Williams v Homestake Australia Limited and Ors.

Land and Environment Court (NSW)|2002-08-14|Before: Bignold J

The Applicant had been similarly informed by the first and second Respondents some three weeks prior to the final hearing. However, he had responded to that advice by stating that the offer of settlement would not resolve all matters in dispute because the terms of the proposed permanent injunction did not extend to lands referred to in the amended class 4 application other than lot 23 and the Game Reserve, in respect of which latter lands only, the interlocutory injunction had been granted (they being the lands the immediate focus of the first and second Respondents' proposed exploratory activities). Thereafter, the final hearing concentrated on the Applicant's application that his claims to relief in respect of those other lands (ie the lands referred to in the amended class 4 application other than lot 23 and the Game Reserve) be adjourned.

The adjournment application was strongly resisted by the first and second Respondents but the application was granted for the reasons given in my judgment delivered on 3 May 2002: see (2002) NSWLEC 68.

(a) their obtaining: (i) any permit pursuant to section 87 of the National Parks and Wildlife Act ("the Act") which would authorise their archaeologist to collect relics from areas of the Land which the First and Second Respondents propose to use for exploratory drilling and/or the passage of vehicles and machinery used in conducting exploratory drilling; or (ii) any consent granted pursuant to section 90 of the Act which authorises the collection or destruction of relics on the Land; or (b) their satisfying the Court, after appropriate archaeological survey and report, that the exploratory mining activities may be resumed on the Land without contravening section 90 of the Act.

The declarations sought in paragraphs 1 to 5A of the Further Amended Class 4 Application dated 4 March 2002 in so far as they relate to the Land are dismissed. 4. The Applicant's application to adjourn the hearing of his claim to relief in respect of land referred to in par 1 of his amended class 4 application filed 4 March 2002 (other than lot 23 and the Game Reserve) is granted. 5. Question of costs is reserved. 6. In respect of order 4, the following directions are given -

The Applicant to file and serve affidavits in response to affidavit of Dr Kamminga dated 15 May 2002 by 24 May 2002. 2. The parties to file and serve by 24 May 2002 notice of desired participants in joint archaeological inspection scheduled for 30 and 31 May 2002.
Stand over matter to 9.30 on 28 May 2002 for Court to give order for inspection.

It is to be noted that the directions given in Order 6 relating to the Applicant's outstanding claims to relief in respect of the first and second Respondents' exploratory activities on land at Lake Cowall (other than lot 23 and the Game Reserve) were entirely overtaken by rapidly escalating events in the litigation between the parties involving (i) the partial discharge on 28 May 2002 of the existing permanent injunction to exempt from its ambit the carrying out of archaeological work authorised by the Permit; (ii) the total discharge on 31 May 2002 (with effect from 3 June 2002) of the existing permanent injunction upon the Court accepting Undertakings proffered by the first and second Respondents; and (iii) the dismissal of the Applicant's claim to interlocutory injunction in the related proceedings challenging the validity of the Permit: see (2002) NSWLEC 91.

These outcomes in the litigation between the parties meant that the scheduled joint inspection of the site by the parties' respective consultant archaeologists did not take place on 30 and 31 May 2002.

It was in those circumstances that on 5 June 2002 the Court made the following orders by consent for the joint inspection of the site: 1. Access to Lot 24 DP 753 097 ( the Land ) be granted to the parties for the purpose of allowing a joint inspection of the Land by the parties' respective expert archaeologists for the purpose of identifying on the land the nature and location of relics within the meaning of the National Parks and Wildlife Act 1974 subject to compliance with the following conditions:

(a) The inspection party is to include the archaeologists retained by each party; (b) The Applicant's party is to consist of the Applicant's archaeologist, the Applicant, Ms Eleanor Gilbert, and Ms Jane Morrison; (c) The inspection party may also include an authorised representative of the Wiradjuri Council of Elders; (d) The inspection shall take place on 10 June 2002 commencing from 7.30am; (e) The archaeologists and the other persons authorised by these orders to accompany them shall jointly inspect the Land and shall remain in one group at all times while on the Land; (f) In the event that by the date of the inspection the Applicant has not consented to the dismissal of these proceedings insofar as they relate to Lot 25 DP 753 097 and Lot 2 DP 580 381, the site inspection shall extend to these additional areas of land unless the Applicant waives his right to inspect these additional areas of land in these proceedings; and (g) Not later than 48 hours before the commencement of the inspection, the First or Second Respondent shall notify the proprietor and occupier of the Land, Mr Colin Carnegie, of the making of the Court Order and of the intended time of the site inspection.

In addition to the order made on 5 June 2002 for the joint inspection of the property on 10 June 2002, there was also granted by virtue of the Undertakings proffered to the Court on 31 May 2002 to the Applicant and his consultant archaeologist, an entitlement to inspect - in company with an archaeologist nominated by the first and second Respondent, the areas cleared of relics pursuant to the s 87 permit within 7 days of the service of the notice referred to in 1) above, with the Applicant providing the first and second Respondents with 48 hours notice in writing of his proposed inspection

The "notice" referred to in the Undertaking is a copy of the "confirmation notice" that general condition 15 of the Permit requires the holder of the Permit to give to the National Parks and Wildlife Service, that the Undertaking requires the first and second Respondent to serve a copy on the Applicant.

Condition 15 of the Permit is in the following terms: The holder of the Permit or Consent shall keep field records and a copy of all such records shall be lodged with the national Parks and Wildlife Service at the termination of each field work period.

In respect of "areas cleared of relics" pursuant to the Permit, it is to be noted that the Permit covers the area comprising lots 23 and 24 Deposited Plan 753097 and the adjoining Game Reserve.

The scheduled joint inspection of the property took place on 10 June 2002 and the results of the inspection are referred to in the affidavit sworn by Francis Wilfred Shawcross on 17 June 2002, the Applicant's consultant archaeologist. That affidavit was relied upon by the Applicant in the related proceedings in which the Applicant unsuccessfully challenged the validity of the Permit. (The Applicant's first consultant archaeologist, Mr Johnston who had carried out earlier inspections on the property at Lake Cowall was not available on this occasion.)

In a further affidavit (sworn 28 June 2002) filed in the present proceedings and relied upon by the Applicant in support of his present Motion, Dr Shawcross refers to the joint property inspection in which he participated on 10 June 2002 and gives his reasons for seeking the Court's permission for himself and the Applicant to inspect the relics that Dr Pardoe had collected from the property under the authorisation granted by the Permit.

He also seeks permission to inspect an area in the floor of the basin of Lake Cowall (apparently located on lot 24) which he had observed on his inspection on 10 June 2002 when he noted "an interesting collection of artefacts that had been disturbed during the construction of a dam in the floor of the Lake basin". Dr Shawcross estimated that about four hours' time would be required for him to undertake the further inspections which would also include an inspection of the Game Reserve upon which he had observed the existence of a "canoe tree on the earlier inspection, which he had later learned that Dr Kamminga, one of the Consultant Archaeologists retained by the first and second Respondents, had later searched for but without success.

By Notice of Motion filed 9 July 2002, the Applicant claimed various kinds of relief including an order for inspection by the Applicant and his consultant archaeologists of the whole of the lands referred to in the Applicant's amended class 4 application, but further particularised so as to be confined to "the areas in which artefacts have been collected as described on the archaeological survey map prepared by Dr Pardoe and dated 25 June 2002".

On the return of that Motion before the Duty Judge on 12 July 2002, the Applicant's Motion was stood over generally except for the claim to an order for inspection of the property. That claim was determined and Talbot J made Orders which included the following: In the event that the Applicant serves a written notice on the First and Second Respondents, in accordance with paragraph 2 of the Court's minute of order dated 31 May 2002, that the Applicant and his archaeologist want to inspect the lands cleared of relics as part of the second phase of the collection program, the Applicant and the First and Second Respondents will carry out an inspection in accordance with the provisions of the document which is Annexure A . The Applicant's party on the inspection is to comprise only the Applicant and his consultant archaeologists Messrs David Johnston and Francis Shawcross.

A copy of Annexure A therein referred to, is annexed hereto C. THE COURT'S POWER TO ORDER INSPECTION OF THE PROPERTY

As earlier mentioned, this question must be encountered because of the submission ultimately made on behalf of the first and second Respondents that the Court did not have the power to make the orders for inspection in the terms claimed by the Applicant.

The submission, in my judgment, must be rejected because it is clear that the Court possesses the power to make orders for the inspection of the property. That power is founded upon two separate sources -

(i) the statutory power conferred by Part 25 Rule 8 of the Supreme Court Rules that have been adopted by the Court's Rules of Court: Part 6 Rule 1(1) ; and (ii) the power to enforce the Undertakings proffered by the first and second Respondents to the Court on 31 May 2002 and accepted by the Court in discharging the permanent injunction against the first and second Respondents.

The statutory power to make an order for inspection of property is available "for the purpose of enabling the proper determination of any matter in question in any proceedings" (Rule 8(1)) "Property" is defined by Rule 8(4) as including "any land" or "….chattel, whether in the ownership, possession, custody or power of a party or not".

Whereas the commentary to Part 25 Rule 8 in Ritchie's Supreme Court Procedure makes it clear that an order for inspection of property will not normally be made if the purpose is to allow merely a "fishing expedition" to see whether the plaintiff has a case against a defendant, the particular circumstances of the present case (that are recited in the several interlocutory and final judgments made in both sets of proceedings that I have earlier mentioned) make it imperative in the interests of justice that the Applicant, who is a Native title claimant of the relevant land and who is asserting that the relevant "relics" located in or under the land are liable to be damaged by the first and second Respondents' exploratory mining activities, have a proper opportunity to inspect the property for the purpose of identifying relics that may be imperilled by the exploratory mining activities. That opportunity should extend to the inspection of the relics that have been collected by Dr Pardoe, the first and second Respondents' Consultant Archaeologist, pursuant to the Permit in order over the past three months since the issue of the Permit to prepare the site for the resumption of the exploratory activities.

In so concluding, I have taken into consideration the fact that since the commencement of the present proceedings in January this year, the Applicant has had only very restricted access to the subject lands and that this access has only been gained by dint of the existence of Court orders for the inspection of these lands. The litigation history is studded with misadventures and abortive or frustrated attempts on part of the Applicant to inspect the lands.

I have also taken into account the fact, as I held in my judgment last week dismissing the Applicant's challenge to the validity of the Permit that prima facie the relics on and under the lands are "Crown property" by virtue of the operation of the NP&W Act, s 83(1) (and its predecessor enactment, s 33D of the 1967 Act).

In other words, the relics are not the property of the first and second Respondents, yet they, and their Consultant Archaeologists, and have had unrestricted access to the relics throughout the history of the litigation. The disparity of opportunity for access by the parties to the relics has at all material times been significant and the Applicant's claims in respect of these relics (in respect of which he is no mere stranger or bystander) have been disadvantaged by this lack of anything like equal opportunity. In this respect, I have often pointed out in the course of the litigation between the parties which has waged throughout this year that the Director-General of the National Parks and Wildlife Service has statutory responsibility for the protection of the relics: vide the NP&W Act, s 85.

This responsibility has not been divested or discharged by virtue of the fact that the Director-General has issued the Permit authorising the collection for safe custody of the relics. That Permit imposes the following obligations on the holder of the Permit (Dr Pardoe on behalf of the first and second Respondents): - Special Condition 4 Should relics be located within these areas their position shall be recorded with a GPS and material type and size characteristics shall be noted. Sufficient data will be taken from each stone artefact to enable a technological analysis to be undertaken for report purposes provided always that numbers are large enough for meaningful analysis. Each relic shall be separately bagged and labelled duplicating the above information. Relics from each area (ie Lot 23) and shall be placed in a separate, clearly labelled master box which shall also contain a separate master inventory of all relics held in that particular box. Special Condition 6 All collected relics shall be retained in the Homestake Lake Cowal Gold Project Compound in a small 1500 x 1500 x 2100 waterproof, and lockable garden type shed. Keys shall be held by the Cowal Gold Project Site Coordinator and access shall be limited to Aboriginal Community representatives and Consultant Archaeologists and for audit purposes, NPWS staff. Note that these are temporary facilities and a more permanent on site Keeping Place may be required in the future. General Condition 6 An officer of the National Parks and Wildlife Service, acting on the authority of the Director-General, may at any time examine work done or any objects recovered under any Permit or Consent. General Condition 14 The holder of the Permit or Consent shall keep field records and a copy of all such records shall be lodged with the National Parks and Wildlife Service at the termination of each field work period. General Condition 15 The holder of the Permit or Consent shall notify the Dubbo office of the National Parks and Wildlife Service at the commencement and completion of fieldwork, and shall supply to District officers details of field work programs and results if requested.

Special Condition 6 of the Permit is particularly relevant to the Applicant's claim that he and other Wiradjuri persons, including his Consultant archaeologist, have full access to inspect the collected relics.

The breadth of the access entitlement conferred by Special Condition 6 is to be contrasted with the more restricted conditions which the Wiradjuri Council of Elders sought to impose upon the Applicant's inspection of the collected relics, as notified to the Applicant by the first and second Respondents' Solicitors in their letter dated 5 August 2002, (Exhibit C/1), namely - (2) As a Wiradjuri man, Neville Williams CAN inspect the stored relics at Lake Cowal but under strict supervision with a senior person from Barrick. He cannot take with him consulting Archaeologist(s) or any other person whatsoever nor a camera nor writing pen and paper [that is he has no permission to make records in any medium].

In my judgment, there is no justification for imposing such restrictions upon any inspection by the Applicant and his Consultant archaeologist of the collected relics. I entirely accept that the first and second Respondents in propounding such restricted access rights to the Applicant are merely adopting the views communicated to them on behalf of the Wiradjuri Council of Elders and I also accept that the first and second Respondents have established a working rapport with that body and obviously wish to maintain its integrity. I also acknowledge that there is some obvious disharmony between the Applicant and the Wiradjuri Council of Elders and that they are rival Native Title Claimants (the Council being a registered claimant and the Applicant being an unregistered claimant).

However, these considerations do not operate to displace the clear intent of Special Condition 6 of the Permit. Moreover, the purported restrictions on the Applicant's right of access to the collected relics clearly disadvantage him in the litigation he has waged against the first and second Respondents in respect of which litigation the Wiradjuri Council of Elders are not involved as parties or in any other capacity. Accordingly, he should not be disadvantaged in that litigation because of the wishes of the Council of Elders. D. THE EXERCISE OF THE COURT'S DISCRETION

This leads me to consider the submission advanced on behalf of the first and second Respondents that access by the Applicant to the collected relics is entirely extraneous to the outstanding claims of the Applicant in the litigation.

In my judgment, this submission takes an altogether too restrictive view of what remains outstanding in the litigation between the parties, and of the legitimate forensic purposes to be served by the inspection of the property.

What then does remain outstanding in the litigation brought by the Applicant against the first and second Respondents?

Firstly, there is the Applicant's claims that the exploratory activities being undertaken on lands (other than lot 23 and the adjacent Game Reserve) will involve a breach of the NP&W Act, s 90 in respect of relics located on or under that land.

In respect of this claim it is clear from the Phase 2 clearance archaeological activity undertaken by Dr Pardoe pursuant to the Permit (Exhibit A/1) that there has been clearing of an extensive track traversing lot 24 and giving access to the drill hole locations on lot 23, which itself was comprehensively cleared in Phase 1 clearance activity.

Clearly, the Applicant and his consultant archaeologist(s) should be entitled to inspect that cleared area of lot 24. Indeed, for the purpose of the Applicant's outstanding claims in respect of activity proposed on lot 24, the whole of the lot should be available for inspection. The joint inspection conducted on 10 June 2002 was not sufficient for this purpose and the Applicant and his consultant archaeologists should be entitled to complete their full inspection. In this respect, the Court's statutory power is clearly available and ought, in the circumstances be exercised.

Secondly, there are the entitlements for the Applicant and his consultant archaeologist(s)to inspect all areas cleared of relics on lot 23 and the adjacent Game Reserve derived from the Undertakings proffered by the first and second Respondents and accepted by the Court on 31 May 2002 when discharging the permanent injunction.

Indeed the entitlement in terms of the Undertaking does not require any supplemental order of the Court. The entitlement is created and perfected by the Orders made by the Court on 31 May 2002 upon the acceptance of the first and second Respondents' Undertaking.

It is true that the Undertaking contemplated inspection, pursuant to the entitlement, within seven days of service upon the Applicant of the Confirmation Notice sent to the National Parks and Wildlife Service pursuant to General Condition 15 of the Permit. However, time was not expressed to be of the essence in the operation and effect of such Undertaking and it is appropriate, that if the Court is to grant the order for inspection that it extend to all lands cleared pursuant to the authorisation granted by the Permit. (At the hearing, it was anticipated that Phase 3 clearing would be completed by now.)

But should these entitlements be extended to include inspection of the collected relics? The question is not asked in vacuo, and the answer to it must be given in the context of the outstanding claims in the proceedings. The answer is to be found in the answer to a narrower question namely - Would inspection of the collected relics serve any legitimate forensic purpose in the adjudication of the outstanding claims in the proceedings? In my judgment, the answer is obvious, and it is that of course the existence and nature and scale and location of the collected relics would have relevance to the question of any further existence of other similar relics that may exist on or under the relevant land.

Accordingly, I am satisfied that there is a clear legitimate forensic purpose, for the exercise in favour of the Applicant, of the statutory power to order an inspection of property.

There is a further basis justifying an order for inspection by the Applicant and his Consulting Archaeologist of the collected relics, which is founded upon an aspect of the first and second Respondents' Undertaking not previously alluded to. This is the Undertaking To not carry out exploratory drilling on any part of Lots 23, 24 or the Game Reserve without first receiving written notice from Dr Pardoe or his delegate Dr Kamminga that any such land has been cleared of relics in accordance with the s 87 permit granted by the Third Respondent on 23 May 2002.

The order made on 31 May 2002 discharging the permanent injunction was made upon the Court's acceptance of the Undertakings proffered by the first and second Respondents. Implicit in the making of that order is the requirement that the first and second Respondents will perform the obligations imposed by the Undertaking. As the plaintiff who had obtained a permanent injunction against the first and second Respondents which injunction was later discharged upon the Court accepting the Undertaking proffered by the first and second Respondents, the Applicant has a legitimate and conventional forensic interest in the due performance of the obligations imposed by the Undertaking. The relevant obligation required clearance of the land of relics in accordance with the Permit. The Permit was issued subject to a number of conditions (special and general) and Special Conditions 4 and 6 which I have earlier recited are particularly relevant, prescribing detailed requirements for the collection and safe custody of relics.

Inspection of the collected relics placed in safe custody is a legitimate forensic enquiry to ensure full compliance by the first and second Respondents with their Undertaking.

The only remaining question concerns what conditions, if any, should be imposed upon the inspection. In the protocol for the joint inspection adopted by Talbot J's orders made on 12 July 2002 a condition was imposed requiring the persons conducting the inspection to attend a safety induction programme at the Cowal Gold Project Compound and to wear safety clothing provided by the Mining Companies.

Now that the site is the subject of current exploratory activities, these conditions should be imposed in the interests of safety. Other conditions requiring joint inspection with the first and second Respondents' representatives, including their Consultant Archaeologists, and providing the opportunity for attendance by representatives of the Wiradjuri Council of Elders should also be adopted.

The Applicant's Motion seeks permission for the attendance of five other named persons (each of whom gave affidavit evidence in the Applicant's case challenging the validity of the Permit, each being a Wiradjuri person living in Condobolin).

Whereas I can well appreciate the desire by the Applicant for some moral support from his Kinsmen, I think that the order should be limited to the Applicant and his consultant archaeologist(s). In so concluding, I note that each of the Wiradjuri persons named in the Motion is prima facie entitled, by force of Special Condition 6 of the Permit, to inspect the collected relics. Whether they choose to exercise that right at the same time as the Applicant attends the site for the purpose of inspecting the property pursuant to the Court's Order is a matter for those persons to work out for themselves.

Finally there is the question of whether the Applicant should be entitled to take photographs etc of the inspection. In this respect, the Motion seeks this entitlement and nominates Ms Gilbert and Ms Morrison as attendees, presumably for this purpose. On behalf of the first and second Respondent an offer was made to supply the Applicant with a copy of a professionally taken video of the inspection of the property, including of the collected relics.

This facility should be adopted in the Order for inspection and there will be no need for Ms Gilbert and Ms Morrison to attend. Obviously, the Applicant's consultant Archaeologist(s) may take additional photographs and notes of the inspection.

Before leaving this matter, I would emphasise that the time has come for whatever remains in dispute in the proceedings to be concluded. To this end, the inspection of property now ordered, should be complete and final to enable the Applicant to decide whether he wishes to pursue any outstanding claims in the proceedings. E. ORDERS

For all the foregoing reasons, I am satisfied that the Applicant is entitled in the interests of justice to an order for inspection of the property (including the collected relics) in the terms that I have earlier indicated.

The property (comprising lots 23 and 24 Deposited Plan 753097 and the adjacent Lake Cowal Wildlife Management Area and the relics located therein (including relics that have been collected from the land pursuant to the Permit issued on 23 May 2002 under the National Parks and Wildlife Act , s 87) may be inspected by the Applicant and his consulting archaeologist(s) in accordance with the following terms and conditions:

(a) the areas to be inspected are the areas on the property that have been cleared pursuant to the aforesaid Permit and lot 24 generally;

(b) the relics to be inspected include the relics that have been collected pursuant to the aforesaid Permit and placed in safe custody;

(c) the inspection is to be conducted jointly with representatives of the first and second Respondents and their consultant archaeologists;

(d) the inspection may include an authorised representative of the Wiradjuri Council of Elders;

(e) the inspection is to take place at a mutually arranged time selected by the parties - but in the event of no such time being arranged - the inspection shall take place at a time appointed by the Court;

(f) the Applicant and his archaeologist(s) must, prior to the commencement of the inspection, attend a safety induction program at the Cowal Gold Project Compound and wear safety clothing provided by the first and second Respondents during the site inspection.

(g) the Inspection Party shall jointly inspect the land and relics referred to in paragraphs (a), and (b) above, and shall remain in one group at all times as far as is practicable;

(h) the first and second Respondents shall provide for the taking of a professionally recorded video of the observations of the land and relics made by the joint inspection party and shall provide to the Applicant, free of charge, a copy of the video as soon as it is available.

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

CITATION : Williams v Homestake Australia Limited and Ors. [2002] NSWLEC 155 APPLICANT: Williams PARTIES : RESPONDENTS: Homestake Australia Limited and Ors. FILE NUMBER(S) : 40010 of 2002 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Order for inspection of property and relics. LEGISLATION CITED: Supreme Court Rules Part 25 Rule 8 National Parks and Wildlife Act 1974 ss 85 and 87 CASES CITED: DATES OF HEARING: 14 August 2002 DATE OF JUDGMENT: 09/11/2002

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