A recent decision in NSW highlighted the importance of undertaking a proper assessment of Aboriginal cultural heritage in order to obtain development approval for a project. In Darkinjung Local Aboriginal Council & Ors v Minister for Planning & Infrastructure Anor [2015] NSWLEC 1465 the NSW Land and Environment Court refused the extension of an existing sand quarry near Gosford.  The proposal included the excavation of a 30m deep, 500m wide disturbance area. A number of significant sites were identified by Darkinjung Local Aboriginal Land Council (Darkinjung).  These sites were:

1. a rock engraving site commonly referred to by the parties as the “Women’s Site”;
2. a “Stone Arrangement” site, of high cultural significance; and
3. other engraving sites.

The Darkinjung contended that the fragmentation of sites by excavation would degrade the surrounding landscape and compromise the spiritual and cultural connection felt towards the land and the sites. Rocla, the quarry applicant, proposed that a haul road be constructed on one side of the Women’s Site and the Stone Arrangement and the quarry pit on the other side, which would have the effect of isolating or placing on an “island” these sites which would then lose connection to the surrounding country.  Darkinjung argued that destruction of the area would not merely destroy some artefacts but rather the significance of the landscape as a whole. Darkinjung argued that there was not sufficient information provided to the Court to allow a proper consideration of the development application and the lack of information could not be addressed by way of conditions of consent (such as unknown mitigation measures).  Darkinjung argued that the approval of the project without first having obtained a full understanding of the heritage values of the site would be contrary to the precautionary principle. Rocla contended that further consultation and limited sub-surface archaeological investigations would ensure opportunity for necessary adjustments to any quarrying activities. The relevant Minister’s general position was that the application should be approved subject to conditions.  The Minister acknowledged the significance of the site to Aboriginal people but submitted that the area was sufficiently understood to enable a decision to be made on the project and that mitigation and management measures would be sufficient to manage any threats. The Court said that there was one crucial factual question and that was whether there was sufficient credible information upon which to assess the nature and extent of Aboriginal cultural heritage and the impacts of the project upon it. Rocla obtained two archaeological and one anthropological assessment reports for the project.  The vegetation on the site was extremely dense which made a survey difficult, if not impossible.  One of the reports noted the likelihood of buried archaeological material and that the survey area was likely to contain five sites of Indigenous cultural significance – a group of axe grinding grooves, two rock engravings, a shelter with art and occupation deposits and a stone arrangement. Another report noted that the local area including the study area was extremely rich in archaeological sites representing both occupation and ceremony. The Darkinjug tendered their own evidence about the significance of the project and the wider area including experts’ reports. The Court concluded that the project site was an area rich in Aboriginal sites of significant cultural importance to local Aboriginal people.  It concluded that for Aboriginal people the significance of individual features is derived from interrelatedness within the cultural landscape.  This means that features cannot be assessed in isolation but rather assessments need to consider the feature and its associations in a holistic manner. The Court summarised part of the evidence as follows:

• Aboriginal people see the landscape in a holistic way, rather than as dots on a map, and feel a strong attraction to it and need to protect it as a whole;
• The fact that development has taken place in part of the landscape does not negate its importance in Aboriginal eyes.

The cultural landscape must be understood “in association with its surrounding spiritual, cultural and physical environment” including the way isolated sites are linked through history and cultural significance to form larger sites of significance or cultural landscape. The Court concluded that there was insufficient consideration of the Aboriginal landscape use in its regional setting and considered this a fundamental flaw in the development application.  All parties placed importance on the extent and nature of the cultural landscape which must be considered in a regional as well as a local and immediate context. The Court noted the shortcomings of predictive modelling without proper analysis of research into known sites in their regional context. The Court also took the view that further analysis including archaeological investigations was required to understand the values of the site.  It held that there was insufficient, credible information upon which to assess the impacts of the project and for that reason the development application was refused.

This is general advice only. Specific advice should be sought in each instance. © P&E Law 1 May 2016.