Legal proceedings at Lake Cowal
All
the legal proceedings over the proposed Cowal Gold Project have been attempts
to utilise provisions set up under state and federal legislation to protect
cultural heritage sites and objects. The cases have been taken by Neville
Williams on behalf of the Mooka Traditional Owners Council. All the judgments
are available at www.austlii.edu.au. Using the legal system has been one tactic
in a broader strategy by traditional owners and environmental groups to protect
Lake Cowal from the gold mine.
New
South Wales Legislation
National
Parks and Wildlife Act 1974
The
National Parks and Wildlife Service (NPWS) is the statutory authority for
protecting Aboriginal cultural heritage in New South Wales. Section 12(D) sets
out the powers and functions of the NPWS as the: identification, conservation
and protection of, and prevention of damage to, Aboriginal objects and
Aboriginal places. Aboriginal objects which have been ‘abondoned’
are deemed to be the Crown’s property.[1]
The Director General of NPWS, on behalf of the Crown, is therefore the
protector of Aboriginal objects and areas.
It
is an offence to collect, disturb or destroy Aboriginal objects without a valid
permit to collect, or consent to destroy, under ss 87 and 90 of the NPW Act.
NPWS figures from the period of January 2002 to January 2003 show that of the
108 ss 87 and 90 applications applied for that year, only four have been
refused or withdrawn.[2]
Since that period, further section 90 consents have been issued at Lake Cowal
as well as at other sacred sites whose destruction is opposed by traditional
owners.[3]
It
seems that the NPWS, contrary to their statutory obligations to protect
Aboriginal cultural heritage, are often the facilitators of its destruction.
Originally
the respondent company ignored the requirement under their exploration license
for a
permit under Part 6 of the NPW Act. On 11 January 2003, Neville Williams
located and identified artefacts on the site which he claimed would be impacted
by the exploration activities. He made a complaint to the NPWS. A follow up
inspection was carried out by officers of the NPWS who stated that no artefacts
would be damaged by the current exploration operations.
On
22 January 2002, Mr Williams filed an application seeking a declaration that
the company was in breach of ss 86-90 of NPW Act by “causing significant
damage, defacement and destruction of Aboriginal Objects without a consent from
the NPWS.”[4] He also
sought interlocutory and permanent orders restraining the company from carrying
out any work which would disturb the site. The interlocutory application failed
due to insufficient evidence.[5]
On
the 14 March 2002, a second application was filed for an interlocutory
injunction. Mr Williams adduced evidence from an expert archaeologist, who gave
evidence that the companies activities had, and was likely to further cause
damage to artefacts unless restrained.[6]
The evidence was sufficient for the Court to grant an interlocutory injunction
which restrained the company from working until such time that they had
authorisation under Part 6 of the NPW Act.[7]
On
the 28th of May, 2002 Mr Williams filed a challenge on
administration grounds to the granting of the s 87 permit by the NPWS. The
Applicant unsuccessfully sought urgent interlocutory relief although the trial
was expedited to 24-28 June 2002.
At
the trial, the company and NPWS argued that the collection of artefacts was for
their preservation.[9] The Court was told that the Aboriginal
community was consulted on the issuing of the permit as part of the application
process. The consultation report showed that the majority of traditional owners
of the area were opposed to the removal or destruction of artefacts at Lake
Cowal due to the significance of the area.[10]
Mr Williams had also consistently expressed the cultural importance of the area
as well as his concern and opposition to the collection of artefacts to the
NPWS.[11]
Despite
the results of the consultation and the assurances from NPWS that the cultural
and heritage significance of Lake Cowal “would be given utmost
consideration by NPWS in making its determination for a s 87 permit”,[12]
the permits were issued. The Court dismissed the application and declined to
grant relief to the Applicant. Bignold J reasoned that while the Applicant had
rightly exposed NPWS to denying him procedural fairness in the issuing of the
permit, His Honour noted that “Part 6 of the NPW Act contains no
procedures governing the issuing of a permit under s87 and indeed there is no
mention in Part 6 of even an application for a permit, let alone the
prescription of detailed requirements for processing the application.”[13]
On
24 November 2002, at the commencement of the trial over allegations of damage
to artefacts without the relevant s 90 consent, the Court was handed the
relevant consent which had been issued by the NPWS on the weekend. After legal
argument it became apparent that the document was incomplete and had to be
reissued. Subsequently, Mr Williams filed an application for urgent
interlocutory relief against the issuing of the s 90. An injunction was granted
restraining the company from relying on the ss87 and 90 permit and consent.[14]
The
trial was heard on 10-14 March 2003 and the applicant argued an extensive claim
that he’d been denied natural justice and procedural fairness. Evidence
was adduced from traditional owners and elders claiming that the destruction of
the site will cause sickness and death within their community. The company and
NPWS argued that the Director General had virtually unfettered discretion and
power to issue consents to destroy. The application was dismissed on 19 May
2003.
Williams
v Pardoe and others, Land and Environment Court matter 40626 of 2003
This
application was made by Neville Williams to the Land and Environment Court
alleging breaches of various conditions of the collection permit and consent to
destroy Aboriginal Objects issued to Barrick Gold the validity which had been
upheld by the Court. The claim was further amended to challenge the issuing of
a further consent to destroy of all Aboriginal Objects for the construction of
a new access road.
The
claim alleges that Dr Pardoe, the consulting archaeologist for Barrick Gold, used
unqualified teenagers to carry out collection work. A stand off ensued when Mr
Williams warned the teenagers that they were breaking Wiradjuri Law. Mr
Williams was led from the site by a security guard.
Mr
Williams claim alleged racially discriminatory behaviour in breach of the Racial
Discrimination Act 1976 (Cth) by Dr Pardoe towards him and another Wiradjuri
Traditional Owner, Mr Mark Powell. In the claim it is alleged that Dr Pardoe’s
behaviour was offensive, patronising and insulting. The matter was heard in early
May 2004 and judgment is still reserved.
Williams
v Coutnry Energy and others, Land and Environment Court matter 41026 of 2004
As
part of the ancillary infrastructure necessary for the mine to proceed, an 80
meter wide, 115km electricity transmission line (ETL) will be constructed
from Temora to Lake Cowal. Vegetation will be cleared and all artefacts except
a few sample collections will be destroyed. On August the 1st, 2004, Department
of Environment and Conservation (formerly NPWS) issued to Country Energy, a s90
consent for the destruction of the Aboriginal Objects that may be impacted by
the work.
Neville
Williams has lodged an application claiming he has been denied procedural
fairness in the granting of the consent as he and other Traditional Owner have
been refused to be allowed to observe the Aboriginal Sites to be effected by
the work. Following urgent expedition of the hearing in which Barrick argued
that any delay for the construction of the ETL will cause severe financial
impact on the commencement of the mine operation the case was set down for
October 15 2004.
On
5 November 2004, Justice Lloyd handed down his judgment. He found that Neville
Williams had been denied procedural fairness and that he had a legitimate
expectation that he would be consulted with during the assessment and
identification of Aboriginal objects on the ETL. Lloyd ordered the permit and
consent be made invalid and that any work undertaken on the site would be in
breach of the National Parks and Wildlife Act.
Commonwealth
Legislation
Aboriginal
and Torres Strait Islander Heritage Protection Act 1984
The
ATSIHP Act was enacted in 1984. Before the Act was implemented, there was no
effective legislation at a Commonwealth level to protect cultural heritage. All
the Federal Government could do was try to persuade state and territory
governments to act to protect areas. The Act was therefore designed to be a
last resort where State and Territory legislation and processes had failed to
protect an area or object of significance.
Section
4 of the Act sets out the purpose of the Act as:
…the preservation and protection from injury or desecration of
areas and objects in Australia and in Australian waters, being areas and
objects that are of particular significance to Aboriginals in accordance with
Aboriginal tradition.
Under
the ATSIHP Act the criteria for what constitutes significance is based on the
views of the Aboriginal community rather than scientific or archaeological
interests. Under s 9 of the Act, an application can be made for an emergency
declaration for protection lasting up to 60 days. In order for the Minister to
make a declaration s/he must receive either a written or oral application and
must be satisfied that the area is a significant Aboriginal area and that it is
under serious and immediate threat of injury or desecration.
Since
1984 there have been five declarations made under s 9 out of 75 applications.
In four of the five cases, long term declarations were made under s 10 of the
Act, although most were overturned by the Federal Court. Only one area still
enjoys protection under the Act – Junction Waterhole
(Niltye/Tnyere-Akerte) in the Northern Territory. [15]
The
Minister’s decision to refuse or make an emergency declaration can be
challenged by a state or territory government or a person who is
“aggrieved” by the decision, by applying for ‘judicial review’
under ss 5 and 6 the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The
Federal Court does not review the merits of the decision, it only reviews the
decision if there has been a legal defect in the decision making process.
On
17 October 2002, Mr Williams made an application for emergency protection under
s 9 of the ATSIHP Act over the mining lease area (the specified area) at Lake
Cowal. Mr Williams supported his application with affidavits from other
Wiradjuri traditional owners, as well as from expert archaeologists, all of
whom talked of the significance of the area and artefacts. Applications from
the company to the NPWS for the ss87 and 90 permit and consent were also included
as they went to the urgency of the situation. The Federal Minister, on
reviewing the application, invited the company to respond, which they did, with
reports from their contracted archaeologists who disputed the significance of
the artefacts.[16]
On
9 December, 2002 the Minister refused the application. A Statement of Reasons
was requested pursuant to s 13 of the ADJR Act and provided on 6 February 2003.
In his statement the Minister conceded that he “was not satisfied that
there was effective protection of the area from the claimed threat of injury or
desecration under the law of NSW, within the meaning of the Act.”[17] He also recognised “that the
wider Lake Cowal area might be of particular significance to Aboriginals in
accordance with Aboriginal tradition.”[18]
However,
he refused the application on the grounds that “most of the evidence
relating to significance…did not relate to the specified area, but rather
the broader Lake Cowal area….It was not clear whether these assertions of
significance related to the specified area…”[19]
On
6 March 2003, Mr Williams filed an application for review under s 5 of the ADJR
Act of the Ministers decision. On 20 May 2003 the application was heard in the
Federal Court where Barrick Australia was joined as a Respondent. The review
focused on two grounds - that it was incorrect for the Minister to state that
most of the evidence related to the broader rather than the specified area and
that there was a logical inconsistency between the Minister saying that the
broader area may be of significance, but that the evidence did not establish
that the specified area was of particular significance. [20]
The
evidence provided in the s 9 application contained a considerable amount of
detail of the significance of the specified area, as that was the area under
threat. The Minister gave no reasons for his decision as to why the specified
area did not share the significance of the whole area. This is where Wilcox J
found the Minister’s decision to be legally flawed.
An
order was made by Wilcox J to set aside the Ministers decision and that the
application be remitted to him for further consideration and determination
according to law. He also made an order pursuant to 16(1)(d) of the ADJR Act to
restrain Barrick from carrying out any work on the specified area. To do
otherwise would render the exercise futile as the company was about to step up
its drilling program which would put the subject matter of the litigation under
imminent threat.
This
was the outcome hoped for by the Mr Williams. An injunction in the Land and
Environment Court had been lifted a week earlier and the company was about to
proceed with one last mass collection of artefacts. Any artefacts missed were
then able to be destroyed as per the NPWS consent to destroy. However, the
victory was short lived as Barrick’s counsel made submissions that the
Court had no power to make the restraining order due to a decision of the High
Court in Johns v Australian Securities Commission (1993) 178 CLR 408.
Submissions
were put by Mr Williams’s representative setting out why Johns did not apply, mainly
because the factual differences were so great, but Wilcox J overturned his
previous order and instead placed a time restriction on the Minister to make
his decision. An appeal was lodged immediately and as the situation was so
urgent, a hearing before the duty judge was held for interim orders restraining
the company until the appeal could be heard which was dismissed.[21]
The appeal on the Courts power to grant injunctions on third parties joined to
proceedings such as these was also dismissed with the Judges saying there was
no utility due to the fact that time had lapsed.[22]
On
11 June 2003, the Minister remade his decision not to grant emergency
protection. In his Statement of Reasons he stated that there was not enough
evidence to warrant protection. Further applications have been lodged but all
have been refused.
Native
Title Act 1993
The
High Courts decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 was a turning
point in relations between Indigenous and non-indigenous Australians. The
fundamental legal fiction of terra nullius was over turned as the Court
recognised that Aboriginal people had common law rights of traditional title to
land. These common law principles, governing the recognition of native title by
the Court, have been incorporated in the NTA.
The
NTA offers little with regards to protection of cultural heritage per se but holders or
registered claimants of native title are offered certain procedural rights in
relation to traditional land (s 24MD(6A)). Sections 24MD(6B)(c)-(f) set out
additional procedures available to native title holders with regards to
development on their land.
These
right to negotiate provisions are described as “special statutory
procedural right[s] given to registered native title bodies corporate and
registered native title claimants by the NTA in relation to certain kinds of
future acts.”[23]
A
s 29 Notice under the NTA (future act) was advertised 20 September 2002. Five
applications were made – one from the Wiradjuri Council of Elders (WCE),
one from the Mooka Traditional Owners and three other separate family claims.
The only one to be registered is the WCE, who have made a claim on behalf of all
the Wiradjuri People.
Previously
single and extended family claims, if properly authorised, were registered. In Risk
v Registrar, NNTR [2000] FCA 1589 it was stated that smaller family claims cannot
be registered. O’Loughlin J held that, “when it is apparent to the
delegate that the group bringing the application is only part of a larger group
who hold common or group rights, it is impossible to accept the application for
registration.”[24] This remains one of the reasons why the
WCE claim was registered and not the smaller family claims.
Unlike
the right to veto under the Aboriginal Land Rights Act 1976 (NT) the NTA
provides a right to negotiate mechanism to reach agreements over future acts.
Barrick and the WCE negotiating team have reached such an agreement, which is
described in a media statement as promoting and protecting Wiradjuri cultural
heritage.[25] An
Education, Training and Business Development Committee will be set up to
facilitate training and employment at the mine and to educate people about
cultural heritage, a Centre for Wiradjuri Studies will be established as well
as a transportable display about Wiradjuri Condobolin people.
Despite
it being made on behalf of all the Wiradjuri people the contract is protected
by ‘commercial in confidence’, meaning only the 5 members of the
negotiating team have seen it. This agreement was imperative for the mine to
proceed and the process under the right to negotiate provisions has made it
possible.
Neville
Williams on behalf of the Mooka and Kalara United Families Claim has attempted
to ‘strike out’ the native title claim of the WCE saying that the
applicants were not properly authorised under s251 of the NTA. Despite having
evidence from senior Wiradjuri elders who are said to have authorised the claim
stating they didn’t, the application was dismissed[26].
An appeal to the Federal Court[27]
was also dismissed and the case is now pending in the High Court.
[1] Section 83 states:
(1) subject to this section:
(a) an Aboriginal object that was, immediately
before the commencement day, deemed to be the property of the Crown by virtue
of section 33D of the Act of 1967, and
(b) an Aboriginal object that is abandoned on
or after that day by a person other than the Crown, shall be, and shall be
deemed always to have been, the property of the Crown…
(2)No compensation is payable in respect of the vesting of an Aboriginal object by this section or section 33D of the Act of 1967.
[2] Letter from Jason Ardler Director Cultural Heritage NPWS to Ruth Rosenhek, Director Rainforest Information Centre, undated
[3] Sandon Point, south of Wollongong,
[4] Third Further Amended Application Class 4, paragraph 1, 25 November 2002
[5] Williams v Homestake Australia Ltd [2002] NSWLEC 5
[6] Affidavits of David Johnston sworn on 21 February, 13 March and 20 March 2002
[7] Williams v Homestake Australia Ltd [2002] NSWLEC 43
[8] Williams v Director General National Parks and Wildlife Service [2002] NSWLEC 218
[9] Williams v NPWS and Ors Outline of Submissions for Second, Third and Fourth Respondents at 2
[10] Wickman S, Report to National Heritage Consultants, April 2002
[11]Letters from Neville Williams to DG 24 May 2002, 9 May 2002, 6 May 2002, 15 April 2002
[12] Williams v DG NPWS and Ors Proceedings 40171of 2002 First Respondents Submissions p 1
[13] Bignold J, Williams v Director-General of the National Parks and Wildlife Service and Ors [2002] NSWLEC 121
[14] Williams v Director General National Parks and Wildlife Service & Ors (2002) NSWLEC 235 3 December 2002
[15] Reconciliation and Social Justice Library, ‘Case studies under the Aboriginal and Torres Strait Islander Heritage Protection act 1984’ p 2, www.austlii.edu.au/cgi-bin/disp.pl/au/special/rsjproject/rsjlibrary/evatt/annexvii
[16] Submission by Barrick Australia Ltd and Barrick Gold of Australia Ltd in response to Application by Neville Williams for an Emergency Declaration under section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act in relation to the Cowal Gold Project, 4 November 2002
[17]Kemp D, Minister for Environment and Heritage, Statement of Reasons 6 February 2003
[18] Note 29 paragraph 25
[19] Note 29 paragraph 24 and 26
[20] ss 5(2)(b) and s 5(2)(g) of the ADJR Act - failure to take into account a relevant consideration and Wednesbury unreasonableness
[21] Williams v Minister for the Environment and Heritage [2003] FCA 627
[22] Williams v Minister for Environment and Heritage [2004] FCAFC 58
[23] Native Title 2nd Edition – Native Title Act and Regulations, AGS, ACT, 1998 p37
[24] Piggot L, Registar’s Delegate, Reasons for Decision of Registration Test, NNTT, 27 February 2002
[25] Joint Media Statement, Barrick Gold of Australia Ltd and Wiradjuri Condobolin Native Title Claim Group, 22 May 2003
[26] Grant v Minister for Land & Water Conservation [2003] FCA
621 (20 June 2003)