Williams v Water Administration Ministerial Corporation & Ors

APPLICANT: A Oshlack (agent)

FIRST RESPONDENT: B Green (barrister) SOLICITOR: LEGAL REPRESENTATIVES: Water Administration Ministerial Corporation

SECOND AND THIRD RESPONDENTS: C Ireland (solicitor) SOLICITOR: Blake Dawson Waldron

IN THE LAND AND 40401 of 2003 ENVIRONMENT COURT Bignold J OF NEW SOUTH WALES 26 SEPTEMBER 2003

NEVILLE WILLIAMS Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION First Respondent BARRICK GOLD OF AUSTRALIA LIMITED Second Respondent BARRICK AUSTRALIA LIMITED Third Respondent Judgment

A. INTRODUCTION 1 The Respondents have objected to the jurisdiction of this Court to entertain proceedings commenced in class 4 of the Court's jurisdiction on 9 April 2003. They seek an order from the Court directing the Applicant to discontinue the proceedings or an order summarily dismissing the proceedings as being incompetent because they are outside the Court's jurisdiction. B. THE CLAIMS MADE IN THE PROCEEDINGS The proceedings claim by way of permanent relief the following: (i) a declaration that four specified Bore licences granted under the Water Act 1912 have lapsed;

(ii) a declaration that the Second Respondent has failed to comply with condition 1 of the said licences;

(iii) a declaration that the purported extensions granted by the First Respondent to each of the licences is ultra vires;

(iv) a declaration that the Second and Third Respondent have breached s117I of the Water Act 1912 by altering licensed bores and taking water otherwise than in accordance with conditions of the licence;

(v) (alternatively) a declaration that the First Respondent and Second Respondent have breached ss 341(1), 342(1), and 343(ai) of the Water Management Act 2000 ; and

(vi) an injunction restraining the Second and Third Respondents from carrying out activities in reliance upon the said bore licences. 2 The Applicant also claimed injunctive relief against the Second and Third Respondents on an interlocutory basis. 3 The application was allocated a first return date (24 April 2003) before the Registrar. On that occasion the Respondents raised objection to the proceedings on the grounds that the Court lacked jurisdiction to entertain them. 4 The Registrar listed the matter before a Judge on 16 May 2003. On that occasion the Second and Third Respondents maintained their objection to jurisdiction and the First Respondent supported that submission. 5 Because the Applicant who was represented by an lay agent (Mr Oshlack) appointed by him was not in the position to present any argument against the Respondents' submission of lack of jurisdiction I gave directions for the Applicant to reply in writing to the Respondents' no jurisdiction submission or alternatively to file a notice of discontinuance by 22 May 2003. 6 Thereafter the Applicant filed written submissions contending that his application fell within the jurisdiction conferred upon the Court by s253 of the Protection of the Environment Operations Act 1997 (the PEO Act). 7 Thereafter written submission in reply were filed by the Second and Third Respondents on 10 June 2003 and were adopted by the First Respondent on 11 June 2003. 8 Following notice that the Applicant wished to file further written submission the opportunity to do so was granted to the Applicant. However on 25 July 2003 the Applicant's agent informed the Court that no further submission would be filed.

C. The Respondents' Arguments of Lack of Jurisdiction in this Court. 9 The Respondents' submission of lack of jurisdiction was founded upon the following propositions: 1. The proceedings were in the nature of judicial review or civil enforcement of specified provisions of the Water Act 1912.

2. None of those provisions confers judicial review or civil enforcement jurisdiction on this Court.

3. In particular the Water Act 1912 is not included in the definition of "planning or environmental law" contained in s20(3) of the Land and Environment Court Act 1979 and accordingly the grant of jurisdiction conferred by s20(2) of that Act does not apply.

4. The only Class 4 jurisdiction conferred upon the Court in relation to the Water Act 1912 is that expressly conferred by s20(1)(df) which is limited to proceedings under s180C or s180K (which are contained in Part 8 of the Act dealing with "Flood control works" which is not relevant to the present proceedings).

5. Although the Court is vested with civil enforcement jurisdiction in respect of the Water Management Act 2000 (vide s20(df1) of the Land and Environment Court Act 1979) the only provisions of the Water Management Act 2000 relied upon by the Applicant in the present proceedings, namely ss 341, 342 and 343 have not yet been proclaimed to commence. 10 The Applicant's written submissions in reply accepted the correctness of the Respondents' submissions, but as I have noted sought to invoke the jurisdiction conferred by s253 of the PEO Act 1997. D. DO THE APPLICANT'S CLAIMS FALL WITHIN THE JURISDICTION CONFERRED BY S253 OF THE PEO ACT ? 11 Section 253 of the PEO Act provides as follows: 253 Restraint of breaches of an Act or statutory rules that harm the environment

(1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment. (2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach).

(3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings.

(4) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.

(5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

12 The terms "environment" and "harm" to the environment are defined in the Dictionary to the PEO Act as follows:

environment means components of the earth, including:

(c) any organic or inorganic matter and any living organism, and

and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c). harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

13 Section 20(1)(c1) of the Land And Environment Court Act 1979 confers class 4 jurisdiction upon the Court in respect of proceedings under Part 8.4 of the PEO Act (which includes s253). 14 The Applicant's written submissions suggested two types of harm to the environment that would be likely to be caused by the breaches of the particular provisions of the Water Act 1912 as alleged in the Applicant's Class 4 proceedings. The first type of harm suggested was that based upon existing water shortages exemplified by the embargo created on 15 March 2000 pursuant to s113A of the Water Act 1912 in respect of sub-surface water licences in "the Upper Lachlan Groundwater Management Area 011". 15 However the Applicant's submission notes that the embargo excepts from its operation "applications for licences for…any project designated as a 'Significant State Development'. Additionally the Applicant accepts that such a description would have been made in respect of the Lake Cowal Gold Project (which was approved by the Minister in 1999 as a State significant development under the Environmental Planning and Assessment Act 1979). 16 It necessarily follows from the Applicant's own submission that the first suggested basis of harm being likely to be caused to the environment cannot be substantiated. 17 The Applicant's second suggested basis for the likelihood of harm being caused to the environment is that "the construction extraction and transfer of water will cause damage to Aboriginal sites and objects". 18 The Second and Third Respondents' response to this suggestion is that they have obtained from the Director-General of National Parks and Wildlife a s87 Permit and s90 Consent to destroy in respect of Aboriginal objects which Permit and Consent apply in terms to the proposed Lake Cowal Mining Lease Area (MLA 45) but in particular to four identified proposed water bores and the area of the proposed water pipeline (and its 40 metre wide corridor) "running from the borefield to MLA 45". 19 Upon the basis of the authorisations granted by the s87 Permit and the s90 Consent granted under the National Parks and Wildlife Act 1974 by the Director-General on 27 November 2002 (which survived the Applicant's challenge to their validity in proceedings No. 40964 of 2002 - see my judgment in Williams v Director-General [2003] NSWLEC 121) the Second and Third Respondents submit that again the suggested environmental harm cannot be substantiated. Accordingly the Respondents submit that the application does not fall within the jurisdiction conferred by s253 of the PEO Act.

20 In my judgment it is appropriate to summarily dismiss the Applicant's proceeding as being beyond the jurisdiction of this Court. The Applicant's belated reliance upon the jurisdiction conferred by s253 of the PEO Act is not, in my judgment, viably or realistically sustainable. 21 The Applicant has not been able to demonstrate that any of the breaches of the Water Act 1912 which his Class 4 application alleges 'is causing or is likely to cause harm to the environment." Accordingly the prerequisite to the entitlement to bring proceedings pursuant to s253 of the PEO Act has not been fulfilled. 22 The present proceeding is the latest in a series of proceedings brought by the Applicant against the Second and Third Respondents in respect of the approved Lake Cowal Gold Project. That series of proceedings which has been litigated in this Court for the past 18 months has been founded upon the provisions of Part 6 of the National Parks and Wildlife Act 1974 which provides a regime of protection for Aboriginal objects and Aboriginal Places. As the outcomes of that series of litigation have demonstrated, the Director-General's decisions to issue the s87 Permit and s90 Consent on 27 November 2002 in respect of the whole of the proposed Mining Lease Area 45 effectively have removed the sole legal foundation for the Applicant's claims. 23 The present claim focuses upon the water licences which no doubt are necessary for the operation of the Gold Mine (including its present phase of exploratory drilling being conducted by the Second and Third Respondents for economic feasibility studies etc). 24 To the extent that the Applicant's present proceedings rely upon the likelihood of "environmental harm" being caused in the form of damage being caused to Aboriginal objects I think that the existence of the s87 Permit and s90 Consent with the authorisations that they grant in respect of Aboriginal objects (including the destruction of those objects which are not collected pursuant to the s87 Permit) effectively precludes this form of environmental harm from being relied upon by the Applicant to found the present proceedings upon the jurisdiction conferred by s253 of the PEO Act. 25 For all the foregoing reasons I hold that the Court has no jurisdiction to entertain the Applicant's present claims. (There is no question that the Applicant's claims could be brought by proceedings in the Supreme Court. There is no faculty for me to transfer the present proceedings to the Supreme Court unlike the power vested in the Supreme Court by s72 of the Land and Environment Court Act to transfer appropriate proceedings from that Court to this Court). 26 Accordingly I make the following orders: 1. The proceeding be dismissed as being outside the jurisdiction of the Court. 2. Question of costs be reserved.

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