JUDGMENT
Introduction
1 On 3 August 1999, the Minister for Urban Affairs and Planning granted approval under s 115B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") for the erection of an electricity transmission line (ETL) 105 kilometres long within a 200 metre wide corridor of land from Temora to the Cowal Gold Project ("the ETL corridor").
2 On 1 August 2004, the first respondent, the Director General of the Department of Environment and Conservation ("the DEC")(formerly, the National Parks and Wildlife Service ("the NPWS")), granted approval under s 87 of the National Parks and Wildlife Act 1974 ("the NPW Act") to the third respondent, Dr Colin Pardoe, to collect and relocate Aboriginal objects within the ETL corridor. On the same day the first respondent also granted consent under s 90 of the NPW Act to the second respondent, Country Energy, to carry out the destruction of Aboriginal objects within the ETL corridor.
3 The applicant, Mr Neville Williams, states in his affidavit that he is a member of the Wiradjuri Nation and a traditional owner of land and waters within the ETL corridor. Mr Williams is also chairperson of the Mooka Traditional Owners Council. He seeks a declaration that both the s 90 consent and the s 87 permit are invalid, and a declaration that the first respondent denied him natural justice and failed to afford him procedural fairness in making the decision to issue the consent and the permit. Additionally, Mr Williams claims that Dr Pardoe failed to notify him of the Aboriginal objects located and identified during the surveys conducted on the ETL corridor, in breach of s 91 of the NPW Act.
The issues
4 The following issues arise for determination:
(a) Whether Mr Williams had a legitimate expectation that he would be consulted in the identification and assessment of items of Aboriginal culture within the ETL corridor.
(b) If so, whether the respondents failed to meet that legitimate expectation.
(c) If so, whether such failure to meet that expectation amounted to a denial of procedural fairness.
(d) Whether the first respondent (by her delegate) took an irrelevant consideration into account.
(e) Whether the first respondent failed to take relevant considerations into account.
(f) Whether there was actual bias or apprehended bias on the part of the first respondent in dealing with the matter in the course of making the decision.
(g) Whether the failure of the first respondent to have all the relevant documents before her amounts to a denial of natural justice.
(h) Whether the decision of the first respondent was manifestly unreasonable.
Background facts
5 An environmental impact statement (EIS) was prepared and considered prior to the approval of the ETL in 1999. That EIS included an assessment of the impact of each potential corridor route on Aboriginal cultural heritage. In particular, an archaeological survey recorded the existence of eight archaeological sites and five sensitive areas potentially within the ETL corridor. The EIS archaeological survey was undertaken in conjunction with Mr Roley Williams, Site Curator of the Wiradjuri Regional Aboriginal Land Council and in consultation with Mr Bill Rutter, Chairperson of the West Wyalong Local Aboriginal Land Council. Representatives from the Young Local Aboriginal Land Council ("the Young LALC") also participated in the survey work.
6 Conditions 32, 33 and 34 of the approval specifically relate to Aboriginal archaeology and heritage. Those conditions require a permit to be obtained under the NPW Act and the carrying out of a further archaeological assessment within the ETL corridor. Country Energy sought tenders for an archaeological survey to be carried out for the purposes of its application for the permit and the consent.
7 On 1 April 2003, Dr Pardoe submitted a tender to Country Energy for the archaeological assessment of the ETL corridor. The tender provided a budget of costs, which estimated the costs of the Temora Aboriginal monitor at $400.00 per day and the costs of the Condo/West Wyalong monitor at $235.00 per day, for a total period of 10 days. Country Energy subsequently accepted Dr Pardoe's tender.
8 From April to June 2003, Dr Pardoe, conducted an archaeological survey of four of the archaeological sites identified in the EIS, which were potentially within the ETL corridor. Dr Pardoe states in his report that he was accompanied by a representative of the Wiradjuri Condobolin people in the northern section of the ETL corridor, and by a representative of the Young LALC in the southern section. Mr Williams states, in his affidavit, that he did not participate in the survey and was not informed that it was to be carried out.
9 In late August 2003, Country Energy placed a public notice in the Koori Mail, the National Indigenous Times and local newspapers advising of its intention to apply for a permit under s 87 and consent under s 90 of the NPW Act in relation to the ETL project. The notice invited persons or groups who wished to be involved in the consultation process to contact Country Energy before 12 September 2003.
10 On 21 August 2003, Country Energy wrote directly to the Wiradjuri Council of Elders ("the WCE"), the Young LALC, Wiradjuri Condobolin Corporation Pty Limited ("the WCC"), and Mr Williams acting on behalf of the Mooka Traditional Owners Council and Kalara native title claim group (A6001/02), seeking consultation meetings concerning its intended application. The WCE did not pursue any consultation with Country Energy. At a subsequent meeting on 21 January 2004, a representative of the Young LALC stated that she agreed with the proposed approach and had no further comment. The WCC consulted with Country Energy at a meeting on 24 September 2004 and advised that it did not object to Dr Pardoe's advice and recommendations relating to cultural heritage management and that it wished to be involved in monitoring the construction of the development and in any management recommendations for sites of significance.
11 On 5 September 2003, Mr Williams sent a letter to Country Energy on behalf of the Mooka Traditional Owners Council requesting to be consulted about the application. Mr Williams also stated that if the permit and consent were to be granted, he wished to be involved in the development of protocols concerning Aboriginal cultural heritage management and also wished to be involved in any archaeological inspections. He also requested detailed topographical maps of the ETL corridor and anticipated a future consultation meeting.
12 On 12 September 2003, Country Energy sent a letter to Mr Williams inviting him to a meeting to discuss the findings of the survey conducted by Dr Pardoe. In that letter, Country Energy advised Mr Williams that it was not made aware of the Mooka Traditional Owners Council at the time that the survey was carried out by Dr Pardoe. Country Energy attached a fact sheet to the letter, which gave information on the application and stated that persons could make oral or written submissions in respect of the application to the relevant Country Energy representative. The fact sheet stated that Country Energy must receive those representations or submissions by 5:00pm on 12 September 2003 and they would be documented and forwarded on to the NPWS.
13 The meeting referred to above took place on 24 September 2003 and was attended by Mr Terry Miller of Country Energy, Mr Peter Cribb of Resource Strategies, Dr Pardoe, and Mr Williams together with his advisor, Ms Eleanor Gilbert. Mr Williams states in his affidavit that he could not make any constructive comments on the application until he had physically inspected the area himself. The second respondent's report on the meeting (Attachment 4 to its application) states:
Neville Williams was specifically asked to comment on the proposed management recommendations. Neville Williams' position was that, as he had not been involved in the archaeological survey in 2003, the survey was inadequate and the entire ETL Corridor must be resurveyed with his involvement. He also indicated his strong view that Dr Pardoe was not suitable because of his involvement with Barrick and the Cowal Gold Project. Country Energy again tried to obtain his comments on the proposed cultural heritage management regime, but none were forthcoming. Country Energy asked that if he had any further comments they should be put in writing to Country Energy.
14 Mr Williams notes in his affidavit that Mr Miller and Mr Pardoe were present at the meeting and describes his conduct at the meeting as follows:
At that meeting, I informed Mr Miller that it is impossible for me to make any constructive compacts [sic] on the s 87/90 application until I had physically inspected the area myself. I also questioned the effectiveness of the [sic] Dr Pardoe's survey methods as he carried out a large part of the survey by driving in [sic] four wheel drive. As far as I was concerned the only way to do an archaeological survey was by walking the ground.
15 Ms Gilbert states in her affidavit that Mr Williams never said in the meeting that he was the only person who understands Wiradjuri culture. She also states that she has worked with Mr Williams for over 14 years and during this time he has consistently claimed to be one of the traditional owners of Lake Cowal.
16 On 7 October 2003, Country Energy sent a letter to Mr Williams requesting him to submit any written comments on the proposed cultural heritage management regime. Mr Williams replied by letter the following day, stating that the archaeological survey needed to be redone with his involvement and by another independent archaeological consultant. He also stated "I will not be satisfied until we are able to walk the whole transmission line" and reiterated his complaint that the survey was conducted from a four-wheel drive vehicle. Mr Williams made no comment in his letter about the findings or recommendations of the EIS archaeological assessment nor the 2003 archaeological assessment carried out by Dr Pardoe and no comments on the cultural management regime proposed by the application. Mr Miller, of Country Energy, replied to this letter on 6 November 2003.
17 On 2 April 2004, Dr Pardoe completed a report entitled Country Energy Temora-Cowal Gold Project Electricity Transmission Line Cultural Heritage Survey ("the Pardoe Report"). The Pardoe Report contains the following general conclusion (at p 21) concerning Aboriginal objects within the ETL corridor:
Material evidence of past Wiradjuri land use was found within the Approved Corridor in the form of 131 lithic items, one scarred tree, and 4 areas with heat retainers (ground ovens). No burials were found in the Approved Corridor. No soil changes indicative of residential areas were seen. The density of both sites and individual 'Aboriginal objects' was exceedingly small. 'Aboriginal objects' were found within less than 10% of the preliminary pole locations and disturbance areas.
Artefacts may exist under the surface of land in the Approved Corridor. Such lithic items would be of the same general nature as those seen on the surface. Artefacts are more likely to be found under the surface in those few undisturbed areas within the Approved Corridor, eg close to existing and well-defined streams, than in disturbed areas. Artefacts in disturbed areas may be under the surface because of the disturbance caused by ploughing.
In light of the topography, environment and land use history of the Approved Corridor, the nature and distribution of 'Aboriginal Objects' in the Approved Corridor generally is highly likely to reflect the above findings. That is, 'Aboriginal objects' are only likely to exist in relation to about 10% of the Approved Corridor. The area with the greatest potential for 'Aboriginal objects' to exist is near creeks.
18 The Pardoe Report contains recommendations for cultural heritage management, which were incorporated into the Research Design and Study Plan. Those recommendations were included in the s 87 permit through special and specific condition 2 of the permit, which requires all work to be carried out in accordance with the Research Design and Study Plan.
19 On 5 April 2004, Country Energy and Dr Pardoe lodged an application with the first respondent for a permit under s 87 and consent under s 90 of the NPW Act. The Pardoe Report and the Research Design and Study Plan were among the documents included in the application. The application form contains the following statement regarding the consultation undertaken:
IMPORTANT: A letter from the relevant local Aboriginal group(s) which shows its views on the proposed development/activity must be attached, or attach evidence of attempts to obtain these views.
20 On the same day, Country Energy sent a copy of the report and a copy of Dr Pardoe's Research Design and Study Plan to Mr Williams, to the WCC and to the Young LALC. The covering letter advised that if the parties had any further submissions to make, they should make them to Country Energy within the next two weeks. By facsimile dated 13 April 2004, Mr Williams advised Mr Miller that the Mooka and Kalara traditional owners had been denied any inspection of the ETL corridor and reiterated that he could not make any constructive comments on the application, nor should he be expected to do so, until he inspected the area himself. Mr Williams also again questioned Dr Pardoe's survey methods.
21 In a file note dated 15 April 2004, Mr Allan Hutchins, Archaeologist for the Culture Heritage Branch of the DEC, made the following observations:
2. … Section 91 location of objects must be notified to DG in prescribed manner, Reg 91 in a written form approved by the DG.
3. Suspect Williams will be all over this as shoddy work because site cards not completed.
4. WCC ….
5. Conflicting views about involvement- Report says Max Lambe and Tiara Dunn were representing WCC. Percy Knight, CEO of WCC says does not even know Tiara Dunn. Max Lambe is a Condobolin man but was not appointed to work on ETL by WCC. He believes they were directly employed by Barrick at the time. …
…
9. Mooka ( Williams)- No meaningful response to efforts to consult- his opinion, everything wrong with the report and the consultant without even bothering to read. Survey was inadequate, whole thing needs redoing. Aggrieved that he was not involved in the survey as was his right as a (claimed) traditional owner. He claims to be the only person who can understand Wiradjuri culture. CE have been dealing with wrong people. CE, Pardoe and Co are all white supremacists. Despite attempts to obtain comments about management recommendations none were obtained. This is despite him having previously informed CE by earlier letter that he wishes to be involved in development of protocols for CH management particularly salvage and destruction.
…
11. … With the advent of WCC, West Wyalong LALC deferred to them. Pardoe asked WCC for a participant in the work as soon as WCC became incorporated and Tiara Dunn was appointed. …
22 On 20 April 2004, Dr Pardoe sent a letter to Mr Hutchins, which acknowledged an error in his report concerning his consultation with the WCC and stated:
In short, although the WCC was consulted about the results of the survey, the recommendations made in my Report and the Section 87/90 Application, it was not consulted prior to the survey and did not participate in the survey. This is because it was not established until after the survey in the northern section of the ETL Corridor had been completed.
23 In the same letter, Dr Pardoe stated that Mr Max Lambe assisted him with the fieldwork in April 2003 and that he understood that Mr Lambe was acceptable to the Wiradjuri Condobolin People until such time as their own cultural heritage company was established; that in mid April 2004, Dr Pardoe became aware that Mr Percy Knight was nominated as the contact person for the Wiradjuri Condobolin People; and when consulted by Dr Pardoe, Mr Knight did not indicate any concern about Mr Lambe's involvement or about the management recommendations. Dr Pardoe also stated that in early June 2003, Ms Tiara Dunn was nominated to assist him with field work in the northern section of the ETL corridor and that Ms Dunn had prior experience assisting him with cultural heritage work at the Cowal Gold Project. A copy of the letter containing this information was sent to Mr Knight of the WCC and Mr Miller of Country Energy.
24 On 4 May 2004, Mr Miller sent an email to Mr Oshlack advising him that he had not received any response from Mr Williams to his letter to him of 5 April 2004, to which I have referred in par [20] above. Mr Oshlack replied by email the following day and informed Mr Miller that Mr Williams had already written to him. On 10 May 2004, Mr Oshlack sent a further email to Mr Miller advising him about Mr William's facsimile of 13 April 2003. By letter dated 12 May 2004, Mr Denis Stanley, an employee of Country Energy, advised Mr Williams that they had located the facsimile that day and that a copy had been provided to the Western Aboriginal Heritage Unit of the DEC. Mr Stanley referred in his letter to Mr Williams request for an inspection and stated:
Country Energy does not own the land affected by the ETL Project and does not intend to arrange for you to inspect it.
25 An Executive Summary attached to a NPWS checklist for consent and permits (initially prepared by Mr Hutchins on 12 May 2004) recorded the attempts of Country Energy to consult with Mr Williams in the meeting on 24 September 2003 and through the correspondence of April 2004, and concluded as follows:
Mr Williams assertions that the survey work is inadequate are not supported by the review of the DEC archaeologist. On the contrary, the methodology is more than adequate for the scale of the project and has been conducted in accordance with best practice principles of the discipline. …
… As indicated earlier, provision has also been made for the assistance of Aboriginal representatives of the Young LALC and the registered Native Title Claimant group whoever that may be.
The non inclusion of Mr Williams in the field work is not seen as problematic since the survey was undertaken with the involvement of Aboriginal community members representing their communities. That is, members of the appropriate LALC or registered Native Title group. The DEC nor other Aboriginal groups do not accept that Mr Williams is the only person qualified to understand and talk on behalf of the Wiradjuri people. At the present moment his status as a traditional owner has not been determined by registration of his native title claim which does not in any event cover the full extent of the ETL route.
His reference to certain Native Title rights under a [sic] section 24 of Native Title Act (Future acts, Indigenous Land Use Agreements etc) is a matter for Country Energy but are not warranted in the context of consultation for this application. These are rights that are only legally applicable to claimant groups who have passed the registration test and from a DEC perspective the registered Native Title Claimants are certainly a group with whom consultation would be considered essential. Country Energy have however recognised his interest and nevertheless afforded him the opportunity to provide comment on the management recommendations. Rather than provide any specific comment that the Director General might usefully consider he has instead chosen to criticise the choice of consultant and adequacy of the survey. The wishes of the other groups, where expressed have been considered in the development of the permit and consent conditions.
….
Given the above it is recommended that the attached Consent and Permit be approved subject to the conditions contained within and implementation of the research design and study plan.
26 Mr Bob Sutherland, Manager of the Western Aboriginal Heritage Unit of the DEC, and Mr Simon Smith, Deputy Director General of the DEC, subsequently signed the checklist and approved the recommendation on 30 July 2004 and 1 August 2004 respectively.
27 On 17 May 2004, Mr Williams sent a facsimile to Mr Sutherland, confirming that the Mooka and Kalara traditional owner united families do not consent to the destruction of Aboriginal objects within the ETL corridor. In that facsimile, Mr Williams stated that Dr Pardoe and Mr Miller are aware of his position as traditional owner and stakeholder in matters concerning Lake Cowal and reiterated that he had not been given the opportunity to physically inspect the ETL route. Mr Sutherland replied to Mr Williams by letter dated 19 May 2004 and stated:
The Department of Environment and Conservation acknowledges your fax of 17th May 2004 in which you demand that no Consent to Destroy is issued over sites on the transmission line routes because you have not been able to physically inspect the area.
This viewpoint has previously been expressed in the record of consultation presented with the S90/ S87 application submitted by Country Energy. As such, it and this most recent fax will be considered along with all other information in making a determination relative to the application.
28 On 18 May 2004 Mr A Oshlack, acting on behalf of Mr Williams, sent a letter to Blake Dawson Waldron, the solicitors acting for Country Energy. That letter advised, among other matters, that Mr Williams had instructed Mr Oshlack to commence proceedings "if a s90 is issued for the transmission line" on the judicial review grounds of a denial of procedural fairness and natural justice.
29 On 1 August 2004, Mr Smith, acting as a delegate of the first respondent, granted the s 87 permit and s 90 consent.
Further evidence
Further documents before the decision-maker
30 It is necessary to identify further relevant documents that were among those before the decision-maker.
31 The NPWS Statement of Reconciliation relevantly states:
We will observe the principle that research into Aboriginal heritage should not be carried out without the informed consent of local Aboriginal communities and that these communities should have the opportunity to participate as partners in such research.
32 The NPWS Cultural Heritage Community Consultation Policy provides principles for NPWS staff for consultation with communities on cultural heritage issues that affect their rights and interests. The policy states that when natural elements of the landscape acquire a meaning for a particular group, they may become cultural heritage. The document provides the following policy statement:
NPWS will endeavour to consult all relevant and interested parties in the identification, assessment and management of their cultural heritage and in doing so will adopt the following guiding principles and protocols for consultation.
33 The following guidelines in the policy are of particular relevance:
· Recognition that within communities, there may be a variety of organisations that may have members who have information concerning the issue/item of the consultation;
· All relevant parties should be notified of the consultations that occur in their area of operation;
· All the relevant parties should be included in the consultation process, although the decision whether to participate will be made by the individual or organisation;
34 The policy acknowledges the limitations of consultation and states:
It is important to recognise that consultation has limitations. When consulting with different groups agreement on all outcomes is not always possible. When conducting consultation NPWS should attempt to seek:
· Cooperation from all parties involved in consultation;
· Respect for the views of all parties;
· Points of agreement;
· Resolution in areas of disagreement or articulation of disagreement (as resolution is not always possible); and
· Gains for all parties concerned.
35 Attachment 1 to the policy identifies cultural considerations that may impact on the success of any consultation with Aboriginal communities. The following considerations are of particular relevance:
· Recognition that within the Aboriginal community that organisations including, but not limited to, Native Title Claimants and Holders, Elder Corporations and Aboriginal Land Councils may have members who have information concerning the issue/item of the consultation;
· Recognition that organisations may not be able to speak for all people who have information concerning the issue/item of the consultation;
· All relevant parties should be notified of, and included in, the consultations that occur in their area of operation however the decision whether to participate will be made by the individual or organisation;
….
· Before conducting consultations with an Aboriginal community contact the Aboriginal Site Officer (ASO) responsible for the area. ….
36 Attachment 2 to the policy provides guidance to NPWS staff in the legislative and policy context of the NPW Act and relevantly states:
In determining whether a permit under s87 and/or s90 of the Act should be issued, NPWS needs to consider the significance of the relic or Aboriginal place. The involvement of Aboriginal people in the assessment of the significance of the relic or Aboriginal place, although not required by the Act is sought as a matter of practice.
37 The policy acknowledges the NPWS Corporate Plan 2000-2003 and outlines its relevance to community consultation:
The NPWS Corporate Plan states that the involvement of the public in landscape conservation and management needs to be encouraged. It advances the corporate value of active community involvement in conservation management. The Corporate Plan also recognises that Aboriginal people are the owners and interpreters of their heritage, and that NPWS needs to work in partnership with Aboriginal communities in the design, delivery and evaluation of NPWS services.
38 Two Native Title Tribunal Claimant Application Summaries were also before the decision-maker, which show that Mr Williams made native title applications to the Tribunal on 28 February and 7 June 2002. The applications list Mr Williams as one of several claimants acting on behalf of the Mooka and Kalara native title claim group, who state that they have a continuing connection to Lake Cowal.
Mr W T Oxby
39 Mr William Thomas Oxby is a senior associate employed by Blake Dawson Waldron and responsible for assisting in the preparation of the case for the second and third respondents. Mr Oxby states that power from the ETL needs to be available by early August 2005 to permit the necessary testing and commissioning of the Cowal Gold Project infrastructure prior to the commencement of the Project's mining phase in January 2006. Any delay in the availability of power from the ETL beyond early August 2005 will result in a loss of approximately $1 million per month for Barrick Gold of Australia Limited, the company responsible for construction of the Cowal Gold Project.
Minutes from a prior meeting
40 A meeting of Mooka traditional owners and Condobolin community members took place on 6 February 2004. The minutes from the meeting show that Mr Williams attended. Mr Michael Wright and Mr Bob Sutherland, employees of the NPWS, were also present to listen to any cultural information that the community could provide to establish the cultural and social significance of Lake Cowal to the Aboriginal people affiliated with it. Mr Williams made several representations concerning the cultural significance of the site and artefacts within it. He also stated his opposition to the application for the permit and the consent.
Consideration
Did Mr Williams have a legitimate expectation?
41 Mr Oshlack, appearing as agent for the applicant, submits that Mr Williams had a legitimate expectation, as a representative of the Mooka and Kalara united families, that he would be consulted on cultural heritage issues in relation to the application for consent. This included an expectation that he would be involved in the identification and assessment of Aboriginal objects within the ETL corridor by:
(a) participating in the archaeological survey by accompanying Dr Pardoe; or
(b) being permitted to inspect the relevant areas of the ETL corridor to enable him to make constructive comments in relation to the survey attached to the application.
42 Mr Oshlack relies upon the NPWS Cultural Heritage Community Consultation Policy and the NPWS Statement of Reconciliation as the source of representations giving rise to the applicant's legitimate expectation. Mr Oshlack also relies upon the decision of Bignold J in Williams v Director General of the National Parks and Wildlife Service (2003) 127 LGERA 354 at 366 [58]-[61].
43 Mr A E Galasso, counsel appearing for the Director General of the DEC, relies upon the following submissions:
(a) the nature of any legitimate expectation is limited to giving notice of the application and giving Mr Williams the opportunity to make submissions concerning the application for a permit, and that such an expectation was met by the respondents.
(b) no legitimate expectation arises in the manner sought by the applicant from any interpretation of the documents;
(c) any expectation of consultation that arose was satisfied by the involvement of representatives of local Aboriginal communities in the archaeological investigation.
44 Mr N J Williams SC, appearing for Country Energy and Dr Pardoe, made the following submissions on this issue:
(a) Mr Williams was never given an expectation that he would be able to inspect the ETL corridor;
(b) there is no basis for an expectation that Country Energy or Dr Pardoe would re-conduct the archaeological survey by walking the entire ETL corridor with Mr Williams;
(c) there is no evidence that gives rise to an expectation that Mr Williams would be invited to participate in the archaeological survey;
(d) there is no basis for inferring that re-conducting the survey with the applicant was a necessary precondition to, or element of, consultation. To find otherwise would impermissibly give substantive effect to the expectation that Mr Williams claims ( Re MIMIA; Ex parte Lam (2003) 214 CLR 1 at [28], [65], [148]);
(e) any expectation of re-conducting the survey with Mr Williams' participation, was destroyed by the letter from Country Energy to Mr Williams, dated 12 May 2004;
(f) any legitimate expectation was limited to providing notice to affected persons that an application had been made and providing them with a reasonable opportunity to make representations in relation to the application;
(g) Mr Williams was given an adequate opportunity to put any submission he wished to make; and
(h) the respondents satisfied any expectation of consultation that Mr Williams might have reasonably held.
45 Where an administrative decision affects rights, interests or legitimate expectations, the decision-maker is under a common law duty to afford procedural fairness to such affected persons or entities, unless statute provides otherwise: Kioa v West (1985) 159 CLR 550 at 584. The applicant has clearly established that his interests as an Aboriginal person and representative of the Mooka and Kalara united families, were affected by the decision to grant the permit and consent relating to Aboriginal objects within the ETL corridor.
46 In Attorney-General (NSW) v Quin (1990) 170 CLR 1, Brennan J stated that where a duty to afford procedural fairness already exists, the creation of a legitimate expectation may further define the content of that duty (at 39):
So long as the notion of legitimate expectation is seen merely as indicating "the factors and kinds of factors which are relevant to any consideration" of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power [ Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 at 285], the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power.
McHugh and Gummow JJ adopted this passage in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 27-28 as representing the law in Australia.
47 In Quin, Mason CJ indicated (at 20) that a legitimate expectation may be created by the giving of assurances, the existence of a regular practice, the denial of a benefit to which the expectation relates or the satisfaction of statutory conditions. That list is not exhaustive, but intended to indicate the types of factors that may indicate whether an expectation is reasonable. In Lam, McHugh and Gummow JJ stated that legitimate expectation means reasonable expectation (see also Kioa at 563). In Lam the High Court was divided as to whether a legitimate expectation must arise on a subjective or objective basis. Gleeson CJ (at 13) preferred the former approach, McHugh and Gummow JJ (at 34) the latter approach, and Callinan J (at 47) preferred a combination of both.
48 The applicant relies on two policy statements of the NPWS including the guidelines contained therein. Those documents are set out at paras [32] -[37] above. The NPWS Statement of Reconciliation states that local Aboriginal communities should have the opportunity to participate "as partners" in research into Aboriginal heritage. The NPWS Cultural Heritage Community Consultation Policy is a representation that the NPWS will endeavour to consult with all relevant and interested parties "in the identification, assessment and management" of their cultural heritage and in carrying out this task will adopt the guidelines and protocols in that document. It is clear that Mr Williams is an interested party as an individual Aboriginal person, but more importantly, as a representative of the Mooka and Kalara united families. This was apparent to the NPWS from the meeting of 6 February 2003. The respondents argue that the use of community representatives in the archaeological survey defeats any legitimate expectation that might arise for Mr Williams. The guidelines specifically state, however, that there may be a variety of organisations that have members who may have information relevant to consultation. Further, the guidelines also state that all the relevant parties should be included in the consultation process. The policy document recognises that organisations might not be able to speak for all people who have information concerning the Aboriginal items and identifies this concern as a consideration of particular relevance. As such Mr Williams must be recognised as a relevant party under the policy.
49 The policy document notes that in determining an application, the involvement of Aboriginal people in the assessment of the significance of Aboriginal objects is sought as a matter of practice. As such that practice can give rise to a legitimate expectation.
50 It is a well-established principle that policy may also give rise to a legitimate expectation: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 226-227; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; Walsh v Garrett (1998) 51 ALD 644. In One.Tel Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227 at 245, Finn J recognised that guidelines may give rise to a legitimate expectation depending on the formality and detail with which they are framed and the nature of the subject matter. The NPWS guidelines in the Cultural Heritage Community Consultation Policy contain a significant level of detail. The express inclusion of them in the implementation of the policy statement indicates that they are capable of creating a legitimate expectation. Additionally the guidelines and policy exist alongside the Statement of Reconciliation, which I have noted considers that Aboriginal communities should have the opportunity to participate as partners in research into Aboriginal heritage.
51 I am satisfied on both a subjective and objective basis that the NPWS Cultural Heritage Community Consultation Policy and accompanying matter of practice gave rise to a legitimate expectation by Mr Williams that he would be given the opportunity to be involved in the identification and assessment of the significance of Aboriginal objects within the ETL corridor. Involvement in the identification and assessment means involvement and consultation at the time that such processes were carried out, not at a later stage. Senior Counsel for the second and third respondents submits that the legitimate expectation cannot extend so far and relies on the decision of Pain J in Carriage v Stockland Development Pty Limited & Ors [No 6] [2004] NSWLEC 541 which concerned an application for a s 90 permit. Her Honour stated (at [79]-[80]):
…the Second Respondent had a policy or practice of consulting all relevant Aboriginal groups in relation to all applications received by the Second Respondent for s 90 permits prior to determining these applications. It is clear that the existence of such a policy or practice can give rise to a legitimate expectation by affected persons that notice will be given to them and that any representations they make will be considered before any consent is granted, and that a failure to do so denies affected persons natural justice or procedural fairness:…
… The obligation on the Second Respondent to provide procedural fairness or natural justice to persons affected by its decisions, such as the Applicant, is limited to providing such affected persons notice that an application has been made and giving them a reasonable opportunity to make representations in relation to that application: Kioa v West .
52 In that case, the applicant had failed to make submissions within the time period specified by the decision-maker. The decision was made prior to the decision-maker receiving further submissions from the applicant. The judgment does not indicate that Pain J had the NPWS Cultural Heritage Community Consultation Policy before her in that case. Consequently, any legitimate expectation in that case could not extend to involvement in the identification and assessment of Aboriginal objects as contended in these proceedings. However, it appears that the applicant in that case did not submit that any such expectation existed. It would not be appropriate, therefore, to apply that decision to the present case. Similarly, it would not be appropriate to apply the statement of Bignold J in Williams v Director General of National Parks and Wildlife Service (2003) 127 LGERA 354 at 366 due to the particular facts in that case. Accordingly, I find that Mr Williams had a legitimate expectation that he would be involved in the identification and assessment of the significance of Aboriginal objects within the ETL corridor.
Did the respondents fail to meet the legitimate expectation?
53 The respondents did not invite Mr Williams to be involved in the identification and assessment process at the time that it was carried out. Although he was invited to make submissions both before and after the archaeological survey was carried out (in which items were identified and their significance assessed), these invitations did not constitute involvement in the identification and assessment of Aboriginal objects. Once he was given the report, Mr Williams was only able to comment on the identification and assessment that had already taken place. By failing to invite Mr Williams to be involved in the identification process at the time that the archaeological survey was being conducted, despite an awareness of his interest in the matter, the respondents failed to meet the applicant's legitimate expectation.
54 Senior Counsel for Country Energy submits that such a finding impermissibly gives the expectation a substantive effect. In Lam, the High Court held that a legitimate expectation is not a right and does not give rise to substantive rights. McHugh and Gummow JJ (at 21) adopted the view of Mason CJ in Quin, where his Honour stated (at 22):
In the cases in this Court in which a legitimate expectation has been held entitled to protection, protection has taken the form of procedural protection, by insisting that the decision-maker apply the rules of natural justice. In none of the cases was the individual held to be entitled to substantive protection in the form of an order requiring the decision-maker to exercise his or her discretion in a particular way.
55 Lam concerned the consideration and cancellation of a visa. The decision-maker had made a representation to the applicant that it would contact the carer of the applicant's child but failed to do so before deciding to cancel the visa. The applicant in that case submitted that where an administrative decision-maker states an intention to take a certain procedural step and fails to do so, without notifying the person affected of the change of intention, procedural unfairness results. In response to the submission Gleeson CJ considered the procedural and substantive distinction (at 10):
If, by stating an intention to take a certain course, a decision-maker becomes bound to take that course, regardless of whether any disadvantage to a person affected results from a failure to take the course, then an expectation appears to become a right. The applicant's case was not acknowledged to go so far. It was qualified by saying that it would have been sufficient for the Departmental officers to have notified the applicant of their proposed change of intention. However, the outcome for which the applicant contends comes very near to converting a matter of procedure into a matter of substance, and a matter of expectation into a matter of right. As was pointed out by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [(1995) 183 CLR 273 at 291)], to treat a legitimate expectation as requiring a decision-maker to act in a particular way is tantamount to treating it as a rule of law.
56 McHugh and Gummow JJ reinforced this view (at 34), stating that the Court was concerned with the fairness of the procedure adopted rather than the fairness of the outcome.
57 The finding that the respondents failed to meet Mr Williams' legitimate expectation is not a finding which, on its own, generates a substantive effect. Although the failure to meet the legitimate expectation was a failure to follow proper procedure, it does not necessarily amount to a denial of procedural fairness. Further questions must first be resolved, namely, whether the failure to involve Mr Williams in the identification and assessment of objects within the ETL corridor was fair in all the circumstances and whether Mr Williams suffered any detriment or disadvantage due to his reliance on the legitimate expectation.
Was there a denial of procedural fairness?
58 In Lam, the High Court held that a failure to meet a legitimate expectation does not necessarily give rise to a denial of procedural fairness (at 34, per McHugh and Gummow JJ; at 36 and 38, per Hayne J; at 48, per Callinan J). Gleeson CJ stated (at 12):
But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation.
59 McHugh and Gummow JJ (at 27) adopted the test formulated by McHugh J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 312 that the question to be considered is: what does fairness require in all the circumstances of the case? Mason J adopted a similar test in Kioa (at 585).
60 In Lam, Gleeson CJ observed (at 13-14) that unfairness might arise through the loss of opportunity to make representations or through a disadvantage created by the applicant's reliance on the representation. Gleeson CJ also stated that unfairness will be established where the applicant suffers any detriment or practical injustice. In that case, the High Court held that the applicant had not suffered any detriment, nor relied on the representation to his disadvantage, because there was no more information that he could possibly put before the decision-maker that would influence the decision-maker or that the decision-maker did not already have. Those circumstances clearly differ from the facts in this case. Firstly, the failure to involve Mr Williams in the identification and assessment of Aboriginal objects within the ETL corridor prevented him from making comments and contributions on what items were of significance to him as an Aboriginal person and representative of the Mooka and Kalara united families. It also deprived him of the opportunity to make submissions in assessing the level of significance of those items. Secondly, Mr Williams suffered detriment. Mr Williams consistently informed the respondents that he could not make any constructive comments on the identification and assessment of the items until he at least physically inspected the sites of the Aboriginal objects within the ETL corridor. The survey was carried out in April and June 2003. It was not until 12 May 2004, that Country Energy informed Mr Williams by letter that they did not intend to permit him to physically inspect the land. At no stage did the DEC (or the NPWS as it previously was) inform the applicant that they did not intend to permit him to be involved in the identification and assessment of the significance of Aboriginal objects through involvement in the archaeological survey, physical inspection of the items on the site, or by any other means. Mr Williams persisted in his inability to make any comments on the identification and assessment of the significance of Aboriginal objects on the site. He suffered detriment in his inability to be involved in the identification and assessment processes as they were carried out and also after the processes were completed, contrary to the stated policy of the NPWS. The NPWS knew that Mr Williams was an interested and relevant party to those processes but chose not to adhere to its stated policy of involving such persons in the identification and assessment of the significance of Aboriginal objects. That departure from a stated policy does not automatically give rise to a denial of procedural fairness. However, having regard to what is fair in all the circumstances of this case, I am satisfied that the departure from the announced policy and practice of the NPWS was unfair to Mr Williams and amounts to a denial of procedural fairness. Mr Williams should be afforded procedural fairness by the decision-maker when making a decision that affects his interests. The decision-maker has a discretion, however, as to how such procedural fairness shall be afforded. The failure of the NPWS to adhere to its representations that a person such as Mr Williams would be involved in the identification and assessment processes denied him procedural opportunities to contribute to the decision-making process such that it was unfair in the particular circumstances.
Did the decision-maker take an irrelevant consideration into account?
61 Mr Oshlack submits that the decision-maker took several irrelevant considerations into account. Firstly, Mr Oshlack submits that the first respondent took an irrelevant consideration into account by finding that the survey method was adequate and sufficient for the purposes of the application. In my opinion, however, the first respondent was entitled to consider and determine the adequacy of the survey methodology. Mr Hutchins did so based on the methodology described in the Pardoe Report at pp 47-49. The Executive Summary considers Mr Williams' submissions that the survey was inadequate and concludes:
Mr Williams [sic] assertions that the survey work is inadequate are not supported by the review of the DEC archaeologist. On the contrary, the methodology is more than adequate for the scale of the project and has been conducted in accordance with best practice principles of the discipline.
62 The DEC was entitled to make such a conclusion based on the information before it. The DEC specifically considered Mr Williams' submissions. Therefore, I cannot accept that the decision-maker took an irrelevant consideration into account in reaching such a finding.
63 Secondly, Mr Oshlack submits that the first respondent took an irrelevant consideration into account in deciding that Mr Williams' status, as a traditional owner, is a matter determined by registration of his native title claim. In particular, Mr Oshlack relies on the Executive Summary signed by Mr Smith, which states:
The non inclusion of Mr Williams in the field work is not seen as problematic since the survey was undertaken with the involvement of Aboriginal community members representing their communities. That is, members of the appropriate LALC or registered Native Title group. … At the present moment his status as a traditional owner has not been determined by registration of his native title claim which does not in any event cover the full extent of the ETL route.
64 It is unclear from this statement whether the DEC excluded Mr Williams from the field work on the basis of the non-registration of his native title claim. If that was the reason for Mr Williams' non-inclusion then the decision-maker has taken an irrelevant consideration into account. The applicant's claim to be an interested and relevant party is not dependant on his native title claim. Obviously registration would strengthen his claim as a relevant and interested party, but non-registration of his native title claim does not mean that he cannot be a relevant and interested party.
65 Thirdly, Mr Oshlack submits that the first respondent took an irrelevant consideration into account by considering the construction of the ETL to be "a state significant development pivotal to the completion of the Cowal Gold Project". The development was not a state significant development within the definition under s 76A of the Environmental Planning and Assessment Act 1979. In my opinion, it does not matter whether the statement before the decision-maker was intended to imply this or not. The information was clearly part of the background information provided to the decision-maker and was not a material consideration that bore upon the decision to grant the permit and the consent.
Did the decision-maker fail to take a relevant consideration into account?
66 Mr Oshlack submits that the decision-maker failed to take several relevant considerations into account. I shall deal with each of those considerations in turn.
(a) Mr Williams' submission that he could not comment on the Pardoe Report until he had physically inspected the area himself.
67 Mr Williams' submission was expressly taken into account in the Executive Summary and considered by the decision-maker in reaching his decision.
(b Mr Williams submission that Dr Pardoe had not carried out a proper survey in that a large portion of the survey was done driving in a four-wheel drive vehicle.
68 The decision-maker expressly considered the submission and the adequacy of the survey methodology. Moreover, Dr Pardoe set out the adequacy of the survey methodology in detail in his report at pp 47-49.
(c) The fact that Mr Williams was a native title claimant, which demonstrates that he is a stakeholder in the application as a member and representative of the Mooka and Kalara united families, who are recognised members of the Condobolin Aboriginal community.
69 Mr Williams' native title application was expressly considered in the Executive Summary. His position as a member and representative of the Mooka Traditional Owner Council was also expressly considered and taken into account in that document.
(d) The errors and misleading information contained in the Pardoe Report and the subsequent failure to correct them through a revision of the report.
70 The errors relating the community consultation process were dealt with in a letter from Dr Pardoe to Mr Hutchins, dated 20 April 2004. The information in that letter was accurately summarised in the Executive Summary which the decision-maker took into consideration in reaching his decision. A revision of the report was not necessary since the correct information concerning the community consultation was before the decision-maker at the time that he reached his decision.
(e) Admissions in the Pardoe Report that the third respondent had failed to comply with s 91 of the NPW Act.
71 The Pardoe Report did not contain any admissions that Dr Pardoe had failed to comply with s 91 of the NPW Act. Mr Hutchins specifically raised the issue of registering sites with Dr Pardoe who then responded to his concerns. Only one site existed, which was recorded and exempted from the s 90 consent. The matter regarding sites was specifically raised in the Executive Summary. There was no breach of s 91 of the NPW Act, thus there could be no failure by decision-maker to take such a consideration into account.