Williams v Pardoe and Ors. [2005] NSWLEC 119 | Case summary

JUDGMENT CORAM: HIS HONOUR A. INTRODUCTION 1 On 29 May 2003 the Applicant commenced these class 4 proceedings alleging breaches by the first Respondent of specified conditions of a permit issued by the fourth Respondent (the Director-General) pursuant to the National Parks and Wildlife Act s 87 (NP&W Act) and consequential breaches by the second and third Respondents of ss 87 and 90 of that Act. (The alleged breaches are "consequential" in the sense that the NP&W Act, s 86 creates the offence by proscribing certain activities that are undertaken "except in accordance with the terms and conditions of an unrevoked permit".). The s 87 Permit (No 1468) had been issued on 27 November 2002 in conjunction with a consent pursuant to the NP&W Act, s 90 in respect of Aboriginal objects situate on land at Lake Cowal being the area of some 2,400 hectares that was then the subject of Mining Lease Application 45 (subsequently approved by the grant in June 2003 of Mining Lease 1535 in respect of the approved Lake Cowal Gold Mine). 2 These class 4 proceedings were the last of a series of proceedings brought by the Applicant in this Court since 22 January 2002 against the Respondents in respect of Aboriginal objects situate at the approved Lake Cowal Gold Mine Site. (Development consent for the establishment and operation of the Lake Cowal Gold Mine had been granted by the Minister for Urban Affairs and Planning on 26 February 1999. Included in the conditions of that development consent was Condition 3 imposing specific obligations in respect of Aboriginal heritage, including the requirement for consent to be granted pursuant to s 90 of the NP&W Act). That overall litigation history is summarised in the last of the final judgments in the litigation series delivered on 26 September 2003 - see Williams v Barrick Australia Ltd (2003) 128 LGERA 80 at 83 to 90 inclusive. 3 The Applicant's claim in these proceedings to an interlocutory injunction against the first, second and third Respondents was heard one week after the proceedings were filed and in my reserved judgment delivered on 24 June 2003, I refused the application for interlocutory relief - see Williams v Pardoe (2003) NSWLEC 150. 4 Following the Court's refusal of the Applicant's claim to interlocutory injunction, the first, second and third Respondents sought an order against the Applicant for security of costs in the proceedings. That application was dismissed on 23 December 2003 - see Williams v Pardoe (2003) NSW LEC 363. 5 Thereafter, the Applicant filed in Court a document styled "further amended class 4 application" to which objection was raised by the first, second and third Respondents resulting in a contested hearing as to whether the Court would grant leave to the amended application. In my reserved judgment delivered on 5 March 2004 (see Williams v Pardoe (2004) NSWLEC 71), I granted leave for the amendment of the proceedings in accordance with a specified document that had been filed in the Court on 26 February 2004 having noted that the amended class 4 application included several new claims which had arisen since the original proceedings were commenced on 29 May 2003 in respect of the following matters - (a) the continuing validity of Permit 1468; (b) the validity of amendments made to Permit 1468; (c) the validity of a further s 87 Permit (No 1681) granted on 28 July 2003; (d) the validity of a further s 90 Consent (No 1680) granted on 28 July 2003; and (e) the first Respondent had racially discriminated against the Applicant. 6 The amended claims also included allegations of further breaches of the conditions of Permit No 1468 said to have been committed by the first Respondent on nominated dates in August 2003. 7 Additionally, claims were made against the fourth Respondent alleging breaches of statutory duties imposed by the NP&W Act. 8 On 19 March 2004, I refused leave for the Applicant to further amend the amended class 4 proceedings (by alleging breaches of conditions of Permit No 1681) for the reasons that the additional claims had been raised far too belatedly in the proceedings and would be likely to prejudice the fair trial of the case that already had been allocated early hearing dates. 9 At the trial, the Applicant maintained the following claims - (i) the first Respondent had breached Conditions 2, 5, 6, 9, 10 and 12 of Permit No 1468 (such breaches having been committed either in May 2003 or in August 2003); (ii) Permit No 1468 had, by virtue of the breaches of those conditions, been rendered nugatory; (iii) the amendment granted by the fourth Respondent to Permit No 1468 was void; (iv) the additional s 87 Permit (No 1681) and the associated s 90 Consent (No 1680) were rendered void by virtue of the Director-General's denial of procedural fairness to the Applicant in granting the Permit and Consent; (v) the Director-General had failed to carry out his statutory functions to conserve Aboriginal objects at Lake Cowal and in particular those situate on the Lake Cowal Game Reserve; and (vi) the first Respondent had unlawfully racially discriminated against the Applicant in the course, and by the manner, of carrying out archaeological works in reliance upon Permit No 1468. 10 These several claims were particularised in the Applicant's Further amended Points of Claim filed on 16 March 2004. Each of the claims is denied by each of the Respondents according to their respective Points of Defence filed in the proceedings. Moreover, the first, second and third Respondents raise discretionary grounds for the Court to decline to grant any substantive relief against any of them in the event that any of the Applicant's claims are substantiated. Additionally in their final address at the hearing, the first to third Respondents asserted a lack of jurisdiction for the Court to entertain the Applicant's claims of racial discrimination under the Commonwealth Racial Discrimination Act 1975. 11 Concerning discretionary factors, the parties agreed that the present hearing should be confined to an adjudication on the Applicant's substantive claims and the Respondents' denials of those claims, and that in the event of the Applicant substantiating any of his claims, I should reserve for further hearing all questions of any discretionary grounds opposing the grant of relief and the form of any relief that might be considered appropriate. 12 The evidence adduced at the final hearing relevant to the several claims made against the first to third Respondents in the Applicant's further amended class 4 application and further amended Points of Claim was in the following form. 13 Firstly, in relation to the allegations of breaches of conditions of Permit No 1468 by the first Respondent during the period 23-29 May 2003 the evidence was generally the same as that which was given at the hearing of the Applicant's claim to interlocutory relief (which claim I rejected) except for some evidence given by Dr Pardoe under cross-examination in those interlocutory proceedings which was not repeated or otherwise adduced at the final hearing. 14 The evidence in respect of the allegations of breaches of conditions of Permit No 1468 comprised affidavit and documentary evidence (including the cross-examination of the deponents). 15 There was no evidence in respect of the alleged invalidity of Permit No 1468, this claim being based upon an asserted legal proposition that the alleged breaches of the conditions of that Permit had the effect of rendering that Permit nugatory because the breaches meant that the Permit could no longer be implemented according to its terms. 16 The evidence in support of the alleged invalidity of the amendments made to Permit No 1468 was entirely documentary, as was the evidence in respect of the alleged invalidity of Permit No 1681 and Consent No 1680. 17 Finally, the evidence in support of the allegations of the first Respondent's racial discrimination committed against the Applicant and was in the form of affidavits (upon which the deponents were cross-examined). It is to be noted that the evidence in support of the allegations of racial discrimination said to have been committed by the first Respondent on 24 May 2003 was substantially the same evidence that had been adduced at the hearing of the Applicant's claim to interlocutory injunction (although at that time the Applicant's claims did not include any allegation of racial discrimination against the Applicant - rather the evidence had been relied upon as proof of breach of the conditions of the Permit). 18 Having regard to the nature of the evidence and the manner that it was given and to the need for it to be distributed to the several claims made by the Applicant against the first to third Respondents. I propose to summarise the evidence and my findings on it (as they are relevant to each of the Applicant's several claims) by first noting the uncontested documentary evidence concerning the relevant s 87 Permits and s 90 Consents and then noting the contested evidence which is confined to the allegations of breaches of conditions of Permit No 1468 and allegations of racial discrimination against the Applicant. 19 The allegations of breach of statutory duty against the fourth Respondent were vague and the evidence adduced by the Applicant was patchy. The fourth Respondent ultimately submitted that the claim of breach of statutory duty was beyond the Court's jurisdiction. I shall consider all these matters after I have adjudicated upon the claims made against the first to third Respondents. B. THE UNDISPUTED EVIDENCE CONCERNING THE S 87 PERMITS (Nos. 1468 AND 1681) AND THE S 90 CONSENTS (Nos. 1467 AND 1680) 20 There is no dispute in the evidence concerning the facts (i) that the abovementioned s 87 Permits and the s 90 consents were granted by the Director-General; (ii) what the terms and conditions of the Permits and Consents are; (iii) how the assessment processes were undertaken; (iv) that the s 87 Permit (No 1468) was subsequently amended by the Director-General. (i) Permit No 1468 and Consent No 1467 21 Permit No 1468 and Consent No 1687 were granted by the Director-General on 27 November 2002 in respect of Aboriginal objects principally situate on lands comprising Mining Lease Area 45 at Lake Cowal. The Mining Lease Area comprises some 2,400 hectares and is situate some 38 km south-east of West Wyalong and 60 km south-west of Forbes. 22 In addition to the lands comprising the Mining Lease Area, the Permit and the Consent also applied to specified lands comprising a proposed water pipeline running from a bore field situate to the north-east of the Mining Lease Area to that Area. 23 Although the evidence is not entirely clear on the point (but nothing turns on it) it appears that the lands to which the s 87 Permit and s 90 Consent apply is not identical with the lands to which the respective applications seeking the Permit and the Consent applied inasmuch as those applications had included (i) the road upgrade area from Wamboyne Road situate to the south-east of the Mining Lease Area to that Area; and (ii) the relocation of the Travelling Stock Reserve flanking parts of the northern and southern boundaries of the Mining Lease Area and the western boundary of that Area. (As will presently be related, it is in respect of these two additional areas that the further s 87 Permit (No 1681) and s 90 Consent (No 1680) were subsequently granted by the Director-General in respect of further applications that had been made in respect of the whole of the Mining Lease Area soon after this Court had made interlocutory orders on 3 December 2002 suspending the operation of Permit No 1468 and Consent No 1467). 24 The s 87 Permit No 1468 which was granted jointly to Dr Colin Pardoe and Dr Johan Kamminga (both professional archaeologists) authorised (subject to 15 stipulated "General Terms and Conditions" and 18 stipulated "Specific and Special Terms and Conditions") the following activities: To: · Disturb or excavate any land, or cause any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object within the meaning of that term in section 5(1) of the National Parks and Wildlife Act 1974 (NSW) (Aboriginal object); and · To disturb or move on any land an Aboriginal object that is the property of the Crown, in the course of undertaking research, excavation, salvage, collection and storage/curation of Aboriginal objects as described in the Research Design and Study Plan for the Barrick Australia Limited Cowal Gold Project which was Attachment 5 to the application for this permit dated 15 August 2002 (the Application ), as modified by the special and specific conditions contained in this permit. 25 In the present case, it is only necessary to recite the Special and Specific Conditions of Permit No 1468 that the Applicant alleges to have been breached by Dr Pardoe. These are the following: 2. All work shall be carried out in accordance with the Research Design and Study Plan that is Attachment 5 to the Application (the Research Design and Study Plan ) as modified by the Special and Specific conditions applying to the permit. 5. This permit allows for the excavation of site LC1 (NPWS# 43-3-31). It further allows for the salvage, collection and storage/curation of a representative sample of Aboriginal objects located during these works in accordance with Special Condition 12. The excavation shall be undertaken in accordance with the Research Design and Study Plan by a specialist archaeologist nominated by the registered native title claimants for the area of MLA 45 as specified in the Research Design and Study Plan. If the registered native title claimants for the area of MLA 45 advise the permits holders in writing that they do not wish to nominate a specialist archaeologist to undertake these works, the excavation works shall be undertaken by the permit holder and/or his instructed delegates who must be qualified archaeologists. The excavations will however be overseen by a holder of this permit and the nominated archaeologist must comply with any directions from the permit holders. 6. Salvage works at sites LC1, LC2, LC3 and LC4, P1, A, F, G, I, J, K. L, M and N, defined in Attachment S of the Application and situated on the land described in Schedule B of Consent # 1467 shall be completed in the following manner: · A permit holder and/or his instructed delegates shall inspect the land in these site locations and identify surface Aboriginal objects. The Wiradjuri Council of Elders, West Wyalong Local Aboriginal Land Council and Mooka Traditional Owners Council (hereafter the Aboriginal community) shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in recording and collection works. · A representative sample of Aboriginal objects from each site shall be taken. Their position shall be recorded by a GPS and material type and size characteristics shall be noted. They shall then be dealt with in accordance with the procedures outlined in Special Condition 12. · The collected Aboriginal objects shall be replaced in a location as close as possible to their original location at a time when the works within the specific area do not pose a future threat to them. Replacement will be supervised by a permit holder and/or his instructed delegates. The Aboriginal community shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in replacement works. · Remaining Aboriginal objects shall be collected with the soil during soil stripping operations and temporarily stored in soil stockpiles before being replaced during rehabilitation activities. · The Land, Environment and Wiradjuri Heritage Officer shall undertake routine monitoring following replacement as a threat abatement measure. Should this officer identify a likely threat, the officer shall be empowered to halt proceedings. Barrick Australia Limited shall immediately upon notification, investigate the matter, and should the threat be verified, take necessary action to remove or mitigate the threat. 9. Additional works on the Back Plain (as that term is described in the Research Design and Study Plan) - Areas outside of the sites on the Back Plain that are identified in the Application shall be inspected to identify, where possible, other concentrations of surface Aboriginal objects within the Permit Area. The Aboriginal Community shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in inspection and recording works. · Where concentrations of Aboriginal objects are encountered, artefact densities in those concentrations shall be measured across areas of approximately 10m x 10m. Their position shall be recorded by a GPS and the concentrations of Aboriginal objects shall be individually measured and described to provide supplementary detail for subsequent spatial and technological analysis. · The Aboriginal objects shall be left where found to be collected with the soil during soil stripping operations and temporarily stored in soil stockpiles before being replaced during rehabilitation activities. 10. Additional works generally - where the Research Design and Study Plan provides for the inspection of land and the collection of Aboriginal objects other than as referred to in Special Conditions 6, 7, 8 and 9, such inspection and collection shall be carried out in accordance with the procedure contained in Special Condition 6. Where the Research Design and Study Plan provides for the collection of Aboriginal objects located during the monitoring of works being carried out by Barrick Australia Limited, the collection shall be carried out in accordance with the second, third, fourth and fifth dot points of Special Condition 6. 12. All Aboriginal objects subject to salvage and collection shall have their position recorded with a GPS and material type and size characteristics shall be noted. Sufficient data will be taken from each Aboriginal object to enable a technological analysis to be undertaken for report purposes provided always that numbers are large enough for meaningful analysis. This information shall form the basis of a master inventory which must be maintained at all times. After collected items have been closely examined and classified by a permit holder and/or his instructed delegates who must be qualified archaeologists, each collected item that has been classified as an Aboriginal object shall be separately bagged and labelled duplicating the above information and placed in a separate, clearly labelled box detailing the specific area of collection. 26 Condition 2 of Permit No 1468 refers to "the Research Design and Study Plan that is Attachment 5 to the application". This is an eight page document stipulating procedures for "the collection, salvage, excavation, curation and/or replacement of relics from within the Application Area". That Plan designates the relevant land into five separate Zones and stipulates the relevant collection, salvage etc procedures for each zone. The relevant procedure in the present case is that relating to archaeological works at nominated sites situate in the "Lake Edge Ridge Zone". Such works are required to be carried out in the stipulated manner which included the following: 1. Dr Pardoe, or another qualified archaeologist, will inspect the land in the location of these sites and identify surface relics. A representative of the Wiradjuri Council of Elders (the Registered Native Title Claimants) and/or the West Wyalong LALC will be consulted on the programme and will be invited to observe and, where appropriate, participate in (eg recording and storage) works. 2. In relation to an identified relic, Dr Pardoe or another qualified archaeologist will record its position with a GPS and/or map, measure and describe it, separately bag and label it and store it according to its zone location in a Keeping Place at Lake Cowal. 27 The validity of Permit No 1468 and Consent No 1467 was challenged by the Applicant in proceedings brought in this Court. Although the Applicant succeeded in obtaining an interlocutory injunction on 3 December 2002, that injunction was discharged on 19 May 2003 when in my reserved judgment after the final hearing I dismissed the Applicant's challenges to the validity of Permit No 1468 and Consent No 1467: see Williams v Director-General National Parks and Wildlife Service (2003) LGERA 354. (ii) Permit No 1681 and Consent No 1680 28 Permit No 1681 and Consent No 1680 were granted by the Director-General on 28 July 2003 in respect of Aboriginal objects situate within the defined areas of (i) the proposed road upgrade; and (ii) the proposed relocated Travelling Stock Route relating to the Lake Cowal Gold Mine Project. 29 On 17 December 2002, the Solicitors acting for the first to third Respondents lodged with the Director-General applications for a s 87 Permit and a s 90 Consent for the Lake Cowal Gold Project in respect of lands including the Mining Lease Area 45, the borefield, the water pipeline, the relocated travelling stock reserve and the road upgrade. In their covering letter it was stated that the applications were the same as the applications that had been made on 16 August 2002. (It was these earlier applications that had resulted in the issue of Permit No 1468 and Consent No 1467). 30 On 18 December 2002 the Director-General by separate letters advised the present Applicant, the Wiradjuri Regional Aboriginal Land Council, the West Wyalong Local Aboriginal Land Council and the Wiradjuri Council of Elders of receipt of these applications. The Director-General's letter to each of those persons contained the following invitation: In order to inform the Director-General's decision, I am inviting you to submit any new information you may have with respect to the Aboriginal cultural significance of the area subject to the permit and consent applications, or any other information that may be relevant to the Director-General's decision. Any such information should be provided by close of business on 31st January 2003, to: The Manager, Western Aboriginal Heritage Unit National Parks and Wildlife Service PO Box 2111 DUBBO NSW 2830 Any information that you have previously provided with respect to this matter will be taken into consideration and, therefore does not need to be provided again. 31 Included in the responses to this invitation was a letter dated 7 January 2003 from Specialised Native Title Consultants acting for the Wiradjuri Council of Elders which sought clarification on a number of issues, including the following: (i) whether the present applications were identical with the previous applications in respect of (a) the land to which they each applied; and (b) the activities the subject of each; (ii) what was the status of the earlier applications and the Permit and Consent granted in respect of those applications; (iii) what reason had the Mining Company given for making the second set of applications; (iv) why was the Service considering the second set of applications - and was the decision-maker proposing to meet with the Council of Elders and the Condobolin Wiradjuri to hear their views before determining the applications; and (v) requesting a copy of the applications. 32 In his reply dated 20 January 2003, Mr Ardler, the Director of Cultural Heritage, answered each of the matters that had been raised on behalf of the Council of Elders. The answers included the following advice: 1. The current applications were identical with the previous applications in respect of both the land and the activities. 2. No reason had been given by the Mining Companies for lodging the second set of applications. 3. The Service had no power to refuse to consider applications made under the National Parks and Wildlife Act , ss 87 and 90. The letter included the following comment This matter has been on-going for some time, and while NPWS is providing an opportunity for new information to be received, it is assumed that interested parties would have provided any relevant information known to them prior to the issue of the existing consent and permit on 27 November 2002. ……….. Given my inability to agree to your request for an extension of time in which to provide new information, it is considered reasonable that, as the registered Native Title claimants, the Wiradjuri Council of Elders be afforded an opportunity to meet with the decision-maker to inform him on matters of relevance to the decision to be made. That is, the decision-maker is interested in information about the significance of the area subject to the application, the impact of the proposed activities on that significance and the adequacy of any proposed mitigation. On this occasion, the NPWS decision-maker is Mr Michael Wright, Director, Policy & Science. Mr Wright is available to meet with the Council on Friday 31st January 2003. 33 On 10 January 2003 the Applicant responded to Mr Ardler's invitation and requested a copy of the new applications "so that I have an opportunity to make an input to the consultation process if I consider it appropriate" and on 15 January 2003 Mr Ardler provided a copy of the applications (except for "information of a personal nature including outcomes of community consultation…"). 34 The Applicant, by letter faxed to Director-General on 24 January 2003 advised that he and other traditional owners whom he had consulted, were "of one mind that Lake Cowal must not be destroyed in any way", that there was a perception that Barrick and the Service had not fully consulted and that there had not been a proper enquiry into the significance of Lake Cowal to the Wiradjuri Nation and that the traditional owners insisted that the Director-General personally must meet with the traditional owners and visit Lake Cowal "where we are prepared to reveal matters concerning the significance of Lake Cowal". 35 In his letter in reply dated 29 January 2003, the Director-General advised the Applicant that he had delegated his role as decision-maker to determine the current s 87/s 90 applications to Michael Wright, Director Policy and Science, and that that officer would be available to meet with members of the Condobolin Aboriginal Community on 31 January 2003 at Condobolin but was unlikely to have the time to be able to visit Lake Cowal. The Director-General's letter included the following comment: In addition, this matter has been on-going for some time and while the Service is providing an opportunity for new information to be received, it is assumed that interested parties would have provided any relevant information known to them prior to the issue of the existing consent and permit…. 36 In a further letter to the Applicant dated 4 February 2003, the Director-General advised as follows: The Land and Environment Court's decision to suspend the operation of the consent and permit issued on 27 November 2002 does not preclude Barrick Australia from making a further application for consent/permit over the same area. While there is no provision in the National Parks and Wildlife Act 1974, for the NPWS to revoke s90 consent once issued, the Act also does not prevent the NPWS from considering a new consent application for the same activity in the same area. In fact, the National Parks and Wildlife Regulation provides that any application under s90 of the Act, unless granted or refused earlier, is taken to be refused on the expiration of 60 days after the date on which the application was received. Such refusal is then appealable to the Minister for the Environment. I note your objection to the involvement of Mr Terry Korn and Mr Jason Ardler in the determination of the current application. As you are aware, the role of decision-maker previously undertaken by Mr Korn, has now been delegated to Mr Michael Wright, Director Policy and Science. Mr Ardler will, however, continue to provide advice to Mr Wright in this matter. 37 On the same day, the Applicant, by letter faxed to the Director-General stated: Whilst I understand that your officers, Bob Sutherland and Michael Wright are meeting with us at Condobolin on 6 February, I must stress that we do not agree with this consultation process because it is still up to you to come to Lake Cowal yourself as you are the one who bears the responsibility for the Consent to Destroy application. Over the last 12 months you have had many opportunities to come to Lake Cowal but still have not taken this matter as seriously as we expect you to. Also the meeting is scheduled for only one and three quarters of an hour, leaving no time for the meeting at Lake Cowal. We consider it a breach of your duty of care for you to consider the Consent to Destroy application without also viewing the wealth of very significant artefacts that have been collected at Lake Cowal against Wiradjuri Law. 38 On 6 February 2003, a meeting was convened at Condobolin by Michael Wright and Bob Sutherland (representing the Service) with members of the Mooka Traditional Owners (of which the Applicant is Chairperson) and the Condobolin Aboriginal Community. The Applicant was one of 14 Aboriginal attendees. Minutes of the meeting were prepared by the Service in the form of short points attributed to each person who spoke (this included the Applicant) and a CD of the meeting was later provided by the Service to each attendee. 39 The next day (7 February 2003), the same Service officers met in Sydney with the Wiradjuri Council Elders and their consultants (SNT Consultants). Minutes of the Meeting in short point form were prepared by the Service. 40 By letter dated 13 February 2003, four of the five members of the Wiradjuri Council of Elders Negotiating Team advised Mr Ardler, the Service's Director Cultural Heritage, that the decision-maker in respect of the current ss 87 and 90 applications be informed that the Negotiating Team and Barrick had reached "agreement in relation to the principles that will govern the relationship between the parties in relation to Cultural Heritage of Condobolin Wiradjuri as it relates to Barrick's proposed operations" and that the terms of the agreement "do not require any changes to the application by Barrick". 41 By letter dated 20 February 2003, the Applicant made further representations to the Director-General which included the following content: 2. Why does your delegate for the Consent to Destroy, Michael Wright, want more information on significance? Haven't we given you enough in the copy of the Emergency Declaration application to Federal Minister David Kemp and in our meetings. What more do you need. You seem intent to prise our deepest secrets out of us, with the threat: If you don't tell us we'll destroy the place. This is mental harm to members of the group , a definition of genocide in the international criminal court and division 268 of the Commonwealth Criminal Code. 3. How can Michael Wright demonstrate to us that he is not biased, when he has already signed the section 87 consent against our wishes and against Wiradjuri Law? Can you assure us that if you or he is given the full significance the Consent to Destroy will be refused, knowing that will stop the mine from ever going ahead? Is that even possible? 4. Over such an important matter to us you are prepared to delegate your head of science and policy, when he is not even an expert in Aboriginal culture. He's not even an anthropologist or an archaeologist. It is insulting to us for you to delegate a public servant to make a decision which will affect the future health of the Wiradjuri nation. 5. Our invitation still stands for you to come to Lake Cowal, but we are always told that you are a very busy man. Are you so busy that in the last year you have not been able to come to our sacred heartland of Lake Cowal? Instead, your lawyers have spent numerous trial days in court, which uses up so much resources. 42 At this point of time there is in the documentary evidence a time gap until 28 July 2003 when Permit No 1681 and Consent No 1680 were issued. It was during this interval that the final hearing of the Applicant's challenge to the validity of Permit No 1468 and Consent No 1467 took place and my reserved judgment was delivered on 19 May 2003 dismissing the Applicant's challenges. 43 On 28 July 2003 Mr Terry Korn, Director Western issued Permit No 1681 and Consent No 1680. Both the Permit and the Consent were expressed to apply to any Aboriginal objects situate within the lands described as (i) the area of the proposed road upgrade; (ii) the area of the proposed relocated Travelling Stock Reserve. The Permit, which was issued to Dr Pardoe and Dr Kamminga, authorised the following activities "in the course of undertaking salvage, collection and storage/curation of Aboriginal objects as described in Attachment 5 to the application dated 15 August 2002" namely - (i) the disturbance or excavation of land for the purpose of discovering an Aboriginal object; and (ii) the disturbance and movement of Aboriginal objects that were the property of the Crown. The Permit was issued subject to a number of "Special and Specific Conditions" and to "General Terms and Conditions". 44 The s 90 Consent which was issued to Barrick Australia Limited authorised the destruction of Aboriginal objects. It too was issued subject to "Special and Specific Conditions" and to "General Terms and Conditions". The consent to destroy Aboriginal relics was subject to prior certification that archaeological works and salvage works that were authorised by the Permit (No 1681) had first been undertaken. (Like Permit No 1468 and Consent No 1467, it is apparent that Permit No 1681 and Consent No 1680 were interrelated and the authorisation conferred by the s 90 Consent was subject to the prior satisfaction of the archaeological and salvage requirements of the s 87 Permit). 45 Since the present proceedings do not involve any allegations of breaches of Permit No 1681 or Consent No 1680, it is not necessary to refer in detail to the relevant regimes imposed by the conditions. (It is to be recalled in this respect that I refused leave for the Applicant to further amend his claims by including a fresh claim alleging a breach of conditions of Permit No 1681: vide par 8 of these reasons). 46 It is necessary however (in view of the Applicant's claim founded on alleged defect in procedure), to refer to the Issues Paper containing the recommendation by Mr Sutherland (the Manager Western Aboriginal Heritage Unit) and Mr Ardler (Director Cultural Heritage) that the applications be approved. That Issues Paper explains the circumstances how the then current ss 87 and 90 applications (which had undergone the assessment process by the Service in the manner that I have described), ultimately were considered to require only a determination in respect of so much of those applications that related to the proposed road upgrade and the relocated Travelling Stock Reserve. 47 This was because, in the course of that assessment process, this Court on 19 May 2003 delivered its final decision in proceedings challenging the validity of Permit No 1468 and Consent No 1467 in which it dismissed the Applicant's challenges and discharged the interlocutory injunctions that had been granted on 3 December 2002: see Williams v Director-General National Parks and Wildlife Service (2002) 127 LGERA 354. This outcome meant that Permit No 1468 and Consent No 1467 were in force according to their terms and apparently the Service considered that there was therefore no need to determine the then current applications in their entirety, but rather only in respect of the matters not covered by Permit No 1468 and Consent 1467. 48 The Issues Paper after noting that final outcome in that litigation states: As a result, the road upgrade and relocation of the travelling stock route remain undetermined 49 The Issues Paper next considers "Aboriginal Consultation". Firstly it notes "previous Aboriginal Consultation" by reference to Annexures A and B to the Paper which are copies of the Issues Papers that were prepared by the Service in respect of the previous decisions to issue Permit 1361 and Permit 1468 and Consent 1467. (Permit 1361 was the first of the s 87 Permits issued in respect of the Lake Cowal Gold Mine Project. The validity of that Permit was also challenged by the Applicant in earlier proceedings and that challenge was dismissed on 6 September 2002: see Williams v Director-General of National Parks and Wildlife [2006] NSWLEC 154.) Under the heading "Current Aboriginal the Consultation" Issues Paper states: Current Aboriginal Consultation NPWS sent letters to all Aboriginal groups with a known interest in the project informing them of the new application and inviting any further comment relating to cultural heritage concerns over and above those that had previously been received. In response NPWS representatives Mr Michael Wright and Mr Bob Sutherland met with the Condoblin Aboriginal Community on 6th Feb 2003. Despite a representation of 13 people no compelling additional information was presented nor was any increased substantive weighting given to the significance of existing information. The information that has been presented throughout this process in relation to social significance could best be summarised as generic rather that specific and empowering. The following day the same NPWS representatives met with the Wiradjuri Council of Elders and Specialised Native Title Consultants who are providing specific assistance to the Elders. The WCE believe they have the mandate to speak for the wider Aboriginal community since they are the only body to have passed the Native Title Registration test as being a representative group. This group did provide some new information however, NPWS is comfortable that their concerns are addressed by these consent conditions. This group has subsequently entered into a separate agreement with Barrick Australia to manage cultural heritage concerns for themselves. 50 After briefly noting the then current position with respect to (i) the Applicant's pending application to the Federal Minister for an Emergency Declaration under the Aboriginal and Torres Strait Island Protection Act 1984; (ii) matters concerning Native Title; (iii) the Applicant's pending application for declaration of an Aboriginal Place pursuant to the NP&W Act, s 84 the Issues Paper concludes with the following recommendation: Present Situation The assessment of the two areas is straightforward. No new sites were located and the conditions that have been applied relate to the management of objects/sites that might eventuate during works. These are consistent with that approaches developed for the current consent. Recommendation It is recommended that the consent and permit be approved. 51 By letter dated 18 September 2003 faxed to the Director-General, the Applicant complained that he had only just learned (from the contents of a copy of the draft Indigenous Archaeology and Cultural Management Plan that had been provided to him by the first to third Respondent's Solicitors) that Permit No 1681 and Consent No 1680 had been issued on 28 July 2003 "without giving the Mooka and Kalara Traditional Owners any opportunity to be consulted". The Applicant's letter continued: My legal representative spoke to Mr Terry Korn, who signed off the consents and permits, and he told my representative that he was not aware that I had not been consulted. Despite your negative attitudes to the Mooka and Kalara traditional owners generally, you have always at the very least stated that the policy of the NPWS was for a consultation process to be carried out usually by the proponent. As you may be aware, on an occasion when there was tension between myself and the company, the NPWS had carried out the consultation. You have given me the expectation that a consultation process would be carried out if consents and permits are to be issued. 52 By letter dated 24 September 2003 Mr Ardler responded to the Applicant's letter by advising as follows: Permit/consent 1680 and 1681 were issued with respect of works associated with the upgrading of the access road at Lake Cowal. These works formed part of the original s90/s87 application submitted by Barrick Australia in December 2002. Although the road upgrade works were not included in the original permit/consent issued, the NPWS is satisfied that they form part of the activity subject to previous community consultation by Barrick Australia. It is on this basis that the NPWS determined to issue the consent/permit for the access road upgrade without requiring additional consultation. 53 The Applicant, by letter dated 8 October 2003, informed Mr Ardler that his response was "totally unsatisfactory" saying To add more land to the existing permit/consent 1680 and 1681 without any warning or consultation is a breach of the culture and heritage protocols ASK FIRST . 54 His letter continued: Your department is very aware that Mooka and Kalara united families are traditional owners for the lands in question, yet you blatantly ignore us. I have never been consulted about the archaeological survey of the road and I was never given any opportunity to be shown what the works involve. You are very aware that our culture is not defined by archaeology. Cultural sites and sacred sites can exist without archaeological evidence. I am not satisfied that Colin Pardoe is a fit and proper person to hold such a permit and I will be making a complaint to HREOC over his discriminatory behaviour. I am against the way you have acted, particularly as you are an Aboriginal person and have shown complete disregard and disrespect to traditional owners of the area. You have never once attempted to have a meeting with me to discuss my ongoing concerns. A number of these consents have been granted on your advice, which is misleading and false regarding the significance of Lake Cowal, which is our sacred heartland. This was made clear from the very beginning. 55 The Acting Director-Cultural Heritage replied by letter dated 28 October 2003 stating: With reference to your dis-satisfaction relating to my reply of 24th September 2003 on behalf of the Director-General I can only advise that it is duly noted. Nevertheless, the reasoning outlined remains valid. As stated the road upgrade and TSR relocation have always been an integral part of the development as outlined in EIS documentation and S90/87 application. Permits 1680 and 1681 do not constitute either an additional area to an existing application or a new application. These two components were subject to DA approval by the Bland Shire Council as determining authority under part 5 of the EP&A Act. Since NPWS had no notification of the determination status of these components they were omitted at the time of original issue. When this advice was received the permits (1680 and 1681) were issued to complete the response to the original application. The Department of Environment and Conservation (formerly NPWS) will not enter into your allegations of discriminatory behaviour on behalf of Dr Pardoe as permit holder. Clearly you have identified an appropriate organisation in which to pursue this matter if you choose. (iii) The Amendment of Permit No 1468 56 On 27 October 2003, the Director-General amended Permit No 1468 by issuing an Amended Permit. The Permit was amended in response to a number of requests made by the Solicitors acting for the first to second Respondents following the commencement on 29 May 2003 of the present proceedings. The written requests sought specific amendments to a number of the special conditions that had been imposed by the Permit. 57 There is no need to recite the content of these amendments at this stage in the proceedings because that content is not relevant to any of the Applicant's claims in these proceedings. In particular, it is not relevant to the Applicants' allegations of breaches of the conditions of Permit No 1468 all of which allegations relate to conduct that occurred prior to the amendments being made to the Permit. (However, the amendments may become relevant to the question of the Court's discretion in granting or withholding relief in the event that the Applicant substantiates any of his allegations of breaches of the conditions, but that question, if it arises, will be reserved in accordance with the common position adopted by the parties that I have earlier noted). 58 However, it is necessary to note the process whereby Permit No 1468 came to be amended in order to adjudicate upon the Applicant's claim that the amendments are void because of alleged defect in procedure. 59 By letter faxed to the Director-General on 12 June 2003, (which principally raised allegations based upon evidence that had been given at the hearing of the Applicant's claim to interlocutory relief that the Permit conditions had been breached by Dr Pardoe in his work undertaken between 23-29 May 2003) the Applicant advised that he had been informed by the Mining Company that its Solicitors had requested amendments to Permit No 1468 and that he wished to be consulted about these changes and "expect you to contact me about such consultation". In his letter dated 13 August 2003, the Director-General replied in the following terms: I generally require that applicants for permits demonstrate to the Service that they have consulted with the Aboriginal community. Beyond this, consultation either by applicants or the Service itself is something that depends on the particular circumstances. An example of when I would not normally consider that further consideration would be valuable was when all that was proposed was clarification of language to remove ambiguity or express more clearly the decision that had been made. Accordingly while I do not exclude the possibility that you may be consulted in relation to any amendment application, I do not give you any undertaking that you will be. You are of course aware that I am able to vary the conditions of s.87 permits at any time, and you are not limited to any formal consultation process in making submissions for changes to any condition. 60 By separate letters each dated 26 September 2003, Mr Bob Sutherland (Manager Western Aboriginal Heritage Unit) advised (i) the Applicant; (ii) the Wiradjuri Condobolin Culture and Heritage Company Pty Ltd (the WCC); and (iii) the West Wyalong Local Aboriginal Land Council in the following terms: The Director-General has received a request to vary, pursuant to s.87(4)(b) of the NPW Act, Permit 1468 issued to Dr Colin Pardoe and Dr Johan Kamminga on 27th November 2002 in relation to the gold mining project at Lake Cowal. Please find attached copies of: 1. letter dated 28 May 2003 seeking amendment to special condition 6 relating to the timing of conservation works; 2. fax dated 5 June 2003 seeking amendments to special condition 6 relating to collection of Aboriginal objects; 3. letter dated 8 August 2003 seeking amendment to various special conditions; 4. fax dated 12 August 2003 seeking amendment to condition 9; 5. copy of how Permit 1468 would look if amendments were made. The decision to vary a condition of a permit is solely the responsibility of the Director-General under the NPW Act. That responsibility can however be exercised by a delegate. If you wish to make any comment about the requested amendments, please put them in writing and ensure that they are received at PO Box 2111, Dubbo 2830 no later than 7th October 2003. A decision in relation to this request to vary will be made in the week commencing 13th October 2003. Any representation or submission you may wish to make can only be considered in relation to this request for variation if it arrives in time. Anything that arrives too late for this decision whether or not to vary may however be considered at some future date as the Director-General's power to vary may be exercised at any time. 61 In the Issues Paper (Exhibit A/4 Document 8) culminating in the recommendation that Permit No 1468 be amended in the manner sought by the first to third Respondents under the heading "Background" the following is included: Despite comprehensive assessment and investigation of heritage values the Lake Cowal Project has been beset by ongoing legal challenges in the Land and Environment Court and more recently under the Federal Aboriginal and Torres Strait Island Heritage Protection Act . The challenges have concerned both the validity of the issued Permits and Consents and alleged breaches of the permit conditions by the developers involved in on the ground operations. These challenges have come from a very vocal minority group of Aboriginal people referring to themselves as the Mooka Traditional Owners. None of the challenges have thus far been upheld but court ordered stoppages while matters were investigated has meant that the developers have been unable to comply with the timing of some parts of the permit conditions. Specifically this relates to certain protection works being completed within 90 days of issue of the permit. Since works were suspended by court order beyond this timeframe compliance was not possible. 62 Under the heading "Consultation" the Issues Paper states: The WCC have no objections to the amendments and in fact as can be seen above are a part of the reason for them. Mooka Traditional Owners however, since the issue of the first permit have refused to be consulted by the developers. On September 26th 2003 the Western Aboriginal Heritage Unit provided the Mooka Traditional Owners with comprehensive documentation relating to the proposed changes and invited a response by October 7th 2003. The documentation forwarded to Mooka Traditional Owners included each of the letters from the developers seeking the amendments, the reasons for the proposed changes and a draft copy of the permit should approval be gained. No response was received. A copy of the correspondence sent to the chairman of the Mooka Traditional Owners is attached as appendix A for your information. 63 The Issues Paper contains the following "conclusion" and "recommendation": As stated at the outset, cultural heritage investigations at Lake Cowal have been exhaustive and the conditions of the permit ensure that maximum information is obtained from artefact distributions across the mining area such that heritage values are well understood prior to earthworks, construction or operation. It is not necessary for work to stop every time a previously unknown artefact is discovered. Should an object of an unusual nature be discovered, the permit conditions allow for Wiradjuri people engaged on the project to make active decisions about the management of their own heritage items without the mandatory involvement of DEC Cultural Heritage Branch staff. The exception to this is the highly unlikely disturbance of aboriginal human remains. Modification of this condition would benefit the Cultural Heritage Branch operationally since it would negate the requirement for all attendance by DEC Cultural Heritage Branch staff unless assistance is specially requested from the Aboriginal community. Thus it would allow greater workability and ensure consistency between approvals. Recommendation It is recommended that the Permit 1468 (Attachment B) be amended as presented and issued. 64 The Issues Paper is signed by no fewer than six designated officer holders including Mr Korn who signed and issued the amended Permit No 1468 on 27 October 2003. C. THE DISPUTED EVIDENCE RELEVANT TO THE APPLICANT'S CLAIMS AGAINST THE FIRST TO THIRD RESPONDENTS 65 Factual disputes are confined by the evidence to the following claims made by the Applicant in these proceedings - (i) the allegations of breaches of conditions of Permit No 1468 on two separate occasions - namely (a) between 23 and 29 May 2003; and (b) between 12 to 20 August 2003; and (ii) the allegation that the first Respondent unlawfully racially discriminated against the Applicant. (i) Allegations of breaches of Permit No 1468 between 23 and 29 May 2003 66 According to the Applicant's Further Amended Points of Claim filed in Court on 16 March 2004, it is alleged (vide paragraphs 7, 8 and 9), that during the abovementioned period the first Respondent failed to comply with Special Conditions 2, 5, 6, 9, 10 and 12 of Permit No 1468. The terms of these Special Conditions are recited in par 25 of these reasons. The following particulars were provided in support of these allegations: i) the First Respondent did not describe any collected Aboriginal Object before they were bagged; ii) the First Respondent did not separately bag each object and in one case on site LC 1 admitted under oath that over 200 objects were placed in four bags; iii) the First Respondent did not carry out any prior inspection prior to the collection; iv) the First to Third Respondents used untrained security personnel to collect Aboriginal Objects; and v) there is no evidence that other Aboriginal Community representatives had been properly notified that the collection was to take place and they could attend. 67 At the hearing, particulars (iii) and (v) were not pressed by the Applicant in support of his allegations of breaches of Special Conditions 2, 5, 6, 9 and 10. 68 In addition to these allegations, par 10 of the Further Amended Points of Claim alleges a failure by the first Respondent to comply with Special Condition 12 "by not maintaining a master inventory of the collected Aboriginal objects". 69 The only evidence relied upon by the Applicant in support of his particular of breach of condition that Aboriginal objects were "not described before they were bagged" is par 51 of Mr Pardoe's affidavit sworn 5 June 2003 which states the following: Yesterday when preparing my affidavit I recognised an issue about the operation of special condition 6 which had not previously registered with me. It is the requirement contained in the third paragraph for the material type and size characteristics of Aboriginal objects to be noted. There is an identical requirement in the first sentence of special condition 12. The practice Dr Kamminga and I followed in implementing permit 1361 dated 23 May 2002 was to bag lithic items in the field and record their GPS location but defer documenting material type and size characteristics until the analysis stage which also involves expert determination as to whether a collected lithic item is in fact an Aboriginal object. If special condition 6 requires material type and size characteristics to be recorded in the field rather than during the analysis stage, that is an inappropriate and unreasonable requirement. It is inappropriate because the recording of this data is only germane once an item has been identified as an Aboriginal object. The bagging of items and the GPS recording of them ensures that the analysis and identification of material type and size characteristics can be performed later in time without any attendant disadvantage. If an archaeologist had to record material type and size characteristics in the field it would disrupt the inspection and collection phase and would result in inactivity for the Wiradjuri assistants and other parties. It is more accurately and reliably done on a workbench with the assistance, where required, of binocular microscopy. If the recording of material type and size characteristics is deferred to the analysis stage it has the benefit of permitting me and Dr Kamminga to train the Wiradjuri assistants to weigh and measure objects and maintain database entries whilst I or Dr Kamminga are making the determinations as to the material type and as to whether particular lithic items are Aboriginal objects. Because it is unclear to me whether I am permitted or not permitted to defer recording material type and size characteristics until the analysis stage, I will correspond with the National Parks and Wildlife Service today requesting that the operation of the Permit be clarified by deleting the reference to material type and size characteristics from special condition 6. 70 The context of this evidence is Dr Pardoe's description of the archaeological works that he undertook or supervised during the period 23-29 May 2003. His description of those works (which was not challenged or rebutted and which can readily be accepted) includes the fact that all potential Aboriginal objects that were observed during the inspection process were collected (even though the obligation imposed by Special Condition 6 was that a "representative sample" be collected). 71 In this respect, the contents of par 49 of the affidavit should be noted where Dr Pardoe opines that there will be a percentage of items thus collected which at the analytical stage will be found to be not Aboriginal objects and for that reason the collected materials should, before analysis is undertaken, be more appropriately regarded as "lithic items" (rather than Aboriginal objects). 72 The only evidence adduced in support of the allegation that the first Respondent did not "separately bag" each object collected is some documentary material that appears to have emanated from Dr Pardoe presenting either to the Service or his client (or both) in computer print-out format, details of lithic objects (a total of 1094 separate items) collected during the inspection and collection process undertaken in the period 23-29 May 2003. That print-out material includes in one of the columns of the tabular format the heading "pieces", and in that column there are numbers recorded presumably indicating a number of pieces eg 1, 2, 3, 4 of which the highest number recorded is 100. 73 This documentary evidence had also been tendered at the hearing of the Applicant's claim to interlocutory injunction (see paragraph 23 of my earlier judgment [2003] NSWLEC 150). However, it is significant that although there was direct evidence very relevant to this matter given at that hearing by Dr Pardoe (under cross-examination) that evidence was not repeated or otherwise adduced during the present hearing. Hence, the only evidence was the documentary material that I have described. 74 The only evidence adduced in support of the particular of breach that the first to third Respondents "used untrained security personnel to collect Aboriginal objects" is contained in the transcript of the evidence that was given at the hearing of the Applicants' claim to interlocutory relief by Mr Harry Browne, an employee of the security company providing services to Barrick at Lake Cowal. That transcript which was tendered at the final hearing (Exhibit A/1) includes the following testimony given under cross-examination by Mr Browne:- Q. During the inspection did you touch or collect any artefacts? A. No. I just pick up a couple of stones and I asked Dr Pardoe to have a look at it.

Williams v Pardoe and Ors.

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Judgment (22 paragraphs)

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Cases Cited (13)