Country Energy v Williams; Williams v Director-General National Parks and Wildlife [2005] NSWCA 318

Country Energy v Williams; Williams v Director-General National Parks and Wildlife [2005] NSWCA 318

Procedural fairness was accorded to Mr Williams in the circumstances, as he was provided opportunity to make submissions even if not permitted to participate in initial survey; statutory policy or internal guidelines did not give rise to a procedural right to be a survey participant. The Director-General’s s 90 power includes granting consent to destroy or damage Aboriginal objects not individually identified at the time of consent, provided the context and limitations are clear. The purpose of consent under s 90 is not confined so as to exclude development. Legitimate expectation from policy does not prescribe an absolute right to be involved at each procedural step, and a failure to...

Jurisdiction
Australia
Judgment Date
15 September 2005
Procedural Posture
Appeal / Judgment on Appeal From Land and Environment Court
Outcome
Country Energy v Williams: Appeal allowed. Williams v Director-General: Appeal dismissed.
Legal Topics
['procedural Fairness in Administrative Decision Making' 'consent to Destroy Aboriginal Objects Under the National Parks and Wildlife Act 1974 (nsw)' 'legitimate Expectation' 'improper Purpose in Statutory Discretion' 'ecologically Sustainable Development' 'consultation With Aboriginal Communities' 'validity of Generic (non Specific) Statutory Consents']
['administrative Law' 'environmental Law' 'aboriginal and Indigenous Law'] ['procedural Fairness in Administrative Decision Making' 'consent to Destroy Aboriginal Objects Under the National Parks and Wildlife Act 1974 (nsw)' 'legitimate Expectation' 'improper Purpose in Statutory Discretion' 'ecologically Sustainable Development' 'consultation With Aboriginal Communities' 'validity of Generic (non Specific) Statutory Consents']

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Procedural Posture

Appeal / Judgment on Appeal From Land and Environment Court

Legal Issues

  1. 1 ['Whether procedural fairness was denied to Mr Williams in relation to the granting of permits/consents to disturb or destroy Aboriginal objects' 'Whether the Director-General can consent under s 90 to destruction of Aboriginal objects for the purpose of permitting development' 'Whether s 90 consents can validly extend to Aboriginal objects not identified at the time consent is given' 'Whether a legitimate expectation of involvement arises from policy or public statements' 'Whether the consents granted for an improper purpose']

Ratio Decidendi

Procedural fairness was accorded to Mr Williams in the circumstances, as he was provided opportunity to make submissions even if not permitted to participate in initial survey; statutory policy or internal guidelines did not give rise to a procedural right to be a survey participant. The Director-General’s s 90 power includes granting consent to destroy or damage Aboriginal objects not individually identified at the time of consent, provided the context and limitations are clear. The purpose of consent under s 90 is not confined so as to exclude development. Legitimate expectation from policy does not prescribe an absolute right to be involved at each procedural step, and a failure to...

Court Disposition

Country Energy v Williams: Appeal allowed. Williams v Director-General: Appeal dismissed.

Orders

  • ["In Country Energy v Williams: 1. Appeal allowed; 2. Set aside declaration and orders of the Land and Environment Court dated 5 November 2004; 3. Application by Williams dismissed; 4. First respondent to pay appellant's costs, with certificate under Suitors Fund Act if otherwise qualified." "In Williams v...