McIntyre, Greg --- "Bropho v Trustees of the Museum & Ors (Aboriginal Heritage Act - invalid consent of minister - balance of convenience -- injunction)" [1990] AboriginalLawB 53; (1990) 1(47) Aboriginal Law Bulletin 8

• Bropho V Trustees Of The Museum &Amp; Ors
• Aboriginal Heritage Act-Invalid Consent Of Minister-Balance Of Convenience – Injunction
• Note:

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Bropho v Trustees of the Museum & Ors

Aboriginal Heritage Act - invalid consent of minister - balance of convenience – injunction

Bropho v Trustees of the Museum & Ors

Supreme Court of Western Australia - July 1990

Casenote by Greg McIntyre

The Plaintiff in this action claimed that he had not been properly consulted prior to consent being granted by the Minister for Aboriginal Affairs pursuant to Section 18 of the Aboriginal Heritage Act to the property owner, Mr Small, to place fill upon land claimed by the Plaintiff to be an Aboriginal Site. The Plaintiff claimed that the consent given by the Minister was defective for the following reasons:

• For want of a lawful delegation of authority from the Trustees of the Museum to the Aboriginal Cultural Materials Committee to make a recommendation to the Minister pursuant to the Act and
• A failure to accord the Plaintiff natural justice by taking account of his legitimate expectation that he would be consulted in the customary way prior to consent being given to alter an Aboriginal site.

The Plaintiff successfully applied to the Supreme Court of Western Australia for an interim injunction pre-venting the Defendant Small from excavating the site upon his undertaking that he would place fill upon the site in such a way as to not allow it to escape into creeks upon the perimeter of the site.

Shortly afterwards the Defendants conceded that the delegation of authority to make a recommendation to the Minister from the Trustees of the Museum to the Aboriginal Cultural Materials Committee was defective, and thus the consent of the Minister, was therefore inoperative.

The Defendant Small continued to place fill upon the site and the Plaintiff made a further application for an injunction to prevent father fill being placed upon the site, alleging that with winter rains the fill was eroding from the site into the creeks.

At the hearing of the application the Defendant gave evidence that 30,000 cubic metres of soil which was said at the earlier hearing to be the intended quantity of soil to be placed upon the land, had been delivered to the land but that it was intended to place a farther 10,000 cubic metres of soil upon the land. The Defendant Small reiterated evidence given at the earlier hearing that the sand intended to be placed upon the site was from a particularly cheap source which would not be available at a later time and that therefore the balance of convenience militated against the granting of the injunction being sought.

The Court held that in the light of the concession of the Defendants that the purported statutory delegation and thus the consent of the Minister was defective under the Aboriginal Heritage Act, the Plaintiff had a triable issue and on the balance of convenience, given that the Defendant Small had delivered 30,000 cubic metres additional to that proposed at the earlier hearing and taking into consideration the apparent evidence of serious alteration to the site flowing from the rolling of soil upon the site, the injunction would be granted that no further soil be deposited upon the site pending the trial of the action.

Note:

The remaining issue in the trial is the question of whether the land comprises an Aboriginal Site and the developer has made a further application under the Aboriginal Heritage Act for the consent of the Minister of Aboriginal Affairs to develop the site. The delegation of authority to the Aboriginal Cultural Materials Committee has been rectified and that the Committee is considering submissions before making a determination as to the recommendation to make to the Minister.