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Ridge, Kathy and Seiver, Anthony --- "Carriage: An Elder's Journey through the Courts" [2005] IndigLawB 10; (2005) 6(9) Indigenous Law Bulletin 4

Carriage - An Elder’s Journey through the Courts

by Kathy Ridge and Anthony Seiver

South Coast Joke:

Why is it that an Aboriginal pensioner who is unable to read or write is forced to fight 16 unsatisfactory legal skirmishes, risking bankruptcy by Stockland Development Pty Ltd, in an attempt to protect his cultural heritage?

Answer:

Because no one else will.

CONTEXT

Allan Carriage is an Elder of the Wadi Wadi nation, the original inhabitants of Sandon Point, Bulli, north of Wollongong in NSW. Sandon Point has long been inhabited by Aboriginal people, as evidenced by the number of stone artefacts, middens and the burial site of the Kooradji man.

NSW has only three or four known sites with an artefact assemblage of this size and the only other place in NSW where such a complete burial site has been uncovered is Lake Mungo, now a World Heritage site. Sandon Point is also a prime piece of real estate with commanding views over McAuley’s beach. Stockland Development Pty Ltd[1] (‘Stockland’) purchased the site from Sydney Water after Allan Carriage, on advice, lifted the Native Title Claim lodged over the area.

Stockland proceeded with the development at Sandon Point. This process was bitterly opposed by the local residents, and a number of local Aboriginal people including Allan Carriage and Roy ‘Dootch’ Kennedy who established the Sandon Point Aboriginal Tent Embassy (‘SPATE’). A number of these disputes ended in the Land and Environment Court (four separate proceedings) and one in the Federal Court.

Late last year Allan Carriage succeeded in establishing that the NSW National Parks and Wildlife Service (now the Department of Environment and Conservation (‘DEC’)) had failed to consult him in relation to the issue of fresh consents to destroy Aboriginal objects at Sandon Point.[2] In separate proceedings, Allan Carriage established that Stockland, now Australia’s largest residential property developer, had carried out development without first obtaining a valid development consent, in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979 (NSW) (the ‘EPA Act’).[3]

The unauthorised development was the deposition of fill on Lot 235. The fill had been excavated from Stages 1 – 6 at Sandon Point and contained Aboriginal objects. Currently, there is no valid development consent for the unauthorised fill on Lot 235.

None of the regulatory authorities with a role in protecting cultural heritage (DEC) or orderly and legal development at Sandon Point (Wollongong City Council/Department of Infrastructure Planning and Natural Resources (‘DIPNR’)) took action to enforce the breaches at Sandon Point. No action has been taken by Wollongong City Council with respect to the continuing breach.

The following case review focuses on the successful parts of Mr Carriage’s proceedings to date.

CARRIAGE v STOCKLAND DEVELOPMENT & ANOR (NO 4) [2004] NSWLEC 553 (CARRIAGE NO 4)

RELEVANT FACTS

On 15 March 2004, DEC issued three s 90 Consents (‘New Consents’) to destroy Aboriginal objects pursuant to s 90 of the National Parks & Wildlife Act 1974 (NSW) (‘NPWA’). The New Consents related to development on individual house lots within Stages 1 - 6 at Sandon Point.

Two previous s 90 Consents had been issued with respect to the same area and the same Aboriginal objects, but in relation to a different development, namely proposed subdivision works associated with Stages 1, and 2 – 6 of Sandon Point, respectively (‘Old Consents’).

The Applicant had not been consulted in relation to the New Consents which contained a different set of conditions to those of the Old Consents. In particular, the New Consents did not require the formulation of a conservation plan related to a Keeping Place, nor the storage of any Aboriginal objects uncovered in a Keeping Place.

SUBMISSIONS

The Applicant submitted that the Director General of DEC failed to afford the Applicant procedural fairness in issuing the New Consents. The Applicant claimed that the stated practice and policies of DEC, as well as the specific representations made by DEC in relation to issuing s 90 consents at Sandon Point had created a legitimate expectation that he would be consulted prior to the issue of the New Consents.

The Respondent submitted that the Applicant had not demonstrated any unfairness. In fact, the Director General’s only obligation to the Applicant was to give notice that she proposed to exercise her powers under s 90 of the NPWA in relation to the Lots. The Respondent relied upon the letters notifying of her intention to exercise her powers in relation to the extension of the Old Consents as providing notice.

HELD

His Honour, Justice Cowdroy, found that the Applicant had a special interest in the Aboriginal objects[4] and that DEC had an express policy of consulting with Aboriginal persons prior to exercising its powers under s 90 of the NPWA.[5] Cowdroy J held that these findings were sufficient to demonstrate a legitimate expectation of consultation prior to the exercise of power under s 90 NPWA. Accordingly, his Honour then explored the extent of the duty to consult.

Cowdroy J reviewed the authorities[6] and held that the duty required notice that the Director General was considering issuing the New Consents, and that it was likely that the New Consents would not be subject to similar conditions as the Old Consents.[7]

The Court upheld the Applicant’s claim that he been denied natural justice by the Director General of DEC.

CARRIAGE v STOCKLAND DEVELOPMENT PTY LTD & ORS [NO 7] [2004] NSWLEC 148

RELEVANT FACTS

On 8 October 2001, Stockland was granted conditional development consent for five integrated development applications to create 89 housing lots and three residue lots for Stages 2 – 6 at Sandon Point (‘Stages 2 – 6 Consent’) by the Land and Environment Court.[8] One of the residue lots created was Lot 235. Stockland placed fill on that part of Lot 235 zoned Residential 2(b). A private certifier had issued construction certificates which described the deposition of the fill on part of Lot 235. A private certifier may only issue a construction certificate if satisfied that the design and construction of the work depicted on the plans are not inconsistent with the development application.[9]

Her Honour, Pain J, had previously held that it was not reasonably open to the private certifier to issue the construction certificates in relation to the fill on part of Lot 235.[10] As the fill on Lot 235 was only a small proportion of the total subdivision works, the subject of the construction certificate, her Honour sought submissions on the appropriate orders she could make if the challenge was upheld.

SUBMISSIONS

The Applicant argued that the private certifier lacked the requisite power to issue the construction certificate (ie the private certifier was not satisfied that the work depicted on the plans was consistent with the development consent) and, as a result, the act was a nullity.[11]

The First and Fifth Respondents appeared jointly and submitted that the Land and Environment Court of NSW enjoyed a broad discretion under s 124 of the EPA Act.[12] Accordingly, they said that no orders should be made as a mere declaration would be futile, remedial orders could not be made on the evidence before the court, and there were no orders reasonable and proportional to the breach. Alternatively, they relied upon previous practice in the Land and Environment Court to declare a development consent only partially invalid.[13]

HELD

Justice Pain rejected the Respondent’s submission that a mere declaration without also making remedial orders, would be useless. Her Honour adopted the foreshadowed approach of handing down preliminary findings which allows a remedial orders hearing,[14] with all of the expert evidence that is required to support such findings, to be made if the Applicant establishes a breach.

Her Honour declined to make a finding on the breadth of s 124 of the EPA Act and proceeded to declare the Constructions Certificates invalid to the extent to which they purport to authorise the deposition of fill on part of Lot 235.

DEPARTMENT POLICY RESPONSE

After deciding against an appeal to the Court of Appeal, DEC has now published interim guidelines on their website which are in force and apply as of 1 January 2005. The interim guidelines require Aboriginal people to scour newspapers and register their interest in any applications for s 90 consents within 10 days. They must also provide their knowledge on the significance of the affected area to the proponents who are seeking a consent to destroy the Aboriginal objects which may be affected by the proposal. The proponents are then required to report to DEC on the outcomes of the consultation.

Not surprisingly, Aboriginal people, including Allan Carriage, are dismayed by such an approach. It ignores established consultation mechanisms, such as Land Councils and registered Native Title Claimant groups, and assumes all Aboriginal people will be in a position to scan daily newspapers for notice of applications for consents to destroy their heritage. The interim guidelines did not involve any consultation with the Department of Aboriginal Affairs, the NSW Aboriginal Land Council, NSW Native Title Services or Applicants such as Allan Carriage or Neville Williams who have been actively seeking redress for past decisions of DEC to issue s 90 consents.

Justice Pain has yet to hand down her findings in respect to harm to an endangered ecological community, and will subsequently set down a timetable for a remedial orders hearing. Stockland have filed a holding appeal in the Court of Appeal.

POLICY ANALYSIS

The central fault with the NPWA cultural heritage provisions is that an Aboriginal community cannot prevent an activity that is likely to result in the destruction of their heritage. The agency responsible for administering the NPWA retains all ownership rights, including the right to consent to destruction of their property, Aboriginal heritage. The NPWA does not protect Aboriginal heritage, it merely regulates its destruction.

Aboriginal people like Mr Carriage, and many others across NSW (such as Mr Neville Willams and his fight against the Lake Cowal gold mine) have, through various court challenges, realised this and are left to challenge the consent on procedural and technical grounds. The expensive and exhaustive court challenges borne by Aboriginal people are a response to DEC’s failure to prosecute even the most obvious breaches of the Act. The fault lies with the DEC’s construction of the offence provision and poor administrative procedures.

Recently, DEC has also reformed its administrative procedures by releasing the new guidelines and moving responsibility for administering the NPWA to its compliance officers. The formidable pollution prosecutors are now also licencing destruction of Aboriginal heritage. As a result, Aboriginal heritage staff no longer bear the shame of signing off consents to destroy items of Aboriginal heritage while working on projects aimed to protect and interpret this heritage.

SO, WHAT ARE THE ALTERNATIVES?

There are currently a range of alternatives which could result in a better level of protection of Aboriginal heritage in NSW:

Firstly, the creation of a new and separate Aboriginal Heritage Act that creates an Aboriginal Heritage Commission. The Commission would be made up of Aboriginal people who consider the competing public interests, including the determinative view of the affected Aboriginal community, before deciding whether the threat of destruction of Aboriginal heritage is justified and that sufficient measures are taken to avoid that destruction.

The second option is to create a new Aboriginal heritage agency that is empowered to properly enforce a new separate Aboriginal Heritage Act, building on Queensland’s recent reforms including its ‘duty of care’ law. The agency would be legally bound to implement the wishes of the affected Aboriginal community before permitting harm to a heritage item.

Thirdly, amend the Heritage Act 1977 (NSW) so that Aboriginal heritage items are afforded the same measure of protection as non-Aboriginal items. The NSW Heritage Council, in consultation with the affected Aboriginal community, could decide whether the harm to the Aboriginal heritage item was justified. The Heritage Council’s independence from government could provide a degree of transparency and rigour that courts are finding lacking in DEC’s administrative procedures.

Finally, land use and natural resource planning could better integrate Aboriginal heritage through the use of cultural mapping tools. For example, a zoning map could indicate the likely level of risk that a development will impact on Aboriginal heritage, given the contextual information on that particular location. Obviously, this would be subject to actual examination of the development site, as very little archaeological research has been undertaken on a landscape scale.

While success hinges on implementation and resourcing, each of the above approaches would allow the Aboriginal community to be the determinants of the significance of their cultural heritage. This would focus greater attention on the secondary decision of the State to allow the destruction of that heritage. Such an approach must be an improvement on the current paternalistic approach to cultural heritage management in NSW, where the DEC decides whether or not Aboriginal cultural heritage is significant.

ACKNOWLEDGMENTS

The authors acknowledge the work of Mr Allan Carriage, Mr Roy (Dootch) Kennedy, Mr Al Oshlack, Ms Binny O’Dwyer, Ms Jan Miller, Ms Jill Walker, Mr Alex Peterson, NIAC, SPATE, and NIRAG in initiating and supporting the above proceedings.

Thanks to the following members of the Bar who provided timely advice to Mr Carriage in the above proceedings: Mr Tim Robertson SC, Mr Craig Leggat, Mr A L McAvoy, Ms L Tucker, Mr T To, and Mr N Laing.

Ms Kathy Ridge, is a solicitor at Shaw Reynolds Lawyers focusing on environmental, planning and racial discrimination matters. Previously, she was Executive Officer of the Nature Conservation Council of NSW. Mr Anthony Seiver is an LLB student at UNSW and Senior Policy Officer at the NSW Department of Aboriginal Affairs. The views expressed in this article are the authors’ own and do not necessarily reflect the views of the NSW Department of Aboriginal Affairs.


[1] As they are now known.

[2] Carriage v Stockland Developments & Anor (No 4) [2004] NSWLEC 553.

[3] Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148.

[4] Ibid [51] cf Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 121.

[5] Ibid [52]-[53].

[6] Ibid [56]-[62] cf B Surinder Singh Kanda v Government of the Federation of Malaya [1962] UKPC 2; [1962] AC 322; Kioa and Ors v West and Anor [1985] HCA 81; (1985) 159 CLR 550; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1994-1995) 183 CLR 273; Re Refugee Review Tribunal And Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah (2001) 206 CLR 57; John v Rees and Ors [1970] 1 Ch 345; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

[7] Ibid [65]-[66].

[8] Stockland Constructors Pty Limited v Wollongong City Council and Anor (Unreported, Commissioner Watts and Commissioner Hussey, 8 October 2001).

[9] Environmental Planning & Assessment Regulation 2000, cl 145(2).

[10] Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 at 35.

[11] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; cf Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 343.

[12] F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 [311].

[13] Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGRA 294.

[14] Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189; Oshlack v Iron Gates Pty Ltd (Unreported, NSWLEC, Pearlman J, 4 July 1997) 89.

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