Nettheim, Garth --- "The Honourable Barry Cohen, Minister for Arts, Heritage and Environment and others v Peko-Wallsend Limited and others" [1987] AboriginalLawB 49; (1987) 1(28) Aboriginal Law Bulletin 10

• The Honourable Barry Cohen, Minister For Arts, Heritage And Environment And Others V Peko-Wallsend Limited And Others

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The Honourable Barry Cohen, Minister for Arts, Heritage and Environment and others v Peko-Wallsend Limited and others

Federal Court of Australia: Bowen C J, Sheppard and Wilcox J J

7 September, 1987

No. NTG 1 of 1987

Casenote by Garth Nettheim

This case is the latest in the series of litigation in which. Peko-Wallsend and associated companies have sought to protect their mining interests and aspirations in the Alligator Rivers region of the Northern Territory. In Minister for Aboriginal Affairs v Peko-Wallsend Limited the company was successful in the high Court in its claim that the Minister's decision to grant portion of an Aboriginal land claim was invalid, for failure to take into account relevant considerations relating to the company's interests: (1986)66 ALR 299. Subsequently the Minister reconsidered the matter and, on 18 November 1986, again decided to grant the land.

In this action, the companies were concerned to challenge the validity of a Cabinet decision that the Plan of Management for Stage II for Kakadu National Park should exclude mining activity except for existing mining interests covered by s.8B of the National Parks and Wildlife Conservation Act 1978 (C/th). Section 8B would protect certain mineral leases held by the companies but not outstanding applications for mineral leases based on exploration licences which they had held prior to 1977. The companies claimed that, under the principles of natural justice, they should have been allowed to make submissions to Cabinet before it reached its decision. The particular focus for the litigation was also to stop consideration in November 1986 by UNESCO's World Heritage Committee of Australia's application for the listing of Kakadu National Park, Stage II under the Convention for the Protection of the World Cultural and National Heritage. The proceedings were successful at first instance but Beaumont J's order was set aside on appeal.

The leading judgement was that of Wilcox J which Bowen CJ and Sheppard J agreed. Wilcox J surveyed the complex factual and legal background to the litigation. He considered that the companies had, in fact, had ample opportunity to present their case to the government and had, indeed, done so prior to the Cabinet meeting, so that there was no denial of natural justice. But the court's primary reason for allowing the appeal, in judgements which are most important in the development in Administrative Law principles, was that the decision of Cabinet in a matter such as this was "not such as to be justiciable or to attract the obligations of natural justice".