Dixon C and Sullivan AC of the Land and Environment Court of New South Wales upheld the appeals lodged by the Darkingjung Local Aboriginal Land Counicl and the Australian Walkabout Wildlife Park Limited and refused the amended application for extension of the Calga Sand Quarry.

Background

The two objector appeals arose from a decision of the Planning and Assessment Commission to give project approval to the continued operation and extension of the existing sand quarry at Calga, NSW. 

The critical question for the court was whether there was sufficient, credible information upon which to assess the cultural heritage impacts of the extension project and to make a decision.

Decision

The court did not consider that enough evidence had been provided by the respondent to definitely rule out that the extension operations could be conducted without danger of significantly compromising the Aboriginal values of the cultural landscape.

Despite the consultation undertaken, the archaeological reports prepared and the cultural management plan (CMP) drafted, the level of information required to assess the significance of cultural heritage was inadequate and incomplete.

With respect to this project, a ‘Women’s site’ was identified close to the proposed direct impact area. The court found there was convincing evidence of the existence of a cultural landscape surrounding the significance of the ‘Women’s Site,’ connecting to other nearby sites and encompassing tangible and intangible elements. 

Given the rarity of the particular Women’s site, it was imperative that the investigations of the project area inform the consultation process with relevant stakeholders so that their views can be considered. The court held that the consultation process was incomplete. 

The court questioned whether any unidentified sites, that may be found in future surveys, were significant in their own right or may explain the significance of the ‘Women’s site’ in its cultural landscape. 

The respondent’s proposed adaptive management approach whereby uncertainties are acknowledged and the area managed at the time a find is made was not accepted by the court.

The respondent argued that, quarrying could be undertaken over the cultural landscape with appropriate safeguards set out in the CMP after the approval was given. The ‘approve now and assess and consult later’ approach to unidentified sites and places was not an appropriate outcome given the level of uncertainty about what cultural items may be destroyed and may leave the cultural landscape irretrievably damaged.

Ultimately the court concluded that the investigations undertaken to date had not been adequate to allow a decision to as to whether to grant approval of the project application.

Key Lessons

Where a proponent has arranged for cultural assessments to be undertaken as part of a project approval process and cultural heritage sites or places have been identified as areas of high significance, there is an expectation that thorough investigations must be undertaken, regardless of the landscape, vegetation and accessibility of the land. This investigation is required to confirm that there are no additional sites or places within the area that are either culturally significant or linked to an existing significant site and/or place. 

If there is a concern that the investigations undertaken have been inadequate, the consultation process was not complete or there is the potential that significant sites or places have not been identified or included in the appropriate management and/or mitigation measures, this may impact on whether project approvals are given.

Where initial cultural heritage assessments and feedback from Registered Aboriginal Parties indicate that there is a high probability that further cultural heritage may be identified, appropriate and thorough investigations and consultation should be undertaken to ascertain how likely these sites and/or places will be impacted on.