EDO NSW has responded to requests for advice and representation in matters affecting Indigenous communities, and has assisted them in their efforts to protect traditional knowledge and cultural heritage.
Robert Williams v Rodney John Graham & Others, Cedar Point Quarry
Gidubul Elder Robert Williams, represented by EDO NSW, is seeking to protect Aboriginal cultural heritage from being destroyed by works at the Cedar Point Quarry near Kyogle, in northern NSW.
On 29 November 2016 the Land and Environment Court decided that works could proceed at the quarry without obtaining an Aboriginal Heritage Impact Permit. Read the judgment.
Mr Williams is concerned that development at the Cedar Point Quarry site will harm a sacred site that contains part of a men’s ceremonial site, including burial grounds and areas where tools were made.
Under the National Parks and Wildlife Act 1974 it is an offence to harm Aboriginal objects without an Aboriginal Heritage Impact Permit issued by the NSW Office of Environment and Heritage.
The quarry was approved in 2012, but no Permit has been granted. Mr Williams’s evidence sets out his traditional knowledge and belief that the quarry site contains sacred Aboriginal areas and objects. The quarry company has begun preparatory works and our client is concerned that the significant sites have been affected.
On 7 September 2016, we filed proceedings in the Land and Environment Court on behalf of Mr Williams asking the court to stop works at the quarry. The Court granted an injunction, ordering work to stop at the quarry until judgment. The Court also ordered the quarry company and land owners to allow Mr Williams and an expert archaeologist to access the quarry site to carry out an inspection, and made special orders restricting access to gender-sensitive evidence about the site. The matter was heard in the Land and Environment Court on Monday 14 November 2016.
We are grateful to barristers Craig Leggat SC, Trent March, Nick Eastman and Damian Beaufils for their assistance in this matter.
EDO NSW is committed to using our expertise, professionalism and deep commitment to assist and stand with our Aboriginal clients as they protect and promote their Country, culture and heritage through law.
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Recognising Aboriginal culture and heritage: our laws need improving, EDO NSW blog, 10 October 2016
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Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors
In 2006, EDO NSW represented Douglas and Susan Anderson, traditional owners of land at Angels Beach in East Ballina, in their challenge to the validity of a consent issued by the Director-General of the Department of Environment and Conservation which allowed the destruction of Aboriginal cultural heritage for a residential subdivision.
The Land and Environment Court ruled that the consent was invalid because the Director-General had failed to take into account a number of relevant matters in issuing the consent, including a supplementary report in relation to the heritage significance of the subdivision site.
The Court also found that the Director-General had failed to adequately apply the principles of ecologically sustainable development as required under the National Parks and Wildlife Act, particularly the principle of intergenerational equity.
We are grateful to barristers Tim Robertson SC and Louise Byrne for their assistance with this matter.
Anderson & Anor v Director-General, Department of Environment and Climate Change & Anor
There is a long history to this matter. EDO NSW acted for the Andersons in an earlier case challenging the validity of a consent issued by the Director-General of the Department of Environment and Conservation, allowing the destruction of Aboriginal cultural heritage for a residential subdivision (see past cases). Subsequently, the Andersons have successfully challenged two further re-determinations to grant the consent, and also successfully challenged the grant of development consent by the Minister for Planning. In recent proceedings, the Andersons lost a further challenge to a determination by the Minister for Planning to grant development consent for the residential subdivision.
These proceedings, which were heard in April, challenged a fourth consent allowing the destruction of Aboriginal objects on the site of the proposed subdivision. The challenge was unsuccessful.
Briggs-Smith v Moree Plains Shire Council – Federal Magistrates Court
In December 2011, EDO NSW filed an application in the Federal Magistrates Court on behalf of Aunty Noeline Briggs-Smith seeking protection of the Dhiyaan Indigenous Centre (DIC), an Aboriginal keeping place in Moree.
The DIC is a collection of Aboriginal library resources, geneaologies and artefacts that took 16 years to accumulate. The DIC played an essential role in the preservation of cultural heritage for Aboriginal people in and around Moree until its closure and redistribution of the majority of the collection to regional libraries. Our client sought orders for the Moree Plains Shire Council to return items and restore the DIC for the benefit of the Aboriginal community. Our client was unsuccessful in her application for a maximum costs order to cap liability for costs in the proceedings at $5,000. Subsequently, Aunty Noeline was unable to continue with her case given the risk of an adverse costs order if unsuccessful. The proceedings were discontinued but our office is continuing to assist Aunty Noeline in trying to protect and restore the DIC.
EDO NSW would like to thank barrister Brenda Tronson for her assistance in this matter.
Kennedy v Director-General and Stocklands
This matter related to a decision to allow the destruction of objects with cultural heritage significance at Sandon Point. It raised issues relating to the failure of the local council to take into account relevant matters when assessing the application to destroy cultural heritage, particularly the fact that the council, in reaching its decision, relied on archaeological reports that were prepared in relation to previous applications and did not undertake fresh consultation with the Aboriginal community on the issue. Due to a review of prospects of success after the finding in the Williams case (below), EDO NSW ceased to act in this matter.
Kennedy v Stockland Developments Pty Ltd & Anor (No 3)
This case concerned earthworks undertaken by Stockland on land known as “Wilkies Walk”, being land of significance to Aboriginal people, and protests by Aboriginal people who sought to prevent the works from taking place. Justice Sheahan had granted an injunction restraining unauthorised members of the public from entering upon any part of the land specified in the orders. EDO NSW, on behalf of Mr Kennedy, sought that the injunction be dissolved on the basis that it was made on an ex parte basis without affording Mr Kennedy an opportunity to be heard, its terms were too wide, and that it impermissibly infringed a common law right of free speech or a common law right to protest.
The Court dismissed the application, holding that the ex parte order was justified in circumstances where the protest on the development site appeared to be ongoing and Mr Kennedy’s representative could have requested an opportunity to be heard in relation to the injunction. The Court was satisfied that the terms of the injunction were not too wide. In relation to common law rights of free speech and to protest, the court held that the cases cited did not stand as authority for the proposition that there exists at common law in Australia a right to free speech or a right to protest, and that the injunction did not prevent protests taking place on public lands (only on Stockland’s lands). Mr Kennedy was ordered to pay Stockland’s costs of the motion.
Lester v Ashton Coal Pty Limited
In this case, Mr Lester, a Traditional Owner of the lands of the Wonnarua people in the Hunter Valley, brought civil proceedings, arguing that Ashton Coal Operations Pty Limited (‘Ashton Coal’) breached the National Parks and Wildlife Act 1974 (NSW) by harming Aboriginal objects through subsidence at two locations and the construction of an access road by another mining company over a Pleistocene site that was subject to Ashton Coal's Aboriginal Heritage Impact Permit.
The land in question is located near Camberwell in the Hunter Valley and the objects included artefact sites, archaeological deposits and grinding grooves. For this damage, Mr Lester sought a declaration from the Land and Environment Court that Ashton Coal breached the Act and an order for the objects to be stored in a keeping place to be managed by the Wonnarua people. The Court dismissed the case, finding that there was insufficient evidence that Ashton Coal was in breach of the Act. Mr Lester has now lodged a notice of intention to appeal the decision.
Mr Lester was represented by EDO NSW and Barrister Ms Bridie Nolan. EDO NSW would like to thanks Ms Nolan for her assistance in this matter.
Munro and Nean v Minister for Lands
Lyall Munro and Wayne Nean brought proceedings against the Minister for Lands for revoking the dedication of Taylor Oval Moree as an oval used for a public purpose under the Crown Lands Act. The applicants are Traditional Owners who are concerned about proposals to develop a culturally significant site to the Gomeroi people and also an important recreational facility in Moree. The challenge was based on the failure of the Minister to take into consideration the Lands assessment that found the highest and best use of Taylor Oval was for recreation and to follow other procedures required by the Crown Lands Act. The Crown Land Act Assessment Report concluded that Taylor Oval is "currently best suited to urban and non-urban recreation and community or public purposes". The ancillary Preferred Uses Report similarly concluded that Taylor Oval be retained as Crown Land reserved and dedicated for public recreation purposes.
The removal of the dedication was to facilitate the rezoning of Taylor Oval for the construction of a Big W and ultimately the lease or sale to Big W for that purpose. EDO NSW took on the case to ensure that proper processes are followed before crown land that is of significance to the local community is leased or sold for private purposes.
The applicants were successful in their action against the Minister for Lands, with the Minister agreeing he had failed to take into consideration the relevant assessments. The Minister for Lands therefore agreed to consent orders that restrain him from further revoking the public purpose dedication of Taylor Oval as gazetted.
Munro and Nean v Minister for Planning and Moree Plains Shire Council
The Minister for Planning approved a rezoning application in Moree which was to amended the zoning of Taylor Oval from recreation to commercial uses to facilitate the building of a Big W department store on the site. Taylor Oval is the main rugby league and cricket ground in Moree and also a significant site for the local Aboriginal community who believe it is situated near a burial ground for the Gomeroi nation. Bodies of Aboriginal persons were excavated on the site in 1903. The site has also been important for reconciliation in the town as an area where both Aboriginal and non-Aboriginal people have mixed over the generations.
EDO NSW acted for two elders of the Moree Aboriginal community who challenged the rezoning. The case focused on whether the Planning Minister and Moree Council followed the correct procedure for rezoning land under the Environmental Planning and Assessment Act 1979.
The Council conceded that they did not follow the correct procedure in exhibiting and approving the draft LEP and agreed to the orders to set aside their decisions. On 4 September 2009, by consent, Justice Lloyd declared that the decision of Moree Plains Shire Council on 8 November 2008 to forward the draft Moree Local Environment Plan 1995 (Amendment No. 17) was void and no effect. He also declared that the decision of the Minister for Planning on 2 January 2009 to approve the amendment to the Moree Local Environment Plan 1995 (Amendment No. 17) is void and of no effect.
Related proceedings are continuing in the Supreme Court against the Minister for Lands' decision to revoke the dedication of Taylor Oval for public purpose recreation.
On behalf of two Aboriginal clients who are elders of the Gomeroi Nation, EDO NSW is seeking a declaration that the decision by the Minister for Lands to notify the revocation of Crown Reserve at Taylor Oval is void, and related injunctions. The revocation of the dedication is an important step in allowing Lands to lease or otherwise deal with the land to enable the Big W development to proceed. The Minister is also contesting the right of the elders to bring the proceedings, as the challenge is based on the common law test of whether they are "a person aggrieved" by the decision. A hearing date was set for 26-27 November at the Supreme Court in Sydney.
On 26 April 2012, Big W announced that it will not be proceeding with the development of a store on Taylor Oval in Moree. The site is significant to the local Aboriginal community. EDO NSW has been representing local Aboriginal elders in Moree, including in a challenge to the rezoning designed to facilitate the building of the Big W store. Moree Murri Taskforce representative Uncle Lyall Munro, one of the elders represented by EDO NSW, has also welcomed Big W's decision not to proceed with the development on Taylor Oval.
More information about the concerns of the Aboriginal community can be found in an article written by EDO NSW's former Principal Solicitor Kirsty Ruddock in Eureka Street.
Munro v Minister for Lands and the Lands Administration Ministerial Corporation
The Minister for Lands consented to the sale of Taylor Oval to Fabcot Pty Ltd (Woolworths) to facilitate the development of the site for a Big W department store on 28 July 2011.
Taylor Oval is the most central rugby league and cricket ground in Moree proximate to schools in Moree and the centre of town. Taylor Oval is also a significant site for the local Aboriginal community who believe it is situated near a burial ground for the Gomeroi nation. Bodies of Aboriginal persons were excavated on the site in 1903 and the ashes of Cheeky McIntosh, an Aboriginal leader and elder were scattered on the oval in the 1970's. The site has also been important for reconciliation in the town as an area where both Aboriginal and non-Aboriginal people have mixed over the generations, and which is historic sporting facility.
EDO NSW is acting for a representative of the Moree Murri Taskforce, Lyall Munro who is challenging the decision of the Minister for Lands to approve the sale, and the decision of the Lands Administration Ministerial Corporation to consent to sell. The case focuses on whether the Minister for Lands and the Lands Administration Ministerial Corporation has complied with the requirements of the Crown Lands Act 1989.
The applicant Lyall Munro is seeking a declaration that the decision of the Minister for Lands to consent to sell Taylor Oval is in breach of the Crown Land Act 1989 (NSW) and is void and of no effect and an order restraining the Minister for Lands from taking any step to sell Taylor Oval in reliance on his purported decision.
The applicant is further seeking a declaration that the decision of the Minister for Lands as trustee of Taylor Oval that it is desirable sell Taylor Oval is in breach of the Crown Land Act 1989 (NSW) and is void and of no effect.
Finally the applicant is seeking an order restraining Minister for Lands and Lands Administration Ministerial Corporation from taking any step to sell Taylor Oval in reliance on its purported decision.
More information about the concerns of the Aboriginal community can be found in an article written by former EDO NSW Principal Solicitor Kirsty Ruddock in Eureka Street.
Michael Ryan v The Minister for Planning, Lismore City Council & others
In 2014, EDO NSW, on behalf of Aboriginal elder Mr Michael Ryan, successfully challenged the validity of changes made to a Local Environmental Plan for the North Lismore Plateau, with the NSW Land and Environment Court, finding that the decision to remove environment protection zones from the plan was invalid.
The last minute amendments removed the only legal protection for important plants, animals and Aboriginal cultural heritage. The Environmental Plan originally protected 28.5 per cent of the 255 hectare North Lismore Plateau site. The rest of the rural land was mostly zoned for housing development.
The environmental protection zones had been included in the original proposal for the Local Environmental Plan amendment and were publicly exhibited by Lismore City Council. They were intended to protect Aboriginal heritage sites and areas of environmental value. These zones included regenerating lowland sub-tropical and dry rainforest, which provide habitat for threatened fauna, such as koalas, the Rose-crowned Fruit-dove, and threatened microbat species, as well as sites containing the rare native plant species, Thorny Pea and Hairy Joint grass.
The environmental protection zones were removed, apparently due to the Department of Planning’s ongoing review of the use of environmental zoning by councils in northern NSW.
Mr Ryan objected to the removal of the environmental protection zoning due to its potential impact on the cultural heritage and environment of the North Lismore Plateau. The basis of his objection related primarily to the fact that the Environmental Plan that was made was fundamentally different to the one everybody thought was being made and as it was publicly exhibited.
Mr Ryan argued that, in the circumstances, the LEP Amendment was not a product of the process set out in the Environmental Planning and Assessment Act 1979 for the making of Local Environmental Plans, and given that no opportunities for public consultation were provided in regard to the fundamentally altered LEP Amendment, there has been a failure to provide procedural fairness.
EDO NSW is grateful to barristers Philip Clay SC and Natasha Hammond who acted as counsel for Mr Ryan in this matter.