Kennedy v Director General of the Department of Environment and Conservation and Stockland Development Pty Ltd

CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

APPLICANT Alan Oshlack (Agent) FIRST RESPONDENT R Beech-Jones (Barrister) LEGAL REPRESENTATIVES: SOLICITORS Department of Environment and Conservation SECOND RESPONDENT M Craig (Queen's Counsel) SOLICITORS Herbert Geer & Rundle

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40421 of 2005 Roy "Dootch" Kennedy v Director-General of the Department of Environment and Conservation and Stockland Development Pty Limited

JUDGMENT 1 Her Honour: The Applicant filed Class 4 proceedings on 4 May 2005 seeking a declaration that s 90 consent no 2130 issued by the Director-General of the Department of Environment and Conservation, the First Respondent, is invalid. An amended Class 4 application was filed on 12 May 2006. Consent no 2130 relates to part of an area known as Sandon Point via Bulli, where a large residential subdivision is being developed by the Second Respondent. This judgment concerns an application for urgent interlocutory relief in a Notice of Motion dated 18 May 2006 being an order that the Second Respondent and its servants, agents and contractors be restrained from carrying out any work including landscaping, signage, riparian [sic], infrastructure works and residential development on the land which rely on s 90 consent no 2130 from the First Respondent until Conditions 2 and 3 of that consent have been complied with. The same orders for relief are also sought in prayers 2 and 2A of the Applicant's Further Amended Application Class 4, filed 12 May 2006. The Applicant was represented by his agent Mr Alan Oshlack. The First Respondent did not present any argument to the Court and neither opposed or consented to the Notice of Motion.

2 Section 90 of the National Parks and Wildlife Act 1974 ("the NPW Act") states that: (1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act. … (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. … 3 The First Respondent issued consent no 2130 on 2 March 2005. Conditions 2 and 3 state: 2. The Aboriginal Keeping Place must be operative within twelve months of the issuing of this consent, and the Keeping Place must be made available for any Aboriginal objects collected or salvaged from the area of Sandon Pont Stages 1 to 6.

3. The form and location of the Aboriginal Keeping Place and a plan for its management must be negotiated with the Aboriginal community groups listed in Schedule C.

4 The community groups listed in Sch C are the Illawarra Local Aboriginal Land Council, the Korewal Eloura Jerrungarah Tribal Elders Aboriginal Corporation, the Sandon Point Aboriginal Tent Embassy, the Wadi Wadi Coomaditch Aboriginal Corporation and the Wodi Wodi Elders Council. Roy Kennedy, the Applicant, is listed in Schedule C as being the contact person for the Sandon Point Aboriginal Tent Embassy.

5 Three previous s 90 consents were issued in regard to different parts of the land at Sandon Point. These were consent numbers 1288, 1289 and 1427. All have now expired and generally lasted for two years. These had conditions requiring the establishment of a Keeping Place, consultation with the Aboriginal community and the provision that salvage work be undertaken. 6 It is agreed that there is no designated Aboriginal Keeping Place. For the purposes of these proceedings it is agreed that the hatched area identified in Plan 1 annexed to consent no 2130 is the subject of that consent. Evidence 7 The Applicant relied on affidavits of Roy "Dootch" Kennedy, from the Sandon Point Aboriginal Tent Embassy, sworn 26 May 2006, Tony Stephenson sworn 5 June 2006, Alex Peterson sworn 5 June 2006 and Allen Carriage, an Aboriginal Elder and Traditional Owner of the Wadi Wadi people, sworn 26 May 2006. These affidavits essentially attest that significant aboriginal objects are being uncovered by the Second Respondent in the course of excavation on the hatched land, thus disturbing and/or destroying these objects. The affidavit of Allen Carriage states he has not been contacted by the Second Respondent regarding the establishment of a Keeping Place. The affidavit of Roy Kennedy sworn 26 May 2006 attests to the same issue.

8 The Respondent relied on the affidavits of Susan McIntyre-Tamwoy, the consultant archaeologist engaged by the Second Respondent, sworn 25 May 2006, and 7 June 2006 and Gerald Ward, a development manager of the Second Respondent, sworn 7 June 2006. 9 The affidavits of Susan McIntyre-Tamwoy set out her numerous attempts to negotiate the location and form of a Keeping Place at Sandon Point. Her affidavit sworn 25 May 2006 refers to numerous phone calls and letters exchanged between the designated groups regarding the Keeping Place and its management, including the groups represented by Roy Kennedy (the Sandon Point Aboriginal Tent Embassy) and Allan Carriage (the Wadi Wadi Coomaditchi Aboriginal Corporation), from late 2004 to mid to late 2005.

10 A report, Annexure A attached to Ms McIntyre-Tamwoy's affidavit of 7 June 2006 commissioned by the Second Respondent, summarises the consultations with the Aboriginal community regarding the Keeping Place and identifying the issues and areas of agreement, and matters requiring further consideration. Her affidavits suggest that until recently there has been a lack of consensus from these negotiations. She also attaches a report of the meeting of all relevant groups ordered by the Court and held on 2 June 2006, at which agreement on numerous matters related to the Keeping Place was achieved. 11 The affidavit of Gerald Ward attests to the work carried out on the site in accordance with the development consent for the subdivision works and other consents as follows: · excavations for tree planting · maintenance works on the Sydney Coastal Estuarine Swamp Forest Complex within the Tramway Creek riparian zone · excavations for street signs, pipes and other services · repair and maintenance of drains · maintenance of the drainage basins on Stages 5 and 6 which requires further excavation to remove sodden earth, and · other works ancillary to the subdivision works at Sandon Point

12 The Respondent accepts that it is undertaking work in the hatched area the subject of the s 90 consent which is disturbing and/or destroying aboriginal objects and states this is covered by the s 90 consent no 2130. Applicant's submissions 13 There are aboriginal objects on the hatched land being destroyed which are of great significance and no Keeping Place has been established as required by Conditions 2 and 3 of consent No 1230 issued by the First Respondent. Conditions 2 and 3 are mandatory and require the creation of a Keeping Place for the objects found on the site. According to the affidavit of Mr Kennedy sworn 26 May 2006, the objects collected over six years can be found at various locations including the construction site office, Navin Officers' premises in Canberra, in sacks, at the National Parks and Wildlife Service office in Hurstville, and the Second Respondent's main office, whilst others have gone missing, been stolen, mislaid or dumped. Mr Oshlack asserted that the Second Respondent failed to bring forward evidence refuting the allegation that aboriginal objects were being stolen, mislaid or dumped.

14 The interests of justice demand that an interlocutory injunction should issue. Mr Oshlack outlined various instances where indigenous people have suffered at the hands of others and suggested that not to grant the current interlocutory application would be to continue that injustice, since aboriginal objects of great significance would be destroyed. Further, Mr Oshlack argued that not to grant the urgent application would effectively be to place blame on the Aboriginal people for the destruction of these objects because the Second Respondent has argued that its efforts to obtain agreement between the five groups has frustrated its ability to comply with Condition 2.

15 Both affidavits of Mr Kennedy sworn 5 June 2006 and 26 May 2006 attest to the importance of the artefacts the subject of the current application. He stated in his affidavit of the 26 May 2006 that the site the subject of the current application is recognised as a major tool making, ceremonial and burial place, and many of the objects contained therein are unique because of the skilful craftmanship with which they have been made.

16 In regards to the previous consents for the site (consents 1288 and 1289), a Plan of Management for the site was required to be produced. There is no evidence that such a plan has been prepared.

17 The Applicant argued that the Second Respondent has had ample opportunity to contact the Department of Environment and Conservation ("the DEC") if it could not comply with Conditions 2 and 3, in order to ask that the timeframe provided for by the conditions be extended, or that the conditions be removed completely because of their inability to be complied with.

18 In response to the Respondents' submissions that Condition 2 could not be complied with because of a breakdown in negotiations required by Condition 3, the Applicant denied this and stated that there was general concurrence amongst the groups listed in Sch C as to the basic need for a Keeping Place and that by their very nature, negotiations of any sort would not produce unanimous agreement. On this basis the Second Respondent cannot argue that it cannot comply with Condition 2 because of Condition 3, since some general agreement could be reached. There are a number of ways in which such an agreement could be reached, including the Second Respondent approaching the DEC for assistance, which it has not attempted to do.

19 The Applicant argued that the status quo preserved by an interlocutory injunction is the preservation of aboriginal objects dated thousands of years old lying beneath the ground.

20 The Applicant argued that on the balance of convenience granting an injunction could be varied on a case by case basis by the Court to enable the Second Respondent to carry out certain works such as drainage work. Also, work being undertaken by the Second Respondent such as excavation for drains and tree planting does not need to be done urgently and therefore the balance of convenience lies in the favour of the Applicant.

Respondent's submissions 21 There is not a serious question to be tried. Both Conditions 2 and 3 of consent no 2130 need to be complied with. An Aboriginal Keeping Place cannot be established under Condition 2 unless there is consultation with the five Aboriginal groups specified and a Plan of Management finalised. The affidavits of Dr McIntyre-Tamoy make clear that substantial efforts have been made since February 2005 to engage in consultation with all five groups in an effort to reach agreement on the most appropriate form and location of an Aboriginal Keeping Place.

22 The balance of convenience does not favour the granting of an interlocutory injunction as consent no 2130 specifically allows the destruction of aboriginal objects in the course of work undertaken pursuant to the relevant development consent. The affidavit of Mr Ward sets out generally the nature of that work. Finding 23 The test laid down in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 for when an interlocutory injunction ought be granted is outlined by Mason ACJ at 135: The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

24 In relation to the serious question to be tried, it is clear that Conditions 2 and 3 must be complied with. While it is admitted that the twelve month period in Condition 2 for the establishment of an Aboriginal Keeping Place has not been achieved in that timeframe, Condition 3 specifies that certain matters must be undertaken before that can occur. The evidence relied on by the Second Respondent at this interlocutory stage strongly suggests that extensive effort has been made to comply with Condition 2 in that consensus as between the five groups required to be consulted has been sought. While the Applicant's agent was critical of the approach of trying to obtain agreement from all five groups in his final submissions, and his characterising the Second Respondent's case as one of "blaming" the Aboriginal groups involved, I do not consider that is a fair representation of the situation as presented in the evidence of Dr McIntyre-Tamoy. It is appropriate that I take her evidence into account despite the Applicant's submission that I should give it no weight because it was untested in cross-examination and she did not annexe all the documents she referred to. Her evidence was extensive and appropriate for consideration on an urgent interlocutory application. 25 The First Respondent has specified in Condition 2 what has to be done before the Aboriginal Keeping Place can be established and it would appear the Second Respondent's consultant endeavoured to achieve an agreed outcome despite considerable difficulty in contacting and meeting all the relevant group representatives since February 2005. While the Applicant argued in the alternative that there was general agreement as between the five groups, that agreement would appear to have emerged at a meeting of all interested parties ordered by the Court which took place on 2 June 2006, a recent event. It is not apparent that there is a serious question to be tried in the sense that if the evidence remains as it is there is a possibility that at the final hearing the Applicant would obtain the relief sought in the Class 4 application, based on inaction on the part of the Second Respondent. 26 While the Applicant's agent did not formally address each of the matters identified in Castlemaine, I infer that the Applicant argues that there will be irreparable injury to aboriginal objects which are significant to local Aboriginal people if the interlocutory relief is not granted. That submission needs to be considered in light of the fact that a s 90 consent has been issued by the First Respondent which allows the destruction of objects subject to the fulfilment of a number of conditions. That leads to a consideration of the balance of convenience which is important in this matter.

27 In relation to the balance of convenience, the s 90 consent no 2130 was issued on the basis that aboriginal objects could be destroyed from the date of its issue on 2 March 2005. It was not considered necessary by the First Respondent that the Aboriginal Keeping Place be in place before work under the consent could take place. I agree with the Second Respondent that the status quo in this case is that work can be undertaken under the consent which may involve destruction of aboriginal objects. The affidavit of Mr Ward outlines in broad terms the nature of the work being undertaken in the hatched area under the development consent obtained by the Second Respondent. The work includes drainage work and maintenance of drainage basins, and maintenance work within the Tramway Creek riparian zone.

28 The Applicant argued that harm is being caused to significant aboriginal objects which are being disturbed because there is no Aboriginal Keeping Place. There is not a direct correlation between the harm caused and the absence of a Keeping Place made good in the Applicant's evidence. The Applicant's agent made submissions from the bar table that there was harm caused as a result of there being no Aboriginal Keeping Place. While I accept that the Applicant and the other deponents of affidavits supporting this case consider there is harm to aboriginal objects which should be protected, the real issue would appear to be that those aboriginal objects being disturbed which are referred to in the Applicant's evidence are not being salvaged. It may be, if I understand the Applicant's agent correctly, that is an issue being raised in the balance of the Class 4 proceedings the Applicant is pursuing, but in any event is not an issue before me in this application. In the evidence of Mr Kennedy he deposes that objects have been collected from the Sandon Point development over six years and are kept in many locations. This suggests that salvaging has taken place under the other s 90 consents issued in relation the Sandon Point development, and that is clear from consent numbers 1288, 1289 and 1427, tendered in evidence. That salvaging has not been prevented by the absence of a final Keeping Place. 29 I do not mean to suggest by the previous paragraph that establishing a final Keeping Place for aboriginal objects is not very important. It clearly is, as recognised by Conditions 2 and 3 of consent no 2130. I have to assess here however whether urgent interlocutory relief is warranted on the basis of the evidence presented.

30 A further issue to consider is delay in applying for interlocutory relief. The twelve month period required for the establishment of the Aboriginal Keeping Place expired on 2 March 2006. The Applicant's Notice of Motion is dated 18 May 2006. There is no explanation from the Applicant as to why more than two months elapsed before the Notice of Motion before me was filed.

31 The Applicant has not made out a sufficient case on the question of a serious issue to be tried and the balance of convenience to justify interlocutory relief in the terms sought in the Notice of Motion.

32 This is a matter where the constructive outcome of the meeting of all interested groups which occurred on 2 June 2006 by order of this Court should be progressed as it is clearly in the interests of all parties that the establishment of the Aboriginal Keeping Place be achieved as soon as possible rather than some of those parties being diverted into litigation to achieve that outcome in Court. Orders 33 The Court orders that:

1. The Applicant's Notice of Motion dated 18 May 2006 is dismissed.
2. Costs are reserved.

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.