Two Aboriginal Elders have taken on developer Chris Condon and won, stalling a large development on land they say has profound cultural significance for indigenous people.
Last week the Land and Environment Court declared Mr Condons development consent for a $35 million housing development at North Angels Beach null and void. The approval had been given by the NSW Minister for Planning, Frank Sartor.
Bundjalung Elders Douglas and Susan Anderson, traditional owners of Angels Beach, opposed the development for 125 units and 63 houses on the grounds that its located on the site of a 19th century massacre and therefore sacred to Aboriginal people.
However, Chris Condon claims a massacre never took place on the site and says the judgement went against him because of a procedural matter. He plans to re-submit his development application.
He said the only items of cultural significance found at the site during archaeological investigations were highly disturbed Aboriginal middens shell deposits indicating campsite areas.
Im not going to let this go, he said. I believe I can turn this around reasonably quickly.
Alan Oshlack, who represented the Andersons, said last weeks judgement was a very significant win and set a precedent in NSW.
He said thousands of Aboriginal objects had been found during archaeological surveys of the site since 1984.
A challenge by Aboriginal Elders against a Minister it puts cultural heritage issues near the top of the agenda, he said. Whereas before they have been largely ignored.
He said in the last five years over 1000 consents had been issued for the destruction of Aboriginal cultural heritage sites in NSW around 140 of those on the North Coast.
He likened Mr Condons denial of the 1854 massacre to those people who denied the Holocaust in World War II ever took place.
Judge Peter Biscoe found last week that three anthropological reports commissioned by Mr Condon, which judged the site to be of high significance to Aboriginal people, had not been before the Minister when he granted consent for the development. Justice Biscoe said in his opinion the Minister was obliged to obtain and consider the reports.
Without that knowledge the Minister had no more understanding of the issue than a foreigner who is told that Anzac Day is of high significance to Australians without being told why, he said in his findings. Revelation of the massacre would have breathed life, death and tragedy into, and stripped the veil of obscurity from, the bland words high significance. In my opinion, the revelation could have materially affected the Ministers decision.
Mr Condon said he had not provided the reports to the Minister because the issue of Aboriginal cultural significance had already been dealt with by the Department of Environment and Conservation when it issued a section 90 consent (which allows the destruction of Aboriginal objects during the course of a development).
He said the Jali Land Council, which has jurisdiction over North Angels Beach, had signed off on the section 90 consent.
However, the section 90 consent has also been contested by the Andersons. Mr Oshlack said at 5pm on Monday Mr Condon signed documents consenting to court orders to declare his section 90 consent void and of no effect, rather than contesting the matter in a court hearing scheduled for the following day. It is the second time the Andersons have challenged the issue of a section 90 permit.
Mr Oshlack said the Andersons (who are both members of the Jali Land Council) were upset that an appointed, non-indigenous administrator had signed off on the section 90 consent, without seeking approval from a meeting of the members.
This man is a (non-indigenous) accountant, said Mr Oshlack. Hes supposed to be doing the books, not signing off on Aboriginal cultural issues.
Mr Condon had no comment to make on the voiding of his section 90 consent. However, he said again it had come down to a procedural issue. He said he was now back to where he started when he bought the land in December 2002 although he had master plan approval and a residential zoning in place.
Were going to re-lodge (for approval), he said. Its been very frustrating, but its a minor set-back.
He said the Andersons had been winning on procedural issues only and he called Mr Oshlack a serial litigant.
Mr Oshlack responded by calling Mr Condon a serial developer.
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