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. 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to January 2003 show that of the 108 ss 87 and 90 applications applied for that year, only four have been refused or withdrawn. 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.

It seems that the NPWS, contrary to their statutory obligations to protect Aboriginal cultural heritage, are often the facilitators of its destruction.

______________________________

CHALLENGES UNDER THE NATIONAL PARKS

Williams v Homestake Australia Ltd [2002] NSWLEC 5; Williams v Homestake Australia Ltd [2002] NSWLEC 43
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.” 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.

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. 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.

On 23 May 2002, the company received a s 87 permit under the NPW Act for the collection of artefacts and for test pit excavations of selected areas of the site. The injunction was discharged on 31 May 2002.

Mr Williams then filed a claim that artefacts had been damaged in breach of s 90. This case was part heard on 24-28 November 2002 and completed in 5 – 8 May 2003 and the application was unsuccess.

back
______________________________

Williams v Director General National Parks and Wildlife Service (2002) NSWLEC 154
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. 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. 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.

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”, 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.”

back

______________________________

Williams v Director-General of the National Parks and Wildlife Service and Ors [2002] NSWLEC 121
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.

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.

back

______________________________

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.

back

_____________________________

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.

back

______________________________

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.
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.

back

______________________________

Section 9 Emergency Protection Application
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.

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.” He also recognised “that the wider Lake Cowal area might be of particular significance to Aboriginals in accordance with Aboriginal tradition.”

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…”

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.

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. 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.

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.

back

______________________________

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.”

back

______________________________

Native Title Application and Process at Lake Cowal
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.” 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. 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 . An appeal to the Federal Court was also dismissed and the case is now pending in the High Court.

back

______________________________

PRINT ALL LEGAL PROCEEDINGS

______________________________

PLEASE SUPPORT THE SAVE LAKE COWAL FUND