The Court held that where extensive consultation with registered Aboriginal stakeholders has occurred without opposition to proposed impacts on Aboriginal cultural heritage, the 2010 Aboriginal Cultural Heritage Consultation Requirements' principle that Aboriginal people are the primary determinants of their heritage's significance may be preferred over the OEH Guidelines' requirement to formally assess alternatives to avoid harm. The Court also confirmed that Heritage NSW General Terms of Approval under s 90 of the NPW Act are not determinative of acceptability under the EPA Act but may be given some weight where the core issue falls within Heritage NSW's functions. On the facts, the earthworks causing destruction of an Aboriginal site (CH-1) and modification of a culturally significant ridgeline were found acceptable given geotechnical necessity, retention of the ridgeline's visual prominence, avoidance of two other Aboriginal sites, and mitigation measures including reburial and a Heritage Interpretation Plan informed by Aboriginal stakeholders.
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