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Aboriginal Law Bulletin (ALB)
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Malbon, Justin --- "Bropho v Wilson" [1988] AboriginalLawB 25; (1988) 1(31) Aboriginal Law Bulletin 14


Bropho v Wilson

Brohpo v Wilson

Supreme Court of Western Australia

Rowland J.

8 July 1986

Casenote by Justin Malbon

This case involved an application by the Nyoongar people for an interim injunction to prevent the desecration of a sacred site. The site is at Bennett Brook which is the home of Wagyl, a snake spirit. The plaintiffs stated that desecration of the site would cause death and other serious consequences for the Nyoongar people. The State Electricity Commission (second defendent) was in the process of building a pipeline which it proposed to run under the brook. This would, however, interfere with Wagyl.

In August, 1985 the State Electricity Commission gained consent from the relevant Minister (first defendant) under section 18 (3) of the Aboriginal Heritage Act to undertake a drilling program under the site. The plaintiffs issued proceedings in November, 1985 claiming that the consent was ultra vires and void. An ex carte interim injunction was granted. After a further application by the S.E.C. the Minister consented in June, 1986 to the laying of an underground pipeline. The plaintiffs issued further proceedings in the Supreme Court in which they sought declaratory relief and an injunction. The Court granted an interim injunction on the 27 June on the basis that there was sufficient evidence to show that the Committee which was required under section 18 to make a recommendation to the Minister had failed to make such a recommendation.

This case related to the proceedings which arose when the matter returned to the court on the 2nd and 3rd of July. The plaintiffs again sought an injunction and declaratory relief in order to prevent the passagee of the pipeline under the site. On this occasion evidence was put before the Court which showed that the Committee had if fact made a recommendation to the Minister. The Committee however, recommended against the underground method of crossing, but was unable to suggest an alternative method of transverse. The Court was also presented with a letter from the Minister directed to the S.E.C. in which he stated that he had considered the advice of the Committee and had determined to provide consent to allow the pipeline to cross the brook.

Rowland J. found on the basis of the evidence before him that the plaintiffs' argument in relation to the question of ultra vires could not succeed as the minister had complied with the Act. He found, however, that there were a number of issues which were arguable if the matter were to go to trial. It was argued by the plaintiffs that the Committee did not make the type of recommendation required by the Act. This argument turned in the meaning of the words where applicable in the context of section 18.The defendants argued that the Act created no private or any other rights in the plaintiffs to sue. The plaintiffs conceded that point. They argued, however, that as the Aboriginal custodians of the land, they were able to sue on the basis of their special interest in the matter [Onus v Alcoa [1981] HCA 50; 36 A.L.R. 425 and Robinson v. Western Australia Museum 138 C.L.R. 2831. The more recent decision of Gibbs C.J. in Davis v. The Commonwealth 81 A.L.J.R. 32 is also useful authority on this point.

It was argued in the alternative by the plaintiffs that they were denied natural justice by the Minister. Rowland J. believed that for two reasons this was a more difficult argument to mount. The first problem was that the Act allowed land to be dealt with even where it might disturb land which otherwise would be protected under the Act. The second was that the plaintiffs obtained no rights under the Act [Salemi v. MacKellar (No. 2) [1977] HCA 26; 137 C.L.R. 396 per Jacobs J.]. Against this the plaintiffs argued that a party need not necessarily have a proprietary right nor have their livelihood affected to have an interest [Heatly v. Tasmanian Racing and Gaming Commission [1977] HCA 39; 137 C.L.R. 487 per Aitkin J.].

Rowland J. found that there was a serious argument relating to the basis upon which the Minister made his decision. He found that on the balance of convenience the plaintiffs would suffer irretrievable loss as a result of the defendants proceeding with the work on site. The defendants on the other hand would suffer financial loss as a result of the delay in the laying of the gas pipeline. As a consequence he granted an injunction to prevent the defendants proceeding with any activity which would cause damage to the sacred site. There was evidence in these proceedings which suggested that there were other possible means by which the pipeline could cross the brook without unduly disturbing the site. The judge expressed the hope that the parties would resolve the matter between themselves.


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