Williams v Pardoe & Ors

Williams v Pardoe & Ors - [2003] NSWLEC 150 - NSWLEC 2003 case summary — Zoe

[17]

Further light on the basis for the Applicant's claims is provided by the content of his facsimile transmission to the Director-General sent on 29 May 2003 in the following terms: I am writing this letter as a matter of urgency. On the 19th of May, 2003 The Land and Environment Court dismissed my Application to invalidate the permit and discharged the injunction. On the 20th of May 2002, I was handed a letter from the solicitors of the mining company notifying me pursuant to the permit that a collection was to take place. The Notice invited me to attend and observe the process. Enclosed is an affidavit I have sworn testifying to the facts of what occurred at the collection. His Honour in the Court was critical I have not written to you sooner. I have sort (sic) a further declaration from the Federal Minister, I am also making applications in the Federal Court for an injunction to stop the current work being carried out by Pardoe. I have lost most of my confidence that you have any sense of duty to protect Aboriginal Heritage, when it comes to Lake Cowal. You have made decisions based on lies and falsehoods. You have allowed Aboriginal People like Mr Ardler to act like a Native Police to attack our culture. But with the urging of the Judge I request you investigate the unprofessional conduct, the disrespectful attitude and disregard to Wiradjuri Law by Pardoe. To me the permit and consent you issued is little better than organised vandalism of our sacred sites. At least Pardoe and Barrick could do their destruction with a little diligence. I will not stand by and watch Wiradjuri Young people being illegally abused and exploited. Specific breaches I observed include: Work being carried out without being notified. No collection of representative samples Unprofessional conduct by permit holder eg his inability to identify, describe and record Aboriginal Objects. No video or photographs were taken. History being destroyed without record. This is cultural genocide within The Wiradjuri Nation. Bias negative attitude to the artefacts: The blades I found were of great interest and not only culturally but archaeologically I have learned from Wilfred Shawcross and David Johnson. Yet pardoe is shooing me like I am a child. Discrimination: no respect for Traditional Owners, use of teenage labour, superior attitude, I am asking you to act with utmost urgency and stop the current permit collection until a proper scientific and culturally appropriate method is a t least employed. As I have stated I have little confidence you will do the right lawful and moral thing for cultural heritage at Lake Cowal I do not wish to resort to the Courts but I have little choice, as you have failed to fulfil your proper duty to care for our sacred heritage.

[43]

Special Condition 6 is in the following terms: 6. Salvage works at sites LC1, LC2, LC3, 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 outlines 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.

[45]

Paragraph 51 of Dr Pardoe's affidavit 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 fro 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 and 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.

[48]

The principles governing the exercise of judicial discretion for the granting of interlocutory injunctions are comprehensively discussed in the following passage of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 - 154: The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. Recently two members of this Court have held that the plaintiff must establish that there is a serious question to be tried, to use the expression favoured in American Cyanamid v Ethicon Ltd [1975] AC 396 at 407, in preference to the prima facie case test which was adopted in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 525 Gibbs CJ); Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284 (Brennan J). In my opinion that is the correct test to be applied at least in the majority of cases - see Mason J, Declarations, Injunctions and Constructive Trusts (1980) 11 University of Queensland Law Journal 121 at 128; but cf Administrative & Clerical Officers' Association v Commonwealth (1979) 53 ALJR 588. However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned.

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Judgment (72 paragraphs)

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