Williams v Graham [2016] NSWLEC 151

Land and Environment Court New South Wales

Medium Neutral Citation: Williams v Graham [2016] NSWLEC 151 Hearing dates: 14 November 2016 Date of orders: 29 November 2016 Decision date: 29 November 2016 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court orders that the proceedings are dismissed. Catchwords: CIVIL ENFORCEMENT – quarry – whether harm to Aboriginal objects threatened – Aboriginal stone artefacts – whether on the land to be quarried – threatened breach not established Legislation Cited: National Parks and Wildlife Act 1974 ss 5, 84, 86, 87, 90, 193 Texts Cited: Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales (2010, Department of Environment, Climate Change and Water) Category: Principal judgment Parties: Robert Lee Williams (Applicant) Rodney John Graham (First Respondent) Karie Graham (Second Respondent) Peter Carlill (Third Respondent) Robyn Carlill (Fourth Respondent) Representation: Counsel: Mr C J Leggat SC with Mr D Beaufils (Applicant) Mr P J McEwen SC with Mr S B Nash (Respondents)

Solicitors: Environmental Defender's Office NSW (Applicant) Parker & Kissane (Respondents) File Number(s): 2016/00269183 Publication restriction: No

Judgment

Proceedings are brought to restrain threatened harm to Aboriginal objects 1. Mr and Mrs Graham are carrying out the development of a basalt quarry on a plateau at Cedar Point near Kyogle. The land on which the quarry is located is owned by Mr and Mrs Carlill. Development consent for the quarry was granted on 21 June 2012. The development consent contained an advisory note that: The proponent must apply for an Aboriginal Heritage Impact Permit in accordance with the National Parks and Wildlife Act 1974 ('NPW Act') prior to disturbing, damaging or destroying Aboriginal objects that occur on the land. If Aboriginal cultural objects are uncovered due to development activities, all works should halt in the immediate area to prevent any further impacts to the find or finds, to resume only in accordance with the requirements of the Office of Environment and Heritage and the NPW Act. 1. Construction of the quarry commenced on 28 July 2016. 2. Mr Robert Williams is a Gidubul (Githabul) man. He is concerned that there are Aboriginal objects present on the land, which will be harmed by the carrying out of the quarry. 3. Section 86(2) of the NPW Act prohibits a person from harming an Aboriginal object, unless the harm is authorised by an Aboriginal heritage impact permit (see s 87(1) of the NPW Act). 4. Mr and Mrs Graham have not obtained an Aboriginal heritage impact permit under s 90 of the NPW Act authorising harm to any Aboriginal object on the land. Hence, Mr Williams claimed, there is a threatened or apprehended breach of s 86(2) of the NPW Act because the carrying out of the quarry will harm Aboriginal objects without that harm being authorised by an Aboriginal heritage impact permit. 5. Mr Williams has commenced proceedings under s 193 of the NPW Act for an order to restrain Mr and Mrs Graham from carrying out the quarry until such time as an Aboriginal heritage impact permit has been obtained that authorises harm to Aboriginal objects on the land. 6. Mr and Mrs Graham and Mr and Mrs Carlill dispute that the carrying out of the quarry involves any threatened or apprehended breach of s 86(2) of the NPW Act. They claim that the evidence does not establish that there is any Aboriginal object on the land that will be harmed by the carrying out of the quarry. They accept that if there were to be an Aboriginal object on the land to be quarried (the 'quarry disturbance area'), the quarrying activities would harm the object, at least in the sense that the object would be moved from the land on which it was situated (see par (b) of the definition of "harm" in s 5(1) of the NPW Act). They also accept that they have not obtained an Aboriginal heritage impact permit which would authorise any harm to an Aboriginal object on the land. However, they argue, the evidence does not establish that there are Aboriginal objects in the quarry disturbance area to be harmed by the carrying out of the quarry. 7. The only issue in this case, therefore, is the factual one of whether Mr Williams has established on the evidence that there are any Aboriginal objects on the land to be quarried.