Henry & Ors v Shellharbour City Council & Ors

THIRD RESPONDENT Director-General of the Department of Infrastructure, Planning and Natural Resources

KEY ISSUES: Aboriginal :- whether alleged disturbance of artefacts amounts to a breach of the National Parks and Wildlife Act - not proved

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: National Parks and Wildlife Act 1974

Banque Commerciale SA, En Liquidation v Ankhil Holdings Ltd (1990) 169 CLR 279; CASES CITED: Dare v Pulham (1982) 148 CLR 658

APPLICANTS Mr A Oschlack (Agent) SOLICITORS N/A LEGAL REPRESENTATIVES:

FIRST RESPONDENT Mr N J WIlliams SC SOLICITORS Blake Dawson Waldron

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40252 of 2005 Henry & Ors v Shellharbour City Council & Ors

JUDGMENT 1 Talbot ACJ: This judgment relates to the second part of the proceedings the subject of Further Amended Application Class 4 filed 1 June 2005 ("the Application"). A reserved judgment was published in respect of the first part of the proceedings on 22 July 2005. 2 The following additional relief is claimed in the Application:- 3. Further or in the alternative a declaration that work by the First Respondent involving clearing of land, stockpiling of material, removal of earth and construction of infrastructure carried out in reliance on the authority of "the consent" has and will continue to cause the movement, damage, defacement or destruction of Aboriginal Objects in breach of sections 86 and/or 90 of the National Parks and Wildlife Act 1974. 4. Further or in the alternative a declaration that the First Respondent failed to comply with condition 14(b) of "the consent" by failing to cease work and notify the Department of Environment and Conservation (formerly the National Parks and Wildlife Service) which had caused disturbance to Aboriginal artefacts. 8. Costs.

9. Leave to the Applicants to seek orders pursuant to section 124 of the EP&A Act 1979 for restoration and remediation of any land damaged by unauthorised work which sought reliance on "the consent."
10. Any further order or direction the Court deems appropriate. 3 Sections 86 and 90 of the National Parks and Wildlife Act 1974 ("National Parks and Wildlife Act") respectively provide as follows:- 86 Offences relating to Aboriginal objects A person, other than the Director-General or a person authorised by the Director-General in that behalf, who: (a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object, (b) disturbs or moves on any land an Aboriginal object that is the property of the Crown, other than an Aboriginal object that is in the custody or under the control of the Australian Museum Trust, (c) takes possession of an Aboriginal object that is in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, (d) removes an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or (e) erects or maintains, in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, a building or structure for the safe custody, storage or exhibition of any Aboriginal object, except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against this Act.

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.

9 On 9 December 2004 he observed bulldozing on land west of the "Aboriginal Tent Embassy" site. He visited the site with Mr Craig Cruise and another Applicant, Mr Stephen Henry. As they approached, the bulldozer driver stopped work. Mr Henry says that he inspected the area that had been cleared in the company of the other persons and found what he believed to be a number of "significant disturbed Aboriginal Cultural Objects including artefacts, ochre and shell midden material." He removed some of the stone artefacts. He provides no further description or clarification about the Aboriginal objects he refers to. He holds the same belief regarding the significance of the area of Shell Cove as that expressed by Mr Kennedy.

10 Although he made no reference to the evidence in his affidavit, sworn in the proceedings, Mr Aaron Broad Henry confirmed during cross examination that he found the two objects at the scrape site on 15 December 2004 (see at [7] above). He alleges that Dr Kamminga advised him to place the objects in his pocket and take them home. It is important to note that Dr Kamminga does not agree with Mr Henry's version of events that took place on 15 December. Dr Kamminga asserts that a flat rock was placed over the objects. 11 Another witness to give oral evidence on behalf of the applicants is Mr Allan Carriage who swore an affidavit on 23 May 2005. He deposed that he is an Elder of the Wadi Wadi People and Traditional Owner of land in the Illawarra area. On 17, 18 and 19 May 2005 in the company of Aaron Broad Henry and Stephen Henry, Mr Carriage carried out investigations of areas around and adjacent to the proposed marina site at Shell Cove. During those investigations he located what he believed to be and identified as a number of Aboriginal artefacts. Mr Carriage does not depose to the dates when individual artefacts were found nor is there a concise description of their location, however relying upon a rough diagrammatic representation prepared by Mr Carriage it appears that at least some of the objects were found inside the site of the proposed boat harbour marina. He acknowledges that a number of the objects that he believes are artefacts were located outside the marina area. 12 During cross examination Mr Carriage acknowledged that he towed a caravan to the site of the former "Embassy" after tents had been removed.

13 The applicants rely upon two affidavits sworn by Mrs Thelma Henry nee Brown who states that she is a senior elder of the Dharawal/Elouera Tribe within the Yuin Nation. She says that it is within her knowledge that the area where the "Embassy" was placed and other land surrounding it contains significant cultural heritage and that it had been brought to her attention that a number of items including stone artefacts and ochre deposits had been disturbed. That information is of concern to her. She believes it is not proper that the land should be further disturbed and developed because of its cultural significance. She claims she has a duty to do all in her power to protect the cultural heritage.

14 Michael Therin is a consulting archaeologist who inspected three potential Aboriginal sites in Shell Cove under instruction from the Applicants on 30 May 2005. Mr Allan Carriage and Mr Aaron Broad Henry, who accompanied Mr Therin during the inspection, selected the sites.

15 Difficulties arising as a consequence of Mr Therin not acknowledging his obligations pursuant to the Expert Witness Practice Direction were overcome following evidence given on the voir dire. That evidence ultimately became evidence in the proceedings. 16 One of the Aboriginal sites inspected by Mr Therin was outside the Shell Cove marina development area (SH 3) and was not included in his report.

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.

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.

24 He accepted Mr Therin's opinion about the objects inspected by Mr Therin at site SH2. On 23 May 2005 Dr Kamminga did inspect a site of one post hole. He could not be sure if it was the same one referred to by Mr Therin. There were no artefacts apparent to Dr Kamminga at the post hole site inspected by him. 25 The stone items depicted in the affidavit of Alexander Peterson and referred to by Dr Kamminga are those observed and photographed by Mr Peterson on 18 April 2005. He has not had the opportunity to inspect the pieces of cobble photographed by Mr Peterson because they were either covered with sand or buried after being photographed and were not evident or visible at the time of his visit on 23 May 2005.

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.

30 In summary Dr Kamminga says that he disagrees with the evidence given by Mr Aaron Broad Henry and Mr Kennedy that Aboriginal objects and sites at Shell Cove have been physically defaced or destroyed either at the scrape site on 9 December 2004 or at the site of the former camp (embassy) on 14 April 2005. He explains the basis for his contrary conclusion as follows:- I base my conclusions differing from those of the Applicant's deponents on a review of relevant reports and affidavits, my own archaeological examinations of these locations, and my discussions in December 2004 with Aaron Henry, Allan Carriage and Roy ("Dootch") Kennedy and others at the Camp and topsoil scrape locations. 31 During his inspection of the scrape site on 13 December 2004 he did not observe any Aboriginal objects or features, artefacts or artefactual pieces of red ochre, shell middens or shell midden deposits, red ochre pits or human or animal bones. He did observe natural stone fragments, stone concretions and modern artefacts that had been uncovered by work activity.

32 During his second inspection in the company of consultant archaeologist Ms Julie Dibden he closely inspected the ground surface for the presence of Aboriginal Cultural objects and features without success. He describes the conversation with Aaron Broad Henry and the events surrounding the uncovering of stone objects on 15 December 2004 as follows:- 47 While visiting the Camp in the afternoon of 15 December 2004 I asked Aaron Henry to describe the stone artefacts to me. He told me that: They were "skinning tools", "large" and "round" in shape, "greyish-white" in colour and "glittering at us like 20 cent pieces". 48 I advised Mr Henry that: I have not found any Aboriginal artefacts during my inspections. He responded in words to the effect: When the bulldozer was here [on 9 December 2004] I picked up some stone artefacts which I put in my collection, and others had been covered over again by the bulldozer. 49 At about 3.30pm on 15 December 2004, Roy "Dootch" Kennedy, and Aaron Henry and another youth from the Camp arrived at the scrape to talk to us. We held a general discussion within the margin of the topsoil scrape adjacent to our vehicle which was parked just beside the old quarry haul road. Aaron Henry came up to me while I was note-taking at our vehicle. He directed my attention to two stone items on the ground, on the western margin of the topsoil scrape, just on the western edge of the access track from the old quarry haul road to the topsoil scrape. This location was within the area we had congregated during our discussion over the past ten minutes or so, which was close to our vehicle parked on the side of the haul road. I was not beside Blaan or Aaron Henry at the time one of them picked up the flakes from the ground but was close by at the tail of our vehicle. When presented to me for examination neither of the flakes had adhering sediment.

50 During our on-site discussion and joint inspection of the scrape area no other Aboriginal objects was pointed out by Aaron Henry or any other person.

51 Both of these stone items I identified as Aboriginal objects and specifically as stone flakes. Mr Henry told me that he had seen the bulldozer unearthing these stone items during the ground surface clearing activity.

The Chalcedony Flake 52 The first item I identified as a small piece of chalcedony (silicified fossilised wood) with attractive colouration preserving the structure of the original wood grain. I identified this item as an Aboriginal stone flake (Aboriginal object). Artefacts of this stone type are found in at sites along the Illawarra coast and the geological source of the stone type is probably pebble beds in local watercourses in the coastal hinterland.

53 The fracture surfaces on this artefact were uniformly smoothed by fine abrasive action. This type of surface smoothing is called "sand blasting" and it is caused by wind blown sand. Sand-blasted stone artefacts are normally found in lithic scatters on coastal dunes that have remobilised as a result of vegetation clearance. Such destabalised dunes occur in Shell Cove and Shellharbour areas and more widely along the NSW coast.

54 I stated to Mr Henry in words to the effect: The flake has smoothed surfaces from sand abrasion. In my opinion it is not in its natural place. The natural place for this artefact is an active sand dune area where the wind blows loose sand over the ground surface. That is where artefacts with smoothed or polished surfaces like this are found. This slope, and the scrape site, is no that kind of area - it is inland and upslope from the sand dune foreshore and has never been an area of sand dune.

I further suggested that: There are a number of reasonable alternative explanations for the presence of this artefact at this location.

The Silcrete Flake 55 The second item was a well formed silcrete flake picked up from the ground close to the first flake. This second flake was of grey to red silcrete and was about 5-6cm long. Mr Henry stated that:

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.

34 On 14 December 2004 Dr Kamminga contacted the Manager of the Central Planning Unit of the Third Respondent by telephone and requested that a National Parks Officer attend at the inspection the following day. He was informed that no officer was available but he was given the name of an archaeologist who was to be kept informed. He gave instructions to Mr Colquhoun for the area surrounding the place where Mr Aaron Broad Henry picked up the objects of 15 December to be fenced off. Dr Kamminga subsequently reported the events and facts relating to what occurred on 15 December directly to the Manager of the Planning Unit, as he was not able to make contact with the nominated archaeologist.

35 Part of Dr Kamminga's report included information given to him by Mr Colquhoun that the artefacts found at the scrape site had gone missing. Dr Kamminga says that he instructed Mr Colquhoun to place a flat rock over the objects on 15 December after they had been examined. He did not see Aaron Broad Henry, Mr Colquhoun or any other person present on that day remove the objects from the site.

36 No application pursuant to Part 6 of the National Parks and Wildlife Act has been prepared to date although Mr Colquhoun has informed Dr Kamminga that one is to be prepared.

37 Dr Kamminga says that in his opinion the identification of Aboriginal objects by Mr Therin at locations SH1 and SH2 does not mean that it is inevitable or probable that future development work within the Shell Cove development application area will impact on Aboriginal objects contrary to Part 6 of the National Parks and Wildlife Act nor that the objects found have been damaged.

38 Moreover he states that the sandy feature of the scrape site does not fulfil the essential criteria for scientific identification of a disturbed or remnant Aboriginal shell midden deposit. He advised Aaron Broad Henry during the visit on 15 December that the sedimentological and land unit context of the topsoil scrape are suggestive that the sand and shells were not in their natural place.

39 Mr Colquhoun has given further evidence in addition to affidavits read in the first and second parts of the hearing. The works proposed to be carried out by Australand on behalf of the first respondent prior to obtaining a section 87 or section 90 permit have already been described. He states that the basis for the decision to carry out those works is advice from Dr Kamminga they will not impact on Aboriginal objects contrary to Part 6 of the National Parks and Wildlife Act.

40 Mr Colquhoun confirms his attendance at the location of the topsoil scrape at Shell Cove at the request of Dr Kamminga on 15 December 2004. The basalt rock to be stored temporarily at the site is to be used for constructing the breakwater at the entrance of Shell Cove boat harbour. He confirmed placing some flat rocks over the two stone flakes found by Aaron Broad Henry. He subsequently visited the topsoil scrape on the afternoon of 16 December 2005 to brief an employee and contractor in relation to the erection of the fence requested by Dr Kamminga. He discovered that both artefacts were missing. When he returned to his office he telephoned Dr Kamminga to report the disappearance. He says Dr Kamminga instructed him nevertheless to still arrange for the area around the artefact location to be protected with fencing. He instructed the contractor to arrange for protective fencing comprising star pickets and parawebbing to be installed prior to any further work occurring on the site.

41 Mr Colquhoun has confirmed that the proposed geotechnical work will involve drilling auger holes to the top of the base material through the waste. In his opinion the risk of damage to any Aboriginal artefact by that work is minimal as there is only a remote chance that any will be disturbed. He was not prepared to guarantee that the placing of surveying pegs would not cause a disturbance but he was not sure that the survey of the boundary line of the marina would necessarily involve the placement of pegs.

Submissions and Findings 42 Mr Oschlack, who appears for the Applicants, divides the case into four main elements arising out of the two main issues. The issues are:

1. Whether the work carried out relying upon the development consent has, and will continue to disturb or deface Aboriginal objects in breach of sections 86 and/or 90 of the National Parks and Wildlife Act.
2. Whether the first respondent did not comply with condition 14(b) of the development consent by failing to notify the Department of Environment and Conservation (formerly the National Parks and Wildlife Service) ("DEC"). 43 The first element of work relied upon by Mr Oschlack is the alleged removal of the "Tent Embassy" which he says was necessary before the development of the marina could proceed.

44 Mr Kennedy makes the following bold statement in an affidavit sworn 20 April 2005: 2. I was also a founder of the Aboriginal Tent Embassy at Shell Cove which was removed by force by agents of the First Respondent between the 11th and 15th April, 2005. 45 The Court has no other evidence except that Mr Peterson states in his affidavit that Mr Kevin James (who he understood to be a Council Officer) "told the Aboriginal group that their belongings had been taken to the Dunmore tip". It is not open from the evidence provided in the Applicants' case to find who actually removed the tents from the site, how it was done or on whose behalf it took place. The case against the Council in relation to responsibility for the alleged removal of the "Tent Embassy" has not been proved on the balance of probabilities. Moreover the Court cannot glean from the evidence what the nature of the work was or the number and type of vehicles used in the operation and whether the disturbance allegedly caused by the vehicle movements and in which artefacts were observed was a result of Council's actions.

46 Accordingly even if the Court was able to find that the objects identified by Mr Kennedy and photographed by Mr Peterson are Aboriginal artefacts, the Applicants have not proved a direct connection between the movement of the motor vehicles and the disturbance of the artefacts nor even that it was caused by vehicle movements or that offending vehicles were there under instruction by the Council. It is equally open to find that the bringing of the caravan onto the site by Mr Carriage was the cause of the disturbance.

47 Secondly the Applicants rely on the presence of identified artefacts around the fence post hole at SH 1. There is no real dispute that the objects observed were Aboriginal objects and I accept that they were. There is no direct evidence that the objects were introduced to the site. However even Mr Therin could not be satisfied whether the objects found came to the surface when the fence post hole was excavated. In cross examination he agreed that he could not exclude the prospect that the objects were placed on the sand after the hole was dug and that further work was needed in that respect. No other objects or artefacts were found in the sand excavated for the purpose of other fence posts. Mr Therin also states that further work is required to examine the disturbance history of the area around SH 1. Dr Kamminga expresses an opinion that the subsurface disturbance in the area may have been significant. After having regard to an historical aerial photo (1948) he believes it is possible that the area of sand body immediately around SH 1 "is a modern construct associated with the building of the concrete bridge." He interprets the presence of buried and partly exposed cobbles and boulders in and around the small concentration of stone artefacts at SH 1 as evidence that prior ground disturbing construction activities, including dumping of channel reinforcement materials, occurred some time between 1948 and 1960 on the ground beneath the stone artefacts.

48 The Applicants rely upon an alleged breach of s 86 and s 90 of the National Parks and Wildlife Act. There is no evidence to show that the land was disturbed for the purpose referred to in s 86(a) or that the objects found were otherwise the subject of the provisions of s 86. The Applicants have not shown that any person knowingly did anything contrary to s 90.

49 No evidence has been adduced in regard to actual digging of the holes at SH 1. Having regard to the evidence of Mr Therin and Dr Kamminga I cannot be satisfied on the balance of probabilities that the objects came out of the hole or that if they did that they were thereby disturbed rather than by earlier activities identified by Dr Kamminga. Finally, there is no evidence that work continued after the objects were observed or that further work is contemplated at site SH 1, at least until a permit is applied for and obtained pursuant to s 90.

50 According to the First Respondent, a further reason the argument in relation to the objects found at SH 1 should be rejected is that the Court and the parties are bound by the pleadings. I have nonetheless dealt with this aspect of the claim notwithstanding that it has not been particularised in the Points of Claim to ensure that the Applicants do not suffer a disadvantage because they lack proper legal representation. I am anxious that they are not left with an impression that this aspect of the case has been disregarded. I have treated the present circumstance as being within the exception adopted in Dare v Pulham (1982) 148 CLR 658 and 664 and Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 287 that the parties may choose to disregard the pleadings and litigate on the issues identified at the trial. This did not strictly occur but the lack of legal representation by one party dictates that the Court should be as fair as it can be in the circumstances without causing disadvantage to the other party. It is for that reason I have elected to give reasons to explain the Applicants' failure to succeed on this issue, as if it had been properly pleaded.

51 Thirdly, the Applicants rely on the circumstances that arose on 9 December 2004 when the bulldozer was employed to scrape the topsoil preparatory to stockpiling of basalt for later use in the Shell Cove breakwater. Irrespective of whose evidence is accepted two (2) artefacts were identified in the dust alongside the scrape site on 15 December 2004. How they got there is a matter for conjecture. Dr Kamminga gives a carefully drawn opinion that the artefacts were not originally from that immediate area. I accept that opinion.

52 Dr Kamminga advised the National Parks and Wildlife Service. There is no evidence from Dr Kamminga or the Department of Environment and Conservation that the First Respondent caused the Department to be advised. One matter that is of concern is that Dr Kamminga with the assistance of others carefully examined the area of the scrape on two occasions namely 13 and 15 December without observing the artefacts subsequently noticed by Mr Aaron Broad Henry. It is difficult to accept that Dr Kamminga, an experienced archaeologist, would not have noticed the objects so obviously on display when Mr Henry found them. It is clearly open for the Court to find that they were not there until immediately before the instance when Mr Henry brought them to Dr Kamminga's attention. I am not able to find in a positive sense how they got there. The evidence of the earlier thorough search coupled with the proximity of the position where the items were found to the area where the group had congregated over the previous ten minutes, the lack of adhering sediment to the items and Dr Kamminga's opinion they were not in a natural place lead me to the conclusion that on the balance of probabilities the items were not disturbed by the action of the bulldozer on 9 December.

53 In those circumstances condition 14(b) of the development consent had no application. Moreover the stockpile is in place and there is no prospect of future work likely to disturb that area until the basalt is removed to be placed on the breakwater. There is no identified intention for that work to be commenced at any specified time.

54 Fourthly, the Applicants claim that future work will disturb and cause damage to Aboriginal artefacts. The work proposed in the immediate future has been identified by Mr Colquhoun. Dr Kamminga has assured the Court that it will not adversely impact upon Aboriginal objects. There is no evidence to the contrary. I accept the evidence of Dr Kamminga in that respect. I therefore reject the Applicants' claim that an order should be made against the first respondent restraining it from carrying out any work on the land that relies upon authority of the development consent. Moreover there is evidence that the First Respondent proposes to make an application for a permit under s 90 of the National Parks and Wildlife Act and nothing has been put to me that persuades me that that intention is not genuine.

Conclusion 55 The consequence of my findings is that the Application by the Applicants will be dismissed in all respects.

56 No formal argument has taken place with relevance to an order for payment of costs. Following the dismissal of an applicant's claim it can be expected that in most cases the Court will exercise its discretion in favour of the successful respondent. If no notice of motion seeking orders to the contrary is filed within 14 days an order will be made that the Applicants pay the costs of each Respondent.

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