Williams v Director General National Parks and Wildlife Service & Ors

Williams v Director General National Parks and Wildlife Service & Ors - [2002] NSWLEC 154 - NSWLEC 2002 case summary — Zoe

[75]

Under the heading "Aboriginal Consultation" the history of consultation with the Aboriginal community throughout the planning history of the Lake Cowal Gold Mine Project is summarised. The content of the report under this heading then discusses the consultation with the Aboriginal community relevant to Homestake's application for a s 87 permit in the following passages: · Present- The section 87 application under consideration has arisen because of the actions of Mr. Neville Williams of the Mooka Traditional Owners Council (a sub group of Wiradjuri people) who initiated court action against Homestake for disturbance of relics at the Lake Cowal project site. He has consistently claimed to have been ignored in consultative processes. It is however, significant that in all the prior Aboriginal community consultation, which is demonstrably comprehensive and includes community meetings sponsored by the Regional and Local Land Councils, no opinion has ever been forthcoming from Mr. Williams or the Mooka Group. Consultation in relation to the current Section 87 application by Homestake has been comprehensive and unbiased. Homestake has sought the views of all known interest groups, and organised Aboriginal community meetings and additional site visits for members of the Condobolin Aboriginal Community. Homestake employed an indigenous archaeologist familiar with the section 87 process to undertake consultation with any interested party in a culturally appropriate manner. Homestake also advertised its intent to seek the Section 87 application in local, regional and national papers inviting any interested party to make themselves known so that their views could be sought. Only two replies were received in relation to this; one from the NSW Aboriginal Land Council and the other from Tongala Baaka (auspiced by Thubbo Aboriginal Medical Co-operative). In summary the following should be noted; · The West Wyalong Local and Wiradjuri Regional Aboriginal Land Council representatives stand by their original decisions of 1998. · The Wiradjuri Council of Elders (registered Native Title Claimants) were not prepared to make a firm decision however they offered the view that if permitted, relics should remain on site and that relic collection be undertaken by Wiradjuri representatives. The senior claimant, Ms Flo Grant, after the final meeting had closed, wished it be noted that the Wiradjuri are opposed to mining at this stage. · Of the 22 adults interviewed in the Condoblin Community opinions varied as follows: 1 had no opinion to offer, 1 would follow the dominant community opinion, 12 did not want the section 87 application to proceed, 6 did not approve of the section 87 application but wished to see the artefacts remain at Lake Cowal if approved and 2 had no concerns with the application provided that the artefacts remained at the lake. Among these only 3 people mentioned that the Lake was significant to Wiradjuri people, but they did not elaborate. · Mr Ron Gardner expressed his opposition to the section 87 application. · Mr Williams is opposed to the section 87 application because he believes the area to be of great cultural and social significance to the Wiradjuri people. Having made this claim he refuses to disclose any cultural information because of the legal proceedings presently in the NSW Land and Environment Court. Rather than provide supporting evidence that might reinforce his opposition he enters into attacks on the credibility of archaeologists, NPWS staff and other Aboriginal community representatives. · Mr Williams has independently organised a petition of 161 signatories opposing the section 87 application and forwarded this directly to the Director-General, on April 15th. Unfortunately the petition itself must be treated with caution, as there are several anomalies. Two signatories appear twice; in another case one person has signed on behalf of four people from three different addresses and with three separate surnames. In several other cases where the surname is that of the one family name, the handwriting appears to be remarkably similar, only the initial being different (see attachment A). The majority of signatories are from the Condoblin and Cowra communities with occasional representation by people in Canberra. No signatories on the Williams list come from West Wyalong, Wagga Wagga or any other area with significant Wiradjuri populations. Current Situation The exploratory operations at the Lake Cowal site have stopped pending the determination of this application. Mr Williams backed by a Rainforest Action Group from Lismore has raised considerable angst and division within the Aboriginal community. It is apparent that in the consultation process several other issues relating to environmental concerns and the Native Title process have achieved primacy beyond the cultural heritage management issues that are at the heart of the Section 87 application. The consultative efforts by Homestake have been exhaustive and more than adequate but the above issues have hampered Aboriginal community decision-making processes.

[76]

Under the heading "Comment" the following is stated - The issue is a complex one that has required considerable research. However, the following points are considered relevant. · The extremely high levels of prior disturbance have been known for many years and have seriously affected the integrity of the site. · Mr Williams asserts that the whole area is a rare example of a site type likely to be found in the area. Archaeological investigations indicate that this demonstrably not so. · Mr Williams has repeatedly challenged the competency of archaeologists in relation to the scientific evaluation of Lake Cowal and has done so without any formal qualifications of his own. In one notable case, five separate archaeologists (including his own representative) have examined what he claimed to be a scarred tree. All have refuted this, yet all remain wrong in Mr Williams's opinion. Five archaeological investigations by four different consultants have consistently returned the same findings (previously summarised). Subsequent field inspections by an additional five archaeologists (three NPWS and two Homestake consultants) have failed to reveal anything new. · Mr William's claims to a lack of consultation and his rights as a Native Title claimant are spurious. Homestake's commitment to community access and communication is evidenced by the number of people/groups who have visited the site by simply asking. A protocol was developed for this following the first Land and Environment action, but this was not recognised by Mr Williams who claimed not to need permission to enter his own traditional land. · Among all the consultative efforts, only Mr Williams and three other people have made claims of the extreme social significance of Lake Cowal. He makes continual reference in correspondence and press releases to Lake Cowal as the sacred heartland of the Wiradjuri nation yet this is not supported by the archaeological investigations nor has it been widely supported by other Wiradjuri people. To the best knowledge of NPWS, social significance via major Dreaming associations in the area centre on Manna Mountain approx. 20 kilometres to the north of Lake Cowal and focus on the Milky Way and other stellar constellations forming linkages to the Lachlan River. · Appropriate management of relics and safeguards have been built into the permit conditions. These provisions are consistent with the opinions of the Aboriginal community if the Section 87 permit is approved. · The final point of consideration is that the development of the mine has been a probability since 1993 irrespective of ownership. The project was the subject of widely reported and public processes including 2 EIS and 2 Commissions of Inquiry between 1993 and 1998. During that time the only Aboriginal organisations to have raised any concerns were the West Wyalong Local Aboriginal Land Council and the NSW Aboriginal Land Council.

[97]

I have already referred to the Director-General's letter to the Applicant dated 21 May 2002. There was prior correspondence passing between the Applicant and the Director-General which included the following letter from the Director-General dated 23 April 2002 upon which the Applicant places particular reliance for his legitimate expectation to be consulted as part of the interested Aboriginal Community: - Thank you for your letter of 15 April 2002, where you state that you do not support the issuing of permits or consents under Section 87 or Section 90 of the National Parks & Wildlife Act 1974 for Lake Cowal. The NPWS acknowledges the Wiradjuri people's attachment to the Lake Cowal area, however, makes the following specific comment. As you are no doubt aware the Land and Environment Court has granted an Interlocutory Injunction ordering the removal and cessation of all mining related activity until an application for either a Section 87 Permit or Section 90 Consent under the NPW Act 1974 has been submitted and granted. To date no application has yet been received from Homestake Australia/Barrick Gold. An essential element of any Section 87 or 90 application is community consultation. Aboriginal community consultation is undertaken by the proponent and it is the role of NPWS to ensure that that this has been undertaken adequately. The NPWS policy is that consultation be undertaken as fully as possible with all relevant Aboriginal community groups who express an interest in the development. This is so that the NPWS, in making a determination, may be as fully informed as possible. If consultation is deemed to be inadequate or there is insufficient information the matter is referred back to the proponent and a determination is deferred until this is satisfactorily resolved. Please be advised that decisions to grant or refuse Section 87 and 90 Permits and Consents are based on the significance of the development area, or the objects contained within it. It is the role of the community to provide evidence to support the significance and this should be forthcoming during the consultation process. You suggest that previous archaeological work has been inadequate because no sub surface investigations have been carried out. Sub surface investigations are generally only initiated where the initial surface investigations and assessments indicate that there is a very high expectation of disturbing or destroying intact archaeological material that is either known to exist or has a very high probability of existing. Sub surface investigations are, by their very nature, destructive processes and are themselves controlled by a Section 87 application. The original assessments did not indicate that this line of additional investigation was required. I trust that this addresses your concerns and assure you that the cultural heritage significance of Lake Cowal will be given the utmost consideration by the NPWS in making its determination. E. THE PROVISIONS OF THE NATIONAL PARKS AND WILDLIFE ACT RELEVANT TO THE PERMIT

[107]

(2) Nothing in this section is taken to limit the right of an Aboriginal owner or Aboriginal owners accepting possession, custody or control of any relic pursuant to this section to deal with the relic in accordance with Aboriginal tradition. (3) The regulations may make provision as to the manner in which any dispute concerning the entitlement of an Aboriginal owner or Aboriginal owners to possession, custody or control of relics for the purposes of this section is to be resolved. 86. Offences relating to relics 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 a relic, (b) disturbs or moves on any land a relic that is the property of the Crown, other than a relic that is in the custody or under the control of the Australian Museum Trust, (c) takes possession of a relic that is in a national park, historic site, state recreation area, regional park, nature reserve, state game reserve, karst conservation reserve or Aboriginal area, (d) removes a relic from a national park, historic site, state recreation area, regional park, nature reserve, state game reserve, karst conservation reserve or Aboriginal area, or (e) erects or maintains, in a national park, historic site, state recreation area, regional park, nature reserve, state game reserve, karst conservation reserve or Aboriginal area, a building or structure for the safe custody, storage or exhibition of any relic, 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. 87. Permits relating to relics (1) Subject to section 88, the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e). (2) Terms and conditions imposed by the Director-General under subsection (1) may include terms and conditions relating to the proper restoration of land disturbed or excavated. (3) A failure to comply with a term or condition authorised by subsection (2) shall be deemed to be a contravention of section 86. (4) The Director-General may, at any time:

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