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Editors --- "Roy Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 - Case Summary" [2006] AUIndigLawRpr 49; (2006) 10(3) Australian Indigenous Law Reporter 51

ROY KENNEDY V DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Land and Environment Court of NSW (Jagot J) [2006] NSWLEC 456 26 July 2006

Consent to destruction of Aboriginal property under the National Parks and Wildlife Act 1974 (NSW) — availability of a ‘keeping place’ for recovered Aboriginal artefacts

Court and Tribunal Decisions

Facts:

In October 2000, Wollongong City Council informed the National Parks and Wildlife Service (NPWS) that it was considering development of Sandon Point, an area known to contain significant Aboriginal historical artefacts. This announcement caused significant controversy in the surrounding community and a number of reports were tabled detailing the effects of the proposed development.

According to section 90(1) of the National Parks and Wildlife Act 1974 (NSW) (‘the Act’), any destruction of Aboriginal artefacts constitutes an offence unless the consent of the Director-General of the NPWS has been procured. From January to September 2002, two such consent applications for the development of Sandon Point were sought by the respondent and granted by the Director-General.

The applicant, Mr Kennedy, is an Aboriginal person from the Wadi Wadi group who occupied land in the region affected by the development. In relation to the development, Mr Kennedy brought a number of claims before the Land and Environment Court seeking declarations and orders that the consent granted by the Director General was invalid, and (by virtue of that initial declaration of invalidity) seeking further orders to remedy and restrain the breaches of the Act.

Held, refusing to order that the consent was invalid but making orders to remedy the potential future breach of the act:

1. The applicant’s claim that consent was invalid for uncertainty is misconstrued. There are no specifications in the Act that consent to destroy Aboriginal artefacts must be qualified by details of dates and areas to which that consent applies. Ambiguity of expression will not lead to a finding of invalidity: [74]–[84], Cann’s Proprietary Limited v The Commonwealth and Another [1946] HCA 5; (1946) 71 CLR 210, 699.

1 The applicant had not identified any source of obligation that led to him experiencing procedural unfairness. A finding that an applicant has been denied procedural fairness must derive directly from a legal obligation outlined either in statute, by express statement or implication, or from stated public policy: [85]–[99], Country Energy v Williams (2005) 63 NSWLR 699.

2 The applicant’s submission that the Director-General had failed to take relevant factors deriving from reports into consideration when formulating consent to the Sandon Point development was misconstrued. In exercising discretion to grant consent to destroy Aboriginal objects, the Director-General does not have to take into consideration matters except those that must be implied by the scope of the Act: [100]–[103], Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24.

3 Although section 90 allows consent to be granted for the destruction of Aboriginal objects for up to one year, if a ‘keeping place’ for the protection of such objects is not operative after that year then development must cease until such a place is established. Consequentially, since there is a threatened breach of the Act, orders are made to ensure the ‘keeping place’ is established as soon as it is practicable. Any further development without the establishment of an operative keeping place will constitute a breach of the Act: [186]–[188].