20 February 2019
2 min read
#Local Government, #Native Title & Indigenous Cultural Heritage
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The NSW Land and Environment Court has fined the Clarence Valley Council $300,000 for the removal of a scar tree in 2016.
Council pleaded guilty to cutting down and removing the tree as part of its annual stump removal program. The tree had been identified as culturally significant (and a protected Aboriginal object) under the National Parks and Wildlife Act 1974 (NSW) (NPW Act). Council had been previously fined for removing the top of the tree in 2013.
In deciding an appropriate sentence, the Court considered the nature of the offence, the objective harmfulness of the offence and the foreseeability of harm.
The Court found that Council’s actions constituted substantial and serious harm as the removal of the scar tree had a significant impact on the Gumbaynggirr People, the local Indigenous community. The significance of the harm was illustrated by the volume of evidence provided by the local Indigenous people.
The Court held that Council should have been alerted to the fact that the scar tree was an Aboriginal object protected under the NPW Act, given that it had previously been penalised for a similar (albeit less serious) offence. It held that Council should have implemented more robust internal procedures and safeguards to ensure that its officers did not harm Aboriginal objects.
Based on the evidence submitted at sentencing the Court held it was clear that the Council had knowledge that the scar tree was a protected Aboriginal object and could foresee that additional harm could be caused if Council did not take practical measures to prevent harm to the scar tree. The Court was satisfied that Council’s actions were reckless and the offence was serious.
Council pleaded guilty to the offence of knowingly harming an Aboriginal object and agreed to pay the fine to the Aboriginal Land Council to assist with the establishment of local indigenous programs and initiatives. Council was also ordered to publicly notify the offence and the penalties imposed.
Authors: Jenny Humphris & Alex Buck
Contacts:
Brisbane
Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com
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