Kennedy on behalf of the Sandon Point Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another

Land and Environment Court (NSW)|2002-05-02|Before: Talbot J

CITATION : Kennedy on behalf of the Sandon Point Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another [2002] NSWLEC 67 APPLICANT Roy Kennedy

PARTIES : FIRST RESPONDENT The Director-General of the National Parks and Wildlife Service

SECOND RESPONDENT Stockland Constructions Pty Ltd FILE NUMBER(S) : 40021 of 2002 CORAM: Talbot J KEY ISSUES: Procedural Fairness :- Administrative law:- whether decision-maker has necessary authority Judicial review:- procedural fairness - whether decision-maker has necessary authority Interpretation Act 1987 s 49(8)(b) LEGISLATION CITED: National Parks and Wildlife Act 1974 s 21(1)(b), s 21(3), s 90, s 90(1), s 90(2) Public Sector Management Act 1988 s 12 Public Sector Management (General) Regulation 1996 cl 34 CASES CITED: Haoucher v Minister of State for Immigration and Ethnic Affairs [1989 - 1990] 169 CLR 648; Kioa and Others v West and Another (1985) 159 CLR 550 DATES OF HEARING: 20/03/2002, 21/03/2002, 22/03/2002, 18/04/2002 DATE OF JUDGMENT: 05/02/2002

APPLICANT Mr PW Larkin (Barrister) SOLICITORS Public Interest Advocacy Centre

FIRST RESPONDENT Mr DR Parry (Barrister) LEGAL REPRESENTATIVES: SOLICITORS National Parks and Wildlife Service

SECOND RESPONDENT Mr SJ Gageler SC SOLICITORS Baker & McKenzie

IN THE LAND AND Matter No. 40021 of 2002 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 2 May 2002

Roy Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy Applicant v The Director-General of the National Parks and Wildlife Service First Respondent Stockland Constructors Pty Ltd Second Respondent REASONS FOR JUDGMENT

The underlying background facts in this matter are not seriously in dispute.

The land the subject of the dispute is situated at Sandon Point on the south coast of New South Wales, north of Wollongong, between the residential areas of Bulli and Thirroul.

On 8 October 2001 the Court granted development consent for the subdivision of Sandon Point in Stages 2 - 6 of the proposed development for residential development to be carried out by the second respondent. On 2 November 2001 the Court granted a further development consent for the subdivision of Stage 1.

In December 2000 an Aboriginal Tent Embassy was established to protect an Aboriginal burial site located near the point where Tramways Creek meets McCauleys Beach at Sandon Point and also to raise the awareness of the broader community in respect of the sacred significance of the Sandon Point area generally.

On 30 January 2002 the first respondent issued consents numbered 1288 and 1289 pursuant to s 90 of the National Parks and Wildlife Act 1974 ("the NP&W Act").

After an interlocutory hearing on 14 February 2002 the Court made the following orders subject to the applicant giving the usual undertaking as to damages:- 1. The decision of the First Respondent to issue consents numbered 1288 and 1289 pursuant to Section 90 of the National Parks and Wildlife Act 1974 , (the consents) be stayed until further order.

The Second Respondent, its employees, contractors, agents or servants by restrained from carrying out any work that relies on the authorisation granted by the consents.

Archaeological sub-surface testing on the site for Stage 1 of the development was carried out in May 2001 by consultant archaeologists, Navin Officer Heritage Consultants Pty Ltd ("Navin Officer"), engaged by the second respondent. The testing was carried out pursuant to a permit issued by the first respondent. In June 2001 further permits were issued to carry out sub-surface testing for the sites of Stages 2 - 6. Excavations were carried out, with representatives from five local Aboriginal groups present. Navin Officer uncovered approximately 991 stone artefacts during the testing of the Stage 2 - 6 sites, of these 90 per cent were "waste flakes" and 12 were core fragments.

On 16 August 2001 a report on Stage 1 investigation results was sent to the Aboriginal communities in the area.

On 22 October 2001 Navin Officer wrote to representatives of the Aboriginal communities enclosing a comprehensive report of the Sandon Point Stages 2 - 6 archaeological sub-surface investigation, together with a summary report to assist the groups to make meaningful contributions in respect of the cultural significance of the site. The covering letter advised that the summary report had been written for the use of the Aboriginal organisations and presents the findings of the archaeological study and the Aboriginal views presented to date. Navin Officer also informed the communities that the owner of the land, the second respondent, intended to apply for s 90 consents, namely a "Consent to Destroy those parts of the site which occur within the Stages 1- 6 development areas" .

The following express invitation was contained in the above-mentioned letter:- We invite your organisation to review this report and provide a response. In particular, could you provide comment on: _ the Aboriginal cultural significance of the site,

_ views regarding the application for a Consent to Destroy, _ opinions on how and where the recovered artefacts should be stored, and by whom, _ views regarding a Voluntary Conservation Agreement which would conserve the McCauleys Beach midden and burial site and the remaining portions of the site outside of the development area. These issues, and an invitation to comment, are outlined in more detail in the Summary Report.

Could you please provide a response in writing by the 1 November 2001? A contact address and fax number is listed on the side of this letter and in the summary report. If you wish, you could also provide copies of your response to the NSW National Parks and Wildlife Service.

We would be happy to have a meeting with your organisation to discuss the results of the study and any issues you may have. Please do not hesitate to contact us with any questions, or if you would like to organise a meeting.

The summary report provided to the Aboriginal groups reiterated the invitation in the followings terms:- How can Aboriginal Groups have their say about this report and its recommendations?

An invitation has been given to each Aboriginal organisation to provide comments and views about this study, the report findings, and the Aboriginal cultural values of the development area and the site it includes. These responses should be in writing, and if appropriate, passed as a motion by the members of the organisation.

All responses will be passed onto the National Parks and Wildlife Service, for their consideration.

The following are the most important issues which could be addressed in responses: _ What is the Aboriginal cultural heritage significance of the site and the artefacts within the development areas?

_ Does your organisation agree to the granting of a Consent to Destroy by the National Parks and Wildlife Service over that part of the site within the development area? _ If your organisation does agree, are there any conditions (such as the collection of more artefacts, more excavation, or monitoring ?) _ Do you have an opinion on how and where the artefacts recovered from the development area be stored and cared for? _ Does your organisation support a Voluntary Conservation Agreement between the land owner and the National Parks and Wildlife Service? This is a legally binding contract which would conserve and maintain the remaining portions of the site outside of the development area, as well as the McCauleys Beach midden and burial site. The agreement could also include a management role for Aboriginal community representatives. If you have questions or need more information about this study please contact Kelvin Officer or Kerry Navin at the address and numbers below.

On 25 October 2001 the second respondent made two applications for a Consent to Destroy Aboriginal Relics under the provisions of s 90 of the NP&W Act.

Section 90(1) and s 90(2) provide as follows:- 90 Destruction etc of relics 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, a relic 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) …

(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

Applications were made separately in respect of Stage 1 and Stages 2 - 6.

On 20 November 2001 Dootch (Roy) Kennedy, who identified himself as "Ambassador, Kuradji Aboriginal Tent Embassy" , wrote to Navin Officer on a Kuradji Aboriginal Tent Embassy letterhead as follows:- I have only just received a copy of your report on "Sandon Point Residential Subdivision Stages 2-6 Development Area, Bulli". A copy of the report was provided to me on Friday November 16 th, 2001, through the good offices of the Northern Illawarra Residents' Action Group (NIRAG Inc.).

Given that the preliminary archaeological investigations were conducted in June 2001, and this report is dated October 2001, it is an exquisite contradiction that you have the temerity to ask Aboriginal organisations to respond within 8 days, that is, by November 1, 2001 in relation to an application to the Director General of National Parks and Wildlife Service for a "Consent to Destroy".

This makes a mockery of the so-called "consultation" with Aboriginal people and organisations with a connection to the land at Kuradji/Sandon Point. Therefore we require adequate time to respond to this and related reports. We consider an appropriate time within which to submit comments is four weeks from the date of receipt of the document, that is, Friday December 14th, 2001. There is an obligation on your part to comply with both the spirit and letter of the law.

In a reply dated 21 November 2001 Navin Officer suggested to Mr Kennedy that he contact either Tanya Koeneman or Kathryn Przywolnik of the Central Aboriginal Heritage Unit and "let the NPWS know of your views regarding the development, the report findings, and the Consent application" .

On 20 December Miss Koenamen met with Mr Kennedy to ask him what his main concerns were.

On 22 December 2001 Mr Kennedy, purporting to write on behalf of the Aboriginal Tent Embassy at Sandon Point, advised Navin Officer that before responding to the request for comment on the cultural significance of the Aboriginal artefacts "dug up" in the recent excavations at Sandon Point he would like to view the artefacts first.

On 3 January 2002 Navin Officer again wrote to Mr Kennedy indicating that they would be happy to make the artefacts available to him for his inspection and made a suggestion about facilitating a decision in respect of where the artefacts should be housed. The letter further advised as follows:- We understand that the NPWS hope to make a decision on the Sandon Point Stage 1 - 6 Consent to Destroy application in the near future. If you have not already done so, we would like to remind you to provide your organisation's views regarding the application in writing to the NPWS as a matter of urgency. This will ensure that your organisation's views are taken into consideration by the Director General of the NPWS.

In affidavit evidence Mr Kennedy identifies himself as the spokesperson for the Sandon Point Aboriginal Tent Embassy ("SPATE"). He told the Court that there is a core group of approximately six Aboriginal people closely associated with SPATE. He claims these people are descendent from the Elourea people, the traditional owners of the country in the Sandon Point area.

Between November 2001 and February 2002 Mr Kennedy had a number of meetings with officers of the first respondent. It is his evidence that on each occasion an invitation was extended to provide evidence of the cultural significance of the artefacts discovered in the sub-surface investigation conducted in June and July 2001. He explained that in accordance with this invitation to provide evidence on a matter of such importance he has convened many meetings and held discussions with a wide range of people in the Aboriginal community. He says that in the Aboriginal community such a process can take quite some time before knowledge holders are willing to convey their knowledge to others. 22. Miss Koeneman is of Aboriginal descent and presently holds a position as Aboriginal Heritage Officer with the first respondent.

She explained that the National Parks and Wildlife Service ("NPWS") expects the proponent who applies for a s 90 Consent under the NP&W Act to provide:- (a) an archaeological assessment of the relics to be impacted by the proposal;

(b) a cultural assessment of the relics and the area, in its context; and

(c) demonstration of consultation with the Aboriginal community 24. NPWS offers assistance with each of the three above-mentioned tasks but otherwise, Miss Koeneman says, they are treated as the responsibility of the proponent.

Following her reading of the letter to Navin Officer from Mr Kennedy dated 20 November 2001, Miss Koeneman spoke to Mr Kennedy by telephone on either 13 or 14 December 2001 to inquire about the availability of his response. She met with Mr Kennedy on 20 December 2001 at Sandon Point and had a conversation about concerns arising from the Navin Officer report, particularly in respect of the need for a buffer zone and a conservation area. It was suggested that there might be a further meeting before Miss Koeneman went on leave from 3 January 2002. She gave Mr Kennedy her home phone number so that he could contact her directly. Miss Koeneman attempted to ring Mr Kennedy on 24, 28 and 31 December 2001 and also on 2 January 2002 without success.

On 4 January 2002 Miss Koeneman received a message from Kelvin Officer requesting her to co-ordinate a viewing of the relics from Stages 2 - 6 by the people represented by Mr Kennedy. This was the first time she became aware that Mr Kennedy wished to view the artefacts. She intended to arrange this to take place in conjunction with the anticipated meeting with Mr Kennedy in early January. However, Mr Kennedy did not contact Miss Koeneman and the meeting did not occur. She took no further action in that regard while she was on leave. After returning from leave on 24 January, Miss Koeneman was requested by William Allen, an Aboriginal Sites Officer with the NPWS, to arrange for the relics to be inspected by Mr Kennedy. She did not attempt to do this before the s 90 applications were determined because she did not understand the two matters were related.

When she returned from leave Mr Allen also requested her to draft the s 90 consent. She completed the draft consent and accompanying issues papers in consultation with a NPWS Archaeologist, Miss Przywolnik, on 30 January 2002.

Mr Allen is of Wiradjuri descent and has been involved in Aboriginal politics and affairs for 16 years. He acted as Manager of the NPWS Central Aboriginal Heritage Unit from 15 January 2002 to 1 February 2002 while the manager of that Unit, Teresa Gay, was on leave. He told the Court that the functions of the Unit include processessing applications for consents under s 90 of the NP&W Act.

During that time he assumed the responsibility for making the determination in respect of the s 90 applications. It is, therefore, important to appreciate his approach to and understanding of the consultation process. This was the subject of the following cross-examination of Mr Allen by Mr Larkin after Mr Allen's attention was directed to the three matters identified by Miss Koeneman and set out above:- Q. Could I ask you, is it your understand [sic] that what she says is what National Parks and Wildlife Service expects of proponents? A. Yeah.

Q. What I wanted to suggest to you is that if there had been nothing more on the file than the three letters from Navin Officer, two of them inviting comment, one suggesting a draft response, the two archaeological reports referred to in those Navin Officer letters and the Wadi Wadi Elders Corporation response saying yes, we agree to the issue of a consent to destroy, nothing other than that material, you would have been well satisfied that they had been properly consulted wouldn't you? A. Yes.

Q. I pause there. That would be so, that is, you would have been well satisfied that the National Parks and Wildlife Service's policy in relation to consultation had been well satisfied, you would have been satisfied of that, even if you hadn't spoken yourself directly to anyone from the Wadi Wadi Elders Corporation. You'd just decide it on the papers wouldn't you? A. Well yeah.

Q. And indeed, the same would be so even if no one from National Parks and Wildlife had spoken to the Wadi Wadi Elders Corporation. Again you would be satisfied based on what you saw on the documents. That's so isn't it? A. Yes.

Q. It follows from what we have been saying that it's perfectly in accordance with National Parks and Wildlife policy relating to consultation with Aboriginal groups for the Service to rely entirely upon, in some cases, the proponent to demonstrate that there has been consultation conformably with the National Parks and Wildlife policy. That's so isn't it? A. Yeah.

Q. …I wonder if you can look for me at the end of the first paragraph of that letter. Do you see that in the very last two lines, maybe the last three, do you see and to provide an opportunity for your organisation, that is SPATE, to comment on its content? Let me just pause there. The comment that was being sought of SPATE under the policy was first to comment on the content of the report? A. Yes.

Q. And second, a comment on the Aboriginal cultural significance of the finds. Do you see that? A. Yes.

Q. And third, a comment on the Aboriginal cultural significance of the place. Do you see that? A. Yes.

Q. They may be three different things, correct? That is, comment on the report. A. Yeah.

Q. Comment on the finds, comment on the place, correct? A. Yeah.

Q. They may be related, correct? A. Yes.

Q. You see in the next paragraph down, "with this in mind we invite your organisation to review this report and provide a response about its content, in particular provide your organisation's assessment of the Aboriginal cultural significance of the artefacts and their location." You see that? A. Yes.

Q. So what was being sought was comment on Aboriginal cultural significance of the artefacts and of location, correct? A. Yes.

Q. I'd like to suggest to you that in fact at all times up to the time when you granted consent, you understood that what the National Parks Service was seeking in the execution of its policy relating to consultation was comment from relevant Aboriginal groups on the Aboriginal cultural significance of artefacts and of the location. Correct? A. Yes. 30. The letter referred to in the quoted passages is the letter written by Navin Officer on 22 October 2001.

On 14 January 2002, Mr Allen discussed current matters with Brad Welsh who had acted as manager of the Unit from 18 December 2001 until 11 January 2002. On 16 January 2002 representatives of Illawarra Local Aboriginal Land Council ("Illawarra LALC") and Wodi Wodi Elders Corporation informed him that they had no intention of making any further response to the invitation made to those groups in respect of the s 90 applications.

After several failed attempts, he made an arrangement to meet with Mr Kennedy on 21 January 2002 "to get the significance of the area in relation to the Stockland development" . Mr Allen spoke at length with Mr Kennedy during the afternoon of 21 January 2002. The following account of a conversation at the end of the meeting is extracted from an affidavit sworn by Mr Allen on 13 March 2002:- We then had a conversation in words to the following effect. I said: "We really need some sort of statement from you to say why it is significant". He said: "Carol Speechly has written up a document setting out the significance of the area. It has everything in it, including stories". I said: "That's the type of thing we need if you want us to put it to the developer and to take into consideration". He said: "She's finished writing it and she's gone walking to get away from this. She has gone down south and she isn't contactable at the moment". I said: " Do you think that you can get her report to us this week?" He said: "I'll try to get a message to her". I said: "I'll come down on Thursday morning to see if you've got it". He said: "I'll try to get it by then".

No specific time was arranged. We then had a general discussion, including about problems in the community, and how tiring people were finding it, especially at the time of funerals.

On 24 January 2002 a further meeting took place between Mr Allen and Mr Kennedy. Mr Allen recounted the events of that meeting as follows:- On Thursday 24 January 2002 I left Hurstville about 8:00am and arrived at Sandon Point about 9:30am. I met Mr Kennedy who said words to the effect of: "I haven't been able to get hold of Carol Speechly". He turned the conversation to other things and after a while I tried to get back to the topic. There were frequent interruptions from visitors. I said words to the effect of: "Are you able to get hold of her now?" He said words to the effect of: "No, she's still away".

I said words to the effect of: "Well, are there any conditions you want to put on the consent?" He said words to the effect of: "We haven't really thought about it".

I said to him words to the following effect: "Are you against this development? He said words to the effect of: "No, we just want to make sure that the relics are protected". In my review of the files and reports and from discussions with other staff I was aware that a number of artefacts had been excavated from the site. Mr Kennedy said words to the effect of: "Navin Officer have taken some artefacts away from the site - we want to see them. We want the artefacts to be held by an Aboriginal group in Wollongong until a keeping place is decided."

We then had a conversation in words to the following effect: "If you want us to understand what you are going on about, we really need that information from you fellows. That's the only thing that's holding the consents up". He said: "We've got a meeting on Saturday. I'll try to get Carol to come." I said: "That's good. If you get the info, let me know. I'll give you my mobile. Ring me on the weekend after the meeting". He said: "OK, I'll give you a call". I said: "I'll leave my mobile on all weekend - so you can tell me what happened at your meeting".

At the end of the meeting on 24 January 2002 Mr Kennedy wrote a note to Mr Allen in the following terms:- To Whom it May Concern,

Due to unforseen circumstances, We are unable to provide a detailed comment on a s 90 for Stages 2 - 6 at Sandon Point until Tuesday 29 Jan 2002.

Information regarding this site is currently in Canberra & will be here at KURADJI on Sat 26 Jan 2002.

I understand the urgency of this Report, however due to Conflicting Dates & As Above, that is the earliest that SPATE can provide a detailed Report.

I sincerely Apologise for this inconvenience & assure you that this information will be available on that Date. Should you seek to clarify matters, I can be reached on the above phone No: At this stage the SPATE agrees with the Conservation Zones that are recommended by Stocklands and has some minor objections at this Stage, until we have sighted Artefacts removed from stages 2-6. [Emphasis added]

Mr Allen informed the Court that he understood from his conversation with Mr Kennedy that his express wish to see the artefacts was related to their protection and was not related to the ability to provide the promised written information on the significance of the site.

By 29 January 2002 Mr Allen considered that the community had been given sufficient extensions of time to provide NPWS with any additional matters. He signed the consents drafted by Miss Koeneman on 30 January 2002.

Mr Allen is adamant that Mr Kennedy never indicated to him that any report or submission would be subject to sighting the artefacts. He denies that Mr Kennedy ever said to him that he needed to see the artefacts before he could explain the cultural significance of the site. The understanding Mr Allen has is that the concern of Mr Kennedy was to have the artefacts protected.

Although he did not receive a written report from Mr Kennedy, Mr Allen says he took into account what Mr Kennedy told him on 21 January 2002 in respect of the cultural significance of the site when he decided whether to grant the consents to destroy the relics.

In cross-examination Mr Allen recognised that the following is a fair statement of the policy he had in mind when granting the s 90 consents, taken from a faxed letter dated 18 January 2002 from the Minister to the local member:-

There is no statutory requirement for consultation with Aboriginal communities. However, it is a firm NPWS policy to consult all relevant local Aboriginal community groups in relation to all Section 90 applications. Aboriginal community groups or organisations are then encouraged to provide written advice. In cases where there are a number of Aboriginal organisations in the local area, the NPWS will generally support the descendants of the original groups within the area or the majority of these groups.

The NPWS does not consult non-Aboriginal people groups or organisations in dealing with Aboriginal heritage matters.

He agreed that it is perfectly in accordance with NPWS policy, relating to consultation with Aboriginal groups, to rely upon, in some cases, the proponent to demonstrate that there had been consultation conformably with the NPWS policy.

Moreover, he understood that when NPWS was seeking comment in execution of its policy it was seeking comment from Aboriginal groups on the cultural significance of artefacts and of the location. However, he understood at the time, following instructions from Ms Gay, that the request to obtain a report on the cultural significance of the site was confined to a report on the cultural significance of the area. The following further extract of evidence taken during cross-examination of Mr Allen by Mr Larkin confirms that approach:- Q. So in concept and objectively speaking it would be a perfectly reasonable request for someone to say, "I wish to see the relics that have been found before I comment on the cultural significance of the land". Objectively, you agree with me, that would be a perfectly reasonable thing to request? A. Yes.

Q. And that view was a view which, if you'd been asked about it, or if you'd have brought it to your mind, you would have held at the time when you granted these consents, correct? A. I wasn't asked for it. 42. Later on, the following questions and answers are recorded:- Q. Yesterday you agreed with me that viewed objectively, it might be relevant to making a submission about the cultural significance of the site for someone to have an inspection of the relics first. Do you remember that? A. Yes.

Q. I take it that that was not a thought which came into your mind on 21 January? A No.

R. And it wasn't a thought, indeed that came into your mind at any time prior to the grant of the consents, was it? A. No.

Q. Because you were focused on, at that point in time, obtaining a report on the cultural significance of the site and nothing more. That's what you were focused on, wasn't it? A. Yes, and as I've said when I talked about the significance of the area I consider the whole lot, as you broke everything up into three sections yesterday, to me, everything all comes together in one. When you talk about the significance of an area you're talking about everything that is within that area.

Q. But you didn't at any point in time prior to the time when you granted the consent think to yourself that Mr Kennedy might be assisted in making the report which you wanted by having an inspection of the relics first, did you? A. No, I didn't think about it, no.

Q. And you've told us that at several times he, that is Mr Kennedy raised with you questions about the relics, correct? A. On 24th he did, not the 21st.

Q. I thought you said on 21 st that he talked about the relics? A. He talked about the relics, but he didn't talking [sic] about viewing them, that I can remember.

Q. But on 24th he did both? A. Yes.

Q. I'm very sorry. But he also told you that the inspection of the artefacts might, to some degree at least, influence what view he took of objections to stages 2 to 6. He told you that didn't he? A. Say that again, he ---

Q. Yes. He told you that at least to some extent the objections that he took to the development on stages 2 to 6 might be influenced by siting the artefacts. Correct? A. I suppose you could say, yes.

Q. So, it follows that you knew that he wanted to take some objections about stages 2 to 6 of the development? A. Yes.

Q. And that that task at least could not be done until he'd sited the artefacts. That's correct, isn't it? A. Yes.

Q. And may I suggest to you that is the reason why you asked Ms Koeneman to arrange for the inspection. That's correct, isn't it? A. That he wanted to site the artefacts, yes.

Mr Kennedy recognises that he did not meet either of the self-imposed deadlines to respond to the Navin Officer report by either the 14 December 2001 or 29 January 2002 but says, by way of explanation, that he underestimated the time necessary to get traditional knowledge holders to divulge important information and stories that relate to the cultural significance of the Sandon Point area. Furthermore, he says that in his meetings with Mr Allen in January 2002 he told Mr Allen that any report would be subject to inspecting the artefacts found on the proposed Stages 2 - 6 of the site. He expected that the first respondent would organise a viewing of the artefacts and that this would take place before he was required to finalise and provide his report on the cultural significance of the Sandon Point site. He says he was surprised and "taken back" when he first became aware that the s 90 applications for Consent to Destroy had been determined on 30 January 2002.

In cross-examination Mr Kennedy denied that he is either pro-development or anti-development. His concern has always been that "processes were not followed" . The concern has been in relation to the whole consultation process with the Aboriginal community with respect to Aboriginal heritage issues.

When he was asked whether he imposed the deadline of 14 December 2001, he replied as follows:- A. Yeah, I did, but come and work in my community and understand what happens when there are continual deaths. We have a belief that when one person dies, another two will, and we then are attending three funerals within a month. What has happened in my community over the last 10 years and what has happened ever since white occupation, Joe, is the death rate in our community is increasing. These are elder people that we are going to their funerals. They are uncles and aunties. We need time to heal. When you try to call a meeting, especially around a period when there is a funeral, you have no hope [in] hell of trying to get our people together…

He went on to say as follows:- A. That's one of the reasons. There are many reasons involved, is that during this whole process is trying to get the appropriate elders and knowledge holders together can be complicated when certain elders are overseas, when elders are healing from brothers and sisters deaths, when other elders are out of the community for a short while. It is a complex thing to get together.

He reiterated several times that much of the difficulty was within his own community.

Finally, when Mr Parry, on behalf of the first respondent, put to him that he kept failing to do what he promised to do in relation to this matter from the beginning, Mr Kennedy answered as follows:- A. Well that's your view, is that if you want to put it as a failure, I can't predict what my elders are doing. I can't predict who's going to be at a meeting. I can inform people and request their attendance, but in cases of funerals which is something I refuse to get involved with when somebody has died, is to try and convene any meeting during that period of healing. That was the situation I was in.

It appears that Mr Kennedy regarded the role of SPATE as a catalyst to get the views of the elders. The reality, as he sees it, is that he cannot make a comment on behalf of the community. Even though the Carol Speechley report has been available to him in some form since early December, he was not, in his view, in a position to pass that information on to the first respondent. He described the report as her intellectual knowledge that she wanted to divulge to the elders. He agreed with Mr Parry that the reason he did not personally make a submission in response to the requests by the first respondent and Navin Officer was because he had an obligation to the elders to refer the matter to them in order for the elders to make the decision "as a collective, not as individuals" . He claims that he wanted to see the artefacts that had been removed from the site and then examine the Navin Officer report fully to determine where the majority of the artefacts were found and then use that information to "talk to our elders" .

Mr Kennedy confirmed in cross-examination that although he had not personally inspected the artefacts, other members of his community had. Mr Kennedy had arranged for Mr Geoff Anderson to be present as his delegate at the excavation of the relics during the preliminary investigations by Navin Officer in June and July 2001. The following questions by Mr Gageler and answers by Mr Kennedy make the position clear:- Q. You were aware weren't you that the Navan Officer report was based in part on archaeological excavations that had occurred in June and July 2001? A. That's correct.

R. And you were aware at the time that those archaeological excavations were going on, weren't you? A. Yes. I was aware.. (not transcribable)..

Q. And indeed, you turned up on day one of the first of the excavations? (no verbal reply)_ Q. You sent along a man called Geoff Anderson? A. That's correct.

Q. And you authorised him to describe himself as your delegate, correct? A. That's correct.

Q. You expected Mr Anderson to actively participate in the excavations, correct? A. That's correct.

Q. And you expected Mr Anderson to keep you fully informed of what was occurring, correct? A. That's correct.

Q. That's exactly what Mr Anderson did to your knowledge, correct? A. Most of the time, those times when I remember seeing Geoff.

During further cross-examination by Mr Gageler, Mr Kennedy referred to many documents held in his file at SPATE, including a document that meets the description of a detailed report that was being prepared by him at the time the proceedings were commenced. Ultimately, Mr Kennedy produced some documents in answer to a call for production of the detailed report he referred to in his evidence. When the documents were produced he agreed that there was nothing in addition to the material available to him in January 2002. He confirmed that he was putting the information together in order to present it to a meeting to allow the decision-makers within the community and the "knowledge holders" to come forward. At the time when he was giving evidence on 22 March 2002 no such meeting had occurred.

Susan McIntyre-Tamwoy is a Consultant Archaeologist and Associate of Navin Officer. She has given evidence of the consultation process with representatives of the Aboriginal communities, which dates back to 5 June 2001. She maintains that every effort was made to keep the Aboriginal and broader community aware of what was happening and what was found during the excavation. Despite requests to that effect, no report was ever received from Mr Kennedy on behalf of SPATE. Letters were received from Wodi Wodi Elders Corporation, Illawarra LALC and Korewal (La Perouse) Elouera (Illawarra) Jerrungarugh (Shoalhaven) Aboriginal Corporation ("KEJ"). It is her opinion that the archaeological sub-surface testing programs conducted in the Stage 1 and Stages 2 - 6 study areas were adequate in providing an effective sample from which archaeological assessment of the potentially occurring archaeological deposits could be formulated.

The Manager of the Cultural Heritage Division of NPWS, Jason Ardler, has sworn an affidavit wherein he deposes that during the period from 18 December 2001 to 1 February 2002, two officers acted in the position of Manager of the Central Aboriginal Heritage Unit. He confirms they were Mr Welsh until 11 January 2002 and Mr Allen from 14 January 2002. As they were internal appointments within the Unit there was no external advertising. The approval of the appointment of Mr Allen was verbal only.

The orders sought are in terms whereby primarily the decision of NPWS to issue the consents to the second respondent is declared void on the ground of lack of procedural fairness.

The issues are identified by Mr Larkin, on behalf of the applicant, as follows:- _ Whether the First Respondent, National Parks and Wildlife Service ("NPWS") created a legitimate expectation that the Applicant, Mr. Roy Kennedy ("Mr. Kennedy") could inspect the artifacts [sic] recovered during excavation of the site before commenting on the cultural significance of the relics, the site, the Navin Officer reports and prior to the issue of the Consents to Destroy Relics ("the "Consents") to the Second Respondent, Stocklands.

_ Whether NPWS denied Mr. Kennedy procedural fairness in not ensuring that he had an opportunity to inspect the relics before commenting on the cultural significance of the relics, the site and the Navin Officer reports before NPWS issued the Consents to Stocklands. _ Whether NPWS denied Mr. Kennedy procedural fairness by not warning him at the meeting on 24 January 2002 that the Consents would be approved for issue at 9 am on the next business day being 29 January 2002 in the absence of Mr. Kennedy's comments.

_ Whether NPWS failed to take into account the relevant consideration that Stocklands may not have provided NPWS with full details of the voluntary conservation zones surrounding the development. _ Whether NPWS failed to take into account the relevant consideration that Mr. Kennedy had not had an opportunity to inspect the artifacts [sic] before commenting on the Navin Officer reports. _ Whether Mr William Allen had authority to grant the Consents, having regard to the circumstance that he was "verbally appointed" to act in the position of Manager of the NPWS Cultural Heritage Unit.

Mr Larkin submits that when Mr Allen signed the s 90 consents he:- _ Did not afford procedural fairness to Mr. Kennedy as the representative of the SPATE Aboriginal group by giving him an opportunity to inspect the artifacts [sic] before commenting on the cultural significance of the site; and

_ failed to take into account the relevant consideration that Mr. Kennedy had a legitimate expectation created by Navin Officer on behalf of NPWS and Stocklands, that he would be permitted to inspect the artifacts [sic] before responding to the Navin Officer report.

The express invitation by Navin Officer invited comments and views about the study, the report findings, the Aboriginal cultural heritage significance of the site, the artefacts within the development areas and opinions on how and where the recovered artefacts should be stored. The issue in relation to the viewing of the artefacts was raised by Mr Kennedy. Nobody on behalf of the decision-maker made a representation, either express or implied, that the artefacts would be made available for inspection before submissions were required. The Court accepts that neither Miss Koeneman nor Mr Allen understood at any relevant time prior to 30 January 2002 that the inspection of the artefacts was related to the ability to make the submission. Moreover, notwithstanding an understanding he had requested a viewing, neither of them agreed nor represented to Mr Kennedy that the expiration of the time for making submissions was conditional upon the viewing of the artefacts.

It is trite that one cannot complain of its own actions which deprive one of procedural fairness.

If Mr Allen, acting as the repository of the power, was not aware, and the Court is not satisfied that acting reasonably and fairly he should have been aware, that Mr Kennedy was deferring the making of a formal submission until he had the opportunity to view the artefacts then it is clearly open for the Court, having regard to the whole of the circumstances including the behaviour of Mr Kennedy himself, to hold that NPWS observed what the principles of natural justice require ( Kioa and Others v West and Another (1985) 159 CLR 550 at p 626 - 7).

The Court is satisfied that Mr Allen did not, at the time, regard the expectation that the artefacts be inspected as being related to the making of a submission by Mr Kennedy or the persons he represented. Even so, Mr Kennedy contributed to any misapprehension Mr Allen or Miss Koeneman may have had by setting his own deadlines that, in the context of completion and provision of the Speechley report, did not accommodate or depend upon a prior inspection of the artefacts. Furthermore, his own approach was dilatory as exposed by the following passage of evidence in cross-examination of Mr Kennedy:- A. There was always an intention to see the artefacts. The trouble with it was, as I have stated earlier, is that my primary role was to involve the whole community, to view whatever material was available and to give a report to my community for consideration, and that has always been my intention with this whole process.

Q. Is Mr Jim Davis a member of your community? A. Yes.

Q. Mr Jim Davis did look at the artefacts didn't he? A. I am told, yes.

Q. And there are other members of your community who did look at the artefacts as well? A. Yes.

Q. The point is that you didn't get around to doing it? A. Well that's how it seems, yes.

It is also clear that at least Mr Geoff Anderson, representing Mr Kennedy in addition to Mr Jim Davis and other members of the community, inspected the artefacts.

The Court agrees with the submission made by Mr Parry, on behalf of the first respondent, that:- It is true that Mr Allen did not give evidence of having given a warning that if the Speechley report was not provided by 29 January 2002 the consents would be issued. However, in the circumstances, Mr Allen was under no obligation to do so in order to have afforded procedural fairness to Mr Kennedy. Mr Kennedy had been given ample opportunity, since at least October 2001, to provide SPATE's views in relation to the s.90 applications, and had failed to do so for the reasons disclosed in cross-examination. Moreover, Mr Kennedy had himself imposed the deadline for the provision of the information by 29 January 2002.

The Court is satisfied that representatives of the community, which Mr Kennedy purports to represent, in fact did inspect the artefacts whereas even if Mr Kennedy carried a further expectation of an opportunity to inspect them personally, this was not generated by the first respondent in the context of the determination.

In the circumstances of this particular case the Court accepts there was no legitimate expectation that any decision would be delayed until Mr Kennedy had inspected the artefacts ( Haoucher v Minister of State for Immigration and Ethnic Affairs [1989 - 1990] 169 CLR 648 at 672). The evidence does not establish that an express promise was made to Mr Kennedy. Furthermore, there was no existing administrative process or course of action on the part of the first respondent which could have induced Mr Kennedy to expect that the decision would not be made until the condition, which was asserted by him, was satisfied.

Once the element of an expectation to view the artefacts is removed there is no reason to justify a finding that the applicant was not afforded procedural fairness prior to the determination of the s 90 applications. It follows, therefore, that, so far as the applicant's claim is based on the failure to apply the rules of natural justice by not observing the principles of procedural fairness, it must fail.

The condition to observe the principles of natural justice in the exercise of the statutory power to determine the applications for consent was satisfied. The Court holds that the procedure adopted by the decision-maker was reasonable and fair.

By an Instrument of Delegation effective from 1 January 2000, pursuant to s 21(1)(b) of the NP&W Act, the Director-General, with the approval of the Minister, delegated to the holder, for the time being, of the position of Manager, Central Aboriginal Heritage Unit the power to give consent to an application pursuant to s 90 of the NP&W Act subject to the conditions and restrictions.

Section 21 of the NP&W Act provides, in part, as follows:- 21 Delegation (1) Subject to this section:

… (b) the Director-General, with the approval of the Minister, may, by instrument in writing, delegate to: …

any power(other than the power of delegation conferred by this section), authority, duty or function conferred or imposed on the Minister or the Director-General, as the case may require, by or under this or any other Act. …

(3) any act or thing done or suffered by the delegate, when acting in the exercise of any such delegation and within the terms of the delegation, shall be as effective as if the act or thing had been done or suffered by the person making the delegation.

Pursuant to s 49(8)(b) of the Interpretation Act 1987 ("the Interpretation Act") a function delegated to a particular officer or the holder of a particular office may be exercised by the person for the time being occupying or acting in the office concerned.

By Instrument of Delegation dated 19 May 2000, the Director-General of NPWS did thereby delegate nominated powers, detailed in the Human Resource Management Delegations Manual ("the Human Resources Manual"), pursuant to s 12 of the Public Sector Management Act 1988.

It is not in dispute that there was a valid delegation of the power to give consent under s 90(2) of the NP&W Act to the holder for the time being of the position of Manger of the Central Aboriginal Heritage Unit.

The unrefuted evidence of Mr Ardler is that Mr Allen acted in the position of Manager of the Central Aboriginal Heritage Unit during the relevant period. He was exercising the function of an absent staff member for a period of two weeks. Mr Parry relies on the combined effect of cl 34 of the Public Sector Management (General) Regulation 1996 ("the Regulation"), Delegation No 1.5(i) of the Human Resources Manual, s 21(1)(b) of the NP&W Act and the Instrument of Delegation pursuant to the latter section together with s 49(8)(b) of the Interpretation Act to show that Mr Allen was duly authorised by Mr Ardler as the Division Manager to exercise the functions of the absent staff member, namely the Manager of the Central Aboriginal Heritage Unit.

Mr Gagelar says it is enough that Mr Ardler was acting in the position and relies on s 49(8)(b) of the Interpretation Act for that submission.

The Court does not agree with the argument put by Mr Larkin whereby he attempts to show that the appointment of Mr Allen involves a sub-delegation of a delegated power under the Regulation. Moreover, his challenge to the lawfulness of the appointment of Mr Allen to act in the vacant office pursuant to the statutory regime has not been substantiated. The Court is satisfied that Mr Allen had the necessary authority to make the decisions to grant the consents under s 90 of the NP&W Act by virtue of s 49(8)(b) of the Interpretation Act as the person "acting in the office concerned" , namely as the Manager of NPWS Central Aboriginal Heritage Unit as delegated by the Director-General pursuant to the Instrument of Delegation dated 1 January 2000.

The Court makes the following formal orders:- (1) The interlocutory orders made on 14 February 2002 are discharged.

(2) The application is dismissed. (3) Costs reserved. (4) The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (148 paragraphs)

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