Williams v Director General National Parks and Wildlife Service & Ors

I proceed to judgment by first summarising the several grounds or bases for the Applicant's assertion that the Permit is invalid, then contextualising the present claims against the background of the earlier litigation brought by the Applicant against the second and third Respondents in respect of their exploratory mining activities, before adjudicating upon the Applicant's claim that the Permit is invalid. B. GROUNDS FOR CHALLENGING THE VALIDITY OF THE PERMIT

By his amended Points of Claim filed 25 June 2002, the Applicant asserts the following grounds or bases for the asserted invalidity of the Permit -

(i) the Permit was granted by a person other than the person to whom the task had been specifically assigned by the Director-General (par 8);

(ii) in granting the Permit, the first Respondent failed to accord the Applicant procedural fairness (namely in not affording him a fair opportunity to comment upon the proposal) (par 9);

(iii) in granting the Permit, the first Respondent had misled the Applicant by holding out (i) that there was a policy requiring Aboriginal consultation apropos the application for the permit when in fact there was none; and (ii) that no application for the permit had been received by 23 April 2002, when in fact there was an application lodged on that day (pars 9 and 10A);

(iv) in granting the Permit, the first Respondent demonstrated bias against the Applicant (namely by the unfavourable manner in which the Applicant's opposition to the grant of the Permit had been appreciated and evaluated) (par 20);

(v) in granting the Permit, the first Respondent took into account irrelevant considerations (namely the views of Aborigines who were not Wiradjuri people) (par 11);

(vi) in granting the Permit, the first Respondent failed to take into account relevant considerations (namely Mr David Johnston's professional archaeological opinions) (par 21);

(vii) in granting the Permit, the first Respondent was materially mistaken in fact by proceeding upon the basis that "comprehensive and unbiased" consultation with Aboriginal people had taken place (when it had not) (pars 15, 15A and 16);

(viii) the Permit exceeded the legitimate scope and purpose of the NP&W Act, s 87 inasmuch as it is tantamount to authorising the recommencement of exploratory drilling which will damage relics, which activity is only sanctionable by the grant of a consent pursuant to s 90 of the Act (par 12);

(ix) the Permit is flawed by material error inasmuch as it presumes that the relics are the "property of the Crown" when in fact they are not (par 19);

(x) the Permit is invalid because it was issued in respect of land different from that stated in the application (par 13A);

(xii) the divesting from Aboriginal peoples of their cultural heritage comprising relics that is effected by (a) the NP&W Act, s 83 or (b) the issue of the Permit is in either case a contravention of the Commonwealth Racial Discrimination Act 1975 (pars 17 and 18); and

(xiii) in granting the Permit, the first Respondent failed to take into consideration the expectation of the Wiradjuri Regional and West Wyalong Local Aboriginal Land Councils that registered site LC3 be protected (par 22). C. THE LITIGATION CONTEXT OF THE APPLICANT'S PRESENT CLAIMS

The present class 4 application was filed on 28 May 2002 in response to the Notice of Motion filed by the present second and third Respondents on 23 May 2002 in proceedings No 40010 of 2002 (involving the same parties other than Dr Pardoe) claiming the discharge of a permanent injunction granted against them in those proceedings on 17 May 2002 pursuant to leave granted under Order 2 of the Court's Orders made on 17 May 2002 in the event of the second and third Respondent obtaining a permit pursuant to the NP&W Act, s 87.

The second and third Respondents' Motion was supported by the Director-General of the National Parks and Wildlife Service but was opposed by the Applicant. It was heard on 28 May 2002, in the knowledge that in the course of the hearing the Applicant would file a separate class 4 application challenging the validity of the Permit and with the concurrence of all Respondents, the Applicant's claims to interlocutory relief in that proceeding were made returnable before the Court instanter, and by consent the hearing was adjourned until 30 May 2002 upon the basis that the Director-General would make urgently available to the Applicant as on discovery all his (and the Service's) records pertaining to the grant of the Permit.

Because of the urgency to adjudicate upon the Respondents' Motion for the discharge of the injunction, at the conclusion of the hearing on 28 May I announced that I would reserve my decision until the completion of the hearing of the Applicant's claims to interlocutory relief in the present proceedings based upon his assertion of the invalidity of the Permit which hearing was anticipated to be completed on 30 May 2002. As it happened, the hearing was not completed until the following day (31st May) when the second and third Respondents sought my adjudication on their Motion for the discharge of the permanent injunction, whereupon for the reasons announced in Court I ordered that on the Court's acceptance of certain undertakings proffered by the Respondents that the permanent injunction be discharged as from 2 pm 3 June 2002. In so ordering, I indicated that at the same time I would give my decision on the Applicant's claims to interlocutory relief, expressly recognising the possibility that the discharge of the injunction in the earlier proceedings could be contemporaneously replaced by the grant of a fresh injunction in the present proceedings in the event of the Court upholding the Applicant's present claims to interlocutory relief.

It will be apparent from what I have already said that there is a very close connection between the present proceedings and the earlier proceedings also brought by the Applicant (No 40010 of 2002) and it is necessary to briefly refer to the history and outcome of those earlier proceedings which provide the immediate context for the present proceedings and their adjudication.

Proceedings 40010 of 2002 which were commenced on 22 January 2002 have been the subject of three principal interlocutory judgments before the making of the Court's final orders on 17 May 2002.

Those interlocutory judgments were to the following effect -

(i) judgment of 24 January 2002 (2002) LEC 5 dismissing the Applicant's original claim to interlocutory injunction;

(ii) judgment of 22 March 2002 (2002) LEC 43 upholding the Applicant's further claim to interlocutory injunction; and

(iii) judgment of 3 May 2002 (2002) LEC 68 directing the parties to bring in short minutes to give effect to the second and third Respondents' consent to the interlocutory injunction granted on 22 March 2002 being made a final injunction, and adjourning the Applicant's claims to relief in respect of lands other than lot 23 and the Game Reserve.

The permanent injunction granted on 17 May 2002 was expressly made subject to the opportunity for the Mining Companies to seek its discharge in the event that they obtained a permit pursuant to the NP&W Act, s 87 or a consent pursuant to that Act s 90.

The anticipation of the making of requisite applications seeking such permit and consent was known when I gave judgment on 22 March 2002 granting the interlocutory injunction when I stated at pars 16 and 17: 16. In pars 31 to 39 , Mr Shallvey deposes to his involvement with Dr Pardoe, in the process of lodging an application under the NP&W Act, s 87 to authorise Dr Pardoe to collect and relocate to a safe place any relics that are identified during the course of the first Respondent complying with the Protocol and which are considered to be potentially impacted by the first Respondents' drilling programme and to the fact that the first Respondent is preparing an application for a consent under the NP&W Act, s 9 0 to apply to the Mining Lease Area and all project infrastructure that is external to the Mining Lease Area. 17 Mr Shallvey anticipated the lodging of the relevant applications under the NP&W Act, within four weeks (in the case of the s 87 application) and by mid May (in the case of the s 90 application).

It was because of the existence of these anticipated applications that I said at pars 40 to 42 of that judgment: 40 Accordingly, I propose to grant the restraining order sought (but not the mandatory order claimed). However, I would note that the continuance of the injunction would not be required in the event of the first and second Respondents obtaining requisite permits and/or consent under the NP&W Act. 41 There should also be afforded to the first and second Respondents the opportunity to satisfy the Court that there are measures available for the resumption of exploratory activities without posing any risk of damage to the relics on the land. 42. To that end, liberty to apply to vary or discharge the injunctions must be reserved to the first and second Respondents so that the injunction granted will not have any operation beyond that which is necessary to restrain any apprehended contravention of the NP&W Act, s 90

Although the Mining Companies, having obtained the Permit on 23 May 2002 have since obtained the discharge by this Court on 3 June 2002 of the permanent injunction, they have not yet obtained consent pursuant to the NP&W Act, s 90. Indeed, it appears that they have not yet lodged the requisite application for that consent. Accordingly, the obtaining of the s 87 permit does not, of or in itself, sanction the "knowing destruction, defacement or damage" of relics. Rather, the Permit, assuming its validity, provides the means for discovering relics and collecting them for safe custody and protection. This is the feature of the Permit much emphasized by all Respondents in the present proceedings. However, the Applicant's retort in challenging the validity of the Permit is that it is tantamount to a s 90 consent to destroy the relics. Moreover, he is seriously aggrieved by the physical displacement of the relics from their positions on the land, even if that displacement is undertaken for the purpose of their safe collection and custody. In other words, he is anxious to preserve the integrity of the connection between the relics and the land. D. THE RELEVANT FACTS

Most of the facts that I am about to recite emerge from the documentary evidence that was adduced in the case. In addition to the documentary evidence (which formed the principal source of evidence for the Respondents) there was some affidavit evidence chiefly directed to the consultative processes undertaken on behalf of the second, third and fourth Respondents with the Aboriginal community (including the Applicant) in respect of the intended application for the issue of the Permit. There are a few conflicts in the evidence concerning consultation with the Applicant that will require resolution. However, there is an important aspect of the documentary evidence that should be at once noted because it had a central focus at the trial. This concerns the claim to confidentiality made by the second, third and fourth Respondents to much of the documentary material reporting on the Aboriginal consultation process. This issue loomed large in the Applicant's case, and after I granted the Applicant and his agent Mr Oshlack access to the confidential material over the Respondents' objections, the Applicant's claims that he was denied procedural fairness by the Director-General were expanded to include a claim that the entire process of consultation with the Aboriginal community was inadequate and was procedurally unfair.

I am now in a position to state the relevant primary facts. Unfortunately, it will be necessary to recite quite a volume of the documentary materials. The presentation of the facts will be in the following order:

(i) the making of the application for the s 87 permit;

(ii) the processing of the application for the s 87 permit;

(iii) the consultation with the Applicant, as part of the interested Aboriginal community.

On 23 April 2002, there was delivered by courier to the first Respondents' Dubbo Regional Office an application for a research permit under the NP&W Act, s 87 in respect of "lots 23 and 24 Deposited Plan 753097 and the Lake Cowal Game Reserve" ("the application area"). The application was made on, and in accordance with, a standard form issued by the first Respondent.

The standard form caters for two types of application, namely "an application for consent to destroy Aboriginal relics" and "an application for a Research Permit". Page 1 of the Standard form provides for the supply of details or information concerning the applicant. Page 2 of the standard form provides for the supply of details or information concerning the "general location of the development', "NPWS numbers and site names", "description of site(s) or relic(s)" and "name of reports which cover site(s)". There is a reference to "Attachment S" which requires the applicant to "complete a separate attachment for each site plus individual artefact/isolated find".

Page 3 of the standard form provides for the supply of details or information concerning "the condition of the site(s), relic(s)", the area of the Local Aboriginal Land Council or community in which the development/research proposal falls" and the "consultation/involvement that has occurred".

Pages 4 and 5 of the standard form deal with applications "for consent to destroy" and pages 6 and 7 deal with applications for permits.

The standard form requires the completed form, application fees and attachments to be sent to "the Regional Archaeologist of the area concerned".

The application form delivered to the first Respondents' Dubbo Office was made by "Dr Colin Pardoe on behalf of Homestake Australia Limited ("Homestake"), Dr Pardoe stating that he held the position of "Principal Consulting Archaeologist and Bio-anthropologist".

The application stated (p 2) that it related to the following land (the application area) lot 23 on DP 753097 (lot 23) lot 24 on DP 753097 (lot 24) and Lake Cowal Wildlife Management Area (the Game Reserve).

The application identified 3 NP&WS registered sites in the application area, namely - NPWS Site Number Site Name Location 43-4-7 Site P1 Lot 23 43-4-8 Site P2 Lot 23 43-3-23 Site LC3 Lot 24

The three sites were plotted on the attached Figure 1 depicting the Application area.

The application stated: This application also relates to any unregistered sites or relics located in the Application Area.

The application described the sites or relics as follows: Site P1 is an artefact scatter Site P2 is a scarred tree Site LC3 is an artefact scatter. The proposed drilling programme works will avoid these sites. It is not possible to provide a description of any unregistered sites or relics located in the Application Area. For further information, refer to the affidavits in Attachment 2 and the Cowal Gold Project EIS Appendix E (1997).

Under the heading "Name of reports which covers Site(s)", the application after citing four particular archaeological survey reports that had been prepared for the Lake Cowal Gold Project continues: In addition to the above, the Application Area has been the subject of close archaeological scrutiny during several inspections and surveys in 2002. No reports have been prepared in relation to these inspections and surveys. However, the following affidavits have been prepared by David Johnston, archaeologist and Colin Pardoe, archaeologist: David Johnston - 3 March 2002 David Johnston - 11 March 2002 David Johnston - 20 March 2002 Colin Pardoe - 20 March 2002 Colin Pardoe - 25 March 2002 Copies of those affidavits are attached to this permit application (refer to Attachment 2). These affidavits refer to sites and/or relics in addition to P1, P2 and LC3 referred to above.

Under the hearing "what Aboriginal community's area does the development/research proposal fall in" the following Aboriginal Groups are mentioned -

(iii) Wiradjuri Council of Elders registered Native Title Claimant Group (N6002/02);

(iv) Mooka Traditional Owners Council unregistered Native Title Claimant Group (A6000/02 and N6001/02); and

The Applicant is nominated as the "contact person" for the Mooka Traditional Owners Council. (He is the Chairperson of that Council. He is a Wiradjuri elder and claims to be a traditional owner of the relics situate on and below the land surface at Lake Cowal. He is the unregistered Native Title Claimant of that land.)

Under the hearing "what consultation/involvement has occurred to date", the Application states the following: Please refer to Attachment 3 for detail relevant to consultation activities. In summary, consultation in the Application Area has occurred over several years and commenced prior to surveys in 1994 via discussions with the Wiradjuri Regional Aboriginal Land Council and the West Wyalong Local Aboriginal Land Council. Representatives of both Land Councils participated in site surveys and in management discussions in relation to the EIS for the Cowal Gold Project, then owned by North Limited. A summary of the consultation undertaken by North Limited is presented in Attachment 3.1. Survey results were presented to the Land Councils and interested parties in 1995. Management options for the sites and relics in the Application Area were agreed in consultation with Local and State Aboriginal Land Council representatives in 1998 (refer to the letters contained in Attachments 3.2 and 3.3). Since Homestake purchased the Cowal Gold Project in May 2001, consultation has continued, and has included Project briefings and site inspections by interested parties including: · Wiradjuri Council of Elders; · The Condobolin Wiradjuri community; and · Mister Ron Gardner and the Bellallabba Action Group. A summary of consultation undertaken by Homestake is presented in Attachment 3.4. Consultation with respect to the Section 87 application has included: · Wiradjuri Regional Aboriginal Land Council; · West Wyalong Local Aboriginal Land Council; · Wiradjuri Council of Elders (Registered Native Title Claimants); · Mr Neville Williams (unregistered Native Title Claimant); · Condobolin Wiradjuri community; and · Mr Ron Gardner. The above consultation details are included in Attachments 3.6 to 3.9. Homestake engaged the services of three qualified archaeologists (one indigenous and two non-indigenous) to assist in the Project consultation process.

The Attachment 3 referred to, comprises the following components -

(i) Attachment 3.1 being a modified extract from the Lake Cowal Gold Project EIS (1997) of relevant consultation by North Limited;

(ii) Attachment 3.2 being a letter dated 22 October 1998 from West Wyalong Local Aboriginal Land Council to North Limited;

(iii) Attachment 3.3 being a letter dated 27 January 1998 from the NSW Aboriginal Land Council to North Limited;

(iv) Attachment 3.4 being a summary statement of consultation by Homestake;

(v) Attachment 3.5 being a record of consultation with representatives of West Wyalong Local Aboriginal Land Council and the Wiradjuri Regional Aboriginal Land Council;

(vi) Attachment 3.6 being a record of consultation with Wiradjuri Council of Elders Representatives.

(vii) Attachment 3.7 being a written statement prepared by Mr Sam Wickman, the indigenous archaeologist retained by the second, third and fourth Respondents of his meeting with the Applicant;

(viii) Attachment 3.8 being a record of Mr Sam Wickman's consultations with various members of the Condobolin Aboriginal Community;

(ix) Attachment 3.9 being a statement by Mr Ron Gardner prepared by Mr Sam Wickman.

Attachments 3.4, 3.5, 3.6 and 3.8 comprise the documents in respect of which the second and third Respondents opposed disclosure on the ground of confidentiality.

Confidentiality was not claimed for Attachments 3.7 and 3.9 since signed versions of those statements were tendered in the Respondents' case. As I have earlier recorded, I granted the Applicant and his agent, Mr Oshlack, access to all documents (comprised in the application for the permit) in the interests of justice, notwithstanding the confidentiality claimed for those documents, subject to the Applicant and Mr Oshlack giving undertakings that their contents would not be used for any purpose other than in connection with the present proceedings.

The application states that the parts of the standard form relating to applications for consent to destroy relics are not applicable "other than to note that (a) separate s 90 application will be submitted for the proposed area in due course". Under the heading "Permits" in response to the question: Do you seek a preliminary research permit, a full excavation permit or a collection permit?, the application states the following: A Collection Permit application is included for the collection and relocation of relics which may be potentially disturbed during the proposed drilling programme in the Application Area. A Preliminary Research Permit application is included to ensure that no subsurface relics may be subject to potential disturbance during the drilling programme. An Excavation Permit application is included to also ensure that no subsurface relics may be subject to potential disturbance during the drilling programme. Excavation is proposed between the surface and a depth of 0.25 m (approx.), at certain drill holes.

Under the heading "Reason for proposed archaeological work", the application states: The emphasis of site works is avoidance of Aboriginal relics/sites. The reason for the proposed archaeological work is to allow exploration activities to be carried out in the Application Area pursuant to an Exploration Licence held by Homestake, avoiding sites/relics wherever feasible. The proposed archaeological work is designed to mitigate the proposed exploration drilling impact by ensuring that any relics in the Application Area that may be impacted by the exploration activities are identified, avoided and if necessary, collected for safe keeping.

Under the heading "Describe scale of proposed archaeological work" the application states: The archaeological work will be carried out in relation to access tracks, drill rig pathways, drill hole sites, environmental monitoring sites and any other land in the Application Area that will be utilized by Homestake for the exploration activities (including the related movement of vehicles and drill rigs).

After outlining the "study plan/research design and methodology" and stating that the time frame of the archaeological work and its relationship to the development agenda is that the archaeological work will commence when the Permit is granted and exploratory work will be conducted over the next 12 to 18 months, the application outlines the "suitability of the proposed archaeological work" as follows: The proposed archaeological work is suitable in light of the following circumstances: The Cowal Gold Project received development consent in 1999 following comprehensive EIS and COI processes. The development consent requires certain steps to be taken in relation to Aboriginal heritage when the Project is developed (including applying for a section 90 consent). However, Homestake has not yet initiated construction and is therefore not operating under that development consent. A section 90 project application is being prepared. Homestake is operating in the Application Area pursuant to its Exploration Licence. By order of the Land and Environment Court dated 22 March 2002, Homestake was restrained from carrying out activities on the Application Area. This order may be discharged if Homestake obtains a permit under section 87 or a consent under section 90 of the National Parks and Wildlife act 1974 which satisfies the Court that vehicles and drill rigs and machinery may move on and across the Application Area without involving any risk of contravention of section 86 or 90 of the National Parks and Wildlife Act. Homestake wishes to recommence exploration activities in the Application Area. Homestake wishes to collect for safe keeping all relics identified in the Application Area that may be impacted by the exploration activities. Accordingly, it is appropriate to grant a section 87 permit in relation to the Application Area to allow the proposed archaeological work to proceed.

The processing of the application by the first Respondent

The fourth Respondents' application for a s 87 permit was processed by the first Respondent in the following manner which I have inferred from the documentary evidence (there being no direct evidence given by an officer of the National Parks and Wildlife Service). Initially it appears to have been considered in the first Respondents' Dubbo Office by Mr Allan Hutchins, archaeologist, who had advised Head Office by facsimile transmission sent at 12.11 pm on 23 April 2002 of receipt of the application for the s 87 permit. Eventually it was considered by Head Office personnel. That consideration manifested itself in the preparation or adoption of a 5 page Report containing a recommendation that a permit be issued. (It may be that the Report was in fact drafted by the Dubbo Office and submitted to Head Office. This is suggested by the completion of a "checklist" for the application completed by Mr Allan Hutchins of that Office on 29 April 2002. )

The contents of the report were presented under the following headings - · Issue · Background · Archaeological Findings · Aboriginal consultation · Comment · Recommendation

Under the heading "Issue" it is stated that the application for a s 87 permit "is an effort to resume mining exploration activity at Lake Cowal" following the grant by the Court of an interlocutory injunction on 22 March 2002 restraining activity involving the movement of vehicles or machinery across the property "until Homestake could gain consent pursuant to s 87 that would guard against further risks to relics'.

Under the heading "Background' the planning history of the Gold Mine Project which commenced in 1994 and culminated in the grant of development consent for the project in 1999 is summarised, including a summary of the recent exploratory activities undertaken by Homestake.

Under the heading "Archaeological Findings" the following findings of "all reports" are stated: · All but two sites are assessed as being of low significance. The remaining two are described as being of moderate significance. · The integrity of sites is poor. There has been a high level of previous disturbance from vehicle traffic, farm cultivation, active erosion and grazing impacts. · The probability of in situ sub-surface material being present is low. · The site contents comprise raw materials that appear to be local to the area and are well represented in other sites in the region. · Artefact scatters and scarred trees predominate in the archaeological record and are well represented elsewhere. · Additional archaeological study is unlikely to greatly improve the understanding of Aboriginal usage of the area.

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.

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.

Initially that Report was signed by Mr Jason Ardler, the Acting Director of Cultural Heritage. He signed it on 13 May 2002 and on that same day he submitted it to the Director Policy and Science, Mr Michael Wright for the latter's "approval then to the Director-General" (according to the notation on the file cover sheet (Exhibit 1)). On 15 May 2002, Mr Wright signed and dated the report and on the same day he submitted it to the Director-General noting the file cover sheet as follows: Based on evidence presented herein, issuing of s 87 permit is wholly defensible. It is more than likely that this will be appealed in the L&E Court

The Report bears the following endorsement dated 21 May 2002 made by the Director-General: I have today forwarded the attached letter to Neville Williams and expect the Director Cultural Heritage to sign off the permit before the end of this week.

It appears that the Director-General himself changed the recommendation in the report by deleting the reference to himself (as the approving person) and substituting reference to the Director Cultural Heritage and apparently making the same change to the completed form of the Permit that accompanied the Report.

A copy of the Director-General's letter to Mr Williams dated 21 May 2002 is annexed hereto and marked "B". That letter is expressed to be in response to letters written by the Applicant on 6 and 9 May 2002 "stating your opposition to the issuing of consents and permits under the NP&W Act over Aboriginal relics at Lake Cowal". In the final paragraph of the Director-General's letter, he states: Finally, with regard to your request for a meeting to discuss your concerns, I note that a meeting was arranged between yourself and NPWS staff in Dubbo for 10 May 2002, but that you cancelled this meeting on that day. You have repeatedly asserted that the site has a very high level of cultural significance but you have not provided evidence to support your assertion. Without such evidence your concerns cannot be further addressed in the decision making process. I see no grounds to further delay decision making and the NPWS will now be proceeding to make a determination on the section 87 permit application.

On 23 May 2002, Mr Williams sent a facsimile transmission to the Director-General responding to the final paragraph of his letter as follows: With reference to your letter of 21 May 2002, the evidence for the importance of Lake Cowal archaeologically is in the possession of the lawyers representing NP&WS, for example the affidavits from expert archaeologists who have inspected the site; NP&WS own archaeologist Margrit Koettig has examined the site; there are previous reports by Scott Cane and others held by your office. Please also refer to David Johnston's affidavits to the Land and Environment Court which support the traditional owners' assertions that Lake Cowal is highly significant. The nomination for Lake Cowal as an Aboriginal Place is in process. Mooka Traditional Owners passed a resolution nominating Lake Cowal as an Aboriginal Place on 23 March 2002 and this was supported by the group called the Wiradjuri Council of Elders on 19 May 2002.

This facsimile transmission bears the endorsement of the Director-General on the same day (23 May 2002) directing it to the Director Cultural Heritage - For your direct liaison and response please

The absence of evidence leaves the meaning and effect of this notation in doubt - for example was it intended to be considered in conjunction with the determination of the pending s 87 application which the Director-General had just two days earlier delegated to the same officer to "sign off the permit" or was it considered that the Applicant's response was received "too late in the piece" to affect that determination? However, on the same day, the Permit was issued and was signed by Mr Michael Wright, the Director Policy and Science "for Director-General".

The documentary evidence does not indicate whether the Applicant ever received a reply to his letter of 23 May 2002. Nor does it indicate whether Mr Wright was made aware of the Applicant's facsimile to the Director-General received on the same day that Mr Wright signed the Permit and transmitted it by facsimile to Homestake on the same day (vide file cover note). As I have earlier noted, I only have the documentary evidence to enable me to determine not only the sequencing of action taken by officers of the National Parks and Wildlife Service in issuing the Permit, but even more importantly, what actually happened. In this latter respect, I infer from the Director-General's endorsement made on 21 May 2002 on the Report submitted to him by Mr Ardler and Mr Wright, read in conjunction with his letter sent the same day to Mr Williams that as at that time, no final decision had been taken to issue the Permit. I infer that the Director-General's reference to the permit being "signed off" was not intended as a mere formality or a foregone conclusion, but rather was his decision to delegate the decision to the subordinate officer that he had nominated. In fact, that nominated officer, who had recommended on 13 May 2002 that the Permit be issued, did not issue the Permit. Instead, it was issued by Mr Wright, the Director of Policy Science who on 15 May 2002 had recommended that the Director-General issue the Permit. On one view, it may appear strange that the Director-General would nominate that one of the recommending officers would "sign off the permit". However, I infer that the Director-General decided that the application for the Permit should be determined by a subordinate officer who held the appropriate delegated authority. He was mistaken in thinking that the Director Cultural Heritage held that delegation.

The first Respondent tendered an Instrument of delegation made by the Director General with the Minister's approval pursuant to the NP&W Act, 21(1)(b). The Instrument which bears the signatures of the Director-General and the Minister and bears the date 30 December 1999 and states that it is effective from 1st January 2000. It relevantly delegates "to the holders for the time being of the positions within the National Parks and Wildlife Service referred to in the Schedules to the Instrument and numbered 1 - 10", the powers, authorities, duties or functions referred to in the said Schedules. Schedule 1 refers to powers, authorities, duties and functions under the NP&W Act, including the power conferred by s 87(1) "to issue permits subject to terms and conditions to do any act or thing referred to in Section 86(a), (b), (c) or (d)".

The NP&W Act, s 21(3) provides as follows: (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.

The holders of the positions within the National Parks and Wildlife Service to whom that particular power is delegated include the "Director Policy and Science". There is no reference in the list of delegates of this particular power to the "Director Cultural Heritage", although there is a reference to "the Manager Cultural Heritage Division".

On 24 May 2002, the second Respondent wrote to the first Respondent noting an "apparent typographical error in the commencement date of the Permit" and on the same day, Mr Michael Wright wrote to the fourth Respondent advising that the commencement date for the Permit "is varied from 6 May 2002 to 23 May 2002".

This is the only area of evidence where there is some conflict in the evidence of Mr Sam Wickman (an Aboriginal Archaeologist retained by the second and third Respondents' Consultant Archaeologists to undertake the Aboriginal consultation processes in respect of the proposed application for a s 87 permit) and the Applicant.

It is not in conflict that Mr Wickman visited the Applicant at his Canberra home on 3 April 2002 to discuss the proposed s 87 application by Homestake. Nor is it in conflict that the Applicant voluntarily signed a written statement prepared by Mr Wickman of what was discussed on that occasion.

However, there is conflict as to whether the Applicant made it clear to Mr Wickman that he did not regard the meeting as a formal or official consultation, and there is conflict as to what, if any details, of the proposed s 87 application, were revealed by Mr Wickman in the course of that discussion.

The Applicant's written statement was included as Attachment 3.7 to the s 87 permit application. That statement inter alia records that the Applicant expressed a number of concerns about the consultative process, the inadequacy of previous archaeological work, the fact that there had been no subsurface archaeological investigations of the site, the ethics of Consulting Archaeologists retained by the Mining Companies assessing the significance of the archaeology for the Wiradjuri people. He also stated that he would not divulge to the Mining Companies cultural information because of the then current legal proceedings in this Court he had brought against the Respondents.

There is some doubt as to precisely what Mr Wickman revealed as to the content of the proposed s 87 permit application. For example, there are two conflicting versions of the Facts Sheet which Mr Wickman said that he employed in the consultative processes (including the interview with the Applicant) - Exhibits 6 and C2 - one including lot 24 in the land, the subject of the application, and the other excluding that land (only referring to lot 23 and the Game Reserve).

The Facts Sheet had been given to Mr Wickman by Dr Kamminga, one of the Consultant Archaeologists retained by the second and third Respondents. I am prepared to accept Mr Wickman's revised evidence and find that he employed the Facts Sheet which did include lot 24 in the land, the subject of the s 87 permit application.

However, it is clear that Mr Wickman did not appreciate that the proposal contemplated some site excavation and accordingly, he did not mention that fact (which is not recorded in either of the Facts Sheets which were in evidence). Indeed in giving his testimony he did not know that the application had sought authority for excavation or that the Permit had authorized excavation.

Finally, I am satisfied by the Applicant's testimony (which is corroborated by Ms Gilbert's affidavit) that he did not regard Mr Wickman's interview as a formal or official consultation and so informed him. The sublety of this point may, I think, have been lost on Mr Wickman who, I find, acknowledged the criticism made by the Applicant that Mr Wickman, not being a Wiradjuri person, was on that account, not properly qualified to investigate matters of cultural and spiritual significance for Wiradjuri people.

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

The relevant provisions are contained in Part 6 of the NP&W Act dealing with "relics" as that Act was in force at the time that the Permit was issued.

I interpose that the term "relic" is to be deleted from the NP&W Act and replaced by the term "Aboriginal object" when the relevant provisions of the National Parks and Wildlife Act 2001 (Act No 130) are proclaimed to commence. Although parts of that Act were proclaimed to commence 1 July 2002 (vide Government Gazette No 106 of 28 June 2002) they do not include the substitute provisions for the existing provisions relating to "relics" (which provisions also include amendments to s 90).

Section 5(1) of the Act contains the following definitions - relic means any deposit, object or material evidence (not being a handicraft made for sale) relating to indigenous and non-European habitation of the area that comprises New South Wales, being habitation both prior to and concurrent with the occupation of that area by persons of European extraction, and includes Aboriginal remains. Aboriginal place means any place declared to be an Aboriginal place under section 84.

Part 6 which is headed "Relics and Aboriginal Places" contains the following provisions - 83. Certain relics to be Crown property (1) Subject to this section:

(a) a relic that was, immediately before the commencement day, deemed to be the property of the Crown by virtue of section 33D of the Act of 1967, and (b) a relic that is abandoned on or after that day by a person other than the Crown, shall be, and shall be deemed always to have been, the property of the Crown.

(2) Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land. (3) No compensation is payable in respect of the vesting of a relic by this section or section 33D of the Act of 1967. 84. Aboriginal places The Minister may, by order published in the Gazette, declare any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act. 85. Director-General's responsibilities as to relics and Aboriginal places (1) The Director-General shall be the authority for the protection of relics and Aboriginal places in New South Wales. (2) In particular, the Director-General shall be responsible:

(a) for the proper care, preservation and protection of any relic or Aboriginal place on any land reserved or dedicated under this Act, and (b) subject to section 87, for the proper restoration of any such land that has been disturbed or excavated for the purpose of discovering a relic

85A. Transfer of relics (1) The Director-General may, despite any other provision of this Act, dispose of relics that are the property of the Crown:

(a) by returning the relics to an Aboriginal owner or Aboriginal owners entitled to, and willing to accept possession, custody or control of the relics in accordance with Aboriginal tradition, or (b) by otherwise dealing with the relics in accordance with any reasonable directions of an Aboriginal owner or Aboriginal owners referred to in paragraph (a), or (c) if there is or are no such Aboriginal owner or Aboriginal owners---by transferring the relics to a person, or a person of a class, prescribed by the regulations for safekeeping.

(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:

(a) revoke a permit issued under this section, or (b) vary the terms and conditions of such a permit. 89. Preservation or exhibition of certain relics (1) Subject to this section, the Minister or the Director-General may, by agreement with a person having the ownership or possession of:

(a) a relic that is not the property of the Crown, or (b) an Aboriginal place, acquire the relic or take such other action as the Minister or the Director-General thinks is practicable for the preservation or exhibition of the relic or Aboriginal place.

(2) A relic acquired under this section shall be the property of the Crown. (3) A relic that is real property shall not be acquired under this section, but nothing in this section affects anything contained in Part 11. (4) Any relic acquired by the Minister or the Director-General prior to the commencement day shall be deemed to have been acquired under this section. 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) Subsection (1) does not apply with respect to a relic that is dealt with in accordance with Aboriginal tradition pursuant to section 85A. (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. (3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister. (4) The Minister:

(a) may refuse to grant the appeal, or (b) may grant the appeal wholly or in part, and may give such directions in the matter as seem proper.

(5) The decision of the Minister on the appeal is final and is binding on the Director-General and the appellant, and shall be carried into effect accordingly. (6) Where the regulations prescribe:

(a) the manner in which an appeal is to be made under this section---the appeal shall be made in that manner, or (b) the period within which an appeal is to be made under this section---the appeal shall be made within that period.

(7) Where the Director-General fails to grant an application (other than an application for approval in respect of integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 ) for consent, the application shall, for the purposes of this section, be deemed to be refused upon the expiration of:

(a) subject to paragraph (b)---7 days after the application was received by the Director-General, or (b) where the regulations prescribe some other period---that other period.

91. Notification of sites of relics A person who is aware of the location of a relic that is the property of the Crown or, not being the property of the Crown, is real property, and does not, in the prescribed manner, notify the Director-General thereof within a reasonable time after the person first becomes aware of that location is guilty of an offence against this Act unless the person believes on reasonable grounds that the Director-General is aware of the location of that relic. F. ADJUDICATION ON THE APPLICANT'S CHALLENGE TO THE VALIDITY OF THE PERMIT

I propose to separately consider each of the grounds or bases advanced by the Applicant in support of his challenge to the validity of the Permit.

Ground (i) the Permit was granted by a person other than the person to whom the task had been specifically assigned by the Director-General 75. It is established by the pleadings that the officer who issued the Permit was the officer holding the position of Director Policy and Science and he was not the officer who the Director-General had on 21 May 2002 nominated "to sign off the permit" in his endorsement of the Report that had been submitted to him on 15 May 2002.

76. However, according to the documentary evidence, the Director of Policy and Science was one of the office holders to whom the Director-General had pursuant to s 21 of the NP&W Act lawfully delegated power to issue a permit under s 87. No such delegation had been made to the office holder whom the Director-General had nominated in his file endorsement made on 21 May 2002.

77. Reliance is placed upon the Evidence Act 1995, s 150(3) which provides as follows: If a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that:

(a) the document was signed by the office holder acting in that capacity, and (b) the office holder held the relevant office when the document was signed.

See also s 49(5) and (6) of the Interpretation Act 1987.

78. In my opinion, the fact that the Permit was issued by an officer lawfully delegated to issue a permit under s 87 but not by the officer who had been nominated by the Director-General "to sign off the permit" does not mean the Permit is invalid. This is more particularly so in a case such as the present where the officer nominated by the Director-General did not hold at the time the Permit was issued any delegated authority pursuant to the NP&W Act, s 21. The Director-General's nomination of the officer "to sign off the permit" did not constitute a delegation within s 21. Nor did it displace or disturb the existing delegations in force under that section.

79. Accordingly, this ground of the challenge must be held to fail.

Ground (ii) in granting the Permit, the first Respondent failed to accord the Applicant procedural fairness (namely in not affording him a fair opportunity to comment upon the proposal) 80. It is firstly to be noted that there is nothing in the provisions of Part 6 of the NP&W Act that regulate the procedure for issuing a permit under s 87.

81. All Respondents have submitted that the only basis upon which the Applicant can claim any entitlement to be consulted is the legitimate expectation arising from the Director-General's letter to him dated 23 April 2002, and that expectation was that the proponent would undertake community consultation with the relevant and interested Aboriginal Communities and that the Service would determine whether the community consultation process was adequate.

82. In his letter to the Applicant dated 21 May 2002, the Director-General advised as follows: NPWS is however, satisfied that the applicant has been thorough in their consultation with the Aboriginal community. NPWS is aware that the applicant has sought the views of all known Aboriginal interest groups, and organised Aboriginal community meetings and site visits. The applicant employed an Aboriginal archaeologist to undertake consultation with any interested party in a culturally appropriate manner and advertised its intent to seek the s87 permit in local, regional and national papers inviting any interested party to make themselves known so that their views could be sought. In making its decision to grant or refuse the s87 permit, NPWS will take into account the outcomes of the applicants consultation with, among others, the West Wyalong Local Aboriginal Land Council, the Wiradjuri Regional Aboriginal Land Council, the Wiradjuri Council of Elders, representatives of the Condoblin Aboriginal community and yourself. I can also acknowledge receipt of the petition opposing the s87 application, forwarded to me on 15 April 2002.

83. In that same letter, the Director-General responded to the Applicant's request for a meeting to discuss his concerns in the following passage: Finally, with regard to your request for a meeting to discuss your concerns, I note that a meeting was arranged between yourself and NPWS staff in Dubbo for 10 may 2002, but that you cancelled this meeting on that day. You have repeatedly asserted that the site has a very high level of cultural significance but you have not provided evidence to support your assertion. Without such evidence your concerns cannot be further addressed in the decision making process. I see no grounds to further delay decision making and the NPWS will now be proceeding to make a determination on the section 87 permit application.

84. In the light of this evidence, the Respondents submit that the Court should find that the Applicant's legitimate expectations were fairly and adequately fulfilled in the present case.

85. Although I have ultimately accepted this submission, I have given anxious consideration to the implications arising from the fact that nothing appears to have happened in respect of the Applicant's response to the Director-General's advice by way of facsimile transmission received by the Director-General on 23 May 2002 (being the same day that the Permit was issued).

86. In this respect, I have asked myself the question whether the Director-General's letter of 21 May 2002 itself gave rise to a further legitimate expectation independently of that founded on the Service's "policy" detailed in the Director-General's letter of 23 April 2002, namely that the Applicant would be afforded a "last opportunity" to provide evidence to support his assertion that the site at Lake Cowal had a very high level of cultural significance. I am here focussing particular attention on the Director-General's statement contained in the last paragraph of his letter - Without such evidence, your concerns cannot be further addressed in the decision making process.

87. Considered in isolation, the statement may possibly be construed as holding out the prospect of a last opportunity for the Applicant to provide the required evidence. However, in the context of the totality of the final paragraph of the Director-General's letter, I do not think that any legitimate expectation can be derived or deduced from the letter. In particular, the final sentence of the letter, I think, effectively excludes that possibility. Finally, I should say that it is debatable whether the contents of the Applicant's response to the Director-General's letter materially added to the sources of relevant information already referred in the application for the permit and in the Service's Report on that application.

88. I should add that under cross-examination the Applicant admitted that he had cancelled the scheduled meeting for 10 May 2002 at the Dubbo Regional Office on the day of the meeting. I readily accept the Applicant's evidence that being a pensioner, it would have been difficult for him to make the trip from Canberra to Dubbo. This may explain why the meeting was cancelled but it does not establish that the Applicant was denied procedural fairness as a consequence of that cancelled meeting.

89. I also accept the logistical difficulties posed for the Applicant at the relevant times by virtue of his frequent attendances at Court during the currency of the earlier proceedings. For example, it was on 3 May 2002 that the second and third Respondents in Court consented to final injunctions being made against them in identical terms to the interlocutory injunctions made against them on 22 March 2002. Indeed, the co-existence of those earlier proceedings with the processing of the s 87 application must have placed great stress and demands on the Applicant who of course did not have the resources of the other parties to concurrently manage both matters.

90. Obviously, the fact that the Applicant was actively engaged in the legal proceedings he had brought against the second and third Respondents placed him in a delicate and difficult dialoguing position, both in respect of the Aboriginal community consultative processes (including with himself) undertaken on behalf of the second and third Respondents in support of the s 87 permit application and in respect of his dealings with the Director-General who was another Respondent to those proceedings and in respect of some of whose officers the Applicant had been highly critical in the proceedings.

91. I also accept the reasonableness and genuineness of the very firm conviction held by the Applicant that it was not appropriate for him to be dialoguing with the Mining Companies or with their Consultant Archaeologists, including the Aboriginal Archaeologist Mr Wickman, who was not a Wiradjuri person, concerning matters of the sacred and cultural significance of Lake Cowal for the Wiradjuri people and for himself, both personally and in his conscientious representative capacity. These delicacies and difficulties for the Applicant would naturally induce him to wish to dialogue with the Director-General rather than with the second and third Respondents or their Archaeological Consultants, but even in this preferred relationship, the Applicant was placed in some obvious difficulty because of his dissatisfaction with the involvement in the case of one of the Service's officers who had attended the Lake Cowal site in January this year, and with his overwhelming sense of grievance that the NP&W Act had vested in the Crown, relics that he claimed belonged to the Wiradjuri people, and in respect of which he was asserting Native title.

92. Faced with these very real difficulties, I can well sympathise with the Applicant's plight of how most effectively to present and maintain his opposition to the exploratory mining activities of the Mining Companies, including opposition to their s 87 permit application as the means of having the interlocutory injunction granted against them discharged so that they might resume their interrupted exploratory activities.

93. However, in all of the circumstances, I am quite unable to conclude that the Applicant was denied procedural fairness, either as part of the Aboriginal community consultative process undertaken on behalf of the second and third Respondents or in his direct dealings with the Director-General, in the processing of the permit application. Accordingly, I must hold that this ground fails.

Ground (iii) in granting the Permit, the first Respondent had misled the Applicant by holding out (i) that there was a policy requiring Aboriginal consultation apropos the application for the permit when in fact there was none; and (ii) that no application for the permit had been received by 23 April 2002, when in fact there was an application lodged on that day 94. These are two separate allegations made by the Applicant that he was misled by erroneous advices given him by the Director-General.

95. In my judgment, the Director-General's advices were either not erroneous (in the one case) or were not deliberately misleading (if erroneous in the other case). In particular, his advice in his letter to the Applicant dated 23 April 2002 of the policy of the Service requiring the applicant for the s 87 permit to conduct community consultation with the relevant and interested Aboriginal Communities which the Service assessed as to adequacy, was an accurate statement of the relevant policy of the Service (as is reflected in the standard application form issued by the first Respondent that I have earlier mentioned). The fallacy in the Applicant's argument is that it seeks to confine the relevant "policy" to a formal policy reduced to some written formulation. But clearly, these characteristics are not essential for a policy to exist, even if normally, a policy of a department of State, is encapsulated in such form.

96. The other alleged erroneous advice of the Director-General is that in his letter to the Applicant dated 23 April 2002 he stated that no s 87 permit application had been received by the Service from Homestake, when in fact on that very day, Homestake's application was delivered to the Dubbo Regional Office of the Service.

97. The first Respondent filed affidavit evidence of two members of the staff employed at the Head Office of the Service concerning the whereabouts of the Director-General on 23 April 2002. They establish that he was at his office at the Head Office of the Service located in suburban Sydney at various times on that day, including when he chaired meetings or interviews. This evidence was led in attempted rebuttal of the Applicant's allegation that the Director-General had deliberately misled the Applicant, by establishing that he was not at the Dubbo Office on the day in question.

98. However, the Applicant relies upon the documentary evidence which establishes that at 12.11pm on the same day (23 April 2002), the Dubbo Office had advised the Acting Director Cultural Heritage at Head Office by facsimile transmission of receipt of the application made on behalf of Homestake.

99. Based upon this evidence, it is probable that when the Director-General wrote to the Applicant he was not aware of the receipt of any s 87 permit application by Homestake, even though it now appears that on the same day (whether before or after he wrote the letter is not established) the application was delivered to the Dubbo Regional Office and that Office notified Head Office of its receipt at 12.11 pm on that same day (again whether before or after the Director-General's letter was written cannot be established).

100. Accordingly, I find that even if probably erroneous in point of fact (ie assuming the letter was signed after the application had been delivered to the Dubbo Office) the Director-General's statement that no s 87 application had not been received, was neither deliberately erroneous nor intentionally misleading.

101. Even assuming that the Applicant may have been relevantly misled, the nature of the matter was such that it could not be reasonably concluded that any real other than fleeting, detriment was suffered by the Applicant or that he was thereby relevantly denied procedural fairness. The Applicant soon was to become aware of the existence of the s 87 permit application when any effects of his being temporarily misled, would have entirely disappeared.

102. Accordingly, I hold that both these grounds fail.

Ground (iv) in granting the Permit, the first Respondent demonstrated bias against the Applicant (namely by the unfavourable manner in which the Applicant's opposition to the grant of the Permit had been appreciated and evaluated) 103. In support of this allegation, the Applicant focuses attention on the unfavourable and critical manner in which the Report on the s 87 permit application, that was submitted to the Director-General on 15 May 2002, had portrayed the Applicant and had evaluated the opposition that he had raised against the application. All Respondents submit that the contents of the Report, whilst reflecting adversely upon the Applicant, do not constitute bias against the Applicant. They rely upon the following dictum of Gleeson CJ and Gummow J in Minister for Immigration and Multi-Cultural Affairs v Jia (2001) 178 ALR 421 at 438: The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

104. In her final written submissions, Counsel for the first Respondent addressed the allegation of bias in the following passage: 61. The Applicant claims the D-G acted with bias against him in issuing the permit. This is particularised in an assertion that the decision make considered irrelevant and personal criteria about him without being given an opportunity to respond. 62. In the briefing paper to the D-G it is noted that the Applicant refuses to disclose cultural information because of legal proceedings and that he attacks the credibility of others. This view is expressed alongside anomalies pointed to in Mr Williams' petition with the recommendation that the petition be treated with caution; a note that Mr Williams is backed by a Rainforest Action Group from Lismore, has raised considerable angst and division within the Aboriginal community and that his claims to a lack of consultation and his rights as a Native Title claimant are spurious. 63. The application gave the views of all parties consulted whether for or against and these views by and of the Applicant are included in the briefing note as part of the bulk of material to be considered by the D-G in making his decision. The views expressed in the briefing paper while firm, do not amount to bias on the part of the decision maker. 64. Overall there is nothing to show that the NPWS approached its decision with its mind set against the Applicant. It reached conclusions that did not agree with the Applicant.

105. In my judgment, this submission properly appreciates the Applicant's complaint of bias and adequately summarises the relevant content of the Report before concluding that there was no bias against the Applicant. I accept this submission.

106. In concluding that this ground fails, I would add the comment that in so concluding, it is not my function to say whether I would, for myself, have adopted the adverse evaluations that are expressed in the Report of the Applicant and of his opposition to the proposal. However, I have detected in the tenor of the Report more than a hint that the Applicant's intervention on the scene of the recent exploratory mining being conducted of Lake Cowal is untimely (in the sense of being very belated) and unwelcome (in the sense that it has re-agitated issues of Aboriginal archaeological and cultural significance at Lake Cowal which had been settled at early stages in the planning history of the Lake Cowal Gold Project).

107. These sentiments are in one sense understandable from the perspective of a hypothetical bystander observing the long history of the Lake Cowal Gold Project. However, it needs to be quickly added that such sentiments should have little, or no, place in the discharge by the Director-General of the statutory responsibilities imposed upon him by the NP&W Act, Part 6 in relation to relics, including the exercise of his power to issue a permit under s 87. As I read the Report, particularly the content under the heading "Comment" that I have earlier recited, it is clear that the decision to issue the Permit was not overborne by consideration of the planning history of the Gold Project. The final point made under the heading "Comment" does refer to that planning history, which obviously had some relevance to the Director-General's determination of the permit application in the discharge of his overall responsibility for relics under the statutory regime operating by virtue of the NP&W Act, Part 6.

Ground (v) in granting the Permit, the first Respondent took into account irrelevant considerations (namely the views of Aborigines who were not Wiradjuri people) 108. Ultimately this ground was abandoned by the Applicant at the hearing, and in my opinion, properly so.

Ground (vi) in granting the Permit, the first Respondent failed to take into account relevant considerations (namely Mr David Johnston's professional archaeological opinions) 109. The Applicant's allegation that in issuing the Permit, the first Respondent failed to take into consideration the professional archaeological opinions of Mr David Johnson, is based upon the fact that the Report to the Director-General evaluating Homestake's s 87 permit application does not in terms refer to Mr Johnston's opinions.

110. However, the Respondents point to the fact that the three affidavits sworn by Mr Johnston in the Applicant's original proceedings brought against the first to third Respondents are referred to in the application and that indeed, copies of the affidavits form part of Attachment 2 to the application and that the application refers expressly to those affidavits noting that they refer to sites and/or relics in addition to the registered sites P1, P2 and LC3.

111. They also point out that the documentary evidence contains a checklist apparently prepared by Allan Hutchins, of the first Respondent's Dubbo Regional Office, which includes within the list of "documentation reviewed" Mr Johnston's three affidavits.

112. It is apparent that Mr Johnston's opinions of the archaeological and cultural significance of the Lake Cowal site were neither accepted nor shared by the Service officers who prepared the Report. But can it be held that Mr Johnston's opinions were ignored?

113. Clearly, they were relevant opinions and that is the reason no doubt for their inclusion in the application. However, Dr Pardoe's description of the condition of the sites and relics contained in the application did not adopt Mr Johnston's opinions of the significance or potential significance of the site for Aborigines.

114. For myself, I should have thought that Mr Johnston's contrary opinions to the prevailing and known archaeological opinions on the Aboriginal significance of Lake Cowal warranted some discussion in the Report, if for no other reason than that they were opinions of a person, whose opinions on the risk posed to relics by the second and third Respondents exploratory activities at Lake Cowal were accepted (as being unrebutted) by the Court in granting the interlocutory injunction on 22 March 2002 and in granting the final injunction in similar terms on 17 May 2002.

115. However, the lack of discussion of Mr Johnston's opinions and the assessment of the archaeological significance of the site by preferring the findings and opinions of other known archaeological assessments (including that of Dr Pardoe contained in the application) were matters falling within the province and discretion of the Director-General in the discharge of his statutory responsibilities for relics in terms of Part 6 of the NP&W Act.

116. Ultimately, I have not been persuaded that Mr Johnston's relevant opinions were ignored by the Service in its evaluation of the merits of the s 87 permit application. They were considered, but obviously were not adopted or accepted.

Ground (vii) in granting the Permit, the first Respondent was materially mistaken in fact by proceeding upon the basis that "comprehensive and unbiased" consultation with Aboriginal people had taken place (when it had not) 118. The Applicant's complaint fastens upon the description of the Aboriginal Community consultation contained in the Report submitted to the Director-General on 15 May 2002 as being "comprehensive and unbiased". (It is to be noted that these adjectives do not appear in enunciation of the Service "policy" on consultation.)

119. I have earlier noted the Director-General's letter dated 21 May 2002 to the Applicant stated that the Service "is satisfied that the applicant has been thorough in their consultation with the Aboriginal community" and advised that "(I)n making its decision to grant or refuse the s 87 permit, the Service will take into account the outcomes of the applicant's consultations with" the various Aboriginal Communities referred to (which included the Applicant himself).

120. I have earlier referred to the extensive content of Attachment 3 to the application for the permit made on behalf of Homestake which contains considerable detail of the outcomes of the various Aboriginal Communities consultation processes engaged in on behalf of Homestake. The outcomes are stated in summary fashion.

121. The Applicant's attack on the consultation process did not suggest a relevant failure to consult any interested Aboriginal Communities or persons. Rather, it was based upon the manner in which the consultation processes had been undertaken.

122. For example, it was claimed (rightly) that the precise details of the s 87 permit application had not been revealed. Indeed, as I have earlier noted, Mr Wickman, who chiefly was responsible for those consultations, did not himself appreciate that there was to be any excavation activity for testing the subsurface state of the land adjacent to each proposed exploratory drill hole. (The application had proposed selective excavation but the Permit required subsurface testing at each proposed drill hole.)

123. Then it was claimed (rightly) that the presentation of the outcomes of the consultation processes contained in Attachment 3 to the application was in the form of Mr Wickman's summaries which had not been signed by any of the Aboriginal persons consulted.

124. Next it was claimed that the outcome of the consultative processes should have been made available to the Applicant.

125. To one degree or another, those complaints may have some cogency and substance. It is somewhat unusual conceptually that a consultative process precede the lodging of the application. For example, the Service "policy" for consultation may be contrasted with the Environmental Planning and Assessment Act 1979 which provides for public notification of certain development applications (for "designated development" and "advertised development") in which circumstances it is the development application and its supporting material (in some cases an environmental impact statement or a species impact statement) that is publicly notified with the opportunity for any person to inspect the exhibited materials.

126. However, as I have earlier noted, Part 6 of the NP&W Act contains no procedures governing the issue of a permit under s 87 and indeed, there is no mention in Part 6 of even an application for a permit, let alone the prescription of detailed requirements for processing the application.

127. In these circumstances, there is ultimate force in the Respondents' submissions that the assessment of the adequacy of the consultative process must ultimately be left to the Service, as is provided for in the Service policy, enunciated in the Director-General's letters dated 23 April 2002 and 21 May 2002 to the Applicant.

128. However, I do not accept the full extent of the Respondents' submission that the decision of the Service on the question of the adequacy of the consultative processes is in all circumstances unreviewable by the Court, entertaining a claim, such as that made by the Applicant, that there has been a denial of procedural fairness in the consultative process.

129. Nonetheless, having regard to the documentary evidence of the extensive consultative processes and their outcomes, I am not prepared to differ from the opinion expressed by the Director-General in his letter to the Applicant on 21 May 2002 that the consultation undertaken by Homestake with the Aboriginal Community "was thorough". I do not think it matters that this was the adjectival description rather than the words "comprehensive and unbiased" appearing in the Report.

130. It is clear from the presented outcomes of the consultative processes (both in the application itself (especially in Attachment 3) and in the Report submitted to the Director-General on 15 May 2002) that different views were expressed by different Aboriginal Communities or people. For example, the outcome of the consultation with the Aboriginal Community in Condobolin revealed a clear majority view against the issue of a s 87 permit to Homestake. This fact is corroborated by the affidavit evidence of a number of Wiradjuri residents of Condobolin filed on behalf of the Applicant. But there is nothing in the Applicant's evidence that undermines the presentation of the outcomes of the consultative process contained in the application.

131. For the foregoing reasons, I hold that this ground fails.

Ground (viii) the Permit exceeded the legitimate scope and purpose of the NP&W Act, s 87 inasmuch as it is tantamount to authorising the recommencement of exploratory drilling which will damage relics, which activity is only sanctionable by the grant of a consent pursuant to s 90 of the Act 132. Here, the Applicant claims that the clear purpose of the obtaining of the Permit was to enable the resumption of exploratory mining activity provided that the injunction granted by the Court was discharged and that this is a purpose that is foreign to, and cannot be effectuated by, the issue of a permit granted under s 87. The Applicant claims that such a purpose can only be effectuated by a consent granted pursuant to the NP&W Act, s 90 to "destroy or damage relics" and that in truth the Permit is tantamount to a s 90 consent, and on that account, is invalid.

133. The Respondents meet these arguments by directing attention to what the NP&W Act declares to be the purpose of a permit issued under s 87, namely to sanction the doing of an act or thing specified in s 86(a), (b), (c), or (e), the doing of which, except in accordance with an enabling permit, is declared by s 86 to be an offence against the Act.

134. The Respondents submit that the activities sanctioned by the Permit are activities falling within the scope of s 86(a) and (b) and accordingly the Permit in so authorising those activities to be done, does not exceed its lawful bounds and is clearly within the power conferred by s 87 read in conjunction with s 86. They submit that if the doing of the things authorised to be done by the Permit lead to the lawful resumption of the exploratory mining activity, and indeed even if that goal be the ultimate purpose of the issue of the Permit, those consequences are irrelevant to the validity of the Permit to the extent that it authorises acts specified in the different paragraphs of s 86.

135. In my judgment, the Respondents' submissions on this point are correct. The fact that an ultimate purpose or consequence of the issue of the Permit may be the resumption of exploratory mining on the lands comprising the application area, does not infect the validity of the Permit to the extent that it authorises the doing of the matters or things specified in s 86(a), (b), (c), (d), or (e).

136. Nor does that ultimate consequence have the effect of somehow translating the Permit into a s 90 consent to destroy or damage relics. A permit under s 87 and a consent under s 90 are entirely different creatures.

137. Nothing in Permit authorises the destruction or damage of relics, no doubt for the very good reason that none of the acts specified in s 86(a), (b), (c), (d) or (e) involves the "knowing destruction of, or damage to, relics". In context, the "movement" or "collection" of relics cannot constitute the "destruction" of or "damage to" those relics.

138. If relics are "knowingly destroyed, defaced or damaged", either in the process of carrying out the acts permitted by the Permit or in the process, if it emerges, of the intended resumption of exploratory mining activities, then s 90 no doubt will operate in respect of such acts, as will the NP&W Act, s 176A in respect of such acts, actual or anticipatory.

139. For all of the foregoing reasons this ground fails.

Ground (ix) the Permit is flawed by material error inasmuch as it presumes that the relics are the "property of the Crown" when in fact they are not 140. It is to be noted that the Permit does not state one way or the other who owns the relics.

141. Initially the Respondents submitted that the ownership of the relics was not relevant to the question of the validity of the Permit. However, in view of the different language and scope of pars (a) and (b) of s 86, this initial response was not ultimately sustained, and the Respondents accepted the proposition that to the extent that the collection of the relics that was authorised by the Permit involved the disturbance or movement of relics on the land within the meaning of par (b) of s 86 these relics must be relevantly "the property of the Crown".

142. They submitted that the relevant relics were the property of the Crown by virtue of the NP&W Act, s 83(1) which deems certain relics to be and always to have been "the property of the Crown".

143. When s 83 of the Act speaks of a relic being "the property of the Crown" it does so, primarily, by reference to the National Parks and Wildlife Act 1967, s 33D (the predecessor to the Act). That section was introduced into the 1967 Act by the National Parks and Wildlife (Amendment) Act 1969 (Act No 78 of 1969) which introduced provisions into the Act dealing with "relics" and "Aboriginal areas" and "protected archaeological areas".

144. Act No 78 of 1969 defined "relics" in the same terms that it is now defined by the NP&W Act.

145. Section 33D(1) and (2) were in the following terms: 33D (1) Subject to this section, a relic that, immediately before the commencement of this Act -

(a) was not the property of the Crown; and (b) was not in the possession of any person,

and any relic that is abandoned after that commencement by a person other than the Crown, shall be deemed to be, and always to have been, the property of the Crown. (2) For the purposes of subsection one of this section, a person shall not be deemed to have had possession of a relic that was not originally real property only by reason of the fact that it was in or on land owned or occupied by him.

146. In my judgment, the relevant relics are, prima facie covered by the operation of s 83(1) and hence are the property of the Crown. Notwithstanding this effect, s 85A empowers the Director General to dispose of such Crown property by returning the relics to Aboriginal owners "entitled to possession, custody or control of the relics in accordance with Aboriginal tradition".

Ground (x) the Permit is invalid because it was issued in respect of land different from that stated in the application 148. In my judgment, there is no substance in this allegation.

149. As I have earlier noted, the permit application described the land ("the application area") to which it related as lots 23 and 24 Deposited Plan 753097 and the Lake Cowal Wildlife Management Area.

150. The application stated that there were three registered National Parks and Wildlife Service sites located within the application area, which were identified and plotted on a map. But the application also stated that it also "relates to my unregistered sites or relics located in the application area".

151. The Permit adopts precisely the same description of the "application area", describing it as the "Area covered by Permit", except that there is an obvious typographical error in the Permit description of Registered site LC3 (which is erroneously referred to as "LC 23"). But the error is obvious and does not affect the total congruence between the area, the subject of the permit application and the area "covered by" the Permit.

Ground (xi) the Permit is void for uncertainty 152. Here, the Applicant claims that the Permit is void for uncertainty because it does not specify with the requisite particularity the sites and relics located in the application area other than three registered sites.

153. In my judgment, this argument misconceives the true nature of the Permit and the scope of the acts which it authorises. The principal act authorised by the Permit is the collection of relics that are discovered on and under those parts of the land that will be utilised for exploration activity - see in particular Special Conditions 2 and 3 of the Permit.

154. As a matter of logic and practical necessity, discovery of the relic must precede its collection for safe custody.

Ground (xii) the divesting from Aboriginal peoples of their cultural heritage comprising relics that is effected by (a) the NP&W Act, s 83 or (b) the issue of the Permit is in either case a contravention of the Commonwealth Racial Discrimination Act 1975 156. In my judgment, the effect of s 83(1) of the NP&W Act (including the similar effect of s 33D of the 1967 predecessor Act) does not involve any contravention of the Racial Discrimination Act 1975 for the simple reason that the provisions of the NSW Acts took effect before the Commonwealth Act took effect: see Mabo v State of Queensland (1988) 166 CLR 186.

157. The Commonwealth Act obviously applied when the Permit was issued. But it is a fallacy to say that it was the Permit that relevantly divested the Aboriginal community of ownership in the relics. As has been seen, Crown ownership of relics is achieved by force of s 33D of the 1967 Act and/or of the NP&W Act, s 83(1).

158. Accordingly, the issue of the Permit does not fall within the proscription of s 9 of the Commonwealth Act.

Ground (xiii) in granting the Permit, the first Respondent failed to take into consideration the expectation of the Wiradjuri Regional and West Wyalong Local Aboriginal Land Councils that registered site LC3 be protected 160. This ground has not been established. As earlier noted, the application in terms stated that the proposed drilling works will avoid the registered sites (which of course includes site "LC3"). There is nothing in the Permit or the acts that it authorises which negate this statement or deny protection to the registered sites.

161. This ground fails. G. CONCLUSIONS AND ORDERS

162. For all of the foregoing reasons, the Permit has not been shown to be invalid and all attacks on its validity have failed.

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