Williams v Graham [2016] NSWLEC 151

Williams v Graham [2016] NSWLEC 151

Mr Williams did not prove on the balance of probabilities that Aboriginal stone artefacts were present within the quarry disturbance area. No artefacts had been found despite repeated inspections and disturbance, the due diligence code assumption did not establish actual presence, and the cultural and archaeological evidence relied on did not justify the inference sought. Because the presence of Aboriginal objects to be harmed was not established, no threatened or apprehended breach of s 86 of the National Parks and Wildlife Act 1974 was made out.

Jurisdiction
Australia
Judgment Date
29 November 2016
Procedural Posture
Class 4 Civil Enforcement Proceedings Under S 193 of the National Parks and Wildlife Act 1974 / Principal Judgment After Hearing
Outcome
Proceedings dismissed.
Legal Topics
['threatened Harm to Aboriginal Objects' 'aboriginal Stone Artefacts' 'aboriginal Heritage Impact Permit' 'quarry Development' 'onus of Proof']
['environmental Law' 'aboriginal Cultural Heritage' 'civil Enforcement'] ['threatened Harm to Aboriginal Objects' 'aboriginal Stone Artefacts' 'aboriginal Heritage Impact Permit' 'quarry Development' 'onus of Proof']

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Procedural Posture

Class 4 Civil Enforcement Proceedings Under S 193 of the National Parks and Wildlife Act 1974 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether there were Aboriginal stone artefacts within the quarry disturbance area that would be harmed by carrying out the quarry.' 'Whether the carrying out of the quarry involved a threatened or apprehended breach of s 86(2) of the National Parks and Wildlife Act 1974.' 'Whether the applicant had proved, on the balance of probabilities, the existence of Aboriginal objects on the land to be quarried.']

Ratio Decidendi

Mr Williams did not prove on the balance of probabilities that Aboriginal stone artefacts were present within the quarry disturbance area. No artefacts had been found despite repeated inspections and disturbance, the due diligence code assumption did not establish actual presence, and the cultural and archaeological evidence relied on did not justify the inference sought. Because the presence of Aboriginal objects to be harmed was not established, no threatened or apprehended breach of s 86 of the National Parks and Wildlife Act 1974 was made out.

Court Disposition

Proceedings dismissed.

Orders

  • ['The proceedings are dismissed.']