Wildlife, Environmental Defenders, Evidence, Biodiversity, Damages, Permits, Climate Change, Administrative, Jurisdiction
The applicants, Douglas and Susan Anderson, Aboriginal elders of the Nunbahjing Clan within the Bundjalung Nation, in an earlier case challenged the validity of a consent issued by the Director-General of the Department of Environment and Conservation, allowing the destruction of Aboriginal cultural heritage for a residential subdivision. Subsequently, they successfully challenged two further re-determinations to grant the consent, and also successfully challenged the grant of development consent by the Minister for Planning. However, the re-determined development consent was upheld by the Court in separate proceedings. The latest proceedings were an application for judicial review of a fourth permit issued by the Director-General of the Department of Environment and Climate Change to disturb or move Aboriginal objects on land and a consent to destroy, deface or damage Aboriginal objects pursuant to Sections 87 and 90 of the National Parks and Wildlife Act 1974 (NSW). The decision to grant the permit was made after considering a determination report made by an officer who had no previous involvement in the matter. Applicants alleged that the Director-General failed to give proper, genuine and realistic consideration to the cultural significance of the land and Aboriginal objects, to the principle of intergenerational equity and to the opinions of the applicants. Justice Lloyd held that the decision-maker had an understanding of the matters and the significance of the decision to be made about them and thus met the legal requirement of consideration. He held that while this made the Andersons unhappy with the outcome of the determination of cultural significance, the merits of the case were not able to be reviewed. He also held that intergenerational equity was considered in the determination report under the heading of ‘ecologically sustainable development’. The applicants also alleged that the Director-General’s decision was manifestly unreasonable due to the failure to make inquiries about a report commissioned by the Department of Planning into the cultural significance of the site. The significance of the report was that it put in question the adequacy of the archaeological testing on the site, an issue that had been raised by the Andersons. The issues were whether the report was readily available to the decision-maker and centrally relevant to the determination. Justice Lloyd was prepared to accept that the Department of Environment and Climate Change knew about the report. However, his Honour held that this report did not add any factual material to that which was already before the decision-maker and was only of marginal relevance, particularly given certain previous field work that had occurred on the site. Accordingly, he dismissed this argument.