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COUNTRY ENERGY v NEVILLE WILLIAMS;
NEVILLE WILLIAMS v DIRECTOR-GENERAL OF NATIONAL PARKS AND WILDLIFE
NSW Court of Appeal (Spigelman CJ, Giles and Basten JJA)
15 September 2005
Administrative law — consent under National Parks and Wildlife Act 1974 (NSW) s 90 — permit under National Parks and Wildlife Act 1974 (NSW) s 87 — whether procedural fairness accorded to interested party in relation to survey and assessment of Aboriginal significance of proposed development site — whether interested party given an adequate opportunity to assess the significance of any Aboriginal objects
Country Energy planned to construct an electricity transmission line to facilitate the supply of electricity to a proposed gold mine and processing plant on the shores of Lake Cowal in central New South Wales. The proposed line was to follow a corridor approximately 105 kilometres in length and 200 metres wide. This project required development consent pursuant to the Environmental Planning and Assessment Act 1979 (NSW).
Approval for the project was granted on a number of conditions, including a requirement that a detailed archaeological assessment be made. Country Energy engaged Dr Pardoe to conduct the assessment and required Dr Pardoe to, inter alia, consult with interested Aboriginal groups. Dr Pardoe conducted the consultation and assessment and produced a report which identified ‘Aboriginal objects’ in the corridor within the meaning of the National Parks and Wildlife Act 1979 (NSW) (‘the NP&W Act’). Country Energy submitted this report to the Director-General of National Parks in support of its application for a permit and consent to allow the disturbance and relocation of certain Aboriginal objects and to damage or destroy Aboriginal objects the existence of which were not yet known.
Mr Williams successfully challenged the validity of the permit and consent in the Land and Environment Court on the ground that he had been denied procedural fairness, said to arise from the refusal of Country Energy to involve Mr Williams in the actual carrying out of the survey. The decision of Lloyd J in that court is the subject of the first appeal.
After the decision of Lloyd J, Country Energy provided Mr Williams with an opportunity to survey the land in the corridor. Mr Williams did so and made submissions to the Director-General to the effect that he had been given inadequate time to properly form a view as to the adequacy of Dr Pardoe’s report. At the request of Country Energy, the Director-General provided a second permit and consent in relation to the corridor. Mr Williams unsuccessfully challenged the second permit and consent in the Land and Environment Court and the decision of Bignold J in that court is the subject of the second appeal.
Mr Williams, by notice of contention, asserted that the consent to destroy Aboriginal objects could not be given for the purpose of permitting development nor could it be given in relation to Aboriginal objects, the existence of which was not known at the date of the consent.
1. Where an expectation is said to follow from public conduct or policy statements it is sufficient that others may identify the unfairness or that the individual concerned may realise at a later point that he or she has been unfairly treated. It is not necessary that the affected person appreciated the unfairness at the time: [91].
2. The existence of a legitimate expectation that Mr Williams would be involved in an inspection of the whole corridor prior to the giving of any consent to destroy Aboriginal objects does not constitute a procedural right which would necessarily render invalid a consent obtained after a non-compliance with the legitimate expectation: [95].
3. The Director-General can abandon a policy or procedure which she has adopted, so long as the new procedure or policy is itself lawful and not in contravention of some statutory or general law obligation, and she gives notice, as necessary, to those who have a legitimate expectation that the policy will be followed: [97]–[99]. Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1994-95) 183 CLR 273 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 applied.
4. Mr Williams asserted a right to survey the transmission line himself and was told that the extent of the consultation was to enable him to comment on the existing recommendations and that it did not extend to a resurvey of the corridor. Mr Williams’ objections to the National Parks and Wildlife Service were considered and rejected. Procedural fairness was accorded to Mr Williams: [100].
Held, as to whether the consent to destroy Aboriginal objects could not be given for the purpose of permitting development:
1. The absence of an express restriction for which Mr Williams contended suggested that Parliament did not intend such a restriction: [63]. Friends of Hinchinbrook Society v Minister for Environment (1997) 77 FCR 153 compared.
2. Section 6(2) of the Protection of the Environment Administration Act 1991 provides that ‘ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes’ indicating the NP&W Act is but one piece of legislation which must operate in conformity with other legislation governing land development activities: [65].
3. Whilst the NP&W Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the Director-General to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction which would prevent the power being exercised in relation to development of private land: [67].
4. The conferral of the power of consent on the Director-General itself provides a high level of protection for Aboriginal objects, particularly when read in conjunction with s 91 of the NP&W Act requiring all people to inform the Director-General of the existence of Aboriginal objects of which they are aware; allowing the Director-General to determine whether any particular objects or class of objects are ‘of significance to Aboriginal people’ for the purposes of giving effect to the object identified in s 2A(1)(b)(i) of the NP&W Act: [67].
5. The broader context in which the s 90 power operates demonstrates that no implied restriction that decisions by the delegates of the Director-General to give consent under s 90 must be for the purpose of giving effect to her responsibilities for the ‘proper care, preservation and protection of any Aboriginal object’, and not for the purpose of permitting development: [67].
1. The power to grant consent under section 90 of the Act for the destruction of Aboriginal objects includes the power to give consent to the destruction of objects, which have not been identified at the date of the consent: [44]–[60].
1. The Director-General’s expression of consent is of no legal consequence unless and until a person is charged with an offence under s 90(1) of the NP&W Act: [4].
2. The issue is whether an expression of consent referring to an Aboriginal object or Aboriginal objects not known at the time the consent is given is sufficient for exculpation: [6].
3. That the offence involves the person ‘knowingly’ destroying the Aboriginal object does not preclude consent expressed in the manner described above; the ‘knowingly’ is directed to the state of mind of the alleged offence, not to the expression of any consent: [7].
4. There is nothing in the words of s 90 limiting a consent to destruction of Aboriginal objects known to exist, and the Act would be unworkable if that limitation were read into it. The width of the definition of ‘Aboriginal object’, the extent to which Aboriginal objects as defined may be expected to be encountered and the necessity that consents may be expressed in terms of Aboriginal objects not know to exist, lest ordinary farming activity let alone projects such as that the subject of the appeal be stultified, lead to the conclusion that a consent may be expressed in that manner: [7].
1. A judgment of the court cannot give rise to a legitimate expectation. It can arise from either the underlying legal principle applied in the judgment or from a policy adopted by the Director-General, the subject of the judgment: [103].
2. Mr Williams did not establish that he was not given an adequate opportunity to assess the significance of any Aboriginal objects, which may remain unidentified on the corridor: [104].
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3. Section 90 of the National Parks and Wildlife Act 1974 (‘the Act’) contemplates that application for consent may be made and that consent may be given ‘for the purposes of subsection (1)’. If it be correct to speak of a power to give consent, the power is conditioned by the words ‘for the purposes of sub-section (1)’; but these words simply define the field of reference for the consent, namely the destruction, defacement or damage to an Aboriginal object or Aboriginal place.
4. The Director General’s expression of consent is of no legal consequence unless and until a person is charged with an offence under s 90(1) and there arises a question whether that person had first obtained the Director-General’s consent to the destruction of the Aboriginal object the subject of the charge. The question then is whether the consent is a consent for the purposes of s 90(1). In a sense there is a question of power, but in relation to ‘generic’ consent it is more correctly whether the consent as expressed is in terms which will exculpate the person.
5. Where it is said that consent can not be given to destruction of an unidentified Aboriginal object, therefore, what is meant is that in any prosecution for an offence under s 90(1) an expression of consent which does not identify the Aboriginal object the subject of the charge will not provide exculpation. That itself needs refinement. Must the identification be of an Aboriginal object known at the time the consent is given? If not, what level of identification is required, for example, a category of Aboriginal objects or the Aboriginal objects in a given area? The level of identification may turn on the facts, and for present purposes it can only be asked whether the identification must be of an Aboriginal object known at the time the consent is given; even that can involve what is meant by knowledge.
6. In the way s 90 works, there is no question of power to consent to the destruction of an Aboriginal object of which the person was unaware at the time of the destruction; and more generally, I would prefer to avoid the language of power. The issue is whether an expression of consent referring to an Aboriginal object or Aboriginal objects not known at the time the consent is given is sufficient for exculpation. There is a considerable element of advisory opinion in dealing with the issue. If Country Energy is charged with knowing destruction of an Aboriginal object, will it be unable to rely on (one of) the consent(s) to exculpate it? Ordinarily a court would not entertain such a question. Restraint in giving advisory opinion has not been raised in submissions, and I am prepared in this instance to deal with the issue.
7. That the offence involves the person ‘knowingly’ destroying the Aboriginal object does not preclude consent expressed in the manner described above; the ‘knowingly’ is directed to the state of mind of the alleged offender, not to the expression of any consent. There is nothing in the words of s 90 limiting a consent to destruction of Aboriginal objects known to exist, and the Act would be unworkable if that limitation were read into it. The width of the definition of ‘Aboriginal object’, the extent to which Aboriginal objects as defined may be expected to be encountered and the necessity that consents may be expressed in terms of Aboriginal objects not known to exist, lest ordinary farming activity let alone projects such as the ETL be stultified, lead in my opinion to the conclusion that a consent may be expressed in that manner.
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56. … three factors weigh in favour of not imposing any rigid restriction of the kind proposed by Mr Williams on the power of the Director-General to consent. The first is the very breadth of the definition of ‘Aboriginal object’. Even the most mundane signs of Aboriginal habitation fall within the scope of the definition. A fireplace created this century may qualify, even if it has no cultural significance to Aboriginal people. If the Director-General’s attention was drawn to one camping site of recent occupation in relation to which, in giving effect to s 2A(1)(b), she satisfied herself that the feature was of no significance to relevant Aboriginal people, and those people themselves pointed out that there were numerous, as yet unidentified, camp sites along the same stretch of river bank, there is no relevant statutory purpose which would be violated if consent were given to a project which might damage not only the known site, but also other sites expected to be discovered in the course of the development work.
57. Secondly, there is no doubt that Aboriginal people have left, and continued to leave, their marks across the face of the Australian landscape, so that there will be few areas as yet relatively undisturbed by modern activity, which will bear no imprint of the past. On the other hand, it is clear, in part from s 2A(2), that development generally was not intended to be brought to a halt until all material evidence of Aboriginal habitation is separately identified.
58. Thirdly, the fact that the power to give consent expressly includes the power to subject such consent to specified conditions and restrictions is at least consistent with the possibility that consent may be given in respect of Aboriginal objects which have not been identified or the significance of which has not been fully assessed: see s 90(2). Whilst that provision would have work to do even if the power was restricted to objects identified at the date the consent was given, it is reasonable to construe it as having a broader scope, consistent with the subject-matter and purpose of Part 6 of the NP&W Act.
59. For these reasons, I would reject the argument that no consent can be given to the destruction of an object which has not been identified at the date of the consent. That conclusion is sufficient to dispose of the point raised by the notice of contention, so far as it can properly be entertained. For reasons noted above, it is unnecessary to consider whether a consent to destroy an object which had not been identified by the applicant as an Aboriginal object at the time of destruction can be given, such consent being in any event immaterial. Nor does this ground raise the possibility that a consent to the destruction of objects which may be of high significance would reveal an error of law; that is not a matter which is raised on the appeal.
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62. There are a number of reasons for concluding that the obligations of the Director-General with respect to the protection of Aboriginal objects cannot be interpreted in an absolute way so as to preclude, for all practical purposes, the grant of consent to destroy objects. No doubt it is true to say that such a restrictive construction would not read the power to grant consent entirely out of the Act. Appropriate protection for a midden, for example, may require survey and research work which would have the effect of damaging the midden. A consent to conduct such research would, as was pointed out on behalf of Mr Williams, require consent and consent could properly be given consistently with the protective responsibility of the Director-General.
63. However, there are reasons to think that the power to consent is not so limited. First, if it were intended to operate in that way Parliament could have said so. An example of such a situation may be found in Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153, a case involving a challenge to a consent given by the respondent Minister to activities which would damage a world heritage property …
The manner in which social and economic values might indirectly become relevant, even in that constrained statutory environment, was explained at first instance by Sackville J in Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 76C-77B.
64. In the present case, neither s 2A nor s 85 imposes an express requirement that the only considerations that the Director-General may have regard to in giving a consent under s 90 are ‘the proper care, preservation and protection of’ the relevant Aboriginal objects. Indeed, this language, which is taken from s 85(2)(a), identifies a function of the Director-General in respect of objects and places ‘on any land reserved under this Act’. There does not appear to be any reason to apply the geographical qualification to Aboriginal places only and not to Aboriginal objects. Accordingly, that provision has no operation in relation to Aboriginal objects on private property: the present case was not concerned with reserved land.
65. Secondly, it is possible to read too much into the obligation imposed on the Director-General, pursuant to s 2A(3), to ‘give effect to’ the objects of the Act, in carrying out her functions under the Act. As was pointed out on behalf of the Director-General, s 2A(2) prescribes that the objects of the Act ‘are to be achieved’ by applying the principles of ecologically sustainable development, being principles identified in s 6(2) of the Protection of the Environment Administration Act 1991. According to that provision, ‘ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes’. These principles may not have direct application to the conservation of Aboriginal objects, but the reference to them in s 2A(2) provides an explicit recognition that the NP&W Act is but one piece of legislation which must operate in conformity with other legislation governing land development activities.
66. Thirdly, the primary object in s 2A is ‘the conservation of nature’ which presumably includes the protection of fauna and flora. In relation to fauna, s 92 of the NP&W Act provides that the Director-General ‘shall be the authority for the protection and care of fauna’. Nevertheless, s 120 permits the issue of a licence authorising a person to harm protected fauna, including in the course of carrying out specified development: s 120(1)(e). Furthermore, as is recognised in s 90 itself, a consent under that provision may be given pursuant to s 91 of the EP&A Act, ‘in respect of integrated development’. Pursuant to s 91A of the EP&A Act, a refusal to grant consent may result in refusal of the development application. However, if the Director-General should fail to inform the consent authority under the EP&A Act as to whether she would or would not grant the consent, the development application may be determined, with the result that the Director-General could no longer refuse to grant her consent under 90 of the NP&W Act: see EP&A Act, s 91A(5).
67. No doubt these provisions merely reflect the obvious, namely that there will often be a tension between development activities and environmental protection. Where, in the public interest, protection considerations prevail, the land will usually be set aside for public purposes or any absolute constraint on development of private land will be made explicit. Aboriginal objects may be found on land throughout the State, including private land, especially in rural areas where there has not been intensive development. The breadth of the definition of Aboriginal objects demonstrates that almost any land which has not been the subject of intensive development is likely to be affected. If the presence of such objects was to be a bar to the development of private land in any manner which might lead to damage, defacement or destruction of the objects, one would expect the statute to make that explicit and unambiguously clear. Whilst the NP&W Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the Director-General to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction, which would prevent the power being exercised in relation to development of private land. The conferral of the power of consent on the Director-General itself provides a high level of protection for Aboriginal objects, particularly when read in conjunction with the obligation of all people to inform the Director-General of the existence of Aboriginal objects of which they are aware (s 91), such protection allowing the Director-General to determine whether any particular objects or class of objects are ‘of significance to Aboriginal people’ for the purposes of giving effect to the object identified in s 2A(1)(b)(i). This broader context in which the s 90 power operates demonstrates that no implied restriction of the kind asserted by Mr Williams should be accepted.
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97. In Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1994-95) 183 CLR 273 at 291-292, Mason CJ and Deane J stated:
‘The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law ...
But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.
Of course, where the expectation is limited to consultation, there would need to be some particular onerous or time-consuming aspect to an obligation in order for it to be sensible, in practical terms, to speak of the need to consult about withdrawing the expectation of consultation. However, the principle applies to departure from an expectation of consultation: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
98. There is another, and more important qualification, which needs to be borne in mind, distinguishing the use of the term ‘legitimate expectation’ from the essential requirements of procedural fairness. Thus, if procedural fairness requires a person to be given notice of, and an opportunity to comment on, material from which the decision-maker may draw an inference adverse to the applicant’s interests, that is not the kind of expectation which can be departed from so long as notice of intended departure is given. Rather, that is a legal requirement which derives either from the general law or by way of statutory implication, assuming it is not an express requirement imposed by a statute. The circumstances of Teoh may be used by way of illustration. If a domestic law had required the decision-maker to give primary consideration to the best interests of the affected children, the decision-maker could not depart from that obligation, by giving notice of such an intention. But the Convention requirement, not being a requirement of domestic law, did not rise to that level and thus could be departed from upon appropriate notice being given. It follows that the Director-General can abandon a policy or procedure which she has adopted, so long as the new procedure or policy is itself lawful and not in contravention of some statutory or general law obligation, and gives notice, as necessary, to those who have a legitimate expectation that the policy will be followed.
99. Because principle and authority operate in partnership, it is unnecessary to provide a more extensive justification from the approach identified above. The relevant case law was discussed in the judgments of Gleeson CJ and Beazley JA (Powell JA agreeing) in Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33. No different approach has been adopted in more recent decisions …
100. In the present case, Mr Williams was given precisely that kind of opportunity. In September 2003 his exchanges with NPWS officers were replete with complaints that he should be allowed to survey the transmission line corridor himself … In the memorandum counter-signed by the delegate who granted the consent, his position was summarised in the following terms:
Mr Williams said that:
Mr Williams was later to deny that he had asserted that he was ‘the’ traditional owner or the only person who understood Wiradjuri culture. Nevertheless, that factual mistake (if it were such) does not affect the conclusion that he was being told that the extent of the consultation was to enable him to comment on the existing recommendations and did not extend to a resurvey of the corridor. His assertions that this was inadequate were considered by the officer. The proposition that the survey work was inadequately carried out was expressly addressed and rejected …
The recommendation that the consent be approved was at least an implied rejection of Mr Williams’ assertion that an expectation had been thwarted and the departure from the expectation should be reversed. The recommendation of the officer preparing the memorandum, dated 30 July 2004, was acted on by the delegate, who signed the consent on 1 August 2004. Procedural fairness was accorded to Mr Williams in these circumstances, even on the assumption that all of the favourable findings made by the primary judge (which I doubt the correctness of, as noted above) were accepted. Accordingly, his Honour erred in setting aside the consent on this ground.
103. … it is a novel proposition that the judgment of a court could give rise to a ‘legitimate expectation’. The analysis which achieves that result would appear to reflect the mistaken understanding of the doctrine of legitimate expectation, as identified above. In particular, it appears to equate legitimate expectation with the minimum content of procedural fairness. But even if that understanding were correct, the legitimate expectation does not arise from the judgment, but from the underlying legal principle applied in the judgment. Alternatively, if the legitimate expectation arises from a policy adopted by the Director-General, the source of the legitimate expectation remains the policy, and not the judgment of the Court. This distinction is important because the Director-General cannot affect the judgment of the Court, but she can adopt a different lawful procedure.
104. Mr Williams complained that the further opportunity accorded him by Country Energy, pursuant to which he was ultimately allowed some 10 and a half days to survey the corridor, remained inadequate. As noted in its submissions in this Court, that which Country Energy accorded him was an opportunity co-extensive with that initially proposed Mr Williams’ own archaeologist. As a matter of fact, the suggestion that he was not given an adequate opportunity to assess the significance of any Aboriginal objects which may remain unidentified on the corridor lacked substance and was properly rejected by Bignold J in the Land and Environment Court. However, for the reasons given above, which follow from the judgment of this Court in relation to the other appeal, the challenge is in any event without substance.
105. Mr Williams’ appeal should be dismissed.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/66.html