Land and Environment Court New South Wales

• Medium Neutral Citation: Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249
• Hearing dates: 31 May, 2, 16, 20 June, 8 July 2011
• Decision date: 25 August 2011
• Jurisdiction: Class 1
• Before: Pearson C; Sullivan AC

Decision

Parties to file amended draft Aboriginal Heritage Impact Permit and final orders to be made in chambers

• Catchwords: Appeal - Application for Aboriginal Heritage Impact Permit - Coal mine - Diversion of creek - Aboriginal objects - Consent orders
• Legislation Cited: National Parks and Wildlife Act 1974; National Parks and Wildlife Regulation 2009; Land and Environment Court Act 1979; Environmental Planning and Assessment Act 1979
• Cases Cited: Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2011] NSWLEC 1162; Ashton Coal Operations Pty Ltd v Director General Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116; Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81; Helman v Byron Shire Council (1995) 87 LGERA 349; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
• Category: Principal judgment
• Parties: Ashton Coal Operations Pty Limited (Applicant); Director-General, Department of Environment, Climate Change and Water (Respondent)
• Representation: Mr S Lloyd SC with Mr T Howard (Applicant); Dr S Pritchard (Respondent); Mr B Tobin, McCullough Robertson Lawyers (Applicant); Mr E Batemen, Office of Environment and Heritage (Respondent)
• File Number(s): 10335 of 2011

Judgment

1 This is an appeal under s90L of the National Parks and Wildlife Act 1974 (the Act) against the deemed refusal of an application by Ashton Coal Operations Pty Ltd (Ashton) under s90A of the Act for the issue of an Aboriginal Heritage Impact Permit (AHIP).

2 The application for an AHIP (AHIP Application) was received by the respondent on 28 January 2011. By operation of s90L(6) of the Act, for the purposes of s90L, the application was taken to be refused, and Ashton appealed to the Court.

3 Section 90L of the Act confers the following powers on the Court on appeal:

(2) The Land and Environment Court:

(a) may refuse to grant the appeal, or

(b) may grant the appeal wholly or in part, and may give such directions in the matter as the Land and Environment Court thinks appropriate.

(3) The decision of the Land and Environment Court on the appeal is final and is binding on the Director-General and the appellant, and is to be carried into effect accordingly.

4 The respondent's position as identified in its Statement of Facts and Contentions filed on 20 May 2011 was that the AHIP application should be refused, based on its concerns as to insufficient information to permit proper consideration of the matters as required by s 90K(1) of the Act; insufficient information regarding consultation with Aboriginal people as required by s 90K(1)(f), and failure to comply with the requirements for consultation in the National Parks and Wildlife Regulation 2009 (the Regulation); insufficient information in relation to social impacts; and measures to mitigate harm or likely harm. The applicant's position in these proceedings has been that there is sufficient information going to all the matters specified under s 90K(1) of the Act.

5 The parties have reached agreement that an AHIP should be issued and its terms, and are seeking consent orders from the Court. The appeal is brought in Class 1 of the Court's jurisdiction pursuant to s17(k) of the Land and Environment Court Act 1979 (the Court Act), and the provisions of Division 4 of Part 4 of the Court Act apply, in particular ss38 and 39. The Practice Note Classes 1, 2 and 3 Miscellaneous Appeals requires the parties to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to make the consent orders as final orders on the appeal.

Background to the AHIP Application

6 The applicant operates underground and open cut coal mining operations in the Camberwell district, 14km north west of Singleton in the Upper Hunter Valley (the Ashton Coal Project). The operations are conducted subject to a development consent granted in 2002 by the then Minister for Urban Affairs and Planning under s80 of the Environmental Planning and Assessment Act 1979 (the EP&A Act).

7 On 10 September 2009 Ashton applied pursuant to s75W of the EP&A Act to modify the 2002 consent to provide for:

(a) the removal of a condition prohibiting the possible direct hydraulic connection

between the Bowmans Creek alluvium and the underground workings occurring as a result of subsidence cracking;

(b) the extraction of coal from the western most area of the approved underground mine in the Upper Liddell Seam, the Lower Liddell Seam and the Lower Barrett Seam; and

(c) the diversion of sections of Bowmans Creek to mitigate subsidence impacts resulting from mining that would be permitted by the removal of the condition referred to above.

8 The proposed diversions are two sections of Bowmans Creek, identified as the Eastern Diversion (955m) and the Western Diversion (780m). The application to modify the 2002 development consent is referred to as the Bowmans Creek Diversion Project.

9 A delegate of the Minister for Planning approved the modification application for the Bowmans Creek Diversion Project pursuant to s75W of the EP&A Act on or about 24 December 2010. The conditions imposed on that approval included conditions relating to subsidence impact performance measures. Those measures relevantly include in relation to Aboriginal heritage features:

3.0 The Applicant shall ensure that underground mining does not cause any exceedances of the performance measures in Table 1, to the satisfaction of the Director-General.

Waterhole site: Negligible impact or environmental consequence

Other Aboriginal heritage sites: No greater subsidence impact or environmental consequences than approved under a permit issued under section 90 of the National Parks and Wildlife Act 1974

10 The AHIP Application stated that the AHIP was sought for a period of 10 years to cover the activities at Bowmans Creek diversions, the management of subsidence and other surface activities such as construction compounds, access roads and activities to ensure mine safety. The area of the AHIP Application is part of Lots 3 DP 1114623 and Lot 2 DP 1089848. The AHIP Application area encompasses six longwall mining areas: LW5, LW6A, LW6B, LW7A, LW7B and LW8. The mining of LW6A has been finalised as has parts of LW7A. The applicant intends to mine the remainder of LW7A and then progress to LW6B. The remainder of LW7A cannot be mined until the Western Diversion is completed. LW6B cannot be mined until the Eastern Diversion is completed.

11 It was common ground that the AHIP area is within an area of traditional use of the Wonnarua people. There are numerous Holocene stone artefact scatters and single artefacts and two potential buried Pleistocene sediment areas with the possibility of archaeological deposit included in the AHIP Application area. The northern potential Pleistocene sediment area, close to the New England Highway, is not proposed to be subject to activity; the southern area is the subject of specific proposed conditions in the draft AHIP. The AHIP application as lodged in January 2011 included a site identified as the Waterhole Site; that site has now been excluded from the AHIP area. Ashton has entered into a Conservation Agreement with the Minister administering the Act in respect of an area to the south east of the AHIP area, which includes the Glennies Creek area (p 375, vol 1, Ex A) (the Conservation Area).

12 The respondent is, since the appeal was lodged, now entitled the Chief Executive of the Office of Environment and Heritage, part of the Premier's Department. It was common ground that nothing turns on the change in name.

Proceedings in the appeal

13 On 13 May 2011 the Registrar ordered that the proceedings be expedited. In making the application for expedition Ashton relied on an affidavit sworn by Mr Brian Wesley, General Manager, deposing as to the conduct of the mining operations and the consequences of delays in production arising from the timing of the decision on the project approval and the delay in granting the AHIP. The matter was initially listed for hearing on 2 and 3 June 2011, however those hearing dates were changed to 31 May and 2 June to ensure the availability of the two Commissioners who had been directed to hear and dispose of the proceedings by the Chief Judge under s 36 of the Court Act.

14 On 31 May 2011, the first day of the hearing, the Court heard oral evidence by video link from Mrs (Aunty) Barbara Foot and her son, Mr David Foot, of the Wonnarua Plains Clan people, and from Mr Gary Davey, Director, NorthEast branch of the Office of Environment and Heritage. On the second day of the hearing, 2 June 2011, the Court heard oral evidence from Mr Scott Franks, Mr Robert Lester, Mr Lawrence Perry and Mr James Wilson-Miller. Mr Davey was recalled and gave further oral evidence. Evidence was given by Ms Angela Besant, Dr Daniel Witter and Mr Roger Mehr. At the conclusion of the oral evidence the parties were directed to file and serve written submissions, the respondent by 3 June 2011, and any submissions in reply by Ashton by 6 June 2011. The matter was listed for mention on 7 June 2011.

15 On 7 June 2011 Mr Franks applied to be joined as a party to the proceedings. The application was heard on 16 June 2011, and on 17 June 2011, dismissed: Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2011] NSWLEC 1162. On 20 June 2011 the parties handed up consent orders with a proposed AHIP, and we reserved our decision on the question of whether the court should make the orders as requested by the parties.

16 On 22 June 2011 Mr Franks filed a further notice of motion seeking an order setting aside the decision not to join him as a party, a stay of delivery of judgment on the consent orders, an order that Mr Franks be joined as a party, costs, and leave to issue subpoenas. The notice of motion was heard by Sheahan J on 30 June, 1 and 4 July 2011. As summarised by Sheahan J in his decision handed down on 7 July 2011 ( Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116) at [51], Mr Franks argued five main issues in support of setting aside our decision of 17 June 2011:

(a) The proposed AHIP does not comply with the conditions of consent

(b) The Court was misled in regards to the availability of Ms Sarah Paddington

(c) That Ms Paddington was being placed under pressure not to give evidence which is probative and directly relevant to the Court's decision.

(d) That the Court was misled as regards Mr Franks, (sic) Native title connection to the AHIP area.

(e) That the Court was not being provided with the relevant policy documents.

17 Sheahan J dealt with (a) at [78], concluding that "no inconsistency between the AHIP and the development consent, as both documents appear in the evidentiary materials, has been established"; rejected the claims (b), (c) and (d) at [76]-[77]; and (e) at [78]. Sheahan J concluded that Mr Franks did not meet the test for joinder as a party. Sheahan J concluded:

82 I reject Mr Franks's submission that the Commissioners have been " misinformed " (see [53] above), but I am somewhat concerned after hearing this NOM that they may in some respects remained " underinformed ". In that regard, I reject the parties' submission that nothing of significance to the matter before them has occurred since 16 June.

83 Mr Franks gave his evidence before the parties agreed on consent orders. The Commissioners expressed the need for more information on 20 June. The materials placed before the Court by Mr Peck also came into existence after the Commissioners reserved their decision. Those materials could be of some use to them in reaching their decision, and Mr Franks has expressed some informed views on that material (in both his affidavit of 30 June and his oral evidence before me).

84 I am of the opinion that the interests of justice dictate that the hearing of the substantive matter should be reopened to enable the Commissioners to consider these reasons and the evidence which was placed before me, and to enable Mr Franks to give the Commissioners some further evidence in regard to those issues.

18 The orders made by Sheahan J included:

(4)The hearing is reopened on the limited basis described in these reasons, and the matter is remitted to Commissioner Pearson and Acting Commissioner Sullivan for expeditious disposition.

19 The matter was relisted on 8 July 2011 and the parties tendered additional documents that had been in evidence before Sheahan J. That included an affidavit sworn on 24 June 2011 by Mr Jeffrey Peck, Mine Surveyor, including annexures of maps (now Exhibit G); a map (Ex A1 before Sheahan J, now Exhibit E), and a draft AHIP (Ex A2 before Sheahan J, now Exhibit F). Directions were made that Mr Franks file and serve an affidavit limited in scope in accordance with the reasons of Sheahan J by 15 July 2011, and the matter was adjourned to 19 July 2011. On 15 July 2011 Mr Franks filed and served an affidavit and served an exhibit consisting of a one volume lever arch folder. On 19 July 2011 further directions were made for the parties to file and serve any further evidence and submissions in response.

20 The respondent filed an affidavit of Mr Gary Davey affirmed 2 August 2011, and an affidavit of Mr Roger Mehr affirmed 3 August 2011, and written submissions dated 12 August 2011. The respondent's written submissions included notes taken at a meeting between Mr Franks and his representative, and officers of the respondent, including its solicitor, arranged to provide assistance to the Court in relation to Mr Franks' evidence in his affidavit of 15 July 2011 and exhibit. Ashton did not require Mr Davey or Mr Mehr for cross examination. Ashton's written submissions addressing the matters raised in Mr Franks' affidavit of 15 July 2011 were filed on 12 August 2011.

Evidence

21 The documentary evidence before the Court includes the AHIP application dated 11 January 2011 and supporting documents submitted to the respondent (Ex A, vol 1). The proposed activity was described in the AHIP Application as follows:

The approved activity includes the diversion of two sections of Bowmans Creek, the extraction of four seams of coal in LW 5-8 and surface remediation measures to address subsidence including filling of subsidence areas and activities to ensure mine safety, continued operations and rehabilitation activities.

22 The AHIP Application was accompanied by a document entitled "Aboriginal Cultural Heritage Report and AHIP Application, Western Underground Panels, Ashton Coal Operations Ltd, Camberwell NSW" dated January 2011, prepared by Insite Heritage Pty Ltd, A Besant and E Wyatt (the ACHAR 2011). The ACHAR 2011 consists of 17 pages under the heading "Key Pieces of Information for AHIP Application", and a "Cultural Heritage Significance Assessment" including copies of submissions received from registered Aboriginal stakeholders, followed by 7 Appendices. Those appendices are:

Appendix 1: Aboriginal Archaeological Assessment Ashton Coal Project - Proposed Diversion of Bowmans Creek, dated October 2009 prepared by Insite Heritage Pty Ltd

Appendix 2: Interim Cultural Heritage Management Report, dated January 2011, prepared by Insite Heritage Pty Ltd (the ICHM Report)

Appendix 3: Aboriginal Cultural Heritage Management Plan, dated January 2011, prepared by Insite Heritage Pty Ltd (the ACHMP)

Appendix 4: Consultation Log

Appendix 5: Additional consultation documents (including minutes of meetings, information package, and copies of correspondence)

Appendix 6: Site cards

Appendix 7: Conditions of Consent

23 On 28 March 2011 the respondent issued a notice requiring the provision of further information. That notice, and the further information provided by Ashton under cover of a letter dated 1 April 2011, are included in Ashton's bundle of documents (Ex A), which also includes documents relevant to the assessment of the application under s75W of the EP&A Act to modify the 2002 consent, including the Director General's Assessment Report, and documents relating to consultation of Aboriginal stakeholders from 24 August 2009 to 19 January 2011.

24 The respondent's Bundle of documents (Ex 2) includes copies of correspondence advising registered Aboriginal parties of the hearing dates for the appeal; submissions received by the respondent; a report prepared for the respondent by Niche Environment and Heritage; and internal correspondence. One of the submissions received by the respondent, dated 22 October 2009, was made on a confidential basis by Mr Scott Franks. At the hearing Mr Franks stated that he did not object to that submission forming part of the documents tendered by the respondent, and to its disclosure.

25 The applicant relies on an affidavit sworn on 30 May 2011 by Mr Brian Wesley, General Manager for the Ashton Coal Project, attesting to the economic and social impacts on Ashton if the AHIP is not granted or is further delayed; and the benefits of the Ashton Coal Project including the provision of employment and business opportunities for Aboriginal persons, and revenue to the State and Federal governments. Mr Wesley was not required for cross examination.

26 Mr Gary Davey, Director-North East branch of the Office of Environment and Heritage provided a statement of evidence (30 May 2011) and gave oral evidence on 31 May and 2 June 2011. Mr Davey's statement outlined his involvement in assessment of the application from December 2010 which included a meeting with Aunty Barbara Foot, her son David, and Ms Paddington (an archaeologist employed by the respondent); his issuing of a Stop Work Order on 31 March 2011; a site inspection on 17 May 2011 with Aunty Barbara Foot, David Foot, Maria Stocks (Aunty Barbara's daughter) and Scott Franks, attendees from Ashton, himself and Ms Paddington from the respondent; the making of arrangements for a second site inspection with members of the Aboriginal community on 24 May 2011; and further contact with Aunty Barbara Foot and David Foot. Mr Davey's statement included as annexures a CD recording and transcript of the site inspection on 17 May 2011, 18 photographs taken on that site inspection, and an aerial photograph on which is noted the approximate site of fishtraps as identified by Aunty Barbara Foot.

27 Mr Davey's evidence was that he arranged the site inspection on 17 May 2011 in order to better inform understanding of the cultural heritage significance of the eastern diversion area of Bowmans Creek, in particular whether there was any visible evidence of fish traps. Present on that occasion were Aunty Barbara Foot, David Foot, Maria Stocks (Aunty Barbara's daughter) and Scott Franks; himself and Sarah Paddington from the respondent; and from Ashton, Brian Wesley, Lisa Richards, Cassandra Ferguson and Ashton's archaeologist Angela Besant. He drove with Sarah Paddington, Aunty Barbara and David Foot to the site. At Aunty Barbara's direction they travelled towards Glennies Creek, and then turned around and drove to the northern section of the AHIP area. Aunty Barbara was not well enough to get out of the car to inspect the site, and he and Angela Besant remained in the car with her. Aunty Barbara said that she did not think the eastern diversion area was the site of the fish traps as she remembered that the site was further away from the road. He showed Aunty Barbara a map, and she indicated that the fish traps may have been on Glennies Creek. He marked the approximate location on the map (attachment 4 to Ex 1). Mr Franks asked him to look at some river stones which he said were how the stones were left on the bank when the fish traps were not being used. He returned Aunty Barbara to her home. He arranged a further site visit on 24 May 2011 in order to clarify whether the Glennies Creek site was the site of the fish traps that Aunty Barbara remembered, however Aunty Barbara was not well enough to attend and the site visit was cancelled.

28 In oral evidence Mr Davey marked on Annexure 4 to exhibit 1 the location where the cars were parked on 17 May 2011, the Waterhole site, and the area inspected where signs of fish traps were reported by Mr Franks.

29 In his oral evidence Mr Davey outlined the conditions proposed for the AHIP, including proposed conditions 8, 10, 11, 14, 16 and the methodology provided in Attachment 2, which have been drafted specifically for this AHIP. Mr Davey gave evidence as to the circumstances of the issuing of a Stop Work order, and the consultation process.

30 In his affidavit of 2 August 2011, Mr Davey responded to evidence provided by Mr Scott Franks in relation to evidence he had given before Sheahan J on 1 July 2011.

31 On 31 May 2011 Aunty Barbara Foot and her son Mr David Foot of the Wonnarua Plains Clan People gave oral evidence by video link. In her oral evidence Aunty Barbara Foot stated that the site is very important and should be left alone so that the children can understand it. Going on to the land brought back memories for her, including of fish traps. She is the last Wonnarua elder left of her generation. The archaeologists are asking the wrong people, not people who know the area. Aunty Barbara Foot stated that it has been about 6 years since she went to the site, and not 30 years as stated by Mr Davey in his evidence. Mr David Foot confirmed that he had been to the site with Mr Davey. There was a men's site and a women's site. He found some ochre which was used for burial purposes and fishtraps, which had been seasonal. The site is important because it connects to other areas including up to a bora ground and through to the top of the range. There are endangered species including the kingfisher and bush medicine plants.

32 Oral evidence was provided on 2 June 2011 in court by Mr Scott Franks, Mr Robert Lester, Mr Lawrence Perry and Mr James Wilson Miller.

33 In his oral evidence, Mr Scott Franks stated that he is a Wonnarua person and his family has been in the area since before 1800. He is a director of Tocumwall which includes Yarrawalk Enterprises. Mr Franks confirmed that he is a registered Aboriginal party under cl80C of the Regulation for the purposes of the consultation process. Mr Franks stated that he is one of the registered native title claimants for land to the east of the site. He grew up at Mt Olive which is 14km to the north of Ashton. He is concerned that a number of the 30 plus registered Aboriginal stakeholders have business interests with Ashton, and there are only four families left who are identified as traditional owners. If the AHIP is granted Ashton will be in breach of the Deed agreed in 2002. The assessment has been inadequate and there has been no genuine consultation. Mr Franks agreed that Yarrawalk Enterprises had been invited to visit the site, however he had asked that documents be sent to him directly. Mr Barry French, one of his field officers, had been on a field survey. He had not wanted to participate in discussions with others who are not traditional owners and was reluctant to give information openly. Mr Franks stated that he had received a CD of the AHIP application, however the disk did not work, and he had downloaded parts of the application from the Department of Planning website. He could not recall receiving a copy of the ICHM Report. Mr Franks was of the opinion that the proposed conditions on the draft AHIP are not as rigid as those imposed on other mines. He was critical of the roster for registered Aboriginal stakeholders. Mr Franks stated that he had been refused an opportunity to go back to the site after the visit with Aunty Barbara.

34 Mr Robert Lester outlined the history of involvement of Wonnarua Nation with Ashton. He was Chairperson of the steering committee for the Wonnarua Nations Aboriginal Corporation which was incorporated in 1999, and was party to the original agreement with Ashton. While his family left the Hunter Valley in the 1920s he is associated through two lines and the Hunter Valley is still his blood country. He is opposed to mining, and the subsidence of up to 8m will change the landscape. There are 30 mines already there and 30 more on the books, and there is a need to consider the value of cultural heritage. Nothing has come back to the Wonnarua Nation, and people are looking after their own interests.

35 Mr Laurence Perry stated that he is CEO of the Wonnarua Nation Aboriginal Council. He has been consulted about the proposals and his concerns have been addressed. He is not aware of any burial sites or massacre sites in the AHIP area, and he has no knowledge of any fishtraps in the area.

36 Mr James Wilson Miller stated that he is not aware of any massacres in the area, and that if there were any they would have been recorded. He has written a book, Koori: A Will to Win , which is about his family, and not about the Wonnarua people as a whole.

Further evidence of Mr Scott Franks

37 In addition to his oral evidence of 2 June 2011 and the correspondence included in Exhibits A and 2, Mr Franks has provided three affidavits, the first (7 June 2011) in support of his application for joinder; the second (22 June 2011) in support of the application before Sheahan J; and the third (15 July 2011) in response to the limited re-opening ordered by Sheahan J.

38 In his affidavit of 7 June 2011, Mr Franks states that he is one of the authorised coapplicants on a registered Native Title Claim which covers an area of Mining Lease 1533 which is held by Ashton. He refers to the dates on which the AHIP application was filed and the date of ordering expedition of the hearing, and the dates of hearing, and states that he was present during the full two days of hearing. He was very concerned that the respondent had resolved to consent orders sought by Ashton for the Court to issue to what appeared as a modified AHIP which the representative Aboriginal Group were not consulted about. Mr Franks states that it has fallen to him to respond on behalf of the Wonnarua Traditional Owners who are opposed to the AHIP being issued. Mr Franks states that the main issue of the most utmost importance was why as Traditional Owners they did not wish for the AHIP to be issued, is because those sites proposed to be destroyed are of the greatest significance to his People. This cultural heritage is also precious to the broader Australian community and he believes they are of Regional and national importance. Mr Franks states that the sites include songlines, burials, birthing area, ceremonial places and huge numbers of highly crafted artefacts including grinding grooves, stone tools, fish traps and other sacred objects. Mr Franks states that the sites to be impacted by the AHIP have been dated to over 20,000 years making it the oldest recorded Aboriginal site in the Hunter Valley. As the Traditional Owners were not represented their case could not be properly put to the Court. The site is of such significance that the AHIP should not be issued. Mr Franks states that they are suffering by the process substantial prejudice and injustice to such an extent that if the AHIP proceeds it will effectively destroy the place where their creator made their people before the dawning of time. Mr Franks states that it is his duty as an authorised Native Title Applicant and Traditional Owner to do all in his power to try and address this injustice.

39 We note that at the hearing of the application for joinder, Mr Oshlack, Mr Franks' representative, confirmed that the Native Title Claim referred to in the affidavit is in fact in relation to an area covered by Mining Lease Application 351 and is not in relation to land the subject of the AHIP application. In his affidavit of 22 June 2011 Mr Franks confirmed that there is no current claim over Mining Lease 1533.

40 In his affidavit of 15 July 2011, Mr Franks addresses six matters. In relation to consultation, Mr Franks states (at [4]-[8]) that a document entitled Aboriginal Cultural Heritage Assessment Report (attachment 3 of Exhibit A) was one that he had not seen until these proceedings had commenced and he had not been sent a copy advising that it was a cultural heritage assessment report for the purpose of issuing an AHIP; he had advised Ashton's representatives at a meeting on 13 October 2010 that they needed to have an anthropologist or historian undertake a cultural heritage significance assessment; no assessment of cultural heritage significance undertaken by a qualified ethnologist, historian or anthropologist is contained in the Cultural Heritage Assessment Report; and Mr Davey has stated in response to a question on that exhibit that it was not a Cultural Heritage Assessment Report.

41 In relation to evidence provided before Sheahan J by Mr Jeffrey Peck (now Exhibit G in these proceedings), Mr Franks states (at [9]-[11]) that as he had testified on 1 July 2011, the location of the Grinding Grooves given at the Waterhole site is incorrect because of inaccuracy of the GPS system used in 2002 to first map the locations, and identification of 16 sites in the original report by Dr Dan Witters. He had been present in court when Mr Peck had testified that mining operations were being undertaken within the proposed AHIP area; that observable subsidence was occurring; and that subsidence occurs beyond the outer boundaries of the mine wall panels.

42 In relation to the grinding groove site, Mr Franks states (at [12]-[16]) that in his testimony on 1 July 2011 that the mapping of the grinding groove sites by Dr Witter was incorrect, he had relied on his own expertise and experience with satellite mapping technology in relation to locating cultural heritage sites; the consultant for Ashton had on 25 March 2011 sent a site card to amend the location of the waterhole site 37-3-500; photographs taken on 30 June 2011 show that cracking is occurring causing damage to the site which is recent as he had been on the site on 7 June 2011 and there had been no observable cracking.

43 In relation to cultural heritage significance, Mr Franks states (at [17]-[18]) that he has provided evidence as to the significance of the sites in his previous evidence and new material in his exhibit evidencing significance, and it is not appropriate that he provide to the Court information that should properly have been assessed as part of the AHIP application. Mr Franks states in relation to his oral evidence of identifying a very culturally significant artefact of Black Ochre that Dr Witter's rejection of that evidence on the basis that there was no observable pecking technology used by the Wonnarua on that site contradicted his identification in his report that one of the grinding grooves was made by pecking.

44 Mr Franks states (at [19]-[20]) that the proposed AHIP does not comply with the conditions of the development approval, and the work is impacting on Aboriginal Cultural Heritage. At [22] Mr Franks concludes that he and other traditional owners are being discriminated against and prejudiced by being physically excluded from their most sacred sites, and the decisions affecting those sites are being made by non-indigenous people who have no interest in protecting them for future generations.

45 Expert evidence was provided by Ms Angela Besant and Dr Dan Witter on behalf of Ashton, and by Mr Roger Mehr on behalf of the respondent. Ms Besant has qualifications in archaeology and works as a consultant archaeologist, and prepared some of the assessments and reports on behalf of Ashton. Dr Witter has qualifications in zoology and anthropology and has worked as an archaeologist for the National Parks and Wildlife Service and as a consultant archaeologist. Mr Mehr has qualifications in archaeology and has worked for the respondent as regulator of Aboriginal Cultural Heritage impacts for two years. Ms Besant, Dr Witter and Mr Mehr provided two joint reports (exhibit C), and gave oral evidence on 2 June 2011. That evidence is discussed below.

46 In his affidavit of 3 August 2011, Mr Mehr provided an opinion as to whether the grinding groove locations which form part of the Waterhole site are within the AHIP area. Mr Mehr attended the site on 25 July 2011, and concluded that all three grinding groove locations identified by Dr Dan Witter in his report of 2002 are outside the AHIP application area. Mr Mehr concludes that the sandstone outcrop on which the grinding grooves are situated is partially within the AHIP application area, and the western end of the Waterhole is within the AHIP application area. Mr Mehr recommends that the boundary of the AHIP application area be moved approximately 20m to the west to avoid the sandstone outcrop and Waterhole site entirely.

Matters to be considered in making a determination to issue a permit

47 Section 90K of the Act specifies the matters that must be considered in making a decision in relation to an AHIP:

90K Factors to be considered in making determinations regarding permits

(1) In making a decision in relation to an Aboriginal heritage impact permit, the Director-General must consider the following matters:

(a) the objects of this Act,

(b) actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,

(c) practical measures that may be taken to protect and conserve the Aboriginal objects or Aboriginal place that are the subject of the permit,

(d) practical measures that may be taken to avoid or mitigate any actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,

(e) the significance of the Aboriginal objects or Aboriginal place that are the subject of the permit,

(f) the results of any consultation by the applicant with Aboriginal people regarding the Aboriginal objects or Aboriginal place that are the subject of the permit (including any submissions made by Aboriginal people as part of a consultation required by the regulations),

(g) whether any such consultation substantially complied with any requirements for consultation set out in the regulations,

(h) the social and economic consequences of making the decision,

(i) in connection with a permit application:

(i) any documents accompanying the application, and

(ii) any public submission that has been made under the Environmental Planning and Assessment Act 1979 in connection with the activity to which the permit application relates and that has been received by the Director-General,

(j) any other matter prescribed by the regulations.

(2)The Director-General, in making a decision in relation to an Aboriginal heritage impact permit, must not consider any matter other than the matters referred to in subsection (1).

48 Section 90K(1) directs consideration of "Aboriginal objects or Aboriginal place". Both those terms are defined in s5 of the Act:

Aboriginal object means 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.

Aboriginal place means any place declared to be an Aboriginal place under section 84.

49 It was common ground that the site is not an "Aboriginal place" as defined.

50 The term "harm" is defined 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.

51 Part 8A of the National Parks and Wildlife Regulation 2009 (the Regulation) was inserted in the Regulation with effect from 1 October 2010. Clause 80C provides for a consultation process to be undertaken before an application is made for the issue of an AHIP:

80C Consultation process to be undertaken before applying for Aboriginal heritage impact permit

(1) General obligation to consult

Before making an application for the issue of an Aboriginal heritage impact permit, the proposed applicant must carry out an Aboriginal community consultation process in accordance with this clause.

(2) Notification of Aboriginal persons-where no relevant determination of native title

The proposed applicant must (except in circumstances referred to in subclause (3)):

(a) ascertain from the following bodies or persons the names of any Aboriginal persons who may hold knowledge relevant to any relevant Aboriginal objects or Aboriginal places:

(i) the Department,

(ii) the relevant Local Aboriginal Land Council,

(iii) the Registrar appointed under the Aboriginal Land Rights Act 1983,

(iv) the relevant local council,

(v) the National Native Title Tribunal,

(vi) NTSCORP Limited,

(vii) the relevant catchment management authority, and

(b) give the Aboriginal persons whose names were ascertained under paragraph (a) notice of the proposed activity that may be the subject of the application, and

(c) cause notice of the proposed activity to be published in a local newspaper circulating generally in the area of the land on or in which the proposed activity is to be carried out.

(3) Notification of Aboriginal persons-where relevant native title determined to exist

If an approved determination of native title that native title exists in relation to the land on or in which the proposed activity that may be the subject of such an application is to be carried out, the proposed applicant must give notice of that proposed activity to:

(a) the registered native title body corporate for that land,

(b) if no such body corporate exists, the native title holders of that land.

(4) Contents of notice

A notice referred to in subclause (2) (b) and (c) and (3) must contain the following:

(a) the name and contact details of the proposed applicant,

(b) a brief overview of the proposed activity that may be the subject of an application for an Aboriginal heritage impact permit, including the location of the proposed activity,

(c) an invitation to Aboriginal people who hold knowledge relevant to determining the cultural heritage significance of Aboriginal objects and Aboriginal places in the area in which the proposed activity is to occur to register an interest in a process of community consultation with the proposed applicant regarding the proposed activity,

(d) a statement that the purpose of community consultation with Aboriginal people is to assist the proposed applicant in the preparation of an application for an Aboriginal heritage impact permit and to assist the Director-General in his or her consideration and determination of the application,

(e) a closing date for the registration of such interests (being a date that is at least 14 days after the date the notice was given or published).

(5) Registering interested Aboriginal parties and providing them with information

The proposed applicant must, within 28 days after the closing date for the registration of interests:

(a) make a record of the names of each Aboriginal person who registered such an interest (registered Aboriginal party), and

(b) forward a copy of that record to the Department of Environment, Climate Change and Water and the relevant Local Aboriginal Land Council, and

(c) provide each registered Aboriginal party with detailed information regarding the activity that may be the subject of the proposed application.

(6) Consultation on proposed methodology of cultural heritage assessment report

The proposed applicant must:

(a) provide the registered Aboriginal parties with a proposed methodology to be used in the preparation of the cultural heritage assessment report to be submitted with the application (as referred to in clause 80D), and

(b) give those parties a reasonable opportunity (being at least 28 days after the date of providing the proposed methodology) to make submissions (whether written or oral) on the proposed methodology.

(7) Proposed applicant to seek certain information

The proposed applicant must, during the consultation on the proposed methodology of the cultural heritage assessment report referred to in subclause (6), seek the following information from the registered Aboriginal parties in relation to the area of land to which the proposed application relates:

(a) whether there are any Aboriginal objects of cultural value to Aboriginal people in the area,

(b) whether there are any places of cultural value to Aboriginal people in the area (whether they are Aboriginal places declared under section 84 of the Act or not).

(8) Consultation on draft cultural heritage assessment report

After giving each registered Aboriginal party the opportunity to make submissions to be used in the preparation of the proposed methodology of the cultural heritage assessment report (as referred to in subclause (6) (b)), the proposed applicant must:

(a) provide a copy of a draft of the cultural heritage assessment report to the registered Aboriginal parties, and

(b) give those parties a reasonable opportunity (being at least 28 days after the date of providing the draft report) to make submissions (whether written or oral) on the draft report.

(9) An application for an Aboriginal heritage impact permit is not invalid merely because the applicant for the permit failed to comply with any one or more of the requirements set out in this clause.

Note. Under section 90K (1) (g) of the Act, the Director-General, in making a decision in relation to an Aboriginal heritage impact permit, must consider whether any consultation by the applicant with Aboriginal people regarding the Aboriginal objects or Aboriginal place that are the subject of the permit substantially complied with any requirements for consultation set out in the regulations.

(10) Modified or alternative Aboriginal community consultation process

Despite subclause (1), if an agreement of the following kind specifies or identifies a modified or alternative Aboriginal community consultation process for the purposes of Part 6 of the Act, the proposed applicant is to carry out an Aboriginal community consultation process in accordance with that modified or alternative consultation process:

(a) a registered Indigenous Land Use Agreement under the Native Title Act 1993 of the Commonwealth entered into between an Aboriginal community and the State,

(b) a lease entered into under Part 4A of the Act,

(c) an agreement entered into by the Director-General and a board of management for land reserved under Part 4A of the Act that has the consent of the Aboriginal owner board members for the land concerned,

(d) an agreement entered into between an Aboriginal community and the Department.

(11) In this clause:

approved determination of native title has the same meaning as in the Native Title Act 1993 of the Commonwealth.

native title holder has the same meaning as in the Native Title Act 1993 of the Commonwealth.

registered native title body corporate has the same meaning as in the Native Title Act 1993 of the Commonwealth.

52 Before the inclusion of consultation requirements in cl80C of the Regulation, consultation requirements were found in the respondent's Interim Community Consultation Requirements for Applicants (December 2004) (Interim Community Consultation Requirements), which were replaced from 12 April 2010 by the Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 (the Consultation Guidelines).

53 The Interim Community Consultation Requirements stated:

Why DEC requires consultation

DEC recognises that:

• Aboriginal heritage has both cultural and scientific/archaeological significance and that both should be the subject of assessment to inform its decision-making
• Aboriginal people are the primary determinants of the significance of their heritage
• Aboriginal community involvement needs to occur early in the assessment process to ensure that their values and concerns are taken fully into account, and so that their own decision-making structures are able to function
• Information arising out of consultation allows the consideration of Aboriginal community views about significance and impact, as well as the merits of management or mitigation measures to be considered in an informed way.

Hence, when administering its approval functions under the NPW Act, DEC requires applicants to consult with the Aboriginal community about the Aboriginal cultural heritage values (cultural significance) of Aboriginal objects and places within the area being considered for development.

54 The Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 state:

3.1 Why consult?

Consultation with Aboriginal people is necessary to understand their views and concerns about the proposed project but also to understand the cultural values present in the area that may be harmed.

DECCW also recognises that:

• Aboriginal cultural heritage has social/cultural, historic, aesthetic and scientific (archaeological) significance. All aspects should be given the same weight and assessed equally by the proponent in the Aboriginal cultural heritage assessment report.
• Aboriginal people are the primary determinants of the cultural significance of their heritage.
• The involvement of Aboriginal people should occur early in the assessment process. This is necessary to ensure their cultural values and concerns are taken fully into account and their decision-making structures are able to function effectively.

3.2 The objective of consultation

The objective of community consultation is to ensure that Aboriginal people have the opportunity to improve assessment outcomes by:

providing relevant information about the cultural significance and values of the Aboriginal object(s) and/or place(s)

influencing the design of the method to assess cultural and scientific significance of Aboriginal object(s) and/or place(s)

actively contributing to the development of cultural heritage management options and recommendations for any Aboriginal object(s) and/or place(s) within the proposed project area

commenting on draft assessment reports before they are submitted by the proponent to DECCW.

3.3 Information required for decision making

The AHIP application and determination process requires an assessment (by the proponent) and evaluation (by DECCW) of the Aboriginal heritage values of Aboriginal object(s) and place(s) potentially harmed by an activity.

Proponents must provide the opportunity for Aboriginal people who hold cultural knowledge relevant to determining the significance of Aboriginal objects and/or places as relevant to the proposed project area to be involved in consultation. The information provided through this process will assist DECCW to assess the cultural significance of objects and places that are the subject of an application to damage or destroy an Aboriginal object or place.

When evaluating an application, DECCW will consider, among other things, the:

• cultural and scientific significance of the Aboriginal object(s) and/or place(s)
• potential or likely impact of the proposal on the Aboriginal object(s) and/or place(s)
• adequacy of any proposed measures to avoid or reduce impacts
• the results of consultation with Aboriginal people.

Consideration

55 In considering whether it is lawful and appropriate to make the consent orders sought by the parties, it is necessary to consider whether the matters specified in s90K(1) have been taken into account.

(a) The objects of the Act

56 The objects of the Act are specified in s2A:

(1) The objects of this Act are as follows:

(a) the conservation of nature, including, but not limited to, the conservation of:

(i) habitat, ecosystems and ecosystem processes, and

(ii) biological diversity at the community, species and genetic levels, and

(iii) landforms of significance, including geological features and processes, and

(iv) landscapes and natural features of significance including wilderness and wild rivers,

(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:

(i) places, objects and features of significance to Aboriginal people, and

(ii) places of social value to the people of New South Wales, and

(iii) places of historic, architectural or scientific significance,

(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,

(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.

(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.

(3) In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following:

(a) the objects of this Act,

(b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

57 Section 2A(1)(b)(i) refers to "places, objects and features of significance to Aboriginal people", whereas the focus of s90K(1) is relevantly on Aboriginal "objects". However, the respondent's consultation guidelines (discussed below) make it clear that significance is assessed by reference to a broad range of elements, including social and cultural, historic, as well as scientific (archaeological) significance.

58 Section 2A(2) refers to the principles of ecologically sustainable development (ESD). Those principles include the principle of intergenerational equity, and the precautionary principle, which are defined in s6(2) of the Protection of the Environment Administration Act 1991:

(a) the precautionary principle-namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options,

(c) inter-generational equity-namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

59 The objects of the Act are considered below.

(b) Actual or likely harm

60 In assessing the actual or likely harm to the Aboriginal objects that are the subject of the proposed AHIP, it is necessary firstly to consider the evidence as to Aboriginal objects within the AHIP Application area.

Objects (Archaeological deposits)

61 Surveys and archaeological investigations in the general area from the 1980s on are contained in the following reports:

• Archaeological Survey - Ashton Mine: prepared October 2001 by Vanessa Hardy (Ex A, vol 1, tab 7)
• Ashton Coal Mining Project Environmental Impact Statement: Aboriginal Archaeology - prepared June 2002 by Dan Witter (Ex A, vol 2, tab 8)
• Aboriginal Archaeological Assessment Ashton Coal Project - Proposed Diversion of Bowmans Creek prepared October 2009 by Insite Heritage (Appendix 1 to ACHAR 2011)
• Geoarchaeological Assessment prepared June 2010 by Hughes and Sullivan (Ex A, vol 2, tab 10)

62 Those reports confirm the agreed position that the general area is of considerable archaeological and cultural significance. Notably Dr Witter's Ashton Coal Mining Project Environmental Impact Statement: Aboriginal Archaeology report (2002) completed a detailed analysis, identifying a considerable number of significant archaeological sites in the general area (occupation sites, artefacts scatters, isolated finds and grinding grooves) including three site complexes in particular which he described as of outstanding size and significance in respect to assemblage variability and landscape context in comparison to other known sites in the Upper Hunter (Waterhole, Oxbow and Glennies Creek)(at pp 474-5). Later field investigations confirmed the existence of sites described in these surveys.

63 Mitchell in a geomorphological survey in the same year (summarised by Hughes and Sullivan, Ex A, vol 2, p608) identified a buried soil profile of possible early Holocene or late Pleistocene age which has the potential to contain archaeological deposit. In their later geomorphological survey Hughes and Sullivan concluded that there was no evidence that Pleistocene deposits were present elsewhere (Ex A, vol 2, pp608-10).

64 Dr Witter's oral evidence was that two of the three highly significant sites (the Waterhole and Glennies Creek) have been excluded or are not within the AHIP Application area, and the majority of the third site (Oxbow) will not be impacted; and part of the potential buried Pleistocene deposit will be outside the area of impact.

65 It was common ground that within the AHIP application area there remain Aboriginal objects which will be harmed by the proposed development. The term harmed is defined so as to include the moving of Aboriginal objects from their present position in the landscape. The AHIP Application and ACHAR 2011 identifies and describes the known objects and sites including isolated finds and stone artefacts scatters which will be impacted by the proposed development either directly by works associated with the creek diversions or by subsequent subsidence. Poor visibility within the AHIP area, and the nature of the archaeological material indicates that there may be more isolated finds and artefacts scatters than are currently apparent. One area of potential late Pleistocene terrace as identified by Mitchell which has the potential to contain significant archaeological material is within the AHIP area, and will be impacted by significant subsidence and other possible disturbance (ACHAR 2011 Ex A, vol 1, p11).

66 The expert witnesses agreed that the combined information provided by the various archaeological and geomorphological assessments conducted over the AHIP area since and including Hardy (2001) provide sufficient information to inform an understanding of the archaeological signature of the AHIP area. The experts agreed that sufficient information is available to adequately characterise the nature, type, location, extent and archaeological significance of known Aboriginal objects and any likely to occur within the AHIP area. They confirmed the possibility of previously unidentified Aboriginal objects with in the AHIP area but agreed that the likelihood of any significant objects occurring is extremely low and that the protocols in place to deal with the identification of significant objects or deposits which may be uncovered in the course of the operations are sufficient to ensure their discovery and appropriate conservation or salvage.

Possibility of other objects and features within the AHIP area

67 The evidence as to consultation with the Aboriginal community beginning in 2002 confirms that the area is of traditional as well as archaeological significance. Some of the registered Aboriginal parties describe traditional associations, and personal recollections of the area, and suggest the existence or possible existence of other objects and features related to traditional culture.

68 In a message sent on 3 September 2009 by Ms Paddington to Wells Environmental Services, and forwarded to the Department of Planning (Ex A, vol 1, p32), Aunty Barbara Foot identified a range of sites in the area of the Ashton mine states:

[The mine is]' located in an area of very high significance to me and my people. It is an area used for fishing and [we] used to go between fishing spots and the mission. There are fish traps in there and burials in the area. There are lots of sites with spearheads used for spears. Large sites with hundreds of artefacts that are very important to my people..... Along there are waterholes with markings on the walls from sharpening axes. The kingfishers are also important there....... There is too much being destroyed now. We can't let this happen. We have to preserve our culture'.

69 Mr David Foot in his oral evidence, referring to his site visit with Mr Davey, stated that he had seen the remains of fish traps, and ochre for burials, within the AHIP Application area, and was aware of songlines connected to the area. In his written and oral evidence Mr Scott Franks stressed the importance of this area to his people. In addition to outlining the richness of the occupation deposits of the area, which attested his people's long and significant association with the area, he pointed out what he believed to be fish traps and ochre for burials on a field inspection of the AHIP application area with Mr Davey and stated that he had oral evidence of burials in the area, and of massacre sites in the general vicinity based on early evidence of Aboriginal clashes with police. He also stated and described that the area was part of a songline associated with a bora ring and with boys' initiation.

70 Based on this evidence, there is the possibility of the existence of other objects and features within the AHIP application area besides the archaeological features identified by Ashton, including objects such as axe grinding grooves, fish traps, and human burials and features such as massacre sites, songlines and evidence of ongoing association and traditional use.

71 Concerning the existence of these additional objects, features and traditional associations within the AHIP application area, we deal firstly with the evidence as to objects:

(a) Grinding grooves

72 Dr Witter in his 2002 report identified six sets of grinding grooves within the study area, none of which is within the AHIP application area. Dr Witter discussed the grinding grooves at the Waterhole site in section 12.2.2 of his report (Ex A, vol 2, pp531-535):

The main set of grinding grooves (GG1) were on the top of the sandstone outcrop at the waterhole. The 9 grooves were grouped within an 80cm x 50cm area. This was a tight cluster within a sandy lens in the conglomerate (Map 12.3).

 

An additional set of six grinding grooves were found (GG3) on a ledge near the water within a 80 by 70 cm area. On the same ledge about 10 metres away was a single grinding groove (GG4).

73 In his affidavit affirmed on 3 August 2011 Mr Mehr outlines his attendance at the Waterhole site on 25 July 2011 in which he used a GPS, photographs, and Dr Witter's report, and using both the GPS data and the physical characteristics of the area located the grinding grooves identified as GG1, GG3 and GG4 (the latter two being submerged). Mr Mehr concluded that the known grinding grooves are outside the AHIP application area, however the sandstone outcrop on which the grinding grooves are located is partially within the AHIP application area.

(b) Fish traps

74 Dr Witter first mentioned the theoretical possibility of the existence of fish traps in his 2002 survey report (Ex A, vol 2, p475) and as mentioned above a number of registered parties referred to their existence within the AHIP. Aunty Barbara Foot was taken to the area by Mr Davey, and in the course of that field trip identified on a map an area where she recalled the existence of fish traps. Based on the evidence of Mr Davey, including the map annexed to his statement of evidence, that area is in Glennies Creek which is outside the AHIP area and within the Conservation Area. We note, however, that there was sufficient doubt about the certainty of this identification to cause Mr Davey to arrange a second field visit with Aunty Barbara Foot. This second planned trip to confirm this information was not possible due to Aunty Barbara Foot's health. Aunty Barbara Foot's identification of the location of the fish traps was disputed by Mr Franks who also attended the field trip. He was of the opinion that there was evidence of fish traps at Bowman's Creek, within the area where the creek diversion will occur. Mr Davey's statement of evidence included photographs of an area of stone cobbles on the bank of the creek which Mr Franks suggested were piled up stones stored for use, seasonally, for the construction of fish traps. Mr Davey's evidence was that Mr David Foot described the fish traps as a chain of oval ponds and indicated that they were not built or constructed like normal fish traps (Ex 1, para 8). In an earlier meeting with Mr Davey he had marked on a map an area within the proposed Bowmans Creek diversion which he believed to be the location of fish traps (Ex 1, para 10).

75 In oral evidence Dr Witter, Ms Besant and Mr Mehr were in agreement that no fish traps or evidence of their existence had been located within the AHIP area or in the surveyed area generally. They agreed that members of the Aboriginal community had identified the possibility of the existence of fish traps, and they did not dispute this information or the implication that fish traps may have existed in the area. The expert witnesses were shown the photographs of the purported fish traps and agreed that in their view they did not constitute evidence of fish traps, and could not do so because the geomorphological evidence indicated that the creek system is a dynamic system which frequently changes course and is subject to recent and frequent heavy inundation, deposition and redeposition of material which would have removed such evidence. Rather the cobble-stones shown in the photographs represented evidence of these dynamic processes. They considered that the geomorphology of the area indicated that it would be extremely unlikely, almost impossible, for evidence of such fish traps to survive archaeologically as Aboriginal objects. They noted that Aunty Barbara Foot had identified on a map an area outside to be AHIP application area which she considered to be the approximate location of the fish traps (Glennies Creek).

76 Based on the reports identified in paragraph [22] above and the evidence of Dr Witter, Ms Besant and Mr Mehr, we are satisfied that physical evidence of Aboriginal fish traps within the AHIP application area is highly unlikely due to the geomorphology of the area.

(c) Burials

77 A number of Aboriginal stakeholders including Aunty Barbara Foot, Mr Foot and Mr Franks, raised issues relating to the possibility of burials in the area. Ground penetrating radar survey work was undertaken at the request of the registered stakeholders in an attempt to establish whether burials might exist. On the evidence before us, this work did not produce evidence as to existence of burials, however it appears to have narrowed down areas in which the landscape is sufficiently stable to support continuing evidence of burials (Ex A, vol 1, pp 114, 122-123).

78 In their oral evidence Dr Witter, Ms Besant and Mr Mehr were asked about the 'black ochre' located on site by Mr Franks and said to be associated with burial rituals. Dr Witter stated that he had had subsequently re-examined the area where it was found. Based on the photographic evidence of samples of the material taken by Mr Davey, Dr Witter, Ms Besant and Mr Mehr concluded that it was hematite, extremely common throughout the general area, and not known to be used for ochre because of its relatively pale colour and hardness. None of the samples examined had evidence of grinding facets characteristic of use as ochre. Mr Frank's later statements concerning this issue do not provide a basis for reconsideration of the evidence of the experts, and we accept the expert evidence that it is unlikely that there are burials within the AHIP area.

(d) Massacre sites

79 There was conflicting evidence as to the existence of massacre sites in the AHIP area, the evidence of Mr Perry and Mr Miller being that they were unaware of any massacres in the area. Given the geomorphological evidence and the time since any massacres would have taken place, we are satisfied that it is unlikely that discernable physical evidence of any such massacres would remain.

80 In considering the possibility of additional objects or features within the AHIP application area that have not yet been identified, such as those described above, we are satisfied that reasonable effort has been made to locate and identify them. The critical issue is whether the proposed AHIP contains provisions adequate to address any discovery of objects such as these or of other objects during the course of disturbance. That is considered under the discussion of s90K(1)(c) and (d) below.

Other evidence of Aboriginal cultural connections

81 It was common ground that the area in which the objects exist is of traditional as well as archaeological significance for Aboriginal people. The consultation process revealed a general view that the area is of high traditional importance, and in particular the Waterhole site was indicated by registered parties as being particularly significant. That area has been excluded from the AHIP area, and the two other sites identified as important, Glennies Creek and the Oxbow site, are not within the AHIP area. However as mentioned above a number of registered Aboriginal parties described traditional associations, and personal recollections of the area generally, and described the existence or possible existence of specific cultural associations such as traditional routes, songlines associated with initiation ceremonies, birthing sites, and special traditional associations such as with the kingfisher and with bush medicine plants, all of which extend over the creek system and which would make the whole area significant.

82 These elements of significance are by their nature not identifiable by archaeological investigations and are more difficult to investigate and analyse than objects or sites. However these intangible aspects of Aboriginal culture are of equal or often of more significance than objects themselves and they can add an extra and different layer of significance to these objects as the Consultation Guidelines acknowledge:

Aboriginal cultural heritage has social/cultural, historic, aesthetic and scientific (archaeological) significance. All aspects should be given the same weight and assessed equally by the proponent in the Aboriginal cultural heritage assessment report.

83 It appears from the evidence that much less attention has been devoted to investigation of these elements than to the possible existence and archaeological significance of objects. The extent and nature of these associations and their relationship to objects within the AHIP area has not been investigated. Systematic collection of oral history, genealogies, and ethnographic information, relating to traditional use patterns and associations for the area which would be required to investigate these elements is lacking from the assessments. The ACHAR 2011 does not pursue these issues and the only statement which refers to traditional occupation and to historic use patterns is a brief summary by Dr Witter (Ex A, vol 2, p480).

84 Investigations by both Ashton and the respondent concerning these statements of traditional association were limited to an investigation of the possible existence of fish traps and burials, that is, to the existence of objects. Three of the witnesses who claim strong traditional associations were taken to the site by Mr Davey but the main object of this trip seems to have been the issue of the existence and location of fish traps.

85 The lack of expert evaluation of traditional cultural associations is in contrast to the detailed and extensive archaeological investigations which constitute a through assessment of this aspect of significance and would appear to the Court to create an unbalanced cultural assessment.

86 Mr Davey's evidence was that he sought to rectify the lack of investigation of these matters and acknowledge and provide for the recognition of these traditional values by adding a condition to the AHIP which directs that oral history and other relevant information should be gathered by the proponent (in cooperation with the registered parties) and that such information should be recorded, and used as the basis for a permanent display of traditional associations and use patterns in the area to be placed in a location satisfactory to the registered parties.

87 The inclusion of this requirement as Condition 16 would appear to indicate that the respondent considers that the gathering of such information is a significant need. However the undertaking of this investigation as a condition of the permit rather than as a part of the cultural heritage assessment means that the findings of this investigation did not inform the decision by the respondent to agree to the grant of the AHIP or the determination of conditions. Dr Witter's 2002 report (Ex A, vol 2, p480) indicates that there was early and severe disruption of Aboriginal life in this area and cites Brayshaw as having found, as a result, that little ethnographic evidence is available for the Upper Hunter. However this does not preclude the existence of oral traditions and continuing Aboriginal associations with the area. A systematic examination of these issues constitutes standard good practice in cultural heritage assessment methodology. The Court is without this information in considering whether the AHIP should be approved. Mr Franks drew attention to what seemed to him to be the illogicality of conducting such a survey after the issue of the AHIP in his affidavit of 22 June 2011.

88 Section 2A(1)(b) of the Act clearly intends the protection of "places" and "features of significance to Aboriginal people" as well as objects. However although it appears to be within the objects of the Act to conserve such places, the traditional associations as described by some Aboriginal stakeholders relate to intangible (places and features) as opposed to tangible heritage values (objects). The focus of s90K(1) is, however, on objects. On the evidence before us, there is no indication that investigation of these traditional associations would lead to the discovery of Aboriginal objects not already identified or which are likely to be discovered in the course of the proposed works in accordance with the methodology proposed in the AHIP.

Actual or likely harm to Aboriginal objects

89 The ACHAR 2011 and the evidence of the expert witnesses identify the sources of actual or likely harm to Aboriginal objects within the AHIP area. Aboriginal objects will be impacted by both the excavation of the proposed diversion channels and anticipated subsidence associated with the long wall mining. In their joint report (exhibit C) the experts identified that probable harm to Aboriginal objects in the AHIP area may include cracking allowing downward movement of artefacts; use of heavy machinery for remediation of cracks; ponding or depressions that require filling; erosion; surface activities including the creek diversions, associated compounds, stockpiles, haul roads; ongoing surface activities to operate the mine; possible gas wells; and surface remediation and revegetation.

(c) Practical measures to protect and conserve Aboriginal objects; (d) Practical measures to avoid or mitigate harm to Aboriginal objects

90 The ICHM Report and the draft ACHMP report provided detailed proposals for conserving any Aboriginal objects of high significance which may be discovered within the AHIP application area, and for salvaging and conserving by relocation and documentation other objects which are likely to be impacted by the proposed mining operations or the creek diversion. The ACHMP provides a table of each of the recorded sites and a summary of proposed management and mitigation measures.

91 Ashton relies on its adjustment of the boundaries of the proposed AHIP area to protect the Waterhole site, which is accepted to be the most important site both archaeologically and in term of significance as identified by registered parties, and on the conditions proposed on the AHIP.

92 Mr Davey's evidence included evidence as to the drafting of the AHIP. He had initially considered assessing the application in stages, considering first the western diversion area where there was no suggestion of the presence of fish traps. However, given that a second inspection with Aunty Barbara Foot had not been possible, he had concluded it would be preferable to have an AHIP over the entire application area with conditions that would ensure detailed assessment of key areas and objects and provide practical measures that could be taken to prevent or mitigate harm to Aboriginal objects as well as deal with uncertainty about the location and nature of Aboriginal objects that may potentially be harmed by the proposed works. The agreed position between the parties as reflected in the conditions of the draft AHIP is that wherever practicable any identified objects will be avoided, and that where this is not possible for operational reasons mitigation measures will be undertaken in accordance with the salvage plan developed by the applicant in consultation with stakeholders. All impacted sites and artefacts will be documented and the artefacts conserved by excavation and surface collection. Ground penetrating radar surveys, grader scrapes and trial excavations will be undertaken to identify potentially significant sites in areas where such potential exists. Surface collection, salvage excavations, fencing and conservation monitoring, on going stakeholder information and access and storage of artefacts in accordance with the wishes of stakeholders will be part of the conservation and mitigation program. An incident response protocol has been developed to deal with unforseen circumstances. Any artefacts recovered will, in consultation with stakeholders, be placed in a permanent keeping place within a period of three years of the granting of the AHIP. The discovery of human skeletal remains or any other significant Aboriginal objects will be dealt with in accordance with a series of protocols which includes cessation of work and reporting of the remains to the respondent for appropriate action.

93 The proposed conditions reflecting that approach include condition 7, stating that Aboriginal objects must be left in situ unless harm is likely as a result of subsidence or the proposed works. Condition 8 permits movement of Aboriginal objects in accordance with the methodology specified in Attachment 2 to the draft AHIP, and storage of those objects. Condition 9 imposes restrictions on carrying out grader scrapes, including a prohibition on grader scrapes in the potential Pleistocene Sediment areas. Condition 12 provides the protocol in the event that a significant Aboriginal object is located within the AHIP area, and defines a significant Aboriginal object to include scarred or carved trees, fish traps, ground-edged tools, culturally modified wooden or bone objects, hearth, objects constituting a manufacturing site or knapping event, bora rings, grinding grooves/petroglyphs or culturally significant objects as determined by the AHIP holder's archaeologist in consultation with at least two registered Aboriginal parties. Condition 14 requires the preparation and implementation of an Aboriginal heritage subsidence impact monitoring program for the AHIP area, and sets out the minimum requirements for that program. Condition 27 sets out the procedure to be followed if human remains are discovered, including an immediate cessation of work at the location, securing the area and notifying the police and the respondent.

94 The experts agreed that sufficient information is now available to confidently understand and determine the practical measures that may be taken to protect or conserve the Aboriginal objects that are the subject of the AHIP application. They consider that suitable triggers, processes and protocols have been agreed upon to manage and mitigate potential impacts to identified objects and to as yet unidentified objects within the AHIP application area. We note that the proposed AHIP lists in Schedule B known Aboriginal objects identified on AHIMS. We accept the expert evidence and agree that the protocols included in the AHIP conditions address the practical measures to protect and conserve, and avoid or mitigate harm, to both identified Aboriginal objects and as yet unidentified Aboriginal objects, including any Aboriginal objects that may have been inaccurately recorded in AHIMS.

(e) Significance of the Aboriginal objects

95 As outlined above, three sites in the general area, namely the Waterhole site, the Oxbow, and Glennies Creek, have been assessed as of high significance in the context of what is known of the archaeology of the Hunter Valley. They have also been identified as areas of high cultural significance to Aboriginal people. Of these two are outside the AHIP area and will not be impacted and the third will be impacted only marginally. The remaining objects and sites within the AHIP area which will be impacted have been assessed as being of comparatively low significance. There is also a potential for buried late Pleistocene deposits which may yield significant information.

96 The evidence before the Court establishes that considerable archaeological research in the Hunter generally and in this area in particular has demonstrated clearly the level of archaeological significance and of potential archaeological significance of the objects located and with a potential to be located within the AHIP area. Not all objects or concentrations of objects which may exist have been located, because of poor visibility, and there is a possibility of artefacts existing in buried surfaces. The expert witnesses were in agreement that a thorough methodology including geomorphological and ground penetrating radar investigations have provided a sound appraisal of potential sites and places and their significance, and that the proposed AHIP includes procedures to further investigate areas of potential archaeological significance and to assess significance in the event of significant objects being discovered.

97 No comparatively systematic or detailed assessment has been made of the social value of these objects to the registered parties. The statement of significance provided by the proponent is limited to a general statement of the fact that the area is of importance to Aboriginal people, and the assessment of significance of the objects in the report is limited in large part to their archaeological significance. As outlined above, further systematic investigation of traditional ties to the area may have elucidated these values further. However the experts agreed that further consultation with the registered Aboriginal parties would not further inform understanding of the significance of objects within the AHIP area, although such investigations may add to an understanding of the significance of the surrounding area. The intangible nature of these associations makes it highly unlikely that such an investigation would materially alter the assessed degree of significance of these specific objects. We note that consultation with the registered parties combined with archaeological information resulted in the identification of some areas of particular significance to the registered Aboriginal parties, and the exclusion of those areas from the AHIP area.

98 The Court accepts that the area is of traditional significance to Aboriginal people, and that Aunty Barbara Foot and Mr Franks in particular have described the existence of intangible values such as traditional use and spiritual associations for the area and stated that they have strong traditional links with the area. Other stakeholders, including the Wonnarua Nation Aboriginal Corporation, deny there is evidence for these claims (Ex 2, p42) but they remain unexplored.

99 Ashton submits that the cultural significance of the objects the subject of the AHIP should be considered by reference both to the archaeological evidence concerning the significance of those objects, and by reference to the significance as expressed by the registered Aboriginal parties consulted by Ashton. Aboriginal representatives from the Upper Hunter Wonnarua Council were involved with Ms Hardy's 2001 archaeological survey; representatives from the Lower Wonnarua Tribal Council and the Wonaruah Local Aboriginal Land Council visited the study area as part of Dr Witter's 2002 report; and a separate report was commissioned from Mr Victor Perry to address the issue of cultural significance as part of the work undertaken in 2001. Ms Besant undertook consultation with Aboriginal stakeholders as part of her preparation of the ACHAR 2011. We agree with Ashton's submission that as a consequence of this involvement, Aboriginal parties have had the capacity by direct observation and review of the archaeological surveys to express reasonably informed views from their own perspective concerning the cultural significance of the Aboriginal objects which have been found to date which are the subject of the proposed AHIP.

100 Ashton submits that the fact that the consulted Aboriginal parties have, in the main, not expressed views about the particular significance of individual identified Aboriginal objects, but rather have expressed their views about the cultural significance of the subject area and sites within it, does not have the consequence that the Court is not able properly to consider the cultural significance of the known objects. On the evidence before the Court, the Court can properly conclude that:

(a) the Bowmans/Glennies Creek area is of cultural importance to the Aboriginal community, and there is particular cultural significance attached to sites outside the area of the AHIP, namely the Waterhole site and Glennies Creek;

(b) there is particular cultural significance attached by Aboriginal parties to Aboriginal objects which potentially could be present in the area of the AHIP but which have not been identified to date;

(c) there is particular cultural significance attached to Kingfishers and medicine plants; and

(d) the particular Aboriginal objects which have been found in the archaeological surveys to date are culturally significant in the sense of falling within the general significance of the subject area, but none of them has a particular significance in its own right which has prompted any particular expression of concern by the consulted Aboriginal parties.

101 While we are of the view that further investigations of traditional associations would have been highly desirable in the interests of a balanced and complete assessment of Aboriginal cultural heritage, we accept Ashton's submissions that there is archaeological evidence as to the significance of the Aboriginal objects in the AHIP area, and that the submissions made by the Aboriginal stakeholders, both as part of the consultation process and during the course of these proceedings, provide evidence as to the cultural significance of the Aboriginal objects that are the subject of the proposed AHIP .

(f) Results of consultation

102 The material before the Court includes written submissions made to the respondent (Ex 2). The documents tendered by Ashton include minutes of a meeting held on 13 October 2009 (Ex A pp201-5); a workshop held at Singleton Youth Centre on 24 October 2009; a site walkover on30 March 2010; a meeting held at Singleton Youth Centre on 13 July 2010. Mr Davey's evidence included the transcript of a recording made during the site visit on 17 May 2011.

103 The written submissions and minutes of meetings indicate that there is a divergence of opinion among the registered Aboriginal parties. Mr Franks' written submission outlines his connection to the Bowmans Creek area and the significance of the site of the proposed AHIP to his people. The minutes of the meetings of 13 October 2009 record his opposition to the Bowmans Creek diversions on the basis that it would destroy any potential Wonnarua connection to the land and would impact on song lines that run through to the Barrington Tops. At that meeting a letter from Aunty Barbara Foot was read out, in which she outlined concerns about the significance of the area, fish traps, waterholes, grinding grooves and burial sites. The minutes of that meeting record that issues of Aboriginal people's access to the area, and whether there are burial sites, and grinding grooves, were discussed. Ms Besant is recorded as having stated that artefacts are difficult to find and in some cases special equipment is needed, which means it is essential for Aboriginal stakeholder groups to specifically define potential impacts (Ex A, vol 1, p203).

104 The minutes of the workshop held on 24 October 2009 record that on that occasion there was discussion of fish traps, with some participants stating that there were no fish traps while others stated that there was the potential for there to be fish traps. There was discussion of the possible mitigation measures identified in the draft Aboriginal Archaeological Assessment, and possible additional measures. Those additional measures included capturing oral history, completing a site walkover, developing the methodology for salvage of any Aboriginal objects in consultation with stakeholders which could incorporate new information from the oral history and site walkover, and different salvage and recovery techniques (Ex A, vol 1, p212).

105 The site meetings held on 30 March 2010 and 1 April 2010 included a visit to northern end of the eastern diversion and the Waterhole site, the mid section of the diversion as viewed from the top of the slope giving an overview of the area, and the southern end of the western diversion and view back over the affected area to the north (Ex A, vol 1, p216).

106 The minutes of the meeting on 13 July 2010 record that an overview of the geomorphological assessment were presented, and the proposed methodology for the salvage of sites for the ACHMP was discussed. Those minutes record that there was concern expressed about the change in morphology of the Waterhole site and the flow regime.

107 The oral evidence confirms what is apparent from the documentary evidence, namely that there is a divergence of views within the Aboriginal community as to the adequacy of the consultation process, the presence of significant objects and sites in the AHIP area, whether the Bowmans Creek Diversion project should have been approved, and whether the AHIP should be granted.

(f) Whether consultation substantially complied with requirements

108 The requirements for consultation are set out in cl80C in Part 8A of the Regulation. Clause 80C(1) imposes a general obligation on a proposed applicant to carry out an Aboriginal consultation process in accordance with cl80C, before making an application for the issue of a permit. The applicant must ascertain from a number of specified bodies the names of any Aboriginal persons who may hold knowledge relevant to any Aboriginal objects or places, give notice to those persons of the proposed activity that may be the subject of the application, and publish notice of the proposed activity in a local newspaper (cl80C(2)). Clause 80C(4) provides the requirements for the notice referred to in cl80C(2), including an invitation to register an interest in a process of community consultation (cl80C(4)(c)). The names of each Aboriginal person who registers an interest is to be recorded. Those persons, referred to in cl80C as "registered Aboriginal parties", are to be provided with detailed information regarding the activity (cl80C(5)(c)), and the proposed methodology to be used in preparing the cultural heritage assessment report required to be submitted with the application (cl80C(6)(a)); and given an opportunity to make submissions on the proposed methodology (cl80C(6)(b)). The applicant must seek information from registered Aboriginal parties as to whether there are any Aboriginal objects of cultural value to Aboriginal people in the area and whether there are any places of cultural value to Aboriginal people in the area (cl80C(7); and provide a copy of, and an opportunity to make submissions on, the draft cultural heritage assessment report (cl80C(8)).

109 The ACHAR 2011 includes a list of 33 registered Aboriginal parties (Ex A, p23), including Mr Franks, Aunty Barbara Foot, and Mr David Foot.

110 The applicant relies on consultation undertaken during the initial assessment of the proposed mine development in 2001 and 2002, and the consultation undertaken in the process of assessment of the modification application. The applicant submits that during the period 2009 to 2011, Ashton or its consultants:

(a) notified Singleton Shire Council, the Department of Environment Climate Change and Water, the Office of the Registrar of the Aboriginal Land Rights Act, the NSW Native Title Services, and the Office of the Registrar of Aboriginal Owners of the proposed modification (Ex A, p97)

(b) sent correspondence to Aboriginal groups and persons seeking input and inviting them to be register interest in the project (Ex A, pp97-8)

(c) placed advertisements in newspapers (Ex A, p98)

(d) invited registered Aboriginal parties to a consultation meeting (Ex A, p100)

(e) sent a copy of the draft Archaeological Assessment Report to each of the registered Aboriginal parties (Ex A, p102-4)

(f) held a consultation meeting on 13 October 2009, attended by 26 persons (Ex A, p104)

(g) invited the groups attending that meeting to an additional consultation meeting on 24 October 2009 (Ex A, pp 177-8)

(h) held a workshop at the Singleton Youth Centre on 24 October 2009 and recorded outcomes (Ex A, pp 207-213)

(i) invited all registered Aboriginal parties to attend a field walkover of the project area to be held in the period commencing 30 March 2011 (Ex A, pp 183-184)

(j) held site meetings including a visit to the project area on 30 March 2010 and 1 April 2010 (Ex A, pp 214-233)

(k) sent the draft ACHMP to each registered Aboriginal party on 1 and 8 July 2010 (Ex A, p 1209)

(l) held a meeting on 13 July 2010 to discuss the draft ACHMP, attended by representatives of 22 of the registered Aboriginal parties (Ex A, pp 236-238)

(m) sent copies of the Cultural Heritage Management Plan and Interim Cultural Heritage Management Plan to registered Aboriginal parties (Ex A, pp 240-241)

(n) notified registered Aboriginal parties on 19 January 2011 of approval of the project, including a reminder to respond to the draft CHMP (Ex A, p243).

111 Ashton submits that the evidence before the Court demonstrates that:

(a) there has been extensive consultation with Aboriginal people regarding the Aboriginal objects the subject of the proposed AHIP and that this consultation has been ongoing since about 2001 when the environmental impact statement was first prepared to support the development application for the mining project;

(b) the consultation with Aboriginal people has specifically included consultation regarding the proposed methodology to be employed for the management and mitigation of harm to Aboriginal objects and for the salvage of cultural values in the project area; and

(c) the consultation has substantially complied with the requirements of cl80C of the Regulation notwithstanding that the relevant provisions did not commence to operate until 1 October 2010.

112 The respondent notes that the preponderance of consultation was undertaken for the purpose of the 2009 application to modify the 2002 development consent, and that Ashton began stakeholder consultation activities in August 2009, which continued through 2010, but which did not directly relate to the application for an AHIP. The respondent submits that none of the consultation was with registered Aboriginal parties within the meaning of cl80C, and that until 1 April 2011 consultation undertaken by Ashton was in accordance with the Interim Community Consultation Requirements. The respondent submits that the consultation undertaken in connection with the development modification application goes a considerable way towards meeting the requirements in cl80C(1)-(5) and 80C(7) of the Regulation in relation to notification and registration of Aboriginal persons as registered Aboriginal parties and consultation on objects and places of cultural value to Aboriginal people in the area. However, in a number of respects, the consultation does not comply with the requirements of subclauses 80C(6) and (8), in particular, Ashton did not specifically consult on the proposed methodology for the cultural heritage assessment report to be submitted with the AHIP application or on the draft cultural heritage assessment report.

113 The respondent submits, and we accept based on the documentary evidence, that the consultation process did not comply with the following requirements of cl 80C:

(a) not all the bodies identified in cl80C(2)(a) of the Regulation were notified, namely the local Aboriginal land council, the National Native Title Tribunal and the relevant catchment management authority;

(b) the consultation log indicates that "notification letters" were sent to a number of Aboriginal groups on 25 August 2009, however it is not clear how many parties were identified through the process of notification under cl80C(2)(a);

(c) the notice published in a local newspaper in accordance with cl80C(2)(c) did not state that the proposed activity may be the subject of an application for an AHIP or include a statement that the purpose of community consultation with Aboriginal people was to assist the proposed applicant in the preparation of an application for an AHIP and to assist the respondent in consideration of the application as required by cl80C(4)(b), (c) and (d);

(d) the consultation logs do not make clear the nature or quality of information provided to registered Aboriginal stakeholders, nor whether the respondent or the local Aboriginal land council were provided a record of the names of the each of the registered stakeholders as required by cl80C(5)(b) and (c);

(e) there is no evidence of direct consultation in relation to the methodology to be used for preparing the cultural heritage assessment report as required by cl80C(6), and the methodology essentially consisted of combining previous reports;

(f) while there were a number of occasions during 2009 and 2010 on which Ashton sought information on whether there were Aboriginal objects of cultural value to Aboriginal people in the area, this was not necessarily during the consultation on the proposed methodology of the cultural heritage assessment report as required by cl80C(7);

(g) while individual parts of the document that made up the ACHAR 2011 were the subject of consultation at separate stages during 2009 to 2011, the documents did not make up the entire report, and at the time the individual documents were consulted on the registered Aboriginal stakeholders did not know that the documents were to be part of the ACHAR to be submitted with an AHIP application.

114 In Ashton Coal Operations Pty Ltd v Director General Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 Sheahan J held (at [73]) that consultation undertaken for the purpose of the 2009 application to modify the 2002 development consent, and subsequent stakeholder consultation activities from August 2009 and continuing through 2010 for the purposes of the Part 3A project approval, could form the basis of consultation for the AHIP application. The respondent accepts that the consultation satisfied the requirements of the Interim Community Consultation Requirements, and the evidence of Mr Davey was that Ashton was advised by the respondent that it was sufficient for it to do so. We note that those requirements were significantly less detailed than those set out in the Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010, or required under cl80C of the Regulation. Clause 80C(1) in terms envisages a consultation process undertaken before the application for issue of an AHIP is made, and there is no indication in cl80C that consultation undertaken before the Regulation was amended to include cl 80C cannot be taken as consultation for the purposes of cl80C. However, there are provisions in cl80C that require an applicant to inform those consulted that the consultation is for the purpose of an application for an AHIP, for example cl80C(4)(d).

115 Clause 80C(9) states that an application for an AHIP is not invalid by reason of any failure to comply with one or more of the requirements of cl80C. Whether or not there was substantial compliance with those requirements is a matter required to be considered by the decision maker. We accept the respondent's submission that the consultation process complied with the former Interim Community Consultation Requirements. The shortcomings of the consultation process when measured against the requirements of cl 80C are not such that we would disagree with the respondent's submission that the consultation undertaken goes a considerable way towards meeting the requirements of cl 80C of the Regulation. In our view, given the wording of s90K(1)(g), a finding that there has not been substantial compliance with those requirements would not of itself warrant refusal of an application, but would be a matter to be weighed against the other considerations in s90K(1). The significance of such a finding would go to whether the decision maker had available sufficient material to consider properly each of the other matters specified in s90K(1), in particular those matters going to the significance of the Aboriginal objects and the actual or likely harm to those objects.

116 A significant element of Mr Franks' evidence and submissions during the course of these proceedings has been his argument that the consultation process has been inadequate. In his affidavit of 15 July 2011 Mr Franks states that he had not seen the document which is attachment 3 of Exhibit A entitled Aboriginal Cultural Heritage Assessment Report until the proceedings commenced, and he had not been sent a copy advising that this report was a cultural heritage assessment report for the purposes of the AHIP application. Attachment 3 is a document entitled Ashton Coal Project Aboriginal Cultural Heritage Management Plan Underground Area - Western Panels (ACHM Plan); as noted at [22] above, that document is one of seven appendices to the ACHAR 2011. The evidence before us confirms the submissions of Ashton that a copy of a draft of the ACHM Plan was sent to Mr Franks on 8 July 2010 (pp1211-1212, vol 3, Ex A), and to his company Tocumwal Pty Ltd, and to Yarrawalk Enterprises, on 22 December 2010 (pp1278-1279, pp 1338-1339, vol 4, Ex A); and that on 11 February 2011 an information package comprising two fact sheets and a compact disc which included that ACHAR 2011 was sent to Mr Franks (Ex A, vol 4, pp1453-1455). In oral evidence Mr Franks confirmed that he had received the CD, however could not open it, and had accessed some documents from the Department of Planning website. The copy of the fact sheet in evidence states that the CD includes the ACHAR 2011 and details of where to obtain a hard copy. In relation to consultation more generally, the minutes of meetings and correspondence confirm Ashton's submissions that Mr Franks registered interest in the Bowmans Creek Diversion project on 2 September 2009, attended the stakeholder meeting on 13 September 2009, was notified of the meetings of 24 October 2009, the field walkover of 30 March and 1 April 2010, and was sent copies of the draft Archaeological Assessment Report, the draft ACHMP and draft ICHM report, and notification of the project approval; and that the meetings of 24 October 2009 and 13 July 2010 and field walkover of 30 March 2010 were attended by Mr Barry French or Mr Danny Franks on behalf of Yarrawalk. We are satisfied that Mr Franks and his organisations were included in the consultation process undertaken by Ashton.

(g) Social and economic consequences of making the decision

117 Ashton relies on an affidavit of Brian Wesley sworn 30 May 2011 to support its submissions that a decision to grant the AHIP would have beneficial social and economic consequences, including the employment of up to 200 employees and contractors, the delivery of a business opportunity for a local Aboriginal group with respect to the provision of a nursery for seedlings and planned vegetation delivering up to 6 full time jobs and up to 20 casual jobs, and the recovery of up to 17.9 million tonnes of Run of Mine coal reserves over the four target coal seams. Ashton submits that a decision to refuse the AHIP would have adverse social and economic consequences, including retrenchment of 20 employees and termination of contract of 10 contract employees, the loss of reserves in the lower seams which would likely jeopardise the economic viability of mining the lower two seams and result in an additional net loss of 36.4 million tonnes of Run of Mine Coal, the consequent reduction of employment of 200 full time workers and contractors, and reduction in the revenue that would otherwise flow to the State and Federal governments.

118 Ashton submits that s90K(1)(g) requires consideration of the social consequences of the grant or refusal of the AHIP, and not the social consequences of carrying out the approved development comprising the extended longwall mining in the western panels area and the Bowmans Creek Diversion. The relevant consideration is the social consequences of harming (including moving) Aboriginal objects in the AHIP area. That consideration includes consideration of the cultural significance of the objects the subject of the AHIP.

119 The respondent accepts that the material before the Court provides information which permits consideration and assessment of the social and economic consequences of the AHIP application for the local and regional Aboriginal community and the community at large. The respondent submits that while the AHIP application was not accompanied by a cultural heritage assessment report that in terms included the documents identified in cl80D(3) of the Regulation, the ACHAR 2011 substantially addresses these matters, and that subsequent material provided by Ashton (including the affidavit of Brian Wesley), consultation by the respondent (including site inspections) and the proposed draft AHIP conditions constitutes material capable of informing the assessment of social consequences of the AHIP application and thus the grant of an AHIP.

120 In considering the social and economic consequences of making the decision, we accept the evidence as to the economic consequences of making the decision whether or not to grant the AHIP. We note that there is a divergence of views as to the social consequences. While there was evidence before us from Aboriginal stakeholders opposed to the Bowmans Creek Diversion project, and to the grant of an AHIP, based on interference with and damage to traditional cultural association with the area, there was also evidence from other Aboriginal stakeholders, including the Wonnarua Nation Aboriginal Corporation, who supported the project in general and who referred to its beneficial effects on employment of Aboriginal people (Ex 2, pp116-7).

(h) Documents accompanying the application and any public submission

121 The relevant documents accompanying the application have been considered above. The respondent's Bundle (Ex A) includes the Director-General's Assessment Report for the Part 3A approval of the Bowmans Creek Diversion, which includes the submissions made by public authorities and private individuals and special interest groups, and the Director-General's response.

Other issues

122 As noted above, in his affidavits of 22 June 2011 and 15 July 2011, Mr Franks submits that the proposed AHIP does not comply with the conditions of the development consent granted in 2002. The respondent submits that this matter was dealt with by Sheahan J at [78], and that to the extent that the proposed AHIP does not refer to the statement at Item 11.3 of Ashton's Statement of Commitments that there is to be no construction within 70m of the Waterhole site grinding grooves, the obligations of the 2002 consent operate independently of any AHIP, and the commitment refers to "construction", a term which is defined, so that any works or impacts that may result in harm to Aboriginal objects that are not in the nature of "construction" would require an AHIP. The respondent submits that there is no need to designate the conservation area in the AHIP because the area concerned is outside the proposed AHIP area and is the subject of a separate binding agreement between Ashton and the Minister administering the Act; and the obligations in the development consent operate independently of the AHIP. We are of the view that to put the matter beyond doubt it would be appropriate for the AHIP to include an additional condition repeating Item 11.3 of the Statement of Commitments; while submitting that this would not be necessary, Ashton does not object to such a course.

123 In his affidavit of 15 July 2011 Mr Franks refers to an investigation of an allegation of damage at the Waterhole site, and to evidence given by Mr Peck that mining operations have been undertaken and that subsidence is occurring. We agree with the submissions of the parties that to the extent that there is an allegation of damage to any objects either within or outside the AHIP area, any investigation or enforcement action undertaken by the respondent is separate to its function of assessing an application for an AHIP; and that if Ashton's activities have caused harm to Aboriginal objects, Ashton would be liable to be prosecuted under s86 of the Act. This issue is not relevant to consideration of whether the proposed AHIP should be granted in determination of the application before the Court.

Application for an AHIP

124 In a meeting with representatives of the respondent on 1 August 2011 Mr Franks raised an issue relevant to whether it would be lawful to issue the AHIP.

125 Section 90A(2) of the Act provides that an AHIP application must be made in or to the effect of a form approved by the Director-General, and must

(b) contain or be accompanied by such documents and information as is required by regulations or by the Director-General (as indicated in the form or in material accompanying the form).

126 Clause 80D of the Regulation provides:

(1) For the purposes of section 90A (2) (b) of the Act, an application for the issue of an Aboriginal heritage impact permit must be accompanied by a cultural heritage assessment report.

(2) A cultural heritage assessment report is to deal with the following matters:

(a) the significance of the Aboriginal objects or Aboriginal places that are the subject of the application,

(b) the actual or likely harm to those Aboriginal objects or Aboriginal places from the proposed activity that is the subject of the application,

(c) any practical measures that may be taken to protect and conserve those Aboriginal objects or Aboriginal places,

(d) any practical measures that may be taken to avoid or mitigate any actual or likely harm to those Aboriginal objects or Aboriginal places.

(3) A cultural heritage assessment report must include:

(a) if any submission has been received from a registered Aboriginal party under clause 80C (including any submission on the proposed methodology to be used in the preparation of the report and any submission on the draft report), a copy of the submission, and

(b) the applicant's response to each such submission.

(4) An applicant for the issue of an Aboriginal heritage impact permit must, within 14 days of making the application, send a copy of the application (including any cultural heritage assessment report submitted with the application) to the following:

(a) each registered Aboriginal party (within the meaning of clause 80C) in relation to the application (if any),

(b) the relevant Local Aboriginal Land Council.

127 At issue is whether the AHIP application was accompanied by a cultural heritage assessment report that meets the requirements of cl80D; and whether if it was not, that would mean that there was no valid application made for an AHIP.

128 The respondent submits that it is not correct to say that the existence of a cultural heritage assessment report that complies with s90A and cl80D is a jurisdictional fact, namely a prerequisite to the making of a valid application; and that, in any event, this is not a case whether there is no cultural heritage assessment report before the Court. The respondent submits that any deficiencies in the ACHAR 2011, in particular in relation to consultation, might ultimately bear on the exercise of the Court's discretion in exercising the power in s90C(1) of the Act to grant or refuse the application having regard to the matters in s90K(1). It would not, however, be a matter which renders the AHIP application invalid, or deprives the Court of the jurisdiction to exercise the power in s90C of the Act.

129 Ashton submits that whether or not a failure to submit a supporting document required to be submitted with an application would invalidate the application, the AHIP Application was accompanied by a cultural heritage assessment report, namely the 343 page document which is at pp 8-350 of Vol 1, Ex A. Ashton submits that whether the cultural heritage assessment report complied with all the requirements of cl80D(2) and (3) is a different question, and that question is not a jurisdictional fact. Ashton submits that failure to comply with the requirements of cl 80D(2) and (3) could only go to the validity of an AHIP application in a case where the failure is considered to be so gross as to deprive the document of the fundamental character of a cultural heritage assessment report; otherwise, any omission to comply with the requirements of cl 80D(2) or (3) would be a matter the Court could legitimately take into account in assessing the merits of the AHIP application. The ACHAR 2011 includes all the submissions received from registered Aboriginal parties.

130 The documentary evidence before the Court includes the AHIP Application, made on a departmental form, and a document titled Aboriginal Cultural Heritage Assessment Report and AHIP Application Western Underground Panels Ashton Coal Operations Ltd, Camberwell NSW, dated January 2011, prepared by Insite Heritage Pty Ltd. That document (Ex A, vol 1, pp8-350) and its appendices is described at [22] above. The document includes material under the headings 11: Statement of Significance of the Cultural Heritage Values; 12: Description of the Actual or Likely Harm; 13: Description of the measure to avoid harm; and 14: Description of the measures to mitigate harm; and references to the further documents as described at [22](p 15 of the document, p24 in Ex A).

131 We agree with the submissions of the parties that the AHIP Application was accompanied by a report, namely the ACHAR 2011, which purports to be cultural heritage assessment report in compliance with cl 80D(1). We agree with their submissions that the question of whether the ACHAR 2011 fulfils the requirements for a cultural heritage assessment report in cl 80D(2) and (3) is not a jurisdictional fact, and that Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, which concerned the question of whether a proposed development was "likely to significantly affect threatened species, populations or ecological communities", is distinguishable.

132 The issue is whether, to the extent that the ACHAR 2011 may not have complied with the requirements of cl 80D(2) and (3), that would invalidate the AHIP Application, on the basis that the legislature intended that such non compliance would have that consequence: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. We note that it may be relevant in that regard that the requirements of cl 80D(2) and (3) are less prescriptive that those applicable to an environmental impact statement or species impact statement, and, in requiring that the cultural heritage assessment report "deal with" the specified matters, are more detailed that those applicable to a statement of environmental effects (see Helman v Byron Shire Council (1995) 87 LGERA 349; Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81). However, in our view it is not necessary to decide that question.

133 The evidence of Mr Davey (in his affidavit of 2 August 2011) was that in his opinion the ACHAR 2011 deals with the matters identified in cl 80D(2), and "contains material that, in my experience, OEH regularly accepts in cultural heritage assessment reports submitted in compliance with clause 80D of the Regulation as part of applications under section 90A of the Act". We agree with Ashton's submission that while expressed by an experienced officer of the respondent, this opinion is not determinative. We are satisfied that the ACHAR 2011 addressed the matters identified in cl 80D(2), and by including a copy of submissions received from registered Aboriginal stakeholders went some way to meeting the requirements of cl 80D(3). There is no evidence to suggest that there were submissions made that have not been included. We agree with the submission of Ashton that to the extent that some of those submissions may not have been made "under cl 80C", but in response to consultation more generally, cl 80D(3)(a) is met because any submissions made under cl 80C would necessarily be included. We agree with the respondent's submission that to the extent that the ACHAR 2011 may not have adequately addressed any of the matters specified in cl 80D(2), that would be relevant in considering whether the matters required by s90K(1) have been properly taken into account.

Conclusion

134 We are satisfied that there is evidence addressing all the matters specified in s90K(1) of the Act. While there were respects in which the consultation process engaged in by Ashton did not comply with the requirements of the legislation, we are satisfied that the results of the consultation, including the submissions made by Aboriginal stakeholders as part of the process relied upon by Ashton in the AHIP Application and during the course of these proceedings, have provided sufficient evidence to enable proper consideration of the matters specified in s90K(1). While we have expressed concerns as to whether all aspects of the cultural significance of the Aboriginal objects the subject of the AHIP have been considered, we are satisfied that the archaeological evidence provided as part of the assessment of the project from 2002 and the modification approval, and considered in preparation of the ACHAR 2011, has been thorough. To the extent that there remains uncertainty as to the existence of Aboriginal objects that may be harmed by the proposed works, we are satisfied that the terms of the proposed AHIP and the methodology in Attachment 2 to the AHIP are adequate to address and respond to discoveries during the course of the works. The terms of the proposed AHIP have been amended during the course of these proceedings to take into account further evidence as to the location of the Waterhole site, and concerns expressed by the Court as to the protocols for managing discovery of significant Aboriginal objects during the course of the proposed works. Having regard to the evidence as to the s90K(1) matters and the terms of the proposed AHIP, we are satisfied that it is lawful and appropriate that the proposed AHIP be issued.

135 In reaching this conclusion, we note that while the objects of the Act include protection of places, objects and features of significance to Aboriginal people, the focus of s90K(1) is on objects, and the Act provides no specific protection for places and features of significance to Aboriginal people unless they comprise part of an "Aboriginal place" declared under s84 of the Act. While the respondent's Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 and the previous Interim Community Consultation Requirements make it clear that significance of objects is to be assessed by reference to a broad range of elements, including social and cultural, historic, as well as scientific (archaeological) significance, the legislative focus on objects makes it difficult to ensure that the significance of and impacts on intangible elements of Aboriginal culture which occur in the landscape and within the area proposed to be impacted are considered.

136 There is clear and undisputed evidence before the Court that the AHIP area comprises significant material evidence (objects and sites) of Aboriginal occupation. There is evidence of the possibility of strong traditional non-tangible associations which may comprise places and features of Aboriginal significance in the general area and perhaps within the AHIP area. This opinion has not been endorsed by some of the Aboriginal stakeholders, and there has been some recognition of these values by the setting aside under the Conservation Agreement of some areas which all Aboriginal stakeholders appear to accept as significant areas. However the existence of these places and features within the AHIP area remains an open question, although one addressed by the protocols included in the AHIP conditions. It is clear from the evidence before the Court that some of the Aboriginal stakeholders consider that the intangible aspects of their cultural heritage, which they claim is an important aspect of the significance of the area being impacted, is at least equal and arguably of more value than the objects themselves. The importance to Aboriginal people generally of non-tangible aspects of their culture as it occurs in the landscape and as it is passed on by oral tradition, and the fact that these elements of Aboriginal culture are often valued more highly than objects, has been well established by extensive anthropological research over a long period, and is acknowledged by the respondent's Interim Community Consultation Requirements and Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 . While acknowledging this, we note that the task of the Court under s90L of the Act is circumscribed by the nature of the AHIP Application, which is not an application for approval to carry out the mining or creek diversion project itself, but an application to harm (including move) Aboriginal objects.

137 The parties are directed to amend the proposed AHIP by the inclusion of a condition reflecting our finding at [122] above and to provide a revised AHIP including the revised map, following which final orders will be made in chambers.

Linda Pearson

Commissioner of the Court

 

Sharon Sullivan

Acting Commissioner of the Court

Decision last updated: 25 August 2011