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Editors --- "Williams v Barrick Australia Limited - Case Summary" [2003] AUIndigLawRpr 38; (2003) 8(3) Australian Indigenous Law Reporter 35

Court and Tribunal Decisions - Australia

Williams v Barrick Australia Limited

NSW Land and Environment Court (Bignold J)

26 September 2003

[2003] NSWLEC 218

Protection of relics and Aboriginal places — breaches to s 90 and s 86 of the National Parks and Wildlife Act 1974 (NSW) — declaratory or injunctive relief under s 176A(1) of the National Parks and Wildlife Act 1974 (NSW)

Facts:

The Applicant sought declaratory and injunctive relief against Barrick Australia, a mining company, in respect of works carried out on the approved Lake Cowal Gold Mine Project. The Applicant also sought declaratory and injunctive relief in respect of the archaeological work carried out by Dr Pardoe. Dr Pardoe’s work included the discovery and collection of Aboriginal artefacts, as well as undertaking test pit excavations.

The Applicant’s alleges three principle breaches of legislation. First, that damage has been caused by the Mining Company’s exploratory operations to Aboriginal objects, without their being any requisite consent under s 90 of the National Parks and Wildlife Act 1974 (NSW). Second, that the collection of Aboriginal objects authorised by Dr Pardoe’s. Permit has been carried out in breach of the conditions of the permit, as some collections have been carried out by persons other than Dr Pardoe. Third, that the Mining Companies have constructed a drilling fluids sump and decant system without obtaining the necessary consent or approval under the Environmental Planning and Assessment Act 1979 (NSW).

Held, dismissing the application:

1. Discretionary factors may militate against the granting of declaratory relief, even if the allegations of breach are established: [45]–[48], [54], [59]–[60].

2. Declaratory and injunctive relief is not available under s 176A(1) of the National Parks and Wildlife Act if the relief will not remedy or restrain any relevant breach of the Act. That is, declaratory and injunctive relief will not be granted if the conduct complained of is irretrievable: [47], [51].

3. Section 90 of the National Parks and Wildlife Act requires that the offender knowingly destroyed, damaged or defaced the Aboriginal relics in question. The Act requires knowledge of the precise nature and location of such relics: [63]–[69]. Histollo Pty Ltd v Director-General National Parks and Wildlife Services (1998) LGERA 355 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALJR 170 followed.

4. When an individual is issued a Permit under s 87 of the National Parks and Wildlife Act, they are permitted to employ assistance in undertaking the authorised activities. As such the conditions of the Permit will not be breached if persons assisting the permit-holder carry out the authorised activities: [123]–[124].

5. The drilling fluids sump and decant system was a necessary part of the permitted drilling program. Hence the instalment and operation of the drilling fluid sump and decant system, being required for the drilling operation, does not require development consent under the National Parks and Wildlife Act: [139]–[142].