practice Notes).

[42]

The adequacy of the assessment of the cultural significance of the Aboriginal heritage within Stage 4

It was common ground that the key standard for determining whether the Aboriginal cultural heritage significance of the Rocla land was the Burra Charter. The Burra Charter process is as follows: 6.1 The cultural significance of a place and other issues affecting its future is best understood by a sequence of collecting and analysing information before making decisions. Understanding cultural significance comes first, then development of policy and finally management of the place in accordance with the policy. This is the Burra Charter process 6.2 Policy for managing a place must be based on an understanding of its cultural significance 6.3 Policy development should also include consideration of other factors affecting the future of the place such as the owner's needs, resources, external constraints and its physical conditions. (Exhibit S 18 Tab 10 p 301)
The Burra Charter defines the cultural significance thus: 1.2 Cultural significance means aesthetic, historic scientific social or spiritual value for past present and future generations. Cultural significance is embodied in the place itself, its fabric, setting, use, associations, meanings, records, related places and related objects (Exhibit S 18 Tab 10 p 299). The Practice Notes for the Burra Charter (Exhibit S18 Tab 31 p 992 - 993) define each of these values. The Court accepts Dr Ross's uncontested summary of these definitions: Aesthetic significance means 'aspects of sensory perception … [which] may include consideration of the form, scale colour, texture and material of the fabric smells and sounds associated with the place and its use'' Historic significance is a valuable place has 'because it has influenced or has been influenced by, and historic figure, event phase or activity. It might also have/value is the site of an important event' Scientific significance means the research potential of a place, its rarity or representativeness and 'the degree to which the place may contribute further substantial information' to scientific investigation Social significance 'embraces the qualities for which a place has become a focus of spiritual, political, national or other cultural sentiment to a majority or minority group' (Exhibit R3 Vol 3 Tab 18 Ross report p 2769)
In the production of a CMP, it is common practice for an assessment of all of these values to be summarised in a Statement of Significance, defined by The Burra Charter Practice Notes (Exhibit S 18 Tab 31 pp 994 - 995) thus: A Statement of Significance provides a concise and distilled summary of the cultural significance of the place. It is common practice for the Statement of Significance to follow an analysis of each aspect of significance against each value or criterion. The Statement of Significance summarises each aspect, highlighting aspects of significance the most important. Statement of Significance underpins decisions about statutory protection and conservation actions and is therefore critical importance. It should be supported by sound evidence and be able to withstand scrutiny.
Rocla quotes this definition (TS/D8/543/25-35) and summarises questions by the Court relating to whether a Statement of Significance could be produced for the Rocla land on the evidence with the question: Do we know enough about the cultural significance of the Rocla land to grant approval to the Project? (RFS p 55 6.4.7) The Court agrees that this is the key question. In the Burra Charter terminology, "Understanding cultural significance comes first, then development of policy and finally management of the place in accordance with the policy. This is the Burra Charter process" (Exhibit S18 Tab 10 p 301).
As outlined earlier the experts agree that there is enough information available to confirm that the 'Women's Site' in its cultural landscape is of high social significance to the Aboriginal community. However, there was considerable dispute amongst the experts about the answer to Rocla's question at a more general level.
Rocla, in its submission (RFS pp 55 - 56 6.4.12), points out that Smith conducted a peer review of the information available and concluded that, taken together, the reports address the values outlined in the Burra Charter and fulfilled the intent of the Burra Charter (Exhibit S9 p 24 5.12). Rocla provides a lengthy summary of what is it considers is known about all aspects of significance outlined in the Burra Charter (RFS pp 54 - 74) and concludes: The exercise in the preceding section [of the Rocla submission] demonstrates that there is substantial information regarding the cultural significance of the sites located on Rocla land. This evidence would, in Rocla's submission be sufficient for a Statement of Significance to be prepared in relation to the land and, in particular in respect of the 'Women's Site'. This accords with the evidence of Prof Smith [TS D8504 32] Ms Dallas gave evidence that she could 'get pretty close' [TS D8 495 37] to producing a Statement of Significance. This evidence should be considered in light of Ms Dallas's view that a refined Statement of Significance would be prepared as part of the CMP (RFS p 73, 6.4 .100).
Other experts disagree. Owen, McDonald and Veale are in general agreement that we do not know enough about the cultural significance of the Rocla land to grant approval to the Project, and that an adequate assessment of significance is a prerequisite for the development of a CMP which, in accordance with the Burra Charter process, should precede land-use decisions. This is a clear and repeated message from their reports, the joint expert's report, and their oral testimony. For example: The assessment of Aboriginal cultural heritage significance is incomplete. Whilst the various consultant reports identify and assess heritage values under some significance criteria, the Aboriginal cultural heritage values of the PAA landscape and places within it have not been properly assessed in accordance with best practice industry standards. The consequence of this is that the likely impacts arising on the Aboriginal cultural significance of the PAA landscape and places within it has not been assessed as part of the determination of the Calga sand quarry proposal (Veale Exhibit A11 Joint Expert's report p 13). A CMP would be an appropriate document to identify and assess significant Aboriginal cultural heritage values, provide policy to conserve and manage that significance. However, a Conservation Management Plan should be prepared prior to any determination. This process and sequence aligns with the ICOMOS Burra Charter which is based on the premise that cultural significance of a place needs to be understood before decisions are made that may impact such a place (Veale Exhibit A 11 Joint Expert's report p 11). [We] Need more information to determine fully the cultural values, landscape features, places and objects of Aboriginal cultural heritage significance (MacDonald, Exhibit a 11 Joint Expert's report p 6). I acknowledge that a CMP would [be] an appropriate instrument to guide heritage management processes throughout the life of the mind and recognise that the draft CMP … will address most of the management requirements to be considered in this context. However, … implementation of a CMP after approval implies that the conservation of still to be identified high value landscape /sites … would not be a management option within the Stage 4 development area. Given we cannot assess significance values within Stage 4 based on the information to hand, this is an unacceptable process within the scope of current industry best- practice. (MacDonald, Exhibit A 11 Joint Expert's report p 31 5.1.3) Owen makes a similar point: In my opinion, the wording of the approval by the DG & PAC, has been made on an inadequate assessment and an inadequate Aboriginal community consultation process. As such, the conditions of consent do not make provision for managing the range of Aboriginal heritage values present, the potential for further Aboriginal sites of high value to be identified and as such the need to consider future management and conservation of as yet unidentified heritage values. (Owen Exhibit an 11 Joint Expert's report p 11 and see also Owen p 33 5.1.4)
The Court has carefully considered the evidence relating to whether enough is known about the cultural significance of the Rocla land to grant approval to the Project. The Court concurs with the argument that at this stage there is insufficient knowledge about the cultural significance of the site to grant development approval. The Court has outlined above reasons for considering that the investigations on Rocla land with respect to Aboriginal cultural heritage are inadequate. The nature of the known Aboriginal cultural heritage has not been analysed in a regional framework, and it has not been demonstrated that more places of significance, or places which might further enhance the significance of the known Aboriginal heritage of the area, will not be found.
Therefore it logically follows, as a majority of the experts agree, that there is insufficient information to determine the cultural significance of the area with certainty. The Burra Charter process mandates that: Understanding cultural significance comes first, then development of policy and finally management of the place in accordance with the policy. (6.1) and Policy for managing a place must be based on an understanding of its cultural significance (6.2) (Exhibit S10, Tab 10, p 301).
In the circumstances, the development of a Statement of Significance and a CMP after consent has been granted creates unacceptable uncertainty. There remains the obvious problem that such a Statement of Significance, developed as a result of a conservation management planning process which took place after consent was granted, could not effectively influence major changes in the management regime which might be necessary in light of post consent investigations. There appears to be a real risk that new significant sites and/or information which might enhance the significance of known sites, and hence change or augment the overall cultural significance of the site, will be discovered too late to influence land-use decisions or to conserve other discovered significant sites in the cultural landscape.

[43]

The adequacy of Aboriginal consultation in the conduct of these investigations and assessment

The Court has received evidence and submissions about the adequacy of consultation of Aboriginal stakeholders and others undertaken in respect of the project.
Noting that Darkinjung makes no submission in respect of the adequacy of that consultation process AWWP submits that the consultation has been both non-compliant with the relevant guidelines and ineffective.
This is disputed by Rocla on three grounds:

AWWP has an overly prescriptive approach to the application of the relevant guidelines (which have been complied with in any event) ;
AWWP incorrectly states that the consultation did not comply with the industry standard; and
AWWP does not appropriately measure the effectiveness of the consultation.

Rocla submits that AWWP's submissions are based on the flawed logic: that because more could be done (and will be done) that what has in fact been done is inadequate for the purpose of approving the project.
Rocla submits that, taken as a whole, the consultation to date substantially exceeds that which would be regarded as industry standard by reference to the guidelines.
The Burra Charter and its Practice Notes do not mandate a particular protocol for consultation with stakeholders. And, while the 2005 Draft Guidelines require proponents of Part 3A projects to undertake community consultation throughout the project development and assessment process (Exhibit S18 Tab 3 p40), they do not mandate any particular form of consultation but suggest that guidance ought to be drawn from the Consultation Guidelines (Exhibit S18 Vol 1 Tab 3 p 38). The 2011 Guidelines also refer to the Consultation Requirements and Due Diligence Code as relevant.
Taken together, Rocla submits that the Consultation Guidelines, the 2011 Guidelines, the Due Diligence Code and the Consultation Requirements have the following essential features:

Identifying stakeholders This may be achieved by contacting the local Land Council and the local council (Exhibit S18 Vol 1Tab 2 p30, Tab 4 p59, Tab 6 p77), placing an advertisement in a local paper (Exhibit S18 Vol 1 Tab 2 p30, Tab 4, p60), contacting native title organisations (Exhibit S18 Vol 1 Tab 2 p30, Tab 4 p59, Tab 6 p77) and/or the Office of Environment and Heritage (Exhibit S18 Vol 1 Tab 2, p30, Tab 4 p59.Tab 6 p77).
Outlining the proposal so that impacts may be identified (Exhibit S18 Vol 1 Tab 4 p 61, Tab 9 p 274).
Consideration and incorporation of comments from stakeholders in the assessment report (Exhibit S18 Vol 1 Tab 4 p 61, Tab 9 p 274).
Review of draft report by stakeholders (Exhibit S18 Vol 1 Tab 2 p 31,Tab 4 p63, Tab 9 p 274) Rocla contends, on the evidence, that each of these steps has been completed in respect to the application. The relevant local Land Council under the Aboriginal Land Rights Act 1983, Darkinjung, was first consulted in late 2005. John Appleton and Jodi Cameron of Darkinjung then carried out the initial survey of the Rocla land for the purpose of the project (Exhibit R3 Vol 1 Tab 5 p587 at [2.1]). Thereafter, Ms Cameron prepared a report (Exhibit R3 Vol 1 Tab 5 p 632 ff). The CEO of Darkinjung Land Council, Sean Gordon, records his letter dated 23 January 2013: "Darkinjung has been involved in this Proposed Development Application from 8th December 2005. Darkinjung has been actively engaged over the past 7 years conducting site surveys, preparation of Aboriginal Heritage Impact Assessments, Night Recordings and identification of new Aboriginal sites within the proposed extension area. To date we have conducted 8 site surveys over the 7 years and also formally responded other professionally produced reports" (Exhibit R3 Vol 3 Tab 64 p 2656).

There is no complaint in this letter with respect to inadequate consultation of Aboriginal stakeholders. Similarly, the OEH which administers Part 6 of the NPW Act, and therefore the various consultation guidelines, has confirmed that the consultation process adopted by Rocla is compliant with the Consultation Guidelines as required by the 2005 Draft Guidelines (Exhibit A11 p27). Further, the DG, in issuing the statement of compliance required by s 75l, indicated that he was satisfied with the consultation under taken by Rocla (Exhibit R3 Vol3 Tab 23 p 2118).
Smith, in her evidence, said that the consultation "constitutes an extraordinarily high standard of industry practice at this point" ((TD8 502 41). Similarly, Dallas considered that there had been "adequate effective consultation which has included site visits, large amounts of correspondence informing people as to updates and draft reporting. The 'Women's site' has gone from a site which the Aboriginal groups had no knowledge of to a site of enormous importance in the local and broader area … The consultation process was lengthy and covered a wide rage of methods. In my opinion, there has been sufficient time and opportunity for the Aboriginal people to have input".
AWWP's submission at [72] that Veale considered that the method of consultation has not met industry standards is as Rocla submits out of context after a review of the transcript. Similarly, Owens' evidence that an Aboriginal liaison officer should have been engaged by Rocla for the purposes of consultation notwithstanding that it is not industry standard, offers no support to AWWP's criticisms of consultation with Aboriginal stakeholders to date based on the available evidence.
The evidence is that, despite efforts by Darkinjung, they were unable to identify a woman of sufficient seniority within the local Aboriginal community to act as an expert in these proceedings regarding the significance of the 'women's site' to the meaning to be attributed to the engravings at the 'Women's Site' (TD4 167 at 10-20). Therefore, Mr Gordon, was called upon as a senior Law Man to give expert evidence about matter within his knowledge.
Ms Howie gave evidence that she was not aware of any person who had given information to her was "holding back" (T D 5 207 at 25 41).
Prof McDonald, in cross, examination, stated that: "As a result of the submissions that various people have out in as a result of the Court case, we have a much better idea of the social values of the site than we did at the completion of the expert reports". When directly asked whether one could reach a conclusion that there has been, at this point of time, adequate consultation McDonald told the Court, "I think we have, a good idea of the social values of the site no, yes".
The Minister's position remains that the consultation prior to approval of the Project was adequate. It is summarised in Rocla's submissions at [6.3.12] to [6.3.24]. Although, the Minister further submits that any perceived inadequacy in previous consultations is not determinative. The question for the Court is whether sufficient consultation has been undertaken to date, including as part of the proceedings.

[44]

Findings - adequacy of Aboriginal stakeholder consultation

We accept that the project has been well-advertised (before and during the hearing) and a range of narratives attributed to the Rocla land and the particular sites within it have been obtained from Aboriginal stakeholders. In fact, the consultation process has lead to the recognition of the Women's site by Aboriginal people as being of great significance and Rocla's provision of temporary access to this significant site (Exhibit S32), and an offer to provide a permanent arrangement via the draft conditions in the event of approval.
It is the case that since at least 2005 Aboriginal people have been in partnership with the proponent to investigate the area in order to gain information about the cultural significance of an area. And, while it may be the case that there will be no further physical evidence of cultural heritage upon which anyone would need to comment until the further archaeological and other associated investigations are complete this does not undermine the adequacy of the consultation process undertaken to date. Nor does it detract from the further consultation that will occur as provided for in any final CMP - which of necessity will require the ongoing involvement of Aboriginal people in the implementation of that plan.
The proponent may well ask the Court how much consultation is required before it is in a position to determine an application in circumstances where it is possible (even likely) that there will be gaps in information.
In considering this question, the Court is very mindful that a requirement for full knowledge about a site is unrealistic and impractical, particularly where the gaps in knowledge arise for a variety of reasons that are not limited to the actions of the proponent and arise in part from the Aboriginal stakeholders re-engaging with a particular site. The Court is not mandating full knowledge of a site at all. We fully appreciate the rights of the landowner at law to develop its land, particularly where the landowner is committed to develop their land with strict conditions designed to ensure knowledge will be improved prior to the project proceeding. In short, the Court hears loudly and clearly the position of all experts that "cultural values are dynamic, not static, and may not be captured at any one time" (Exhibit A11 p3).
However, given the rarity of this particular 'Women's site', as acknowledged by each of the experts, and the potential significance of the site in the locality, including the development site, it is imperative that the outcomes of the investigations of the Stage 4 area inform the consultation process with relevant Aboriginal stakeholders so that their views can be considered by the Court in its assessment of the Project application.
Accordingly, we must conclude that the consultation with Aboriginal stakeholders about the Project is incomplete until the outcome of the further investigations can inform that discussion.
Having reached this conclusion, it is not necessary to deal with the regrettable, though inadvertent disposal of some pro forma submissions by the Department.

[45]

The effect of the impact of quarrying and the proposed mitigation measures

A key emphasis of the Rocla submission is that there is little likelihood that sites of the significance of the equivalence of the 'Women's Site' will be discovered. This is the opinion of both Dallas and Smith. On this basis, it was argued that sites which might be found after the granting of consent could be managed by the measures outlined in the draft conservation plan and other conditions.
The threshold question before the Court, however, is not whether sites of a similar level of significance to the 'Women's Site' will be found, and this is nowhere argued, but whether as stated above there is a possibility that more sites will be discovered (whether rock engravings, archaeological deposits or other types of site), whether these sites will have any degree of significance in themselves which will augment the cultural values of the area (and which will need appropriate protection) or whether taken in context they may augment the significance of the 'Women's Site' or contribute to our knowledge of the cultural landscape generally, and hence require the modification or abandonment of the project, rather than survey and salvage work after approval.
On the evidence, it appears to the Court that in addition to the finding made above - that ethnographic, historical and archaeological investigations have not been sufficient to convince the Court they demonstrate the full heritage values of known sites - they have not been adequate to disprove that more sites of significance in themselves (or sites which will add significant information to the already demonstrated significant Aboriginal cultural heritage of the area), will be discovered, which cannot be protected by the mitigation proposed. The Court considers that, on the evidence, there is a reasonable likelihood of such discoveries .
Rocla's proposal to investigate, assess and conserve or salvage these places in the course of quarrying as part of a CMP presents a very real risk that new significant sites and/or information which might enhance the significance of known sites will be discovered too late to influence land use decisions, or to conserve other discovered significant sites in the cultural landscape.
Even though the 'Women's site' is acknowledged as being of great significance in its cultural landscape which envelops the development site (and everyone agrees that there is potentially more evidence available which may assist with providing more significant information about this), Rocla has not undertaken this work which would allow decisions on land use to be made prior to any consent.
The site is in a locality which is well known to have higher levels of Aboriginal cultural heritage. The project application seeks approval for a large quarrying operation which will necessarily involve the destruction of any heritage within the project disturbance area or, at best, leave it isolated within the proposed quarry, and permanently alter the landscape and thereby the immediate cultural landscape of any heritage adjacent. Aboriginal cultural heritage is non-renewable resource which, if destroyed, has a significant negative impact on Aboriginal people. We cannot accept on the evidence before us that there is not a significant degree of doubt that significant sites, or sites capable of providing information which may strengthen evidence about the significance and size of the cultural landscape which is part of the significance of the 'Women's Site' and of the cultural and landscape values of the proposed development area more generally, that will not be found by further archaeological and associated investigations.
If such sites are located or such information found by further investigations, we cannot accept that proposed mitigation measures will be adequate, or in time to protect them, and will not be too late to contribute formation which should be available prior to major land-use decisions for the area being made. Similarly, we cannot accept on the evidence before us that there is not a significant degree of doubt that evidence gained from anthropological and historical studies of post contact Aboriginal culture, genealogy, movement and oral tradition will not provide information which may strengthen evidence about the significance and size of the cultural landscape which is part of the significance of the 'Women's Site' and of the cultural and landscape values of the proposed development area more generally.

[46]

Agreement between Rocla and AWWP in respect of all non-heritage issues previously in contention

On or about 4 February 2015 the Court was informed that after an agreement was struck between Rocla and AWWP, the latter agreed to withdraw all of its contentions on non-heritage issues; and on 16 February Rocla and AWWP filed the following documents respectively: 1. AWWP filed a Further Amended Statement of Facts and Contentions (FASOFC) with all contentions struck out except for AWWP's contention relating to Aboriginal cultural heritage matters; and 2. Rocla filed Draft Conditions agreed between the Applicant and the Second Respondent (AWWP/Rocla Agreed Conditions) (Exhbit S42).
To assist the Court, the AWWP/Rocla Agreed Conditions were accompanied by the following: 1. Version of the PAC Conditions of Project Approval marked-up to reflect the AWWP/Rocla Agreed Conditions (Mark-up of PAC Conditions); and 2. Replacement plans and figures to be inserted into the AWWP/Rocla Agreed Conditions: 1. Project layout plans from Appendix 1; 2. Receiver location plan from Appendix 2; 3. Biodiversity offset strategy from Appendix 4; and 4. Conceptual final landform from Appendix 5.
AWWP's FASOFC was filed with the consent of Rocla. Darkinjung and the Minister did not object to the filing of AWWP's FASOFC.
The AWWP/Rocla Agreed Conditions were filed with the consent of AWWP. Darkinjung and the Minister did not object to the filing of the AWWP/Rocla Agreed Conditions.
At the direction of the Court, the AWWP/Rocla Agreed Conditions were notified to the lay witnesses who had earlier lodged submissions about non-heritage issues and they were invited to make submissions to the Court about the AWWP/Rocla Agreed Conditions. Some of the objectors lodged additional written submissions and others gave further oral evidence at the continuation of the hearing in Sydney on 17 and 18 March 2015.
At that time the Court also heard additional expert evidence from:

Barry Murray, vibration;
Steven Cooper, acoustics;
Damon Roddis, air quality;
Noel Merrick, groundwater,
Peter Dundon, groundwater ; and
David Robertson, ecology.

The lay witnesses, further evidence in respct of the proposed conditions is addressed by the experts in Rocla's Supplementary Written Submissions (RSWS) dated 8 April 2015. In particular, the RSWS respond to Mr Warren's criticisms in his letter dated 16 February 2015 (Exhbit S43) about the rehabilitation of vegetation near the 'Women's Site'; Mr Sutton's concerns regarding the licensing of entrained water, the accuracy of the State of Catchment Reports produced by the NSW Government and his concern that the quarry is causing a reduction in pressure on neighbouring bores eg the Rozmanec bore; Dr Terri Thompson's concerns about respirable crystalline silica' and Ms Helleyer's concerns about increased traffic noise and vibration impacts for the village of Calga and her residence.
Generally, the Minister accepts the draft conditions agreed by Rocla and AWWP in respct of non-heritage issues, subject to some variations (Section G of the Minister's CWS 10 March 2015 at p 26- 31 Annexure 'A').
A central difference between the Minister's conditions and the AWWP Rocla Agreed Conditions is that the Minister does not support preferential treatment of AWWP over other landowners. The Minister submits that if Rocla and AWWP wish to pursue particular arrangements to manage the impact of the Project at AWWP, they are more appropriately addressed through a noise agreement between those parties.
An updated version of the proposed draft conditions which identifies the draft conditions which remained contested between the Minister and Rocla and AWWP (who agreed) was filed with the Court on 18 March 2015. The contested conditions are listed at p14 of RSWS dated 8 April 2015.
AWWP's response to the changes proposed by the Minister is also the subject of written submissions dated 23 March 2015 and were addressed by AWWP's solicitor, Mr Beatty, in Court. Ultimately, Rocla stands by its agreement with AWWP as to the terms of the draft conditions of approval (as agreed to be amended - see Exhbit S42 as updated on 18 March 2015).
Leaving aside the detail of the conditions, it is appropriate to summarise the evidence which addresses the non-heritage issues generally. It is summarised comprehensively in Rocla's CWS dated 2 March as follows.

[52]

Near surface water impacts in the immediate vicinity of Stage 4 - water availability for Groundwater Dependant Ecosystems (GDEs)

In oral evidence, Mr Sutherland contended that the excavation of Stage 4 will result in "a change in the water balance in the near surface condition" (T720.25) in an area to the south of Stage 4 (an area of approximately 9.27ha (T718.8) that is north of Creek C (T729.28)), shaded dark orange (T720.40 TO T720.45) in the plan contained at page 14 of Exhibit B19. Mr Sutherland confirmed in oral evidence that this dark orange area is his only area of concern when considering groundwater impacts of the proposed project (T729.25);
Part of E54 East (a GDE) falls within the dark orange area of concern for Mr Sutherland. In relation to water availability for E54 East, Mr Dundon (Rocla) advises that, of the total catchment area for water supplying E54 East, only 2% of that catchment area will be lost as a result of excavation in Stage 4 (T736.48). This is depicted visually in Exhibit S41. Mr Dundon also advises that "once rehabilitation of the quarry area commences, there will start to be a positive benefit in terms of runoff from the rehabilitated areas ..." (T752.4) and "in the long term ... runoff from the rehabilitated quarry will in fact be greater than it is today" (T751.39);
Dr Merrick has provided an assessment of total water availability to high priority GDEs. Dr Merrick's assessment, which is unchallenged, notes that there will be an 8% reduction in total water availability for E54 East (Exhibit B19 p 3 and T745.8);
As only a portion of E54 East falls within the dark orange area of concern for Mr Sutherland, Dr Robertson (Rocla) has expressed the view that it is only a portion (approximately one-third (T748.40)) of E54 that will be at risk from decreased water availability (T745.20 to T745.29);
Dr Robertson notes that water availability is just one factor that influences vegetation patterns and growth. Other factors include sunlight, humidity, shelter from the wind, soil depth and topography (T737.9 to T737.47);
Dr Robertson further notes that "there are massive changes in the availability of surface water and rainfall seasonally and with droughts. Far greater than 8% ... I've monitored vegetation changes long term at a number of sites and I say that you'd be hard pressed to detect an 8% change" (T749.20 to T749.24);
Dr Merrick expresses the view that "[E54] is supported partly by the regional water table and partly by perched groundwater ... we are still of the view that perched conditions would provide ongoing support for the ecosystem due to the continuance of incident rainfall and upgradient runoff ... upgradient runoff is the dominant component of the local water balance and would be only minimally impacted by the quarry" (Exhibit B19 pp 3 & 4 Bundle of Letters (Water)).

[54]

Water resources and licence allocations

The PAC noted, "The availability of water resources was a key concern to the community". (Exhibit R3 Vol 3 Tab 35 p 2402 PAC Determination report p4);
The PAC also accepted "that the appropriate water resources are available and that the project is unlikely to have a significant impact on water availability and water sharing in the area" (Exhibit R3 Vol 3 Tab 35 p 2402 PAC Determination report p4);
Mr Dundon noted he is satisfied that "Rocla will satisfy all of its obligations under both the Water Management Act 2000 and the NSW Aquifer Interference Policy" (Exhibit S35 p 15 para 68 Water JR para 68);
Mr Dundon's view is supported by the NSW Office of Water which notes that "Rocla ... currently hold sufficient entitlement for existing operations (Stage 3) and this entitlement is appropriately linked to the quarry excavation for accounting purposes" (Exhibit R4 Tab 21 p 2 Letter from Mitchell Isaacs, Manager, Strategic Stakeholder Liaison (DPI NSW Office of Water) to the Department of Planning & Environment dated 29 August 2014 at p 2).
In relation to Rocla's predicted compliance with the Water Sharing Plan for the Kulnura Mangrove Mountain Groundwater Sources, the NSW Office of Water notes "Inflow was predicted to peak at 75 ML/yr in 2019 (project year 7) rather than 160ML/yr [as was previously modelled] ... Rocla currently hold 98 units of share component linked to the quarry excavation, sufficient to account for the predicted inflows." (Exhibit R4 Tab 21 p 2 Letter from Mitchell Isaacs, Manager, Strategic Stakeholder of Water) to the Department of Planning & Environment dated 29 August 2014 at p 3).
Further, conditions 17 & 18 in Schedule 3 of the PAC conditions of approval (conditions 22 & 23 in Schedule 3 of the AWWP/Rocla Agreed Conditions) require Rocla to ensure that it has sufficient water for all stages of the Project and to demonstrate that it has adequate water licences to account for the maximum predicted volume of water to be used by the project.

[56]

Flora and Fauna

In relation to flora, the DG's Report notes, "The ecological assessment identified 4 threatened flora species on the site ..." (Exhibit R3 Vol 3 Tab 23 p 2123 DG EAR p 28) and "... with regard to the 4 identified threatened species, both OEH and the Department are satisfied with the avoidance and mitigation measures proposed by Rocla to minimise impacts on the species, and that the project is unlikely to result in any significant impact on these species, subject to the implementation of suitable offsetting measures" (Exhibit R3 Vol 3 Tab 23 p 2126 DG EAR p 31). The Court would find, in Rocla's submission, that such suitable offsetting measures have been included in the PAC conditions of approval and the AWWP/Rocla Agreed Conditions;
In relation to fauna, the DG's Report notes, "Rocla has designed the project to avoid affecting some of the key habitat for the less mobile frog species, principally by avoiding impact on Creek B ... [and] Creek A" (Exhibit R3 Vol 3 Tab 23 p 2126 DG EAR p 31). The DG's Report concludes, "Both OEH and the Department are satisfied with the avoidance and mitigation measures proposed by Rocla to minimise impacts on the species, and that the project is unlikely to result in any significant direct or indirect impact on these threatened species, subject to suitable offsetting measures. The Department notes that the removal of Stage 5 from the project - as discussed below - would reduce the potential impacts on threatened fauna further" (Exhibit R3 Vol 3 Tab 23 p 2126 DG EAR p 31);
The evidence of Dr Robertson would, in Rocla's submission, provide further comfort to the Court that flora and fauna have been properly considered. Dr Robertson notes, "I remain of the view that adequate surveys, literature review, database analysis and mapping has been done to predict the impacts of the quarry extension for threatened species ..." (Exhibit S24 p 4 Ecology JR p 4). Dr Robertson further notes: "Cumberland Ecology took a precautionary approach to the assessments of impacts on threatened species. If they had not been detected, and potential habitat existed, they were generally assumed to be present for the purposes of the assessment … I reiterate that the information known about threatened flora and fauna is adequate for determining the impacts of the proposal." (Exhibit S24 p 5 Ecology JR p 5)

[58]

Suitability of the proposed biodiversity offset strategy

A summary of the biodiversity offset strategy is set out in condition 25 in Schedule 3 of the PAC conditions of approval (condition 35 in Schedule 3 of the AWWP/Rocla Agreed Conditions). In summary, the offset strategy includes: 1. On-site Offset Area of approximately 60ha; 2. Off-site Offset Area of approximately 41ha; and 3. Rehabilitation Area within Stage 4 of approximately 8ha;
The DG's report notes that: "The Department is satisfied that an acceptable offset strategy can be delivered by the Project subject to: (a) the removal of quarrying in Stage 5, and the inclusion of this area in the offset strategy for the project; and (b) the revegetation of approximately one third ... of the Stage 4 area in rehabilitation..." (Exhibit R3 Vol 3 Tab 23 p 2131 DG EAR p 36 to rehabilitate 8ha within Stage 4 by re-establishing native woodland vegetation communities;
Condition 7 in Schedule 2 of the PAC conditions of approval (and the AWWP/Rocla Agreed Conditions) requires Stage 5 to be included in the biodiversity offset strategy for the Project;
Condition 25 in Schedule 3 of the PAC conditions of approval (condition 35 in Schedule 3 of the AWWP/Rocla Agreed Conditions) requires Rocla.
The Court would, in Rocla's submission, find that the Department's recommendations are well founded and have been adequately addressed in the conditions. The Court would also find, in Rocla's submission, that the proposed biodiversity offset strategy is appropriate for this project.
Dr Robertson provides evidence as to the appropriateness of the biodiversity offset strategy: "The proposed offset package includes like for like vegetation and fauna habitats in close proximity to the proposed quarry expansion ... I remain of the view that the proposed offsets will adequately compensate for loss of habitat by the quarry ... I believe that the offset package does address key offset principles ... I do not believe that a larger and more extensive offset is warranted." (Exhibit S24 p 9 Ecology JR p 9)
The Court would, in Rocla's submission, concur with the Department's finding that "the project can be undertaken in a manner that would improve or at least maintain the biodiversity values of the locality over the medium to long term." (Exhibit R3 Vol 3 Tab 23 p 2131 DG EAR p 36).

[60]

Alleged noise impacts to AWWP

In relation to noise impacts at AWWP, Mr Cooper (Rocla) notes: "The INP is specific in defining a residential premise. The Barnard residence fits that description and it is entirely appropriate to nominate residential criteria for that residence. The INP provides amenity criteria for commercial premises and passive recreation areas citing a National Park as an example. The INP does not utilise the intrusive criterion for commercial premises or recreation areas. The AWWP is a commercial venture not to be likened to a National Park." (Exhibit S25 p 6 Noise JR p 6).
Further, Mr Cooper notes: "The amenity criterion for commercial premises of AWWP is easily satisfied" (Exhibit S25 p 11 Noise JR p 11);
Despite this, conditions 5, 9 & 10 in Schedule 3 of the AWWP/Rocla Agreed Conditions require noise monitoring to occur at the AWWP Visitors' Centre and AWWP Cabin No. 5 and if the noise generated by the project is above the specified noise criteria (which is based on residential amenity levels), noise mitigation measures must be installed.
The PAC noted, "The three key issues [raised by the community] which relate to noise are: noise impacts from the quarry operations and truck movements, hours of operation and loading operations" (Exhibit R3 Vol 3 Tab 35 p 2403 PAC Determination Report p 5. Operations has been included as part of noise from the quarry operations generally, which is in accordance with the EPA's Industrial Noise Policy) We note: 1. Noise impacts from truck movements

The experts agree that "the issue of road traffic noise as a result of the extension was no longer an issue" (Exhibit S25 p 5 Noise JR p 5). Nevertheless, condition 6 in Schedule 3 of the PAC conditions of approval (and the AWWP/Rocla Agreed Conditions) require Rocla to take all reasonable and feasible measures to ensure that the traffic noise generated from the project does not exceed the road traffic noise criteria. 1. Noise from quarry operations generally
The Director-General noted that the noise assessments conducted indicated that "... with the proposed noise mitigation measures in place, in particular the 5 metre high acoustic bunds, the project would comply with all applicable operational noise criteria at all locations at all stages of the project..." (Exhibit R3 Vol 3 Tab 23 p 2145 DG EAR p 50) and "... construction associated with quarry operations and bund construction would comfortably comply with the applicable daytime operational noise criteria at all receivers..." (Exhibit R3 Vol 3 Tab 23 p 2145 DG EAR p 50). It should be noted that the noise assessments included an analysis of noise impacts from the previously proposed Stage 5. Given that Stage 5 is no longer proposed, the noise impacts from the proposed quarry would naturally be less than previously assessed.
Further, the PAC notes, "The Commission is satisfied that with the removal of Stage 5, the requirement of attendant noise monitoring and the implementation of noise mitigation measures that the noise impacts can be adequately managed" (Exhibit R3 Vol 3 Tab 35 p 2403 PAC Determination report p 5).
This conclusion is supported by Steven Cooper, who states, "I see no impediment on an acoustic basis to the extension of the existing quarry operations" (Exhibit S11 p 19. para 123 Cooper p 19). 1. Hours of operation
Mr Cooper notes "the maximum noise levels from the quarry are not loud enough in the early morning period at the AWWP residence to cause sleep disturbance" (Exhibit S25 p 8 Noise JR p 8).
Condition 2 to 4 in Schedule 3 of the PAC conditions of approval (and the AWWP/Rocla Agreed Conditions) set limits to the hours of operation of the quarry. We note that Rocla may only undertake extraction and processing activities between 6:00pm and 7:00am when those activities are undertaken at least 10m below the pre-existing natural ground level (Exhibit R3 Vol 3 Tab 36 p 2422 condition 2 in Schedule 3 of the PAC conditions of approval (and the AWWP/Rocla Agreed Conditions)).
The PAC notes, "The Commission is of the opinion that the recommendation to extend the hours of operation is reasonable" (Exhibit R3 Vol 3 Tab 35 p 2404 PAC Determination report p 6).

In Rocla's submission, the evidence before the Court confirms that the Project should not be refused on the grounds of noise impacts and that the proposed hours of operation are appropriate.

[63]

Crystalline silica

The Director General notes, "Many public submissions raised serious concerns regarding the potential for silicosis-related health impacts ..."(Exhibit R3 Vol 3 Tab 23 p 2149 DG EAR p 54).
The Director General concluded that, "The assessment indicates that the project would comfortably comply with the applicable criteria at all sensitive receiver locations surrounding the quarry ..." (Exhibit R3 Vol 3 Tab 23 p 2149 DG EAR p 54) and, "Based on the finding of the air quality assessment, the Department is satisfied that the concentrations of airborne crystalline silica in the air would remain well below internationally accepted health-based criteria in the areas surrounding the quarry" (Exhibit R3 Vol 3 Tab 23 p 2150 DG EAR p 55).
This conclusion is supported by Mr Roddis (Rocla) and Mr Bridge (AWWP), who agree "Lifetime risk of silicosis amongst the general population is very low ... We agree that 3pg/m3 annual average (as PM4) is an adequate demonstration of protection against adverse health effects associated with exposure to respirable crystalline silica (RCS). Performance against the 3pg/m3 annual average RCS criterion can be adequately demonstrated through atmospheric dispersion modelling. The predictive modelling indicates that the annual average RCS criterion is unlikely to be exceeded at nearby sensitive receptors." (Exhibit S26 p 7 Air Quality JR p 7).
As noted above, conditions 11 to 13 in Schedule 3 of the PAC conditions of approval (conditions 14 to 16 in Schedule 3 of the AWWP/Rocla Agreed Conditions) require Rocla to monitor, analyse and address the compliance of the project against air quality criteria, including 3ug/m3 annual average for crystalline silica.
In Rocla's submission, the evidence before the Court confirms that the project should not be refused on the grounds of air quality impacts. Further, the conditions contained in the AWWP/Rocla Agreed Conditions are appropriate to ensure that Rocla complies with the relevant air quality criteria.

[64]

Visual amenity

AWWP withdrew their contention in respect of visual amenity as a result of agreement as to appropriate conditions of approval.
The views of Stage 4 and the previously proposed Stage 5 are generally limited to localised areas within Walkabout Park and Glenworth Valley, with distant views also available from landholdings further to the west of Glenworth Valley (Exhibit R3 Vol 3 Tab 23 p 2158 DG EAR p 63).
With the removal of Stage 5, the visual impacts of the proposed project are drastically reduced.
The Director General's report notes: "With [the avoidance and mitigation measures proposed by Rocla, the Department is satisfied that any residual visual and/or night lighting impacts from Peats Ridge Road and residences to the east would be minor. Any impacts on views from Glenworth Valley and landholdings further to the west would also be relatively minor, given the distance to these receivers and intervening vegetation, which would include the off-site offset area on the Glenworth Valley property" (Exhibit R3 Vol 3 Tab 23 p 2158 DG EAR p 3).
The Department's primary concern, in terms of visual amenity, was that visual impacts on parts of the Walkabout Park property are harder to mitigate. The Department therefore recommended conditions restricting the quarry expansion to Stage 4 only (Exhibit R3 Vol 3 Tab 23 p 2159 DG EAR p 64).
The Court had the opportunity to assess the likely view impact from numerous locations within the Walkabout Park property. Evidence was given on site by Dr Lamb for Rocla and Mr Storer for AWWP.
The opinions expressed by Mr Storer were falsely premised on ignoring the dense screening which will continue to be provided by vegetation which will not be disturbed by the Project. Dr Lamb's opinion should be preferred and is confirmed by the on-site view.
The AWWP/Rocla Agreed Conditions, upon advice from the parties' visual amenity experts, go even further to limit the visual impacts to AWWP of the quarry than the Department's recommendation. AWWP and Rocla have agreed to conditions with the following effect: 1. Vegetation in the previously proposed Stage 5 will not be disturbed (condition 7 in Schedule 2 of the AWWP/Rocla Agreed Conditions); 2. "Screening vegetation" will be retained along a portion of the ridgeline between Stage 3 and Stage 4 (condition 45 in Schedule 3 of the AWWP/Rocla Agreed Conditions). 3. Overburden Storage (Stockpile or Acoustic Bund) will be contained within the proposed limit of extraction (rather than outside as approved by the PAC) to ensure that vegetation along the eastern and southern boundaries of Stage 4 will not be disturbed (Figure 2.5 (Amended on 29 January 2015)); and 4. Extraction areas will be progressively rehabilitated as soon as reasonably practicable after completion of extraction of each cell (condition 38 in Schedule 3 of the AWWP/Rocla Agreed Conditions).
In Rocla's submission, the Court would find that the visual impacts of the project can be adequately avoided and/or mitigated by imposing the AWWP/Rocla Agreed Conditions and that no unacceptable visual impacts will arise for AWWP or surrounding residents if the proposed Project is approved subject to those conditions.

[65]

Traffic and transport

AWWP withdrew their contention with respect to traffic and transport when AWWP filed their Amended Statement of Facts and Contentions on 22 May 2014.
No evidence was led in these proceedings in relation to traffic and transport, except for the evidence from the acoustic experts discussed at paragraph 5.3(a)(i) above. In this respect, the acoustic experts agreed that "the issue of road traffic noise as a result of the extension was no longer an issue." (Exhibit S25 p 5 Noise JR p 5).
Other concerns raised in public submissions include the volume of trucks associated with the Project and traffic congestion, traffic safety concerns, conflicts with cyclists and truck-driver behaviour. In relation to these issues, the DG's report notes the following:

"The site enjoys very good access to the arterial road network, and that the modelling undertaken in the traffic assessment indicates that the local road network would continue to operate at a very good level of service with the project." (Exhibit R3 Vol 3 Tab 23 p 2161 DG EAR p 66)
"The assessment indicates the project would comply with applicable road design and safety standards, subject to the appropriate design and construction of the southern access intersection." (Exhibit R3 Vol 3 Tab 23 p 2161 DG EAR p 66). In this regard we note that condition 32(a) in Schedule 3 of the PAC conditions of approval (condition 42(a) in Schedule 3 of the AWWP/Rocla Agreed Conditions) requires Rocla to construct the southern access intersection to the satisfaction of the applicable roads authority.
"With regard to potential conflicts with cyclists on Peats Ridge Road, the Department is satisfied that the potential for conflict is unlikely to be any more significant than in other areas of the NSW road network, and that the road design is consistent with applicable road design standards." (Exhibit R3 Vol 3 Tab 23 p 2161 DG EAR p 66)
"With regard to driver behaviour, Rocla has an existing driver code of conduct which stipulates safe driver practices at all times, and has committed to maintaining this code of conduct for the expansion project. The Department is satisfied with this commitment ..." (Exhibit R3 Vol 3 Tab 23 p 2162 DG EAR p 67)

The Court would, in Rocla's submission, find that the traffic and transport issues raised in submissions have been considered and, where necessary, adequately addressed in the AWWP/Rocla Agreed Conditions.

[66]

Socio-economics

AWWP withdrew their contention in respect of socio-economics as a result of agreement as to appropriate conditions of approval.
The DG's report notes "the primary socio-economic benefit associated with the project is the shoring-up of affordable regional sand supplies for the Sydney and Central Coast construction industries" (Exhibit R3 Vol 3 Tab 23 p 2162 DG EAR p 67). In this respect, it is important to note the following: 1. the Penrith Lakes Scheme will cease between 2014-2016 (Exhibit S18 Vol 2 Tab 49 p 1585); 2. the supply at Kurnell is likely to cease production by 2023 (Exhibit S18 Vol 2 Tab 49 p 1585); 3. there will be a large shortfall in supply of the fine-to-medium-grained sand if production at Kurnell ceases (Exhibit S18 Vol 2 Tab 47 p 1517); 4. upon the cessation of the Penrith Lakes Scheme around 2.2 million tonnes of medium-to-coarse-grained sand will need to be sourced from elsewhere (Exhibit S18 Vol 2 Tab 47 p 1517); and 5. while there are large identified resources of construction sand at Richmond Lowlands, Somersby Plateau, Maroota and offshore which have the potential to become long-term suppliers of construction sand, there are environmental and societal constraints with these sites (Exhibit S18 Vol 2 Tab 47 p 1517).
Rocla's existing quarry has been operating for many years and enjoys very good access to the arterial road network including Peats Ridge Road, the Calga Interchange and the F3 Freeway. Given that transport is a major component of the cost of sand to the construction industry, this strategic location brings significant economic benefits by way of reduced transport time, costs and externalities.
The proposed Project will also provide benefits to the community in terms of the generation or continuation of 16 direct jobs and the benefits associated with additional capital investment in the quarry (Exhibit R3 Vol 3 Tab 23 p 2162 DG EAR p 67).
It is also important to note the primacy given to extractive industries in the planning instruments (SREP 8, SREP 9 and the Mining SEPP), particularly in relation to the site of the proposed Project.
While the benefits of the proposed Project will accrue largely to the wider society, any socio-economic costs have the potential to be borne more at a local level. However, in this respect, the DG's report notes the following:

"The quarry expansion would be buffered from Glenworth Valley's tourist facilities by the off-site offset area and the quarry setbacks to the western boundary, and that any residual impacts on Glenworth Valley's tourist facilities would be minor and would not adversely affect tourist numbers or satisfaction levels." (Exhibit R3 Vol 3 Tab 23 p 2163 DG EAR p 68)
"With regard to socio-economic impacts on the wider Calga area, the Department is satisfied that the environmental assessment indicates that the quarry expansion would not result in any significant impacts on the wider community." (Exhibit R3 Vol 3 Tab 23 p 2164 DG EAR p 69)

As noted above, AWWP withdrew their contention in respect of socio-economics as a result of agreement as to appropriate conditions of approval. In Rocla's submission, therefore, the Court would be satisfied that the proposed Project will not have unacceptable adverse socio-economic impacts on AWWP.
Further, the parties' economic experts agree that economic benefits will be maximised if appropriate mitigations are put in place so that the two uses can exist side by side, thereby maximising economic benefits. In Rocla's submission, the Court would find that the AWWP/Rocla Agreed Conditions allow the two uses (AWWP's wildlife park and Rocla's quarry) (Exhibit S22 para 49 Economics JR para 49).

[67]

Objector evidence

The Court would, in Rocla's submission, give the evidence of objectors appropriate weight. As noted by Preston CJ in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347: "objector evidence is relevant to a consideration of impacts on amenity and the public interest more generally where it is more than an expression of subjective fear or concern, and is based in specific, concrete, likely effects of the proposed development: Telstra v Hornsby Shire Council at [193]-[195]."
The fact that AWWP has chosen to withdraw a number of contentions should not, in Rocla's submission, add any further weight to the evidence of other objectors.
The key issues raised in written and oral submissions (Exhibit R3 Vol 3 Tab 23 p 2122 DG EAR p 27) were related to the Project's direct and cumulative impacts on: 1. Water resources - impacts to the groundwater & licensing issues (Ian Sutton at T288 to T291, Margaret Pontifex at T298, Simone Glover at T300, Graeme Ausburn at T667 to T670, Margaret Dupille at T671, Justine Jude Suthers at T680, Paul Robert Burton at T683 to T684, Barton Lawler at T687 to T688, Kate Da Costa at T695) 2. Noise - particularly in relation to truck noise (Angela Hellyer at T675 to T678). 3. Dust - including health-related impacts associated with crystalline silica (Deirdre Faith Jinks at T286, Simone Glover at T300, Justine Jude Suthers at T680); 4. Biodiversity - impacts on threatened species and to endangered ecological communities (Deirdre Faith Jinks at T287, Jake Cassar at T292 to T294, Margaret Pontifex at T298, Simone Glover atT300, Margaret Dupile at T671 to T674, Barton Lawler at T687); 5. Visual amenity (Barton Lawler at T688); 6. Traffic (Deirdre Faith Jinks at T286, Simone Glover at T300, Angela Hellyer at T675 to T678, Justine Jude Suthers at T679); 7. Socio-economics - potential impacts on surrounding regionally significant commercial and tourism-related land users (Jake Cassar at T292 to T294, Barton Lawler at T686 to T688).
Rocla contends that the issues raised by the objectors often amounted to an expression of fear or concern over the proposed Project and the objectors' submissions are often not supported by specific concrete evidence.
The Court would find, in Rocla's submission, that the expert evidence before the Court provides a scientific answer to the issues raised by the objectors: 1. Water resources - as set out in section 3 of Rocla's WCS 2 March 2015, the experts agree that groundwater modelling prepared by Dr Merrick is appropriate and that modelling predicts that there will be no unacceptable impacts upon the local or regional aquifer as a result of the proposed Project. Objector concerns in relation to licensing are answered by the NSW Office of Water and Mr Dundon; 2. Noise - as set out in section 5 of Rocla's WCS, the experts agree that road traffic noise as a result of the proposed Project is not an issue. The issues of noise from quarry operations is, in Rocla's submission, adequately dealt with in the AWWP/Rocla Agreed Conditions; 3. Dust - as set out in section 6 of Rocla' WCS, the experts agree that the annual average respirable crystalline silica criterion is unlikely to be exceeded at nearby sensitive receptors. In any event, the air quality conditions contained in the AWWP/Rocla Agreed Conditions require Rocla to implement an Air Quality Management Plan that includes comprehensive monitoring and evaluation of the project's compliance with air quality criteria; 4. Biodiversity - as set out in section 4 Rocla's WCS, the evidence before the Court suggests that the avoidance and mitigation measures proposed by Rocla, as well as the Biodiversity Offset Strategy, are appropriate and adequately compensate for any damage to flora or fauna as a result of the proposed project. Further, as set out in section 3.6 and 4.7 of these submissions, the evidence before the Court suggests that the impact of the proposed Project on GDEs is minimal and would not be unacceptable. In any event, the AWWP/Rocla Agreed Conditions appropriately address concerns regarding GDEs (for example, the requirement to install and monitor shallow-nested piezometers on the north and south of E54 Sandstone Hanging Swamp along Creek B (condition 25(b)(iii) of the AWWP/Rocla Agreed Conditions); 5. Visual amenity - as set out in section 7 of Rocla's WCS, the evidence before the Court suggests that any visual impacts from Peats Ridge Road, residences to the east and Glenworth Valley (including night lighting impacts) would be minor. The AWWP/Rocla Agreed Conditions further minimise the visual impacts from the proposed Project by ensuring minimal disturbance to vegetation outside of the Stage 4 extraction area and the retention of screening vegetation along the ridge line between Stage 3 and Stage 4; 6. Traffic - as set out in section 8 of Rocla's WCS, the evidence before the Court suggests that traffic issues have been adequately considered, are unlikely to be significant, and have been adequately accounted for in the AWWP/Rocla Agreed Conditions; 7. Socio-economics - as set out in section 9 of Rocla's WCS, the evidence before the Court suggests that the socio-economic benefits of the proposed project far outweigh any local socio-economic costs. The fact that AWWP, the nearest commercial neighbour to the proposed Project, have withdrawn their contentions in relation to socio-economic impacts would, in Rocla's submission, add weight to this evidence.
The Court would, in Rocla's submission, find that the AWWP/Rocla Agreed Conditions are appropriate conditions to impose if the Court is minded to approve the proposed Project.

[69]

Summary conclusions

As stated at [44] the critical question for determination in these appeals is whether there is sufficient, credible information upon which to assess the impacts of the Project and make a decision.
We have decided that the answer to the question at this time must be "no".
The central reason is because the outcomes of the investigations, assessment and consultation process proposed by Rocla are not known to the Court and, thereby, they cannot inform the Court's decision to approve the Project and provide us with any satisfaction that the - as yet unknown - mitigation measures will satisfactorily protect against unknown impacts on Aboriginal cultural heritage.
In coming to that conclusion we must reject Rocla's submission that the only scientific uncertainty or 'unknown' is the nature of the items and/or the sites that are likely to be discovered by the investigations proposed by the CMP, and the proposition that the precautionary principle is not triggered on the facts.
The Dallas CMP proposed by Rocla addresses the discovery of any new item or site of Aborigial significance by a methodology mandating 'stop, notify, record, assess threats and manage' approach. Having regard to the state of the evidence before us, and for reasons earlier stated, such an approach does not enable us to uderstand the damage or harm that would result from such a discovery. It does not, as Rocla submits, mean that "there will be no damage in a way not currently understood".
Darkinjung in our assessment has not misapplied the precautionary principle as asserted by the Minister (Minister's written submissions at [60] - [61], [76] - [78]).
Darkinjung's submission at [135] that "having regard to the inadequacy of the surveys, consistently with the precautionary principle, the Court should conclude that there is likely to be further Aboriginal cultural heritage that is likely to be destroyed by the Project" is not based on 'mere conjecture' on our understanding of the evidence.
In reaching that conclusion we accept the Minister's analysis of the precautionary principle that, firstly, there must be a threat of serious or irreversible damage; and, secondly, there must be scientific uncertainty as to the nature and scope of the environmental damage: Telstra at [128] - [140]. Furthermore, the satisfaction of both these conditions means that the decision maker must assume (subject to proof otherwise by the contradictor) that the threat of serious and irreversible environmental damage is no longer uncertain but a reality. Further, we appreciate that this does not mean that, in satisfying the first condition, the existence of the threat can be assumed. As observed inTelstra at [159]: "… rationality dictates that the precautionary principle and any preventative measures cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified. Rather, a preventative approach may be taken only if the risk, although the reality and extent of the risk have not been fully demonstrated by conclusive scientific evidence appears nevertheless to be adequately backed up by scientific data available at the time."
But we cannot accept the Minister's position, on the facts as presently understood and discussed in the evidence, that the impacts on Aboriginal heritage will not be as significant as the Applicants' contend. For the reasons stated we are of the opinion that there is sufficient evidence - backed up by the available scientific data - to support a finding that the Applicants' concerns are much more than 'mere conjecture' (Minister's closing submissions p18 at [57]).
While we accept that it is impossible to be completely certain about the extent of the threats of environmental damage or how much scientific uncertainty must exist before the second condition precedent of the precautionary principle is triggered, the process of analysis, as discussed by the Court in Telstra at [140], includes an assessment of the sufficiency of the evidence as to whether there might be serious or irreversible environmental harm caused by the Project.
In the absence of sufficient information we must assume the worst and find that there is a threat of serious and irreversible environmental harm. Therefore, it follows that there is a shift in the evidentiary burden and that Rocla must demonstrate that the threat of serious or irreversible damage does not exist or is negligible. On the evidence, the Court cannot be so satisfied. In the circumstances the preference must be to prevent environmental damage.
While this factor alone does not have overriding weight compared to other relevant factors such as the non-heritage issues, social and economic factors, in this case prudence dictates that until all the consequences of the decision are known through the investigations there should be no approval of the Project.
This is not a case for "step wise" or an adaptive management approach whereby uncertainties are acknowledged and the area affected by the Project is expanded as the extent of the uncertainty is reduced: Telstra at [163]. As the site will be stripped incrementally in segments under the approval, if it emerges that the Aboriginal landscape extends into that area it will be too late. For the reasons stated, the proposed conditions and CMP do not offer an appropriate monitoring regime in this instance. The investigation proposed by McDonald and others are not prohibitive in terms of time or financial expense given the potential threat to the destruction of the Aboriginal cultural heritage and in our assessment are proportionate and practical: s 6(2)(a)(ii).
Put simply, we do not accept, as the Respondents contend, that the risk of finding further sites is significantly addressed by the proposed mitigation and management measures outlined in the proposed conditions of consent including:

a site buffer,
reasonable access for Aboriginal women to the 'Women's Site';
a Cultural Heritage Management Plan which incorporates ongoing consultation with Aboriginal stakeholders;
the carrying out of rock-platform clearing, night-recording and subsurface testing, and formal recording of the sites;
a Statement of Significance;
a protocol for dealing with the discovery of new sites; and
a protocol for dealing with the discovery of further Aboriginal sites which includes a requirement to obtain endorsement that further mining may proceed from the Minister.

The Minister's draft modified conditions (Annexure A of the Minister's closing submissions) or Rocla's version of the draft conditions do not satisfactorily address the Aboriginal cultural heritage issues raised by the evidence.
In inviting the Court to assess the likely effect of the proposed mitigation and management measures and then the residual impacts on Aboriginal heritage against the benefits of the Project (Exhibit R3 Vol3 Tab 23 DG's report p 2162), including a consideration that the sand resource on the site is of regional significance, the financial and social benefits of the project, the public interest, the owner's needs, resources, external constraints and physical condition, (Exhibit S18 Tab 10 Burra Charter p 130 Article 6.3) the balance in our risk-weighted assessment does not weigh in favour of an approval of the Project at this time.
Principles of ESD (including the precautionary principle) apply to both the tangible and intangible values of Aboriginal cultural heritage: Anderson & Anor v Director-General of the Department of Environment & Conservation & Anor (2006) 144 LGERA 43 per Pain J.
Rocla's expert evidence and draft conditions focus upon investigations of the tangible values such as test excavation, removal of detritus from rock platforms and archaeological salvage as proposed within the CMP - in particular the one known site that would be impacted by the quarry extension. This is the open scatter of stone artefacts on the sand body between and below the sandstone foundations along the northern ridge and upper reaches of Cabbage Tree Creek and also the Owen sites [2014 table1].
Dallas and Smith discount the likelihood of finding another site in the order of significance of the 'Women's Site' or the 'Stone Arrangement' within Stage 4 - which are constraints to the development of Stage 4 (Exhibit S12 p 53). Further, they dismiss the scientific and historical evidence given by Ross, Hodgetts and McDonald (and others) which suggests that there is potential for new sites or items within the Stage 4 area which may heighten the significance of discovered sites such as the 'Women's Site' and better inform the extent of the cultural landscape. Instead, based on the current surveys, they endorse the protection of tangible values through appropriate fencing and the imposition of a buffer (together with the management safeguards for these sites prescribed in the CMP).
With respect to the undisputed significance of the intangible values of these sites, both Dallas and Smith support the proposition that the intangible components can be managed for preservation by interpretation and other means, specified by local Aboriginal people and consistent with the Burra Charter.
Unfortunately, their evidence does not address, to our satisfaction, what should be done if new items or sites are located within the Stage 4 area which heighten the significance of the 'Women's Site' and/or the stone scatter and it emerges that the Aboriginal cultural landscape extends into that project area. That prospect is more than conjecture on the current available scientific evidence before us.

[70]

Amber light

Rocla did not ask for an adjournment to allow the recommended investigations to be pursued. After a protracted hearing process it was well that they did not make such an application, having been on notice of the Applicants' views about the inadequacy of investigations for many months. Instead, Rocla asked the Court to adopt an 'amber light approach', and issue an in-principle approval of the development subject to the completion of the further investigations and the CMP. An 'amber light' approach is discussed by the Court in Champions Quarry Pty Limited V Lismore Council [2011] NSWLEC 1124 per Moore SC and Sullivan AC.
However, as Darkinjung summits, such an approach is dependent upon the Court forming the view that on the merits the development is capable of being approved but with amendment or changes. As is apparent from our reasons, we have not formed a concluded view that the development is capable of being approved with amendments. A number of investigations need to be completed before an answer to that question can be given. The Court is not a forum for discussing applications or alternatives. While some amendments are acceptable, in this case we are not satisfied that sufficient information has been provided to allow us to properly assess the application.
Moreover, we are concerned as to what would happen if this course was adopted and Rocla located a site which heightened the significance of the 'Women's Site' halfway through the investigations in the Stage 4 area. The consequence would leave the cultural landscape irretrievably damaged. As Darkinjung and AWWP submit, a development consent is an enduring document that runs with the land.
Rocla submitted, in the event of an approval, that it would undertake to stop work if it were to emerge through the CMP investigations that the extension of the cultural landscape into the Stage 4 area precluded mining. This course is, for obvious reasons, problematic; it may well be too late and such an undertaking raises issues of enforceability, particularly on future landowners.
An 'amber light' approach in this case is not feasible. Approving the Project without having first obtained a full understanding of the heritage values of the Project site would be contrary to the precautionary principle: Warkworth per Preston CJ at [59] and common sense on the evidence as we see it.
In the present appeals the Minister submits, if the principle is engaged, that the conditions proposed represent a proportionate response or appropriate precautionary measures to allow the Court to approve the expansion of the sand quarry. In short, they are within the objects and purposes of the Act, and fall within the class of conditions expressly or impliedly authorised under s 75J.
The issue which the Court must resolve is whether the proposed conditions are able to address by adaptive management the threat which is the impact on Aboriginal cultural heritage, both to the 'Women's Site' discovered, and any other site undiscovered, within Stage 4 and the relevant cultural landscape.
However, such an assessment should only be made when the extent of the threat is as far as possible understood. The available scientific, historical, anthropological and ethnographical evidence in these proceedings supports a conclusion that the threat of environmental damage to the Aboriginal cultural heritage and its extent has not been fully investigated. At the completion of those investigations the extent of any threat will be better understood. In those circumstances we must assume the worst and find that there is a threat of serious and irreversible environmental harm. Rocla has not demonstrated that the threat of serious and irreversible damage does not exist or is negligible if the proposed mitigation measures are followed.
In the ultimate, we are satisfied that the non-cultural heritage impacts associated with the present application relating to such matters as visual amenity, noise, acoustics, vibration, water, traffic and ecology are capable of being resolved by conditions of consent and, together with the economic benefits of this regional resource, weighs positively in favour of the project. However, having regard to all of the weighted considerations, including the impact on Aboriginal cultural heritage and the public interest, it is our considered opinion that the the Project application must be refused at this time.

Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited

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