Land and Environment Court New South Wales Medium Neutral Citation: Goldcoral Pty Ltd v Richmond Valley Council [2023] NSWLEC 1123 Hearing dates: 15 February 2023 Date of orders: 01 March 2023 Decision date: 01 March 2023 Jurisdiction: Class 1 Before: Froh R Decision: The orders of the Court are: (1) Ms Simone Barker is joined as the second respondent to these proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979. (2) The conciliation conference on Monday, 6 March 2023 is confirmed. (3) The second respondent is to provide a position paper, a draft Statement of Facts and Contentions restricted to native title and Aboriginal cultural heritage and any without prejudice material to the applicant, the first respondent and the conciliating Commissioner by 5PM on Thursday, 2 March 2023. (4) The proceedings are listed for a case management conference before the conciliating Commissioner at 10AM on Friday, 3 March 2023. (5) The second respondent is to file and serve a Statement of Facts and Contentions restricted to contentions concerning or related to native title and Aboriginal cultural heritage by Friday, 10 March 2023. Catchwords: Notice of Motion – Application for joinder Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.15 Land and Environment Court Act 1979, s 38 Richmond Valley Local Environmental Plan 2012, cl 5.10 Cases Cited: Bandjalang Peoples No 1 and No 2 v Attorney General of NSW [2013] FCA 1278 Category: Procedural rulings Parties: Goldcoral Pty Ltd (Applicant) Richmond Valley Council (Respondent) Representation: Counsel: C Novak (Applicant) G Dwyer (Solicitor) (Applicant for Joinder) C Rose (Solicitor) (Respondent) Solicitors: Corrs Chambers Westgarth (Applicant) King and Wood Mallesons (Applicant for Joinder) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/279591 Publication restriction: Nil JUDGMENT 1. The matter before me is a notice of motion whereby Ms Simone Barker – a Bandjalang woman of the Bandjalang Nation – seeks to be joined as the second respondent to the substantive proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The substantive proceedings were commenced by the Applicant (Goldcoral) appealing the Northern Regional Planning Panel's determination made on 7 September 2022 to refuse its concept development application for subdivision, clearing, earthworks, roadworks, drainage, upgrading Iron Gates Drive, infrastructure and embellishment of proposed public reserves at 240 Iron Gates Road, Evans Head. 3. Ms Barker filed the notice of motion on 17 October 2022 and did not provide any evidence in support of her application for joinder. The Court notes that at that time she was not legally represented. Ms Barker has since obtained legal representation in relation to this matter and on 23 December 2022 she filed and served an affidavit in support of her joinder application. 4. On 20 January 2023, Goldcoral filed the affidavit of Alexander Kingsbury in response to the motion. The council (the Council) did not file any evidence in the joinder proceedings and informed the Court that it neither consents nor opposes Ms Barker's joinder. 5. Ms Barker has not provided the Court with a draft Statement of Facts and Contentions setting out the matters she wishes to raise as contentions in the proceedings. Although these documents are useful to the Court, they are not a requirement for an application for joinder and Ms Barker submits that the Court should exercise its power under s 8.15(2) of the EPA Act for the following reasons: 1. Ms Barker will be able to raise issues concerning Aboriginal cultural heritage and native title rights that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party; and/or 2. It is in the interests of justice or the public interest that Ms Barker be joined as a party to the appeal to enable her interest as a member of the Bundjalung nation to be heard and for the interests of the Bundjalung nation to be heard. 1. In the alternative Ms Barker submitted that the Court should make either a Double Bay Marina order under s 38(2) of the Land and Environment Court Act 1979 or an amicus curiae order. 2. Dealing first with the application for joinder under s 8.15(2) of the EPA Act. 3. Ms Barker's evidence and submissions consider the Council's Statement of Facts and Contentions (SOFAC) in these proceedings which was filed on 30 November 2022. 4. Contention 17 of that SOFAC raises "Heritage Conservation". That contention contends that the development has failed to satisfy the objectives for Heritage Conservation pursuant to cl 5.10 of the Richmond Valley Local Environmental Plan 2012 and has not demonstrated that the proposal will not have an adverse impact on the cultural heritage significance of the site. This was particularised in that contention to include: 1. the significant concerns with the proposal that have been raised by the local Aboriginal community and not resolved; 2. that there has been no meaningful Aboriginal cultural heritage assessment for the proposal; and 3. that there has been inadequate consultation with Indigenous Knowledge Holders in preparing the assessment report. 1. Contention 19 of that SOFAC concerns the "Coastal Environment and Coastal Use Area" and particularises this contention with concerns about adverse impacts on Aboriginal cultural heritage, practices and places. 2. The SOFAC does not address the subject of native title rights at all. 3. In response to Ms Barker's evidence and submissions of Ms Barker, Goldcoral has examined the SOFAC and has extracted in its written submissions all the contentions where issues about Aboriginal cultural heritage and practices have been raised by the Council. Goldcoral submits that as the issues have been identified by the Council and raised in the SOFAC, it concludes that the issues concerning Aboriginal cultural heritage are already likely to be sufficiently addressed without the need for Ms Barker to be joined. 4. Goldcoral then goes on its submissions to detail the involvement of Ms Barker in the development assessment process in 2014 and 2015 and again in 2022. It was submitted to me that the issues that Ms Barker wishes to raise have been adequately canvassed throughout the development assessment process and by the SOFAC and will continue to be addressed in the conciliation conference and at any hearing. 5. However, despite this involvement of Ms Barker and other members of the local Aboriginal community in the development assessment process, the Council contends in its SOFAC that the consultation process with the local Aboriginal community has been deficient. Ms Barker in her affidavit has attested that she agrees with this position from Council. 6. With regards to the evidence and submissions concerning native title. There is no dispute amongst the parties that Ms Barker is a Bandjalang woman and a member of the Bandjalang People. The native title rights and interests of the Bandjalang People were determined by the Federal Court with the consent of the parties in proceedings Bandjalang Peoples No 1 and No 2 v Attorney General of NSW [2013] FCA 1278. Those native title rights and interests are held on trust by the Bandjalang Aboriginal Corporation Prescribed Body Corporate. Ms Barker is a listed member of that corporation, and it was put the Court without dispute that she is recognised as a person that is an Indigenous Knowledge Holder and enjoys the benefit of those native title rights and interests. 7. In its evidence, Goldcoral's relied on maps of the native title determination area and maps showing the area of the development to demonstrate that there are no development works proposed in the Crown foreshore reserve and that the development site is not within the area in which native title has been determined. 8. This was not disputed by Ms Barker. 9. In its written submissions, Goldcoral characterises Ms Barker's native title rights and interests as follows: "Accordingly, the best that can be said is that, as a native title holder, the Applicant for Joinder is a nearby property owner. This makes the Applicant for Joinder no different from any other property owner in the vicinity of any development site. Rights in native title should not be regarded as any lesser property right than other forms of property right. Conversely, such rights should be elevated by the Court to enjoy a special status above other property rights. The normal processes of the Court have sufficient mechanisms in place to allow the views and perspectives of neighbouring property owners to be heard. These processes are, in the ordinary course, sufficient to allow neighbouring native title holders' concerns to be considered." 1. Although this submission was somewhat qualified in oral argument before me, I do not accept it. 2. It is also not the point that is being made by Ms Barker concerning her application for joinder. 3. The basis of Ms Barker's application for joinder in these proceedings is that the development site is located within close proximity to land and waters which are the subject to declared native title rights and interests of the People of the Bandjalang Nation. The impact of those rights and interests on the proposed development and, conversely, the impact of the proposed development on those rights and interests, has not been raised as an issue in these proceedings. 4. Although it may be argued that native title is broadly encapsulated by the Council's contentions on Aboriginal cultural heritage, my view is that the Council's contentions on Aboriginal cultural heritage centre around the processes of consultation followed by the Applicant and the conduct of that consultation. 5. During submissions, it was made clear that Ms Barker is seeking to join these proceedings in order to address the Court on her native title rights and interests, including: 1. conducting ceremonies; 2. teaching the physical, cultural and spiritual attributes of places and areas of importance on or in the land and waters; and 3. accessing, maintaining and protecting from physical harm, sites in the determination area which are of significance to the Bandjalang People under their traditional laws and customs. 1. It was made clear to the Court that these are native title rights and interests about which Ms Barker is an Indigenous Knowledge Holder. It was acknowledged by Ms Barker's legal representative that Ms Barker's native title rights and interests and the contentions she wishes to raise as issues in the proceedings may not represent all Bandjalang People and all their knowledge and practice of native title rights and interests. 2. It is my view that native title rights and interests and their impact on the proposed development are not issues that are currently before the Court and as such are not capable of being sufficiently addressed in the proceedings. 3. With the first limb of the test for joinder satisfied under s 8.15(2) of the EPA Act, I now need to consider whether to exercise my discretion and order that Ms Barker be joined. My view is that the Court would be deprived of meaningful assistance in the determination of these proceedings without the joinder of Ms Barker. 4. As such, the motion is granted and Ms Barker is joined as the second respondent to the proceedings. 5. The orders of the Court are: 1. Ms Simone Barker is joined as the second respondent to these proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 Act. 2. The conciliation conference on Monday, 6 March 2023 is confirmed. 3. The second respondent is to provide a position paper, a draft Statement of Facts and Contentions restricted to native title and Aboriginal cultural heritage and any without prejudice material to the applicant, the first respondent and the conciliating Commissioner by 5PM on Thursday, 2 March 2023. 4. The proceedings are listed for a case management conference before the conciliating Commissioner at 10AM on Friday, 3 March 2023. 5. The second respondent is to file and serve a Statement of Facts and Contentions restricted to contentions concerning or related to native title and Aboriginal cultural heritage by Friday, 10 March 2023. …………………… S Froh Registrar of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2023