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Editors --- "Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service - Case Summary" [2002] AUIndigLawRpr 56; (2002) 7(4) Australian Indigenous Law Reporter 21

Court and Tribunal Decisions - Australia

Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service

New South Wales Land and Environment Court (Talbot J)

2 May 2002

[2002] NSWLEC 67

BC200204789

Procedural fairness — whether a decision of the first respondent to issue consents to destroy sites was void on the ground of lack of procedural fairness — whether the first respondent created a legitimate expectation that the applicant could inspect artefacts prior to the issue of the consents

Facts:

On 8 October 2001 and 2 November 2001 the Court granted development consent for the subdivision of Sandon Point to be carried out by the second respondent. In May and June 2001 archaeological subsurface testing was carried out by consultant archaeologists on the sites for Stage 1 and Stages 2-6 of the development. Excavations were carried out on the sites for Stages 2-6, with representatives from five local Aboriginal groups present, and 991 stone artefacts were uncovered. On 22 October 2001 the consultant wrote to the Aboriginal communities enclosing the Reports on the subsurface testing. The communities were invited to provide a response to the Reports by 1 November 2001 and were informed that the second respondent intended to apply to the National Parks and Wildlife Service for s 90 consents to ‘destroy those parts of the site which occur within the Stages 1-6 development areas’. On 25 October 2001 the second respondent made two applications for Consent to Destroy Aboriginal Relics under s 90 of the National Parks and Wildlife Act 1974 (NSW).

The applicant indicated to the consultant and to officers of the first respondent that the Sandon Point Aboriginal Tent Embassy would provide a response to the Reports. In discussions with officers of the first respondent the applicant expressed a desire to view the artefacts. On 30 January 2002 the consents were signed by an officer of the second respondent, without any response being received from the applicant despite letters indicating that a response would be forthcoming first by 14 December 2001 and then by 29 January 2002. The applicant claimed that he was denied procedural fairness by not being afforded the opportunity to inspect the artefacts and by not being warned on 24 January that the consents would be approved on 29 January in the absence of his comments.

Held:

1. The officers of the first respondent did not regard the expectation that the artefacts be inspected as being related to the making of a submission by the applicant or the persons he represented: [60].

2. There was no legitimate expectation that any decision would be delayed until the applicant had inspected the artefacts: [64]. Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; [1989-1990] 169 CLR 648 applied.

3. Once the element of an expectation to view the artefacts is removed there is no reason to justify a finding that the applicant was not afforded procedural fairness prior to the determination of the s 90 applications: [65].??