Land and Environment Court New South Wales

• Medium Neutral Citation: Lester v Ashton Coal Pty Limited [2012] NSWLEC 181
• Hearing dates: 22 June, 25-28 June 2012
• Decision date: 10 August 2012
• Jurisdiction: Class 4
• Before: Preston CJ

Decision

The Court:

(1) Dismisses the summons.

(2) Reserves the question of costs.

(3) Directs the parties, within 14 days, to apply to the Court to list the matter for a hearing on costs.

• Catchwords: CIVIL ENFORCEMENT - harm to Aboriginal objects - underground coal mining causing land subsidence - whether subsidence moved any Aboriginal object from the land on which it had been situated - whether subsidence damaged rock surface of grinding grooves - whether construction of a road by an unrelated company harmed any Aboriginal object - breaches not proven
• Legislation Cited: Environmental Planning and Assessment Act 1979 s 75U(1)(d), pts 3A, 4; National Parks and Wildlife Act 1974 ss 5(1), 86(1), 87(1), 193(1)
• Category: Principal judgment
• Parties: Robert Lester (Applicant); Ashton Coal Operations Pty Ltd; (First Respondent); Chief Executive, Office of Environment and Heritage (Second Respondent)
• Representation: Ms B Nolan (Barrister) (Applicant); Mr A E Galasso SC with Mr T G Howard (First Respondent); Dr S E Pritchard (Barrister) (Second Respondent); Environmental Defender's Office (Applicant); McCullough Robertson Lawyers; (First Respondent); Office of Environment and Heritage Legal Services (Second Respondent)
• File Number(s): 40628 of 2011

Judgment

Nature of case and conclusion

1 Aboriginal objects occur at various locations on land near Camberwell in the Hunter Valley of New South Wales. Ashton Coal Operations Pty Limited ('Ashton') has carried out, and continues to carry out, underground longwall mining at these locations. The longwall mining has caused parts of the surface of the land to subside.

2 Mr Lester, an elder of the Plains Clan of the Wonnarua People, in the Hunter Valley, believes that the subsidence has caused harm to Aboriginal objects at three locations, referred to as the Oxbow site, Waterhole site, and Pleistocene site, after physiographic or edaphic features occurring at those locations. Mr Lester has brought civil proceedings under s 193(1) of the National Parks and Wildlife Act 1974 ('Parks Act') claiming that Ashton, by harming Aboriginal objects at each of those three locations, is in breach of s 86(1) of the Parks Act. He seeks declarations of the three breaches, orders restraining activities that may harm the Aboriginal objects, an order establishing a keeping place to house any Aboriginal objects removed from the land, an order requiring update of Aboriginal cultural heritage plans required by various Aboriginal heritage impact permits, an order for publication of a notice in a newspaper, and other orders.

3 Ashton has defended the proceedings. It says that Mr Lester has not established that it has breached s 86(1) of the Parks Act at any of the three locations. Ashton also contends that the relief sought by Mr Lester should not be granted, even if a breach were to be established.

4 Mr Lester joined as a second respondent to the proceedings, the Chief Executive of the Office of Environment and Heritage ('OEH'), who administers the Parks Act. The OEH restricted its participation in the proceedings to the issue of the relief claimed by Mr Lester regarding establishment of a keeping place and update of Aboriginal cultural heritage plans under Aboriginal heritage impact permits.

5 I find that Mr Lester has not established, on the evidence, to the civil standard of proof, that Ashton has breached s 86(1) of the Parks Act at any of the three locations. The proceedings should therefore be dismissed. The question of the costs of the proceedings should be reserved for later argument if agreement cannot be reached.

The statutory provisions alleged to be breached

6 Section 86(1) of the Parks Act provides:

A person must not harm or desecrate an object that the person knows is an Aboriginal object.

7 An 'Aboriginal object' is defined in s 5(1) to be:

any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

8 'Harm' to an Aboriginal object is defined in s 5(1) as follows:

harm an object or place includes any act or omission that:

(a)destroys, defaces or damages the object or place, or

(b)in relation to an object-moves the object from the land on which it had been situated, or

(c)is specified by the regulations, or

(d)causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c),

but does not include any act or omission that:

(e)desecrates the object or place, or

(f)is trivial or negligible, or

(g)is excluded from this definition by the regulations.

9 Section 87(1) of the Parks Act provides a defence to an offence under s 86(1), amongst other provisions. Section 87(1) provides:

It is a defence to a prosecution for an offence under section 86 (1), (2) or (4) if the defendant shows that:

(a)the harm or desecration concerned was authorised by an Aboriginal heritage impact permit, and

(b)the conditions to which that Aboriginal heritage impact permit was subject were not contravened.

The Oxbow site

The claimed breach of s 86(1)

10 The Oxbow site is, as the name suggests, a location where an oxbow loop of a creek, called Bowmans Creek, occurs. An Aboriginal archaeology study by Daniel Witter in June 2002, undertaken for Ashton as part of its environmental impact statement for the Ashton coal mining project, identified artefacts as occurring to the east of the oxbow loop in a 'V' shaped area where two tributaries join at the creek bottom. The artefacts included stone implements such as flake tools, nuclear tools, microblade cores, backed blades and a hammerstone. These artefacts are listed in various site cards for sites recorded and registered in the Aboriginal Heritage Information Management System ('AHIMS') maintained by the National Parks and Wildlife Service.

11 Ashton has undertaken underground longwall mining in the area since 2002 pursuant to a development consent, DA No 309-11-2001-i, granted on 11 October 2002 by the Minister for Planning under Part 4 of the Environmental Planning and Assessment Act 1979 ('EPA Act'). The development consent has been modified from time to time subsequently.

12 The first set of longwall panels to be mined were Longwalls 1 to 4. Longwall 4 lies underneath the Oxbow site. Longwall 4 was mined between 24 July and 11 August 2009.

13 An Aboriginal heritage impact permit ('AHIP') was current during this period of mining of Longwall 4. It was AHIP no 2783. When originally granted, on 28 September 2007, AHIP no 2783 applied only to one Aboriginal object recorded on the site card for AHIMS site no 37-3-0537. However, AHIP no 2783 was amended on 7 December 2007 to apply to many more Aboriginal objects recorded on the site cards for AHIMS sites nos 37-3-0501, 0502, 0503, 0511, 0533, 0536, 0537, 0547, 0557, 0581 and 0737. Five of these AHIMS sites occur within the area referred to as the area of the Oxbow site, being AHIMS sites nos 37-3-0501, 0502, 0503, 0511, and 0581. AHIP no 2783 expired on 28 September 2009.

14 Mr Lester claims that Ashton knew of the Aboriginal objects at the Oxbow site disclosed in the Witter report and in the AHIMS site cards referred to in AHIP no 2783.

15 Mr Lester claims, and Ashton does not contest, that mining of Longwall 4 caused subsidence of parts of the surface of the land at the Oxbow site. This has manifested itself in some surface cracking.

16 Mr Lester claims that the subsidence of parts of the land at the Oxbow site, on which the Aboriginal objects are situated, has caused the Aboriginal objects to move from the position in space at which they were previously situated to a new position in space. For example, if a block of ground subsides by a particular depth, the Aboriginal objects within that block of ground may also subside by that particular depth. Mr Lester claims that subsidence of the Aboriginal objects is movement of the Aboriginal objects from the land on which they had been situated, within the meaning of para (b) of the definition of 'harm' in s 5(1) of the Parks Act.

17 Mr Lester claims that Ashton undertook the act of longwall mining, which caused the subsidence, which caused the Aboriginal objects at the Oxbow site to be harmed by being moved. Hence, Mr Lester claims, Ashton has harmed the Aboriginal objects within the meaning of para (d) of the definition of 'harm' in s 5(1) of the Parks Act.

18 In these circumstances, Mr Lester claims, Ashton has harmed Aboriginal objects at the Oxbow site that it knew were Aboriginal objects, in breach of s 86(1) of the Parks Act.

The denial of the breach of s 86(1)

19 Ashton denies that it has breached s 86(1) of the Parks Act, submitting that it did not harm Aboriginal objects at the Oxbow site or have knowledge that if there was any object which might have been harmed was an Aboriginal object, and that if there was any harm to Aboriginal objects, it was authorised by an Aboriginal heritage impact permit.

20 Ashton submits that its act of longwall mining has not caused harm to any Aboriginal objects within the definition of 'harm' in s 5(1) of the Parks Act. First, Ashton submits there is no evidence that any particular object at the Oxbow site has been harmed. There is no evidence that any Aboriginal object has been destroyed, damaged or defaced within para (a) of the definition of 'harm'. There is also no evidence that any particular object has actually moved. For example, although pleaded by Mr Lester, there was no evidence of Aboriginal objects being moved into pits and cracks caused by subsidence of the surface.

21 Secondly, insofar as any Aboriginal object at the Oxbow site could be said to have moved together with the land on which it is situated, as a result of subsidence, the Aboriginal object has not moved 'from the land on which it has been situated' so as to fall within para (b) of the definition of 'harm' in s 5(1) of the Parks Act.

22 Thirdly, if there could be said to be any movement of an Aboriginal object from the land on which it was situated, Ashton submits that any such movement is trivial or neglible and hence excluded from being harm by para (f) of the definition of 'harm' in s 5(1) of the Parks Act.

23 Next, Ashton submits that Mr Lester has not established, for each particular Aboriginal object said to have been moved and hence harmed, that Ashton had knowledge that each such object was an Aboriginal object. Although Ashton had knowledge that the particular objects identified in the Witter report and in the AHIMS site cards for locations within the Oxbow site are Aboriginal objects, Mr Lester has not established that any of these particular objects have in fact moved or been harmed.

24 Finally, even if Ashton could have been said to have harmed Aboriginal objects of which it had knowledge, Ashton submits that no breach of s 86(1) of the Parks Act has occurred because the harm was authorised by AHIP no 2783. The act of mining of Longwall 4, which caused the subsidence and hence any movement, occurred between 24 July and 11 August 2009. The act of longwall mining is the actus reus of the breach of s 86(1) of the Parks Act. It was done during the currency of AHIP no 2783 which did not expire until 28 September 2009. Ashton submits that it does not matter whether harm caused by the actus reus occurs after the expiry of the AHIP. In any event, Ashton submits, Mr Lester has not established that any harm occurred after the expiry of AHIP no 2783. Ashton submits that the evidence establishes that almost all subsidence occurs within days of longwall mining being undertaken. Hence almost all subsidence and any movement of Aboriginal objects at the Oxbow site would have occurred within days after completion of underground mining of Longwall 4 on 11 August 2009. Any residual disturbance that occurred subsequently would likely be at very low levels and very small relative to natural ground movement. AHIP no 2783 did not expire until 28 September 2009. Ashton submits that Mr Lester has not established that any residual subsidence and any movement of any Aboriginal objects within the Oxbow site occurred after 28 September 2009.

No breach of s 86(1) established

25 I find that Mr Lester has not established that Ashton has harmed any Aboriginal objects at the Oxbow site and hence has not established a breach of s 86(1). The failure of Mr Lester to establish that any particular Aboriginal objects at the Oxbow site have been harmed also means that Mr Lester cannot establish that Ashton knew that any objects harmed are Aboriginal objects. The failure of Mr Lester to establish a breach of s 86(1) means that it is not necessary or possible to decide whether Ashton has established a defence under s 87(1) of the Parks Act.

26 There is evidence before the Court of subsidence of parts of the ground at the Oxbow site. The applicant's and Ashton's geological experts agreed in their joint expert report that:

Physical signs of subsidence disturbance include several surface cracks and associated zones of edge collapse as well as exposed subsurface areas especially at the zones of collapse. These cracks are not uniform across the Oxbow Site but show signs of zonation being most associated with the south and southwest of the site upslope from Bowmans Creek. There is photo and video documentation available that depicts these cracks. (para 3.1.1).

27 The experts also agreed that the act of mining Longwalls 3 and 4 under the Oxbow site has caused the subsidence (para 3.1.2).

28 They agreed that the majority of subsidence occurred at the Oxbow site during the period of active mining of Longwall 3 (December 2008 to January 2009) and Longwall 4 (August 2009). They agreed that some residual disturbance is likely to have occurred subsequently at low levels (at about 2-3 per cent of maximum subsidence). The extent of this residual movement is difficult to know with confidence, but the magnitude is accepted by the experts as being small relative to assumed moisture variation. Dr Mills suggested a figure of 20mm of natural surface movement is associated with moisture variation. Ongoing deterioration of the Oxbow site was accepted as being likely because the subsidence induced surface cracks are still present. Factors such as soil creep, erosion into cracks, and enhanced oxidation were accepted as probable (para 3.1.3).

29 However, this evidence of subsidence and subsidence-induced surface cracks does not establish any harm to any Aboriginal objects at the Oxbow site.

30 Dr Cotter, a geoarcheologist called by Mr Lester, visited the Oxbow site on 7 December 2011. She visited some of the locations of artefacts at the Oxbow site. The first location she visited (which she said had been recorded on an AHIMS site card but she did not give a reference) was an artefact scatter at or near a flattened ridge crest. Dr Cotter says she saw no evidence of subsidence and no evidence that harm had occurred to Aboriginal objects (para 56 of Dr Cotter's affidavit of 25 January 2012).

31 Dr Cotter said that at other locations, however, it was apparent to her that the Oxbow site had been subject to ground surface disturbance. Dr Cotter did not give the AHIMS site references for these locations of observed ground disturbance (para 57 of Dr Cotter's affidavit of 25 January 2012).

32 At another location (which Dr Cotter said was AHIMS site no 37-3-0511), Dr Cotter saw a section of ground surface had subsided in the immediate vicinity of known Aboriginal objects. Subsidence of this section had resulted in the formation of an irregular crack up to 8m in length, portions of which formed a pit up to 79cm wide and 53cm deep (para 58 of Dr Cotter's affidavit of 25 January 2012).

33 Dr Cotter said that, when she was walking between two recorded locations at the Oxbow site, she observed a previously undocumented artefact scatter and associated in situ deposit in a narrow erosion scarp above and to the east of Bowmans Creek (para 59). If the artefact scatter had not been previously documented, Ashton could have no knowledge of it.

34 Finally, Dr Cotter said she examined AHIMS site no 37-3-0503 and observed numerous artefacts in an area in which ground surface cracking and pitting had also occurred.

35 None of these observations of Dr Cotter establish that any of the Aboriginal objects that she observed had actually been harmed. Evidence of subsidence including surface cracking and pits in the soil surface does not establish that the observed artefacts had been harmed.

36 In a later affidavit, Dr Cotter said that '[w]ithout mitigation these subsidence effects must be considered to be causing ongoing harm to Aboriginal objects, especially where these Aboriginal objects are newly exposed and eroding sub-surface deposits' (para 46 of Dr Cotter's affidavit of 7 June 2012). However, Dr Cotter does not give evidence of observing harm to any particular Aboriginal objects on her site visit. Dr Cotter's statement is supposition.

37 The other geological expert called by Mr Lester, Ms Hellwig, did not visit the Oxbow site (or the Waterhole or Pleistocene sites). Ms Hellwig was, therefore, not able to express any opinion as to whether any particular Aboriginal objects at the Oxbow site had been harmed.

38 Mr Franks, an indigenous heritage consultant, accompanied Dr Cotter on her inspection of the Oxbow site on 7 December 2011. He says he observed that the site appeared to have been extensively damaged by surface cracking and erosion (para 4 of Mr Franks' affidavit of 6 March 2012). There was a video taken of the inspection. Again, Mr Franks' evidence does not establish harm to any particular Aboriginal objects at the Oxbow site.

39 Mr Daigle, a geologist called by Ashton, stated that subsidence was predicted to occur and has in fact occurred in parts of the Oxbow site. Mr Daigle explained the process of subsidence caused by underground longwall mining. He says:

The areas of greatest anticipated disturbance will be the projected edge of the longwall panel (the goaf). This narrow zone of surface cracking and irregular subsidence represents stretching of the surface between the unsubsided surface and the adjoining subsided surface.

Linear cracks and irregular settling may appear, but not always. Generally the surface in such locality will have a gradual rolling over of the surface down into the subsided area. This zone of cracking and settling is intermittent and is generally least noticeable in areas overlain by soils or deposits of less competent material such as those present at the Oxbow site. The most obvious cracks were located on small rises in the terrane and would have opened up as tension cracks on the edge area of the goaf. (page 11 of report attached to Mr Daigle's affidavit of 18 May 2012).

40 Mr Daigle does not give evidence of observing any harm to Aboriginal objects in the Oxbow site by reason of the subsidence or surface cracking.

41 Dr Mills, a geotechnical engineer called by Ashton, visited the Oxbow site in 2005/2006 and again on 14 June 2012. On the latter occasion he inspected two cracks in the soil at the Oxbow site. He opined that the cracks were a direct result of, and occurred substantially in response to and during, the mining of Longwall 4. Again, Dr Mills gave no evidence of observing any harm to Aboriginal objects caused by the cracks in the soil.

42 In summary, the evidence before the Court, although establishing that parts of the Oxbow site have been affected by subsidence and surface cracking, does not establish that any Aboriginal object recorded as occurring at the Oxbow site has been harmed by any such subsidence or surface cracking. There is no evidence that any Aboriginal object at the Oxbow site has been destroyed, defaced or damaged within the meaning of para (a) of the definition of 'harm' in s 5(1) of the Parks Act. There is also no evidence that any Aboriginal object at the Oxbow site has moved. For example, there is no evidence of direct observations of Aboriginal objects having fallen into cracks or pits created by subsidence or of objects having been washed or carried away to a different location.

43 At best, Mr Lester's case is that the Aboriginal objects recorded as occurring at the Oxbow site may have moved in situ with the movement of the ground in which the objects are situated. Thus, if the ground undergoes subsidence vertically, or tilt at an angle, or strain horizontally, Aboriginal objects in that ground may move with that ground. Mr Lester has no direct evidence that any Aboriginal object recorded as occurring at the Oxbow site was in a part of the ground which did undergo such subsidence, tilt or strain and hence also moved. Nevertheless, Mr Lester submits that an inference should be drawn from the observations of Aboriginal objects in the vicinity of evidence of subsidence, such as surface cracking, that it is likely that some Aboriginal objects would have been situated in ground that has so moved.

44 I am not persuaded that such an inference should be drawn on the evidence. The presence of surface cracks is evidence that that particular piece of ground with the crack may have moved, however it cannot be inferred that all other ground in the vicinity, with no surface cracks, has also moved.

45 Nevertheless, even if such an inference of movement of Aboriginal objects could be drawn, this would not be movement within the meaning of para (b) of the definition of 'harm' in s 5(1) of the Parks Act. This requires the object to move 'from the land on which it had been situated'. I do not consider that movement of an Aboriginal object which is not independent of, but rather is dependent on, the movement of the ground in which the object is situated, is movement of the object 'from the land on which it had been situated'. The object remains on the land on which it has been situated.

46 Finally, even if it could be found that Aboriginal objects have moved in situ with the ground on which the Aboriginal objects are situated, and that such movement could be said to be within the meaning of para (b) of the definition of 'harm' in s 5(1) (contrary to what I have found), I consider that such movement is 'trivial or negligible' within the meaning of para (f) of the definition of 'harm'. The Aboriginal object would not, by moving with the ground, have changed position relative to its surrounds. The movement of the ground would also be minor and possibly imperceptible. Furthermore, ground movement, including contraction and expansion in response to changes in moisture levels, is a naturally-occurring process that does not significantly alter the position of surface objects. Any in situ movement would therefore be 'trivial or negligible' and be excluded from being harm to Aboriginal objects under s 5(1) of the Parks Act.

47 For these reasons, Mr Lester has not established that Ashton, by its underground longwall mining which has caused subsidence of parts of the ground of the Oxbow site, has caused harm to Aboriginal objects at the Oxbow site.

48 I should note that the difficulty Mr Lester faces in establishing that any particular Aboriginal object at the Oxbow site has moved and been harmed also impacts on his ability to establish the knowledge requirement in s 86(1) of the Parks Act. Breach of s 86(1) requires that the person who harms an object know that the object harmed is an Aboriginal object. Although Mr Lester can establish that Ashton knew that the objects recorded in the Witter report and in the AHIMS site cards for the AHIMS sites referred to in AHIP no 2783, situated at the Oxbow site, were Aboriginal objects, Mr Lester has not established that any of these Aboriginal objects have in fact been harmed. The evidence is not sufficiently particular to enable a finding that these recorded Aboriginal objects of which Ashton had knowledge were in fact harmed.

49 Most of the evidence of subsidence, surface cracks and pits in parts of the Oxbow site does not correlate with any recorded Aboriginal objects of which Ashton had knowledge. The only evidence attempting to correlate recorded Aboriginal objects with subsidence was that of Dr Cotter. Dr Cotter only gave the references for two of the AHIMS sites within the Oxbow site, where she said she observed subsidence and cracking, being AHIMS sites nos 37-3-0511 and 37-3-0503. However, Dr Cotter did not state that the particular artefacts she observed at these AHIMS sites were some or all of the Aboriginal objects recorded as occurring in the AHIMS site cards for sites no 37-3-0511 and 37-3-0503 or, if they were, that those objects had in fact been moved (and hence harmed) by the ground surface cracking and pitting she observed. For other locations at the Oxbow site, the evidence does not establish that any Aboriginal objects observed were objects recorded in the Witter report or in the AHIMS site cards for the AHIMS sites referred to in AHIP no 2783 and hence were objects known to be Aboriginal objects.

50 In light of my finding that Mr Lester has not established that Ashton has harmed Aboriginal objects situated on the Oxbow site in breach of s 86(1) of the Parks Act, it is not necessary or possible to determine whether Ashton has established a defence under s 87(1) of the Parks Act. Section 87(1) would require Ashton to show, first, that any harm to Aboriginal objects found to be in breach of s 86(1) of the Parks Act was authorised by an AHIP, the relevant one being AHIP no 2783, and secondly, that the conditions of that AHIP were not contravened. The defence cannot be established in abstract but rather requires a finding of harm to Aboriginal objects. Only when such a finding is made can a defendant show that such harm was authorised by an AHIP and done in accordance with the conditions of such a permit.

51 For these reasons, Mr Lester has not established that Ashton has harmed Aboriginal objects at the Oxbow site in breach of s 86(1) of the Parks Act.

The Waterhole site

The claimed breach of s 86(1)

52 The Waterhole site, as the name suggests, is next to a waterhole on the east bank of Bowmans Creek. The waterhole is formed against a 3m high conglomerate/sandstone outcrop. The outcrop is less than 100m south of the New England Highway. The Witter reports notes that there are nine grinding grooves in a group (referred to as GG1) on the top of the outcrop. An additional set of six grinding grooves (referred to as GG3) occurs on a ledge near the water and about 10m away on the same ledge is a single grinding groove (referred to as GG4).

53 The Witter report records numerous artefacts as occurring at other locations within the Waterhole site. The grinding grooves and artefacts in the surrounding area have been recorded in the site card for AHIMS site no 37-3-6. Other artefacts in the Waterhole site have been recorded and registered in the site card for AHIMS site no 37-3-0500.

54 In 2011, Ashton proposed mining Longwall Panels 5 to 8 to the west of the previously mined Longwall Panels 1 to 4. There had not been, and there was not proposed to be, any longwall mining directly underneath the Waterhole site. Longwall 4, which had been mined in 2009, finished about 144m to the south of the Waterhole site. However, there were first workings, in the form of underground mine roadways, underneath the Waterhole site.

55 Ashton applied for an AHIP to authorise harm to Aboriginal objects caused by the proposed mining of Longwall Panels 5 to 8 and associated surface operations above these panels. On an appeal against the deemed refusal of Ashton's application, the Land and Environment Court issued an AHIP, AHIP no 1130976, on 26 August 2011. Condition 7 of the Court issued AHIP provided:

7.There will be no construction within 70m of the Waterhole Site grinding grooves and appropriate controls will be implemented to protect this site from inadvertent construction activity impacts, including:

a.Clear fencing of the site to form a boundary between contractors and the outer perimeter of the site.

b.Inclusion of a work method statement (WMS) that outlines the responsibilities of contractors in order to ensure that the site is not impacted and which outlines the repercussions of not adhering to the WMS (e.g. fines administered by OEH).

c.Inclusion of a cultural awareness component in the general induction of contractors working on the project.

56 Mr Lester claims that longwall mining in the area of, and first workings underneath, the grinding grooves at the Waterhole site by Ashton have caused subsidence of the land and surface cracking of the grinding grooves on the sandstone outcrop (GG1). Mr Lester claims this is harm within para (a) of the definition of 'harm' in s 5(1) of the Parks Act.

57 Mr Lester claims that Ashton knew that the grinding grooves were Aboriginal objects because they were described in the Witter report and referred to in the Court issued AHIP. Hence, Mr Lester claims, Ashton has harmed the grinding grooves that Ashton knew were Aboriginal objects, in breach of s 86(1) of the Parks Act.

58 Mr Lester also claims that Ashton has undertaken construction, by erecting a new fence, within 70m of the Waterhole site grinding grooves, in breach of condition 7 of the Court-issued AHIP. Mr Lester claims that the erection of the new fence harmed Aboriginal objects situated on the land where the fence was constructed. This too was in breach of s 86(1) of the Parks Act.

The denial of the breach of s 86(1)

59 Ashton denies that it breached s 86(1) of the Parks Act in either of these ways claimed by Mr Lester.

60 First, Ashton submits that the evidence does not establish that either longwall mining or first workings undertaken by Ashton has caused any subsidence of the land where the grinding grooves are located.

61 The nearest longwall panel, Longwall 4, finishes 144m from the grinding grooves. Ashton submits that the evidence establishes that this is too distant to cause subsidence and surface cracking of the outcrop on which the grinding grooves are located (GG1). Ashton submits that the first workings, although underneath the Waterhole site, do not cause any subsidence and therefore could not cause any surface cracking of the outcrop on which the grinding grooves are located. Hence, no harm to the grinding grooves has been established.

62 Ashton does not need to rely, and does not rely, on the Court-issued AHIP, as it did not authorise harm to the grinding grooves.

63 Secondly, Ashton submits that the new fence is erected further than 70m from the Waterhole site grinding grooves, and hence is not in breach of condition 7 of the Court-issued AHIP.

64 Thirdly, Ashton submits that the erection of the new fence is not within the meaning of 'construction' as referred to in condition 7 of the Court-issued AHIP.

65 Fourthly, Ashton submits that there is no evidence that the erection of the new fence has caused any harm to the grinding grooves or to any other Aboriginal object that might be situated where the new fence was erected.

66 Hence, Ashton submits, Mr Lester has not established that Ashton has harmed either the grinding grooves or any other Aboriginal object in the location of the new fence and hence breached s 86(1) of the Parks Act.

No breach of s 86(1) established

67 I find that Mr Lester has not established that Ashton has harmed either the grinding grooves or any other Aboriginal object at the Waterhole site, in breach of s 86(1) of the Parks Act.

68 Although Mr Lester pleaded that harm had been caused to any grinding grooves in general, no evidence of harm was adduced in relation to grinding grooves at the Waterhole site other than the grinding grooves on the outcrop, referred to as GG1.

69 The parties' geological experts agreed in their joint expert report that there are physical signs of deterioration on the outcrop surface immediately to the east-southeast of grinding groove site GG1. They used the neutral word 'feature' to refer to this area of surface deterioration. The experts agreed that there was no other evidence of subsidence elsewhere on the outcrop (para 3.2.1 of the joint expert report).

70 The experts differed, however, as to when this feature at GG1 may have occurred and what might have caused it (para 3.2.1).

71 Mr Wesley, a mining engineer and the General Manager of Ashton, gave evidence concerning the longwall mining near and the first workings underneath the Waterhole site. Mr Wesley said that the Waterhole site is located 144m to the north of Longwall Panel 4, the closest longwall panel to the Waterhole site, and that no longwall mining has been carried out, or is proposed to be carried out, under the Waterhole site. Mr Wesley said that mine roadways, known as first workings, are situated beneath the Waterhole site, but these do not cause subsidence (paras 24 and 25 of Mr Wesley's affidavit of 14 May 2012).

72 Mr Daigle, a geologist called by Ashton, described the feature on the outcrop as surface spall and fretting of edges. Mr Daigle was of the opinion that these are natural features and are consistent with a natural deterioration of this type of outcrop. He expressed the opinion that there had been no change during the period 2008 to 2011 (para 3.2.1 of the joint expert report).

73 Mr Daigle's opinions were developed extensively in his expert report annexed to his affidavit of 18 May 2012 and in his oral evidence given to the Court.

74 Mr Daigle inspected the grinding groove site GG1 in April 2011 and completed a survey on 27 July 2011. Mr Daigle said that during both of these inspections he did not observe any signs of mine subsidence at the grinding groove site GG1. If there had been subsidence, he said he would have expected to observe features such as a trend of linear surface cracks and settling of adjacent soil but none of these features of mine subsidence was evident.

75 Mr Daigle again inspected the grinding groove site GG1 on 26 April 2012. Again, Mr Daigle said he did not observe any signs of mine subsidence such as a trend of linear surface cracks or settling of adjacent soil. Mr Daigle inspected the outcrop surface, mapped the distribution of rock types and determined the geology of the site.

76 Mr Daigle said:

The grinding grooves are located on an exposed lens of medium to course grain sandstone separating a bed of pebble grit from an underlying thick massive bed of pebble to cobble conglomerate.

...

The grit bed and the pebble cobble conglomerate layers exhibit thick exfoliation joint separated layers following the surface contour. A finer layering is present in the sandstone lens hosting the grinding groove site GG1, this layering is a skin spall and is typically less than 10mm thick. In places this spall is broken and fresher rock is exposed. (page 5 of expert report attached to Mr Daigle's affidavit of 18 May 2012).

77 Mr Daigle arranged for digital photography of the grinding grooves to provide 3D photogrammetric analysis, a record of the condition of the site, and to demonstrate the amount of physical change present compared to previous images of the site. Mr Daigle reported on his 3D photogrammetric investigation as follows:

Digital imagery shown in Figure 3 demonstrates the diagnostic shape of a grinding groove as a consistent cross section along the trace of the groove which is also shown as a consistent feature when shown as a longitudinal section. The thin sandstone lens hosting the features shows weathering is intense and a skin spall has developed where mineral leaching and re-deposition by cycles of wetting and drying of the stone has occurred over time. In places the skin spall has separated and lifted away from the outcrop surface forming thin fragile sheets composed of the parent sandstone. Sections of this thin sheet have broken off and have disintegrated. The photo-imagery completed shows the areas where spalled skin is absent (Figure 4). This is considered a natural process, where weathered stone is gradually broken down by the chemical and mechanicals forces of nature. Evidence of the wetting cycle is confirmed in the surveying completed which demonstrated high water levels will engulf the grinding groove site (Figure 2). The sandstone comprising the grinding groove site is susceptible to forming spall and such sites are at risk of weathering away over time through this natural process, especially sites which undergo more intense or frequent cycles of wetting and drying.

Spall is where the outcrop surface forms sheets of the parent rock material, it is an exfoliation of the skin of the rock surface. Several forces and rock characteristics act together to create this effect, the thickness and character of the spall is mainly resulting from the combined effects of weathering and the stresses present in the rock. The weathering acts to degrade the rock surface and allows water and air to leach minerals from the rock creating a surface parallel zoning within the rock mass. Inherent stresses within the rock mass then act to cause the surface zoning to form a parting parallel to the rock mass surface. The resulting surface parallel sheet is the spall from the outcrop, the thickness of the spall is usually a function of the rock grain size, hence finer grained material such as sandstone can have very thin spall sheets and coarser materials such as conglomerate will produce much thicker spall sheets. (page 5 of expert report attached to Mr Daigle's affidavit of 18 May 2012).

78 Mr Daigle also said that:

Viewing of the colour enhanced image (Figure 3) clearly demonstrated the location of recent spalling and when compared to images of the outcrop taken in 2009, no new spalling was noted adjacent to the GG1 grinding grooves. (page 8 of expert report attached to Mr Daigle's affidavit of 18 May 2012).

79 Mr Daigle concluded:

Based upon the digital imagery and mapping I have prepared, in my view, there has been no subsidence from mining at the Waterhole Grinding Groove Site GG1.

During each of my site inspections, I have observed no signs of mine subsidence such as trends of surface cracking or soil settle at the Waterhole Grinding Groove Site GG1.

In my opinion, the analysis of photos and subsidence data scientifically establishes that there has been no mine subsidence at the Waterhole Grinding Groove Site GG1.

It is clear that the Waterhole Grinding Groove Site GG1 undergoes constant active natural erosion processes. The visible cracking of the sandstone upon which the grinding grooves is located is caused by natural erosion, the cycle of wetting and drying and other natural causes such as Macropods (kangaroos). Natural weathering of the skin of the sandstone rock has and continues to occur.

These processes are completely distinguishable from fractures induced by mining subsidence. The expected type of fractures over subsided ground are fresh breaks and are long somewhat linear tension openings which are penetrative from the surface with downward depth, none of these were observed at the site nor were any anticipated.

In my opinion there has been no mining subsidence at the Waterhole Grinding Groove Site GGA caused by underground longwall mining at the Ashton Coal Project. (pages 8-9 of expert report attached to Mr Daigle's affidavit of 18 May 2012).

80 Mr Daigle's oral evidence corroborated these opinions.

81 Dr Mills, a geotechnical engineer called by Ashton, as well as Mr Daigle, stated that, based on their subsidence experience and the nature of subsidence monitoring data available, subsidence movements sufficient to cause perceptible rock disturbance at the GG1 site have not occurred (para 3.2.2 of the joint expert report).

82 Dr Mills' geotechnical engineering firm, SCT Operations Pty Ltd, was engaged by Ashton in July 2009, prior to longwall mining taking place in Longwall 4 nearest to the Waterhole grinding groove site GG1, to provide its expert opinion on the potential for subsidence to impact the site. Dr Mills prepared the expert report. He inspected, mapped and photographed the grinding groove site. Dr Mills stated in his 28 July 2009 report:

The grinding groove site is located approximately 250m north of the northern end of Longwall 4. The overburden depth in this area is approximately 80m, so the site is located approximately 3.1 times overburden depth from the nearest longwall mining activity. At this distance there is no credible mechanism to cause perceptible impact.

Previous subsidence monitoring indicates that horizontal movements are limited to mainly within the longwall panels at Ashton Mine and reduce to less than survey tolerance (20mm) within about 50-100m of the goaf edge. At 250m distance, there is considered to be no potential for perceptible impacts. The location of the site adjacent to Bowmans Creek adds further protection, because there is no potential to generate horizontal strains on the rock surface with a free surface nearby.

83 Dr Mills subsequently visited the Waterhole site on 14 June 2012 and inspected the grinding grooves located on the outcrop (GG1). In his expert report annexed to his affidavit of 19 June 2012, Dr Mills concludes that:

I am of the opinion that there have been no significant ground movements at the Waterhole site generally and any small movements that may have occurred are likely to be of a general body nature (everything moves together). If these low level movements were to have occurred, they would be of a magnitude that would not be perceptible to the eye or cause perceptible physical impacts because they are well below the tolerance of the ground to such movements. (Section 2.3 of Dr Mills' expert report).

84 Dr Mills' reasoning for this conclusion is to the same effect as that given in his report in 2009. In essence, the outcrop on which the grinding grooves are located is situated sufficiently far away from the end of the closest longwall, Longwall 4, that the vertical subsidence, tilt and horizontal strain caused by underground longwall mining are of such a small magnitude that they would not be perceptible to the eye or cause perceptible physical impacts, being within the tolerance of the type of ground at the Waterhole site to such movements. Dr Mills expresses this reasoning as follows:

In my opinion, the Waterhole site is of a character that is likely to be generally tolerant of low level mining induced ground movements should any occur. I consider it unlikely that ground strains of less than about 4-5mm/m would be perceptible to the eye in the type of terrain that makes up the broad area of the Waterhole site.

The Waterhole site is located in an area from about 145m to 300m north of the end of Longwall 4 (Annexure BW-6). The overburden depth to the Pikes Gully Seam ranges approximately 70m to 85m at the northern end of Longwall 4. Subsidence monitoring on subsidence line CL2 (the longitudinal subsidence line at the northern end of Longwall 4) indicates that the vertical subsidence directly above the northern end of Longwall 4 (finish line goaf edge) is less than 20mm (Figure 6 in Annexure MC-5). Maximum ground tilt at the finish line is less than 3mm/m, horizontal movements are approximately 25mm in an eastward direction, and horizontal strains in a direction along the subsidence line are less than 1mm/m. Pegs are spaced at nominal 5m centres. A correction for standard peg spacing of 1/20th depth or approximately 4m increases the tilts and strains by 25%, but they remain small. (Section 2.3 of Dr Mills' expert report dated 19 June 2012).

85 Dr Mills' oral evidence corroborated these opinions.

86 In response to the evidence of Mr Wesley, Mr Daigle and Dr Mills, Mr Lester called Dr Cotter, a geoarcheologist, and Ms Hellwig, a geologist.

87 Dr Cotter described the feature on the surface of the outcrop to the east-southeast of the grinding grooves (GG1) as 'exfoliation and surficial cracking' or 'surficial cracking and micro-fracturing' (para 42 of Dr Cotter's affidavit of 25 January 2012 and para 3.2.1 of the joint expert report). Dr Cotter stated that she had made a brief comparison of the photographic and documentary evidence and had inspected the grinding groove on 7 December 2011. Based on this analysis, Dr Cotter considered that '[s]ome exfoliation has been apparent since 2008 however surficial cracking appears to have increased over time and perhaps markedly during the period between 2010 and 2011' (para 42 of Dr Cotter's affidavit of 25 January 2012). Dr Cotter said in the joint expert report that she was of the view that there had been a change and increased cracking between 2008 and 2011 (para 3.2.3 of the joint expert report).

88 However, Dr Cotter stated that it was not possible, from the collection of photographs between 2008 to 2012, to say categorically what are the causes of the physical deterioration or when it occurred (para 3.2.1 of the joint expert report), that is to say, whether it is of natural origin or induced by mine subsidence (para 42 of Dr Cotter's affidavit of 25 January 2012). Dr Cotter considered that it is 'a small possibility that some of the changes are associated with first workings and perhaps the approach of Longwall 4, but without baseline data, it is not possible to tell.' (para 3.2.2 of the joint expert report).

89 Ms Hellwig did not visit any of the sites at the Ashton coal mining project, including the Waterhole site. Essentially, Ms Hellwig's evidence was directed to not ruling out the possibility that underground longwall mining or first workings could have had an impact on the grinding grooves at the Waterhole site. Thus, Ms Hellwig said 'there has been no continuity of monitoring of the site which makes it difficult for any expert opinion to be categorical'; 'insufficient documentation of potential surface changes within the broader Waterhole site impacted on the ability of the experts to make fully informed conclusions regarding the nature and character of the feature observed at GG1'; and 'a lack of evidence for subsidence induced changes elsewhere within the Waterhole site should in no way be used to infer or substantiate the existence or otherwise of subsidence induced changes at GG1'. (para 3.2.2 of the joint expert report).

90 In a like vein, Ms Hellwig responded to Mr Wesley's opinion that first workings at the Ashton coal mining project do not cause subsidence, by saying that '[w]hilst this assumption is typical in recent years in NSW mines, it cannot be claimed with absolute certainty' (para 36 of Ms Hellwig's affidavit of 12 June 2012). She referred to instances of panel sag in first workings that had occurred elsewhere in NSW between 1988 to 1992 to support her view that Mr Wesley's opinion is not certain.

91 Ms Hellwig responded to Mr Daigle's opinion that any subsidence from mining of Longwall Panel 4 would be so small as not to appear as surface expression, by saying that it could be subsurface and virtually undetectable and yet impact sensitive structures such as the Waterhole site. Hence, Ms Hellwig considered that assumptions in relation to the potential of mine subsidence at the Waterhole site cannot be made with certainty (para 37 of Ms Hellwig's affidavit of 12 June 2012).

92 Ms Hellwig responded to Dr Mills' report in 2009 predicting that there would be no physical impacts on the grinding grooves by undertaking longwall mining of Longwall Panel 4, by saying that without further information she is unable to determine the impact longwall mining-induced movement may have on surrounding subsidence expression and potential surface erosion structures. Hence Ms Hellwig considered there still was a possibility of surface and subsurface movement which may affect surface sites such as the GG1 site (paras 41 and 42 of Ms Hellwig's affidavit of 12 June 2012).

93 Ms Hellwig stated that '[it] may be the case that sub-surface fracturing from the end of Longwall 4 and/or the first workings impacts the entire Waterhole site' (para 43) and that 'the Waterhole site damage ... could be related to subsidence from either the first workings, or Longwall 4' (para 45 of Ms Hellwig's affidavit of 12 June 2012).

94 I accept the evidence of Mr Wesley, Mr Daigle and Dr Mills, and reject the evidence of Dr Cotter and Ms Hellwig to the extent it is to the contrary, that the feature on the outcrop surface to the east-southeast of the grinding grooves GG1 is not caused by subsidence from Ashton's longwall mining or first workings, but rather from natural forces. In particular, I accept the evidence of Mr Wesley, Mr Daigle and Dr Mills that:

(a) the first workings, being mine roadways, underneath the Waterhole site have not caused subsidence; and

(b) the end of Longwall Panel 4 is sufficiently distant from the outcrop on which the grinding grooves GG1 are located that any subsidence, tilt or strain caused by longwall mining would have been of such a small magnitude as not to cause perceptible rock disturbance at the grinding grooves.

95 I accept the evidence of Mr Daigle, based on his inspection of the outcrop surface, mapping of rock types, determination of the geology of the site, comparison of photographs between 2008 and 2009 and 3D photogrammetric analysis, that there has been no mine subsidence at the grinding grooves site GG1 and no new spalling has occurred adjacent to the grinding grooves after completion of longwall mining of Longwall 4 in 2009.

96 Dr Cotter and Ms Hellwig's evidence did not positively establish to the contrary. At best, their evidence was that subsidence induced changes to the rock surface of the outcrop at GG1 could not be categorically ruled out. However, this evidence does not establish the positive fact that the physical signs of deterioration near the grinding grooves GG1 were caused by subsidence induced by Ashton's longwall mining or first workings. The onus of proving that Ashton, by its acts, has caused harm to the grinding grooves rests on Mr Lester. The evidence of Dr Cotter and Ms Hellwig does not permit Mr Lester to discharge this onus of proof.

97 Accordingly, I find that Mr Lester has not established that Ashton has harmed the Aboriginal object that is the grinding grooves GG1 on the outcrop at the Waterhole site.

98 I also find that Mr Lester has not established that Ashton has harmed any Aboriginal objects in erecting a new fence at the Waterhole site.

99 First, there was no evidence that there was any Aboriginal object along the line of the new fence erected or that any Aboriginal object was harmed in the process of erection of the fence. Mr Lester's submission in closing address that the Court should assume that there are Aboriginal objects at that location because they had been recorded as occurring at other locations in the Waterhole site is rejected. Mr Lester bears the onus of proving that there were Aboriginal objects along the line of the new fence and that such objects were harmed by the erection of the new fence. Mr Lester has failed to discharge this onus.

100 Secondly, Mr Lester's argument that Ashton has breached condition 7 of the Court-issued AHIP is misplaced. Even if condition 7 were to have been breached (and for the reasons I give below I do not so find), that does not cause Ashton to breach s 86(1) of the Parks Act. Non-compliance with conditions of an AHIP would only be relevant to rebut any defence that might be raised by Ashton under s 87(1) that any harm caused to Aboriginal objects was authorised by the AHIP. However, in this case, the only relevant AHIP, the Court-issued AHIP, does not authorise harm to any Aboriginal objects by construction of a fence 70m or more from the Waterhole site grinding grooves. Ashton, therefore, does not rely on the Court-issued AHIP as a defence to any breach of s 86(1) of the Parks Act. Hence, any non-compliance by Ashton with condition 7 of the Court-issued AHIP will not be relevant to and could not establish Mr Lester's claim that Ashton has breached s 86(1) of the Parks Act by erecting the new fence within 70m of the Waterhole site grinding grooves.

101 Thirdly, in any event, I find that Mr Lester has not established that Ashton has contravened condition 7 of the Court-issued AHIP. Even if condition 7 is to be construed as prohibiting the erection of a fence within 70m of the Waterhole site grinding grooves (that is, that erection of a fence can be construction), the evidence does not establish that Ashton did erect a fence within 70m of the Waterhole site grinding grooves.

102 Mr Wesley's evidence is that there was an original fence at the Waterhole site but some sections of that fence were less than 70m from the grinding grooves. After condition 7 of the Court-issued AHIP was imposed Ashton undertook additional fencing at those places where the original fence was less than 70m from the grinding grooves. The original fencing was not removed following the installation of the 70m fencing. Both fences have remained in place and the construction activities were kept outside the perimeter of the fences (para 26 of Mr Wesley's affidavit of 14 May 2012).

103 Mr Wesley annexed a plan showing the locations of the original and additional fencing. Overlaid on the plan were the locations of each of the grinding groove sites GG1, GG3 and GG4, and an elliptical radius of 70m from these grinding groove sites. The location of the additional fencing is outside the 70m radius, establishing that the additional fencing is more than 70m from the grinding grooves.

104 The evidence given by Mr Franks and Dr Cotter of having seen new fencing and fencing tools at the Waterhole site does not contradict Mr Wesley's evidence. It is not in issue that a new fence was erected. Mr Franks' and Dr Cotter's evidence does not establish that the new fence was within 70m of the grinding grooves at the Waterhole site.

105 Mr Lester submitted that condition 7 required that the 70m radius be calculated from the outer boundary of the whole Waterhole site and not from the grinding grooves within the Waterhole site. On this construction of condition 7, some sections of the new fence might be within the 70m radius.

106 I reject this submission. Condition 7 fixes the 70m radius by reference to 'the Waterhole Site grinding grooves', not 'the Waterhole site'. The inclusion of the reference to the grinding grooves must be taken to be deliberate and be a reference to the sets of grinding grooves known as GG1, GG3 and GG4 within the Waterhole site. Furthermore, Mr Lester's construction of condition 7 is impractical and unworkable. Condition 7 of the Court-issued AHIP required clear fencing of the site. A fence 70m away from the outer boundary of the whole Waterhole site would cross the New England Highway at two locations and have a section of the fence on the other side of the highway. Not only would such a fence not be able to be erected, it would not in any event secure the Waterhole site as entry to the site would be possible from the highway.

107 For these reasons, I find that Mr Lester has not established that Ashton has harmed any Aboriginal objects by erecting the new fence at the Waterhole site, in breach of s 86(1) of the Parks Act.

The Pleistocene site

The claimed breach of s 86(1)

108 The Pleistocene site is an area where one of the experts in the environmental assessment of the Ashton coal mining project raised the possibility that the underlying sediment might be of the Pleistocene geological era. The area is traversed on the surface by a road called Brunkers Lane which provides access between the New England Highway and the adjacent Ravensworth Operations Project, a coalmine owned by Xstrata Coal NSW ('Xstrata') and operated by Ravensworth Operations Pty Ltd. The land over which Brunkers Lane passes is owned by Macquarie Generation.

109 Xstrata has a project approval under the former pt 3A of the EPA Act for the Ravensworth Operations Project. As part of the project, Xstrata is required to realign Brunkers Lane to create a road called Lemington Road. Brunkers Lane/Lemington Road traverses potential Pleistocene sediment areas within a potential archaeological deposit registered as AHIMS site 37-3-0496. The site card for AHIMS site no 37-3-0496 describes the site as an open campsite, where a small tributary from the west side of the valley cuts through a terrace. The area has been heavily disturbed by earth moving and road construction. The few artefacts visible, however, indicated that a more extensive deposit is likely to be present, although this surface is likely to have been cultivated. Eleven artefacts have been recorded as occurring at the site, including two angle fragments, seven broken flakes and two complete flakes.

110 Xstrata's realignment of Brunkers Lane/Lemington Road has the potential to harm Aboriginal objects in these areas, including AHIMS site 37-3-0496. Notwithstanding this potential for harm to Aboriginal objects, by operation of the then in force s 75U(1)(d) of the EPA Act, an AHIP was not required for the approved Ravensworth Operations Project, including the construction of the realignment of Brunkers Lane/Lemington Road.

111 Ashton's development consent granted on 11 October 2002 and subsequently modified, and its mining authority, authorise Ashton to carry out longwall mining, being Longwall Panels 7B and 8, underneath Brunkers Lane/Lemington Road. Condition 3.10 of the development consent required Ashton to ensure that underground mining does not cause any exceedence of the subsidence impact performance measures recommended in the report prepared under condition 7.14 of the development consent for Brunkers Lane. Condition 7.14 required Ashton, together with Xstrata, to commission and implement a report on the final alignment for Lemington Road. The condition envisaged a staged process of interim realignment and then final realignment of Lemington Road. Note 1 to condition 7.14 makes clear that the interim realignment of Lemington Road is intended to be constructed by the owner of the Ravensworth Operation Project, Xstrata, partly on the current alignment on Brunkers Lane, prior to the full extraction of the Pikes Gully seam (which is the closest coal seam to the surface) by Ashton.

112 The Court-issued AHIP for mining of Longwall Panels 5 to 8 and associated surfaces above these panels authorised harm to Aboriginal objects in the Pleistocene site provided two conditions were satisfied. Conditions 11 and 12 of the Court-issued AHIP provide:

11.Where there will be ground disturbance from the proposed works in the Potential Pleistocene Sediment areas within Potential Archaeological Deposit 37-3-0496 identified in the map at Attachment 1 in yellow shading, the area must be investigated in accordance with the methodology specified in Attachment 2 to this AHIP.

12.Movement of Aboriginal objects may be carried out in Potential Pleistocene sediment areas within Potential Archaeological Deposit 37-3-0496 identified in the map at Attachment 1 in yellow shading, only upon completion of any investigations required by condition 11 and where the other conditions of this AHIP are complied with including condition 9 and condition 13.

113 The map at Attachment 1 has a yellow shaded area depicting the potential Pleistocene sediment within which is the number 37-3-0496 referring to the potential archaeological deposit. The yellow shaded area is traversed by Brunkers Lane. Underneath the yellow shaded area is Longwall Panel 7B.

114 The 'proposed works' are stated in Section D of the Court-issued AHIP to include:

• the construction of the eastern and western diversion of Bowmans Creek, which includes haul roads, topsoil and spoil stockpiles, site access tracks, equipment compounds and staff facilities and other associated surface works;

• the coal extraction from longwalls 5, 6A, 6B, 7A, 7B and 8 within the area shown on the attached map;

• gas wells and other activities and establishment of infrastructure to provide for the safe ongoing operation of the mine, such as, but not limited to, dewatering facilities, ventilation and geological investigations;

• in areas where subsidence results in ground surface cracking, remediation works including ripping and filling in with soil;

• rehabilitation in the filled in soil areas may be required;

• upgrade and maintenance of existing access and formation of new access tracks.

115 Attachment 2 to the Court-issued AHIP sets out the methodology for salvage of Aboriginal objects. Of relevance is the methodology in Section 1 which is as follows:

• Stage 1 - surface collection of known objects identified in schedule B of the AHIP;

• Stage 2 - assessment of subsurface potential including any area of potential deposits;

• Stage 3 - test excavation for any artefact bearing deposits;

• Stage 4 - excavation where test excavation confirms artefact bearing deposits;

• Stage 5 - grader scrapes in areas either cleared of potential subsurface deposits at Stage 1 (artefact collection) or on completion of Stage 2 (test excavation where no further excavation warranted) or Stage 3 (completion of open area excavation).

116 Mr Lester claims that, on 16 September 2011, Xstrata commenced construction of the interim realignment of Brunkers Lane/Lemington Road. This involved bulldozing and ground disturbance in the potential Pleistocene sediment areas within potential archaeological deposit no 37-3-0496. Mr Lester claims that condition 11 of the Court-issued AHIP required that area to be investigated in accordance with the methodology in Attachment 2 to the Court-issued AHIP before such construction and ground disturbance occurred. Mr Lester claims that Ashton was required to ensure that Xstrata complied with condition 11 and completed such investigation before commencing construction of the realignment of Brunkers Lane/Lemington Road. Mr Lester relies on condition 1 of the Court-issued AHIP which provides:

1.The AHIP holder must ensure that all persons involved in actions or works covered by this AHIP (whether employees, contractors, sub-contractors, agents or invitees) are made aware of and comply with the conditions of this AHIP.

117 Mr Lester claims that, in contravention of condition 1, Ashton did not make Xstrata aware of condition 11 and did not ensure that Xstrata complied with condition 11 of the Court-issued AHIP.

118 Hence, Mr Lester claims that Ashton cannot rely on the defence under s 87(1) of the Parks Act because Ashton has not shown that conditions of the AHIP were not contravened. Hence, Mr Lester claims, Ashton is responsible for any harm caused to Aboriginal objects within the Pleistocene site by Xstrata's construction of the realignment of Brunkers Lane/Lemington Road, and thereby has breached s 86(1) of the Parks Act.

The denial of the breach of s 86(1)

119 Ashton denies that it breached s 86(1) of the Parks Act as claimed by Mr Lester.

120 First, Ashton submits there is no evidence of any harm to any Aboriginal objects having been caused by the construction of the realignment of Brunkers Lane/Lemington Road.

121 Secondly, if the construction of the realignment of Brunkers Lane/Lemington Road is found to have harmed Aboriginal objects, Ashton submits that Xstrata, and not Ashton, undertook the construction of that realignment and was the person who harmed the Aboriginal objects.

122 Thirdly, if Xstrata's act of construction is found to have harmed Aboriginal objects, Xstrata was acting pursuant to its Part 3A project approval which, by dint of s 75U(1)(d) of the EPA Act, did not require an AHIP to authorise the harming of Aboriginal objects. Hence, if Ashton is held to be responsible for Xstrata's acts, Xstrata's acts are not in breach of s 86(1) of the Parks Act.

123 Fourthly, insofar as a breach of condition 11 or condition 1 of the AHIP is relevant, Ashton submits that Mr Lester has not established that any such breach has in fact occurred.

No breach of s 86(1) established

124 I find that Mr Lester has not established that Ashton has harmed any Aboriginal objects at the Pleistocene site in breach of s 86(1) of the Parks Act.

125 First, the evidence does not establish that any Aboriginal objects that might occur at the Pleistocene site have in fact been harmed. The Aboriginal objects of which Ashton had knowledge were the Aboriginal objects listed in the AHIMS site card for AHIMS site no 37-3-0496, being 11 artefacts. There is no evidence being that any of these 11 objects have been harmed. Moreover, there is no evidence that any other Aboriginal objects have been harmed.

126 Dr Cotter, the geoarcheologist called by Mr Lester, inspected an area in the Pleistocene site on 7 December 2011. Dr Cotter observed that the gravel road of Brunkers Lane was undergoing substantial construction and upgrade. However, Dr Cotter does not state that she observed that such construction and upgrade of the gravel road had harmed any Aboriginal objects. Dr Cotter said that she observed, in an area to the east of the gravel road, a parallel series of test pits. Dr Cotter described the nature and dimensions of the test pits. She said that 'no Aboriginal objects were observed in those test pits whose base was visible and not inundated' and 'no Aboriginal objects were observed on the ground surface within the area inspected' (para 20 of Dr Cotter's affidavit of 25 January 2012). Hence, Dr Cotter's observations of the test pits do not establish any harm to Aboriginal objects. Mr Lester did not call any other evidence proving harm to any Aboriginal objects in the Pleistocene site.

127 Secondly, Mr Lester has not established that Ashton is either primarily or vicariously responsible for any act that is said to have caused harm to Aboriginal objects at the Pleistocene site. Ashton did not undertake the construction of the realignment of Brunkers Lane/Lemington Road; Xstrata undertook this construction pursuant to its Part 3A project approval. Mr Lester has not established that Ashton is vicariously responsible for Xstrata's acts of construction. Xstrata was not engaged by Ashton to construct the realignment of Brunkers Lane/Lemington Road and Ashton did not control or direct Xstrata in the actual carrying out of the construction. Hence, Mr Lester has not established that Ashton did the actus reus of constructing the realignment of Brunkers Lane/Lemington Road which Mr Lester alleges caused the harm to any Aboriginal objects.

128 Mr Lester's reliance on conditions 11 and 1 of the Court-issued AHIP is to no avail. Even if there were to be any breach of conditions 11 and 1 by Ashton (which for reasons given below I do not find), that does not establish a breach of s 86(1) of the Parks Act. Section 86(1) of the Parks Act cannot be breached by breaching a condition of an AHIP but rather only by establishing the elements of s 86(1) of a person harming an object that the person knows is an Aboriginal object.

129 Non-compliance with the conditions of the Court-issued AHIP would only be relevant to rebut any defence sought to be raised by Ashton under s 87(1) to an established breach of s 86(1) of the Parks Act. A defence under s 87(1) requires a person who is alleged to have breached s 86(1) to show that any harm to an Aboriginal object was authorised by an AHIP and the conditions of that permit were not contravened. Hence, if conditions 11 and 1 of the Court-issued AHIP were to have been contravened, Ashton would not be able to establish a defence under s 87(1) to an offence against s 86(1). But this is irrelevant if Mr Lester has not established that Ashton has in fact harmed any Aboriginal object in breach of s 86(1). The defence under s 87(1) never arises if there is no breach of s 86(1) established.

130 It is, therefore, not necessary to decide whether there has been compliance with condition 11, and in particular, whether the proposed works referred to in condition 11 can include the works done by Xstrata in constructing the realignment of Brunkers Lane/Lemington Road so as to make condition 11 applicable or whether the investigations undertaken, including the test excavation in the test pits, were in accordance with the methodology specified in Attachment 2 to the Court-issued AHIP. It is also not necessary to determine whether Ashton complied with condition 1 by ensuring Xstrata was made aware of, and in fact complied with, the Court-issued AHIP including condition 11.

131 Because Mr Lester has not established Xstrata's construction of the realignment of Brunkers Lane/Lemington Road has harmed Aboriginal objects, it is also not necessary to decide whether any harm to Aboriginal objects could have been authorised by Xstrata's Part 3A project approval and s 75U(1)(d) of the EPA Act.

132 For these reasons, Mr Lester has not established that Ashton has harmed Aboriginal objects at the Pleistocene site in breach of s 86(1) of the Parks Act.

Conclusion and orders

133 Mr Lester has not established that Ashton has breached s 86(1) of the Parks Act by harming Aboriginal objects at the Oxbow site, Waterhole site or Pleistocene site. Mr Lester's summons should therefore be dismissed.

134 The question of the costs of the proceedings was not argued. I will reserve the question of costs to afford the parties an opportunity to consider their positions. If the parties reach agreement on the costs orders to be made, consent orders can be filed and I will make orders in chambers in accordance with the consent orders. Otherwise, the parties should, within 14 days, list the matter before me for hearing and determination of the appropriate costs order to be made.

135 The Court:

(1) Dismisses the summons.

(2) Reserves the question of costs.

(3) Directs the parties, within 14 days, to apply to the Court to list the matter for a hearing on costs.

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Decision last updated: 10 August 2012