Roy Kennedy v Director-General of the Department of Environment and Conservation and Another

Roy Kennedy v Director-General of the Department of Environment and Conservation and Another - [2006] NSWLEC 456 - NSWLEC 2006 case summary — Zoe

[21]

(3) In deciding to grant the consent, the first respondent failed to take into account relevant considerations. The relevant considerations to which the first respondent was bound to have regard, but did not, were: - (i) the absence of an archaeological assessment of the land comprised in lots 235, 238 and 239 in DP 1048602 and DP 224431, (ii) the absence of an ethnographical and/or anthropological study by a qualified person into the cultural significance of the area covered by the consent, (iii) a report by Dr Hiscock, "Appraisal of Archaeological Studies at Sandon Point, New South Wales" dated August 2002, prepared for Allan Carriage and the Sandon Point Aboriginal Tent Embassy (iv) the qualifications of Dr Hiscock to assess the previous archaeological studies relating to the land, (v) a draft report of Ms Alison Nightingale, "Sandon Point Aboriginal Place Investigation Report" dated June 2001 and prepared for the NSW National Parks and Wildlife Service, (vi) a report by Mr Michael Therin, "Sandon Point Aboriginal Heritage Study", volume 1 report, dated June 2003 and prepared for Wollongong City Council, (vii) the significance of the site to which the consent applied (by reason of it being described by the euphemism as an "open artefact scatter with associated sub-surface archaeological deposit", (viii) the fact that the land within lots 235, 238 and 239 in DP 1048602 and DP 224431 was the subject of a Commission of Inquiry under the Environmental Planning and Assessment Act 1979 (the "EPA Act"), and the recommendations of the Department of Environment and Conservation (NSW) to that Commission of Inquiry, including that the Minister for Planning has contracted a consulting archaeologist (Stuart Huys) to carry out an assessment of Aboriginal cultural heritage values with respect to the land the subject of the Commission of Inquiry, (ix) the fact that fill has been dumped on land within lot 235 in DP 1048602, which activity has "been declared illegal by the Court and the construction certificate relied on by the Second Respondent to claim that such work was authorised was also declared invalid", (x) whether the work proposed to be carried out by the second respondent, which required the consent, was lawfully approved under the EPA Act, and (xi) a report by Navin Officer, "Sandon Point Residential Subdivision Bulli, NSW - Water Quality Ponds in lot 235 Archaeological Salvage Program" dated both August and December 2003, and the contents of that report. (4) In deciding the grant the consent, the first respondent took into account an irrelevant consideration in that the first respondent "discounted the Hiscock report because it was of limited value in the Aboriginal assessment process for Sandon Point and does not provide any new information that supports a reconsideration of either s 90's that had been issued or the archaeological salvage methodology".

[61]

34 On 1 October 2002, the day after the issue of consent 1427, the National Parks and Wildlife Service received a copy of Dr Hiscock's report (see above) dated August 2002. Dr Hiscock's report reviewed the archaeological/scientific evidence of artefacts and other signs of indigenous occupation at Sandon Point and commented on the information and its consequences for statements of archaeological significance of the locality. Dr Hiscock concluded as follows: * Archaeological investigations have revealed that the development area contained an enormous archaeological site, containing several million artefact fragments. Such sites are extremely rare along the Australian coast and even if the context of these artefacts was heavily disturbed this represents an assemblage of unusual and valuable qualities. The statements by Navin Officer do not give adequate acknowledgement to the size and potential of such an assemblage. * Multiple processes disturb the site but the archaeological investigations should be considered inconclusive as to the extent and intensity of disturbance processes or the degree of information that remains in the assemblage. The conclusion that little or no information about prehistoric activities remains is not justified on the evidence presented. * The archaeological investigations have provided a useful initial characterization of the site but are not extensive or detailed enough to develop final statements of scientific significance. * The preliminary judgment of the archaeological material contained within Stages 1-6 underestimates the likely potential of such an immense and complex assemblage. It remains possible, even likely, that this site should be considered of national importance for questions of ancient technology and economy. 35 Dr Przywolnik reviewed Dr Hiscock's report, (I infer) shortly after it was received. Dr Przywolnik concluded that there were "major weaknesses in Hiscock's argument, which seriously undermine[d] the validity of his conclusions". Dr Przywolnik said that Dr Hiscock's report did not provide any new information that supported a reconsideration of either of the consents which had been issued under s 90 for Sandon Point stages 1-6 or the archaeological salvage methodology for consent 1427. Dr Przywolnik's report contained a number of references, including the reports of Navin Officer dated June 2001, August 2001, October 2001 and August 2002. Dr Przywolnik also recommended that Navin Officer be given an opportunity to comment on Dr Hiscock's report. Navin Officer provided a response to Dr Hiscock's report on 15 October 2002 which concluded that they "stand by their analysis and conclusions regarding the adequacy of the sampling strategies, the disturbed nature of the Sandon Point site and the appropriateness of the significance assessment".

[100]

In addition to the material considered in the granting of the previous s 90 Consents for Sandon Point I have also considered the following: - - issues raised in previously provided submissions (Kennedy, Simpson and Carriage) on the Aboriginal cultural heritage values and archaeological values of Stages 1 to 6, and regarding a comprehensive Aboriginal Heritage Study not having been completed. I note there have been substantial consultation and reporting including the consultation and assessments undertaken as part of previously granted s 90 consents, Therin Report commissioned by Council, independent facilitation process undertaken by Rick Farley, the Commission of Inquiry (COI) and briefing undertaken by DEC officers. Further DEC fully supports the COI recommendation for further comprehensive study for the lands subject to the COI at Sandon Point. - issues relating to the Sandon Point burial. … - issues raised regarding the draft Aboriginal Place Investigation Report. I note that the DEC is still awaiting information from knowledge holders to allow for the investigation to be completed. Until this information is provided, which includes the boundary of the proposed place, the Report can not be finalised. - issues raised in regards to the Hiscock Report. I note the Report provides an evaluation of archaeological investigations (essentially scientific assessment) and does not provide a cultural assessment involving the evaluation or discussion of cultural significance (eg does not contain oral histories involving attachments and or associations held by the Aboriginal community). - issues raised in response to recent round of consultations, whereby the DEC requested comment on the draft conditions for this s 90 application from the relevant Aboriginal community groups and Stockland. Written responses were received from Allan Carriage (Wadi Wadi Coomaditchi Aboriginal Corporation), Geoff Simpson (Northern Illawarra Aboriginal Cooperative) and Jim Davis (Wodi Wodi Elders Corporation), and Stockland Pty Ltd. I note that no new additional information was provided which indicates new or additional evidence of significance.

[150]

104 I am satisfied that the Director-General, in making the decision to grant consent 2130, considered the significance of the Aboriginal objects described in Schedule A to consent 2130 to Aboriginal people, the cultural value of those Aboriginal objects within the landscape and the appropriateness of conservation of those objects having regard to, amongst other things, those matters. I draw this inference from: - (i) the terms of the application for consent 2130 and the accompanying documents, including the covering letter, the summary of consultation with Aboriginal people, and the attachments to the application, which I infer was available to and considered by the decision-maker (from Ms Ewins' evidence about the material it was her practice to provide to the decision-maker, which I accept), (ii) the archaeological review carried out by Dr Przywolnik entitled "Archaeological Review of s 90 Application #2130" which I also infer was available to and considered by the decision-maker for the same reason, (iii) the "Review of Aboriginal Consultation for s 90 Application #2130" prepared by Mr Zander, which I infer (from Ms Ewins' evidence of the material it was her practice to provide to the decision-maker) was available to and considered by the decision-maker, (iv) the document signed by Ms Ewins dated 28 February 2005 and counter-signed on 2 March 2005, which I infer was available to and considered by the decision-maker for the same reason, (v) consent 2130 dated 2 March 2005 and its conditions which was signed by the decision-maker (particularly special conditions 2 and 3 which, on their face, disclose that Aboriginal objects had been salvaged from the Sandon Point Stages 1-6 area such as to warrant conditions requiring them to be housed in an Aboriginal Keeping Place). The consent also referred to the application, the two Aboriginal sites the subject of the consent, and the land within which I infer those sites were located (including plans thereof), (v) the evidence given by Ms Ewins that she was aware of, and accepted, the different significances which Sandon Point had for different Aboriginal people and groups (for example, as a tool making site, as women's sites, and/or due to the burial on the coastline), which evidence I accept, (vi) Ms Ewins' review of the information in the application and related documents, and the reports of Dr Przywolnik and Mr Zander, which she said that she read thoroughly (and which evidence I accept), and (vii) Ms Ewins' evidence about her awareness of s 2A of the NPW Act at the time of her recommendation, her awareness of the Statement of Reconciliation and her familiarity with the matters set out in the document which she signed, all of which evidence I accept.

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Judgment (262 paragraphs)

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Cases Cited (19)