Henry & Ors v Shellharbour City Council & Ors

Henry & Ors v Shellharbour City Council & Ors - [2005] NSWLEC 600 - NSWLEC 2005 case summary — Zoe

[15]

90 Destruction etc of Aboriginal objects or Aboriginal places (1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation). (1A) Subsection (1) does not apply with respect to an Aboriginal object that is dealt with in accordance with Aboriginal tradition pursuant to section 85A. (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. (3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister. (4) The Minister: (a) may refuse to grant the appeal, or (b) may grant the appeal wholly or in part, and may give such directions in the matter as seem proper. (5) The decision of the Minister on the appeal is final and is binding on the Director-General and the appellant, and shall be carried into effect accordingly. (6) Where the regulations prescribe: (a) the manner in which an appeal is to be made under this section - the appeal shall be made in that manner, or (b) the period within which an appeal is to be made under this section - the appeal shall be made within that period. (7) Where the Director-General fails to grant an application (other than an application for approval in respect of integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 ) for consent, the application shall, for the purposes of this section, be deemed to be refused upon the expiration of: (a) subject to paragraph (b) - 7 days after the application was received by the Director-General, or (b) where the regulations prescribe some other period - that other period. 4 Condition 14(b) of the consent (granted to the First Respondent by the Second Respondent on 26 November 1996, as modified) provides:- Upon discovery of any previously unidentified Aboriginal relics (including human skeletal material), work shall cease and the NPWS is to be notified immediately and any directions given by the Service in this regard shall be complied with. The evidence a) The Applicants 5 Alexander Robert Peterson says that on 18 April 2005 he visited the "Aboriginal Tent Embassy Site" at Shell Cove with Mr Roy Kennedy and Mr Aaron Broad Henry. He observed heavy vehicle tracks in an area where he was told tents had been previously. Mr Kennedy raked some rocks out of the sand with his hands and arranged them for several photographs, which Mr Peterson took under his direction. After the photographs were taken Mr Kennedy covered the objects with sand and left them on the site. Mr Peterson saw no evidence of work being done at the time of his visit. 6 The Applicant Mr Kennedy has given evidence himself. He told the Court that he was a "founder of the Aboriginal Tent Embassy" at Shell Cove. Although not professing or possessing any formal expertise he has on many occasions investigated sites for the purpose of identifying Aboriginal objects. It is Mr Kennedy's belief that the so-called "Embassy" site is intended to be used as a channel for the proposed Shell Cove marina. It is also his belief that: The area of Shell Cove is particularly significant to Aboriginal Traditional Owners as it contains middens, artefacts, ceremonial objects, burials and is the site of a horrific massacre in the early 19th century. 7 During cross examination by Mr Williams SC it became apparent that Mr Kennedy had also been present on 13 and 15 December 2004 when Dr Johan Kamminga, an archaeologist retained by the Property Manager Australand Holdings Limited ("Australand") to prepare an Archaeological and Heritage Management Plan, inspected the area of a ground surface scrape undertaken by a contractor company to facilitate the temporary storage of basalt "armour rock" on 9 December 2004. Inspection of the scrape site by Dr Kamminga took place on 13 December and 15 December 2004. Mr Kennedy was present when, on the second occasion, Mr Aaron Broad Henry found several objects in a dust trail beside the site of the scrape. He says that Dr Kamminga agreed that the items found were Aboriginal objects. 8 The Applicant Mr Aaron Broad Henry has given evidence as an Aboriginal Traditional Owner of land and waters at Shell Cove/Bass Point. He identifies as being a member of the Yuin Nation and a founder of the "Aboriginal Tent Embassy" at Shell Cove. Mr Aaron Broad Henry says that he was present on 18 April 2005 when Mr Peterson took photographs of what he believed to be the stone artefacts revealed by Mr Kennedy in the vehicle tracks.

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17 Mr Therin located artefacts at site SH 1 on the surface of a small mound of sand immediately adjacent to a post hole from which the sand appeared to have originated. Ten Aboriginal artefacts were identified. The post hole is located approximately 30 metres east of the Bass Point Tourist Road on the northern side of a channel that drains Shellharbour Swamp. The post hole is approximately three metres north of the edge of the channel. Mr Therin reports that a boulder wall has been placed along the edge of the channel to retain the channel banks and that boulder and cobble sized rocks of the same material used for the boulder wall retaining the channel are scattered over the channel banks. 18 Mr Therin concluded that as there is a high probability that further Aboriginal "objects" are located beneath the ground surface in proximity to site SH 1 further archaeological work is required to determine the distribution and context for these potential sub-surface artefacts. In his opinion further work is also required to examine the disturbance history of the area around site SH 1. The boundary of site SH 1 is defined as a one metre radius around the post hole from which the sediment containing the recorded Aboriginal "objects" appeared to originate. No other Aboriginal artefacts were identified within a radius of approximately 40 metres around site SH 1. The inspection of the wider area included the examination of sand removed for the erection of other treated pine posts along the fence line. Mr Carriage says that the first time he examined the area around the fence posts was in the company of Mr Therin on 30 May 2005. 19 The second site inspected by Mr Therin (SH 2) is located on the banks of an unnamed creek that drains into Shellharbour Swamp. Eight Aboriginal stone artefacts were recorded eroding out of a 45 metre long area on the northern creek bank. One Aboriginal artefact and one possible Aboriginal artefact were located on the southern creek bank. The artefacts on the northern bank had, in his opinion, most likely eroded out of the A Horizon topsoil on the top of the slope and had been transported down the slope by water and gravity. The artefact located on the southern bank of the creek was on a three metre wide cutting made into the bank presumably to allow vehicle access across the creek.

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20 Although there is evidence that refers to the fact that tents were removed from a site known as the "Aboriginal Tent Embassy" there is no direct elucidation of this occurrence or how and where it occurred. It appears to have occurred on or about 14 April 2005. b) The First Respondent 21 Dr Kamminga has given evidence by affidavit and orally. He visited the site on 13 and 15 December 2004 and 23 May 2005. 22 Having regard to the information available to him he expresses the following opinions in his affidavit:- a) there is no archaeological evidence that the stripping of topsoil at a location west of the Camp, intended for the temporary storage of basalt, has disturbed, defaced or destroyed Aboriginal shell middens, "ochre pits" Aboriginal burials or any in-situ campsite; b) the subsequent (temporary) storage of basalt within the area of topsoil scrape has not disturbed, defaced or destroyed Aboriginal objects; c) the stone items depicted in the affidavit of Allan Carriage dated 23 May 2005 are not prehistoric Aboriginal stone tools or stone artefacts or stone manuports; and d) the stone items depicted in the affidavit of Alexander Peterson are not prehistoric Aboriginal artefacts and were not broken by Council vehicles during the removal of the Camp on 14 April 2005; e) the work Australand proposes to carry out over the next six months will not adversely impact on Aboriginal objects contrary to Part 6 of the National Parks and Wildlife Act 1974. 23 The stone items depicted in the affidavit of Allan Carriage referred to by Dr Kamminga in (c) are the items described as artefacts located by Mr Carriage and photographed by him during his inspection with Mr Aaron Board Henry and Stephen Henry on 17, 18 and 19 May 2005. However there is some confusion as to whether the photos in evidence and attached to the affidavit of Mr Carriage are the same photos as those which Dr Kamminga was referring to when he made his affidavit. Photographs attached to Mr Carriage's affidavit were produced to Dr Kamminga during cross examination. In respect of some of the depicted objects he could not determine from the photograph whether they were objects of aboriginal origin but agreed that it is possible that they were.

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26 Nevertheless he expresses the opinion that it is probable that the photographed pieces of cobble were not prehistoric stone artefacts or Aboriginal objects within the meaning of the National Parks and Wildlife Act because:- (a) the pieces of cobble are not chert but metamorphic or igneous stone derived from local cobbles on the rocky Shell Cove foreshore area; (b) similar cobbles from which these pieces derive are found as fill on part of the road that runs along the beach behind the dune; (c) on 23 May 2005, during an on-site investigation of the former Camp site, I observed scattered on the ground surface a wide range of modern artefacts from recent encampments and other visitation. Included in this artefact assemblage were occasional waterworn cobbles, sundry items of clothing, fragments of metal objects and molten glass, at least two 'potlid flakes' (heat fractured stone fragments) from apparently modern waterworn cobbles, and a modern cobble-lined fireplace near the fence bordering the creek line; and (d) while the pieces of cobble appear to have been created by a hard indenter (such as a stone or steel indenter), the age of these fractures is not evident from the photos. (There may be "powder marks" at the origin of the fractures, and if so this would may suggest that they had been formed recently). 27 In any event he says cortex flakes from cobbles were not ordinarily "tools" in prehistoric times since cobble cortex provides a physically weaker surface than large primary fracture surfaces created by flaking. In his opinion any proposition that the pieces of cobble were broken by a Council vehicle or other vehicle is questionable and that it appears to him that the fractures on the broken cobble and the cobble flakes are "hard indenter" caused by an object that is stone or steel or one that is as hard as stone or steel. 28 The work proposed by Australand and referred to by Dr Kamminga in (e) above is identified by Dr Kamminga from an affidavit by Glenn Allan Colquhoun, Project Manager for Australand, sworn 13 July 2005 as follows:- (a) the construction of acoustic panels (comprising concrete pad footings at approximately 6 metre intervals with steel columns supporting precast concrete and acrylic noise panels) adjacent to residential stage 6 of the Shell Cove project on the southern side of the haul road scheduled to commence in July 2005; (b) survey work across the whole of the Shell Cove site but not involving any ground disturbance, possibly apart from inserting surveyor's pegs as required; and (c) geotechnical work and investigations at the existing rubbish and builders rubble tip involving excavation of bore holes through the waster material using a 100mm diameter auger on a 35 metre grid pattern. 29 Australand is contracted to the first respondent to carry out works in connection with the marina development on behalf of the First Respondent. It is Dr Kamminga's opinion that the driving of wooden survey pegs is unlikely to damage artefacts below the surface other than by dislodging them and causing a sideways movement. His understanding is that the geotechnical work at the old rubbish tip would not extend more than a few centimetres below the fill.

[34]

This is one of the artefacts I saw before. 56 I advised Mr Henry that: I am going to regard these two artefacts as 'isolated finds' since at least one is not in its natural place, and the stratigraphic contexts and associations with each other is not clear. Both artefacts are very close to the old quarry road and they may not mean that there was an Aboriginal camp here. There are other reasonable explanations for how they got here. The old quarry road is on modern fill brought in to the area to make the road. These artefacts might have come in as part of this sediment fill years ago. Mr Henry responded in a positive manner: Yes, that's possible. And he posed the question: How about I take the artefacts away for my collection in camp. What do you think? I responded: I do not have the legal right to take the artefacts away and I am not able to authorise anyone else to take them away. I think we should leave the artefacts where they are and I will have the area around them fenced off with pickets, wire and flagging tape so that trucks are kept clear of them. For the time being we should consider covering the artefacts with something recognisable. I suggested a lightweight, tabular or flattish pieces of stone which were lying about. Since there was general agreement Mr Colquhoun then selected two flattish pieces of stone from the immediate area and gently placed each over the flake. We then all departed from the topsoil scrape. 33 Having observed Mr Henry in the witness box and in particular his demeanour and anger when challenged in regard to the truth and accuracy of his recollection I prefer the evidence of Dr Kamminga in relation to what occurred and what was said on 15 December 2004. Moreover, Dr Kamminga's expert opinion in relation to the origin of the artefacts found at the scrape site is not contradicted and should be accepted either on the basis that the objects were introduced presumably by earlier activity on the site or were introduced at or about the time of his second inspection. It would be extraordinary for an archaeologist with Dr Kamminga's background and experience to give the advice that Mr Aaron Broad Henry alleges was given to him in circumstances where that would involve a blatant breach of the law being a fact well known to a person in Dr Kamminga's position.

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Judgment (57 paragraphs)

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Cases Cited (2)

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