Chalk & Fitzgerald - Lawyers & Consultants

Calga sand quarry extension refused on Aboriginal cultural heritage grounds

A decision of the NSW Planning and Assessment Commission (PAC) to approve an extension to the Rocla Materials Pty Ltd owned sand quarry at Calga near Gosford on the NSW Central Coast has been reviewed and the application refused by the Land and Environment Court. The PAC approval was challenged by the Darkinjung Local Aboriginal Land Council and the Australian Walkabout Wildlife Park, a neighbouring landowner. As a Class 1 appeal in the Land and Environment Court of NSW, the Court sat as the original decision maker and accordingly the Minister, as the responsible consent authority, was joined as a party. A number of issues were in contest, however, the Court’s treatment of the Aboriginal cultural heritage issues is most notable.

The Court concluded, in summary, that there was not “sufficient, credible information upon which to assess the impacts of the Project and make a decision.” In the proceedings the Court examined the adequacy of the investigations and consultation process undertaken prior to the PAC decision, the quality of the PAC’s assessment of the cultural significance of the land and the impact of the extension sought by the quarry owner to the Aboriginal cultural heritage existing or potentially existing on the land. The Court wrote: “there is little ethnographical and historic investigation, no survey for sites such as rock art sites concealed by vegetation, and no subsurface investigation” and “it does not appear to the Court that at this stage the complete archaeological research value of the site has been established by the investigation undertaken... further scientific study of the site has the potential to augment information about its significance”. The Court also stressed that the purpose of consultation and investigation was “to inform heritage values and the significance of place” in the approval context.

The Court made it clear that in the context of an application such as this the proponent is responsible for putting all necessary information before the decision maker in relation to cultural heritage considerations to satisfy the concerns which ultimately led to the refusal in this decision.

In the proceedings, the Court highlighted that the “cultural landscape” must be understood not only as the physical attributes of the site (here being rock engravings and other physical aspects) but also these elements 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.

In addition, a number of other non-cultural heritage matters were agreed between Rocla and the Australian Walkabout Wildlife Park.

Chalk & Fitzgerald represented Darkinjung Local Aboriginal Land Council in the proceedings.

The full decision of Commissioner Dixon and Acting Commissioner Sullivan is available here: https://www.caselaw.nsw.gov.au/decision/564a9ec2e4b003c5681fabbe