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Hancock, Nathan --- "How to Keep a Secret: Building Bridges between Two 'Laws'" [1995] AboriginalLawB 60; (1995) 3(78) Aboriginal Law Bulletin 4

How to Keep a Secret - Building Bridges between Two 'Laws'

by Nathan Hancock

Two pieces of Commonwealth legislation dealing with Aboriginal interests in land share a common focus and follow a common methodology. The Aboriginal Land Rights (NT) Act 1976 (Cth) (`the Land Rights (NT) Act') provides a mechanism for the grant of land on trust for the benefit of traditional owners and other Aboriginal people. In order to make such a grant, the Minister for Aboriginal and Torres Strait Islander Affairs must first obtain a positive recommendation from the Aboriginal Land Commissioner, whose principal object is to ascertain the existence of `traditional owners', being claimants who have a `common spiritual affiliation' and `primary spiritual responsibility' over the claim area. The Commissioner is required to report to the Minister, making recommendations on the basis of those findings[1] and having regard to the `strength or otherwise of the traditional attachment by the claimants to the land claimed'.[2] In reporting, the Commissioner is required to `comment' on a range of matters relevant to the Minister's decision.[3] It may be noted that the existence of sacred sites is a central,[4] although not conclusive,[5] element in ascertaining traditional ownership.

In a similar vein, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (`the Heritage Act') provides for the protection of Aboriginal cultural heritage against the threat of injury or desecration. In relation to `areas', the Heritage Act empowers the Minister to make declarations preventing prescribed activities in respect of land which s/he is satisfied is a `significant Aboriginal area'[6] and which s/he is satisfied is `under threat of injury or desecration'.[7] A `significant Aboriginal area' is defined in the dictionary section of the legislation as being `an area of particular significance to Aboriginals in accordance with Aboriginal tradition'.[8] In order to make a decision, the Minister must first obtain a report, whose principal object is to ascertain the existence of any significant areas and the presence of any threat of injury or desecration.[9] In addition, the reporter addresses the results of a public consultation process, incorporating the interests and submissions of persons affected by the decision and submissions of the general public.

The Heritage Act was enacted with a view to establishing a single Commonwealth system for the protection of Aboriginal interests in land, incorporating national land rights legislation and Commonwealth protection for sacred sites. In this context, the Heritage Act was expressed to be `an interim measure which will be replaced by more comprehensive legislation dealing with Aboriginal land rights and heritage protection'.[10] As evidence of that intention, the Bill contained a sunset clause, suggesting anticipation that comprehensive legislation would inevitably follow.[11] Although a national scheme did not eventuate,[12] it is reasonable to assume that the Land Rights (NT) Act and the Heritage Act were intended to serve similar interests. It is natural therefore to find that the two Acts share common subject matter and follow a similar decision making structure.

Subject matter

In terms of subject matter, it is clear that Aboriginal tradition is the focus of inquiry under both legislative schemes. It forms the basis of the notion of `traditional ownership' in the Land Rights (NT) Act and a principal criterion by which the `particular significance' of areas is ascertained under the Heritage Act. However, the concept `Aboriginal tradition' is somewhat elusive, and it is necessary for the schemes to form a clear conception of what is required of claimants before the sufficiency of information can be assessed. In this respect, there is a significant difference between the schemes in the clarity of their focus.

Whereas the elements of `traditional ownership' are clearly enumerated in the Land Rights (NT) Act, there is little guidance as to the nature of `particular significance in accordance with tradition' under the Heritage Act. The Land Rights (NT) Act identifies traditional owners according to concepts of `common spiritual affiliation' and `primary spiritual responsibility'. These expressions are based on a particular anthropological model of Aboriginal land `tenure' in the Northern Territory, based on notions of connection and custodianship in relation to traditional land. Although subject to criticism,[13] they provide a template for the Commissioner's inquiry, and a reference point for submissions of claimants under the Land Rights (NT) Act.[14]

In contrast, the Heritage Act merely defines `Aboriginal tradition' as `the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships'.[15] Beyond this nexus with tradition the subject matter of the critical phrase `particular significance' is not elaborated. In fact the dual reference to `tradition' has led one reporter to suggest that `any attempt to define the term "particular significance" satisfactorily on the basis of legislation becomes somewhat circular'.[16]

Decision-making structure

In procedural terms, both the Land Rights (NT) Act and the Heritage Act contemplate a two-stage decision making process, comprising an inquiry and a discretionary power to balance competing interests involved. The first stage represents a threshold inquiry into the subject matter of tradition, whether it relates to `traditional owners' under the Land Rights (NT) Act, or `significant Aboriginal areas' under the Heritage Act. The second stage is less explicit in the language of the legislation, but is readily apparent from an examination of the decision process itself, and represents a political assessment of the correct and preferable balance of competing interests, whether they be in the grant of land on trust under the Land Rights (NT) Act, or the protection of cultural heritage in the Heritage Act.

Statutory guidance

While the roles of the Commissioner and the Minister are clearly defined under the Land Rights (NT) Act, there is less certainty as to the roles of the reporter viz-á-viz the Minister under the Heritage Act. Under the former, the Commissioner is empowered to make findings and recommendations as to `traditional ownership' on the basis of the evidence presented in the hearings.[17] Moreover, although a summary of the relevant information appears in the Commissioner's report, the bulk of information, including secret material, remains in his or her possession. The Minister retains a discretion which only arises upon a positive recommendation from the Commissioner.

In contrast, the reporter under the Heritage Act is merely required to `report' on matters which may support a decision by the Minister to make a declaration. The decision making structure has been described as a `middle course' between a recommendatory power (such as that vested in the Commissioner) and an unfettered discretion vested in the Minister.[18] As such, it is unclear whether the reporter's role extends to an assessment of the subject matter, or is limited to a gathering of information for the Minister's benefit. If the former is true, it may be the case that confidential material could be dealt with by the reporter. If the latter is true, it may be the case that a finding as to the existence of a `significant Aboriginal area' is to be made by the Minister. In this case, confidential information would inevitably be passed to the Minister, at least where it was material to making a decision on `particular significance'.

These conclusions are examined below, where the subject matter of the Heritage Act and the roles of the reporter and the Minister are considered. Disclosure of information to the Minister is considered under the heading `The Delegate'. Suffice to say that there is a greater tendency for confidential information to be disclosed to the Minister than would be the case under the Land Rights (NT) Act.

Impact of `particular significance'

In order to resolve some of the uncertainty surrounding the subject matter of protection and the evidentiary threshold, it is necessary to review the language in the Heritage Act, taking account of the context surrounding its enactment. It should be noted that the subject matter may give effect to a distinction between the objective and subjective aspects of Aboriginal heritage. The objective aspect is found in the connection between tradition and sites, and is captured by the expression `significance in accordance with Aboriginal tradition'. The subjective aspect is captured by the expression `significance to Aboriginals', and the notion of cultural regeneration.

The natural question is what the expression `particular significance' was intended to add to the legislative scheme. The word `particular' invites conjecture but there seems to be a choice between two views. One is that a matter is of particular significance if it forms part of Aboriginal cultural heritage. This is a descriptive notion, containing no qualitative aspect or `no question of degree as to how significant it is in the Aboriginal cultural heritage'.[19] The other view is that a matter is only particularly significant if it forms an important part of Aboriginal heritage. That is, `there is a qualitative aspect; namely, a question of degree'.[20] If the qualitative aspect is to survive, it must be seen in the context of a division of subject matter, in which the `qualitative', or the degree of significance element, is derived from the subjective aspect of Aboriginal heritage.

Intention to preserve culture

It is obvious that the intention behind the Heritage Act was to protect Aboriginal cultural heritage. However, the central problem is that the expression `cultural heritage' connotes both historical and contemporary values - while `heritage' refers to the past, `culture' refers to the present - and the composite expression rests uneasily in both spheres.

In considering the history of settlement, it was said that Aboriginal culture was the subject of `systematic and unsystematic destruction'.[21] In that context, the legislative intention was to preserve what remains,[22] accepting that traditions may change and that protection may take account of that change. It is obvious that this reflects a concept of culture as an existing entity, which draws attention to the subjective aspect of Aboriginal heritage. This was implicit within the aim of the Heritage Act, in affording protection `[w]here an Aboriginal community closely identifies with an area which has historical, cultural or spiritual significance.'[23] As such, this intention sits uncomfortably with the qualitative approach and its focus on the substance of Aboriginal tradition. Thus, in searching for meaning in the phrase `particular significance', it may be necessary to examine the actual intention of the legislature.

Constitutional validity

It may be argued that phrase `area of particular significance to Aboriginals in accordance with Aboriginal tradition'[24] was chosen to bring the subject matter of the Heritage Act within Commonwealth legislative power, rather than to capture the essence of Aboriginal cultural heritage. The Heritage Act emerged amidst considerable obstacles; it seems that these were reflected in an attempt to `adopt or adapt, where possible, existing legislative terminology'.[25] At the time, the only relevant Commonwealth legislation was the Land Rights (NT) Act, which referred to `a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition',[26] and, more importantly, the World Heritage Properties Conservation Act 1983 (Cth) (`the World Heritage Act'),[27] which referred to `sites of particular significance to Aboriginals'.[28]

The World Heritage Act itself has been described as `a rushed piece of legislation by a government just come to power',[29] which emerged in the context of uncertainty as to the scope of the Commonwealth's races power in section 51(xxvi) and the power with respect to external affairs in section 51(xxix) of the Australian Constitution. It was apparently drafted with a view `to attach the legislation to as many heads of constitutional powers as possible'.[30] The validity of the World Heritage Act was considered in The Commonwealth v Tasmania.[31] Indeed, the views of the majority go substantially further than might have been expected. There, Mason J (as he then was) said that cultural heritage `is so much of a characteristic or property of the people to whom it belongs that it is inseparably connected with them, so that a legislative power with respect to the people of a race [or the power in section 51(xxvi)] necessarily extends to the making of [any] laws protecting their cultural heritage'.[32] His Honour further said that `[s]omething which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage'.[33]

It is therefore feasible to give effect to a range of views concerning the meaning of `particular significance,'. On Mason J's view, a law protecting areas of significance to Aboriginal people would fall within the subject matter of the races power, because these areas form part of the cultural heritage of Aborigines. A fortiori, a law which selects areas on the basis of their connection with Aboriginal tradition and the special interests of the claimants in their heritage must be a special law with respect to Aborigines. It is the people of the Aboriginal race which `give rise to the occasion for its enactment', it has a special connection with those people through the nexus with tradition, and addresses a special need or threat to their interests.[34] These alternatives accommodate a range of views of the subject matter of protection, from the purely descriptive to one which effectively combines the objective and subjective aspects discussed above.

It is suggested therefore that the subject matter requires no more than a substantial connection between the claim area and a body of Aboriginal tradition, absent of any proof of the quality of significance. This revised subject matter reduces the evidential threshold of claimants seeking to demonstrate the presence of a `significant Aboriginal area'. In doing so, the capacity of the decision making process to maintain confidentiality when dealing with claimants' traditional secrets may be increased. In order to see the impact of this definition, it is necessary to examine problems in the decision making structure and the level of information required before the Minister can make an assessment as to `particular significance'.

Building bridges

The language of the Heritage Act requires that the Minister be `satisfied' of the particular significance of an area before s/he makes a declaration. In the Hindmarsh Island Bridge Case O'Loughlin J held that, in the circumstances, the claimants needed to disclose the full details of their secret business to the Minister so that he might `appropriately consider their efficacy and the weight that he should give to them'.[35] In stronger terms, Carr J in the Crocodile Farm Case said that the `particular significance' of an area had to be established before the Minister could make a decision.[36] There seems therefore to be a difference in emphasis over the nature of the Minister's discretion and the precise nature of `proof' contemplated under the Heritage Act. While it may be necessary to prove the veracity of claimants - in order to attract `broad community acceptance' of the heritage protection scheme - it is pertinent to consider the notion of `proof' involved and the method through which it is obtained.

Proof and probative evidence

The Minister's assessment will be constrained at least by the requirements of probative evidence[37] and reasonableness.[38] The probative evidence rule requires that an administrative decision be based on some `logically probative material' or material `which is reasonably capable of sustaining it'.[39] Thus, there must be some relevant evidence before the decision maker on the issue. S/he cannot rely on `mere suspicion or speculation'.[40] The corollary is that factual determinations may be reviewed where they are `unreasonable', or where the result is `so devoid of any plausible justification' that no reasonable person could have come to it in the circumstances.[41] Ordinarily the application of these rules will present little obstacle to the making of a permanent declaration under the Heritage Act, because relevant material will invariably be presented in the mandatory report.

What may pose an obstacle to the Minister is the `no evidence' ground of judicial review and the notion of jurisdictional fact. Under the former, a decision which depends on the establishment of a particular fact may be reviewed if there was no evidence from which the decision maker could reasonably be satisfied.[42] And, turning the phrase around, it is said that the requirement that the Minister be satisfied of the significance of an area is equivalent to a requirement that the significance of the area be established.[43] It would seem, therefore, that the assessment of `particular significance' is objective, based not on the Minister's personal opinion but on the existence of threshold evidence which would make such an opinion reasonable.[44] While the consequences of success under this ground may be more serious than under the probative evidence rule, the circumstances will be rare in which there is no evidence upon which a Minister is unable to be reasonably satisfied. The important consideration is the increasing objectivity of the test imposed in the process of judicial review.

According to the doctrine of jurisdictional fact, where a decision making power depends on the existence of certain facts, then, although an assessment of those facts may be left to the decision maker, `the court must inquire whether those facts exist'.[45] The jurisdictional fact doctrine is taken to reflect a broader principle that a decision making body of limited jurisdiction cannot determine that jurisdiction itself by an incorrect factual finding.[46] In the context of the Heritage Act, it has been said that `[i]f the Minister is not ... satisfied, [s/he] lacks the power to make a declaration'[47] . Viewed in concert with the claim that the matters must be `established', this may raise the question of jurisdictional fact. Thus, the suggestion that `particular significance' is an objective commodity readily invites review of this ground.

This common law ground of review has been rarely used in Australia, and there may be some doubt as to its application to the Minister's decision in this context. The vagueness of statutory criteria, and the position of the court viz-á-viz the decision maker under the Heritage Act, may tell against the jurisdictional fact approach.[48] Indeed, its application to a case in question may be wholly subsumed by the statutory `no evidence' ground,[49] although there is authority to suggest that the common law concept survives in the ground for `error of law'.[50]

What is of concern is the fact that the doctrine of jurisdictional fact has been discussed recently in circumstances similar to those under the heritage protection scheme. It has been considered in respect of illegal immigrant status before the Minister for Immigration and Ethnic Affairs and in respect of a Minister's power to instigate a reporting and consultation function under the Environment Protection Act.[51] In addition, it has been applied to the question of `Aboriginality' before the Commissioner for the Royal Commission Into Aboriginal Deaths in Custody.[52] And, critically, the doctrine was discussed in relation to a similar question before the Australian Heritage Commission as to whether certain areas formed part of the `National Estate'.[53] It is not difficult to see a connection between this question and the question of `particular significance' before the Minister under the Heritage Act, especially where the determination is described as a condition precedent to the exercise of the Minister's discretion. It is therefore suggested to be important to shift the burden of an objective finding away from the Minister, lest the Minister be required to breach the confidentiality of traditional information supplied under the Heritage Act.

The Delegate

While it may be accepted that there must be a modicum of information, there is no definitive statement in either the Hindmarsh Island Bridge Case or the Crocodile Farm Case as to the person before whom `particular significance' must be established. Clearly, the Minister is able to adopt determinations as to `traditional ownership' made by the Aboriginal Land Commissioner, not merely by virtue of the express provisions under the Land Rights (NT) Act, but also by virtue of the nature of the power conferred on the Commissioner. There is no such certainty in respect of the reporter and the question of `particular significance' under the Heritage Act.

Ordinarily, a limited power to delegate could be argued in the context of the Heritage Act according to the nature, scope and purpose of the decision making power and `the realities of the functioning of responsible government and the limitations of human capacity'.[54] Given the discussion above of objective and subjective aspects of Aboriginal heritage, it would be natural to imply a power to delegate all aspects of fact finding to the reporter, provided the Minister retains `the substantial exercise of the discretion or the substantial formation of the opinion'.[55]

Specifically, it is said that a decision maker may adopt the findings of a report notwithstanding that it is s/he who must decide, provided the report sufficiently sets out facts and relevant considerations. Thus, a decision maker need not examine the evidence and factual material upon which the findings of an inquiry are based, unless s/he wishes to derogate from those findings, and s/he is not required to hear evidence or submissions, except insofar as the principles of procedural fairness require him or her to hear parties adversely affected.[56]

Various statements in the recent cases certainly suggest that it is open to the Minister to `adopt' reporters' findings and make their `satisfaction' his or her own. In this way, the Minister could be seen to be delegating a power to determine the question of `particular significance', retaining the power and the decision to make a declaration. This suggestion however may be misleading. Strictly speaking, the reporter is not empowered to make findings in respect of `particular significance'; and while the Heritage Act allows the Minister to delegate a range of powers and functions, it does not extend to those in relation to temporary and permanent declarations.[57] Much therefore depends on the precise nature of the powers and functions involved.

By the terms of the Heritage Act, the Minister must `consider the report and any representation attached to the report', and it is said that this points to a `substantial personal involvement'.[58] Thus, in making a declaration, the Minister must be personally satisfied of the significance of an area, and s/he cannot dismiss an application without considering, in some detail, the case for the claimants. On the other hand, the Minister must personally consider representations, and must obviously consider the interests of persons likely to be affected by a declaration. This apparently reflects an intention in the Heritage Act to provide interested members of the community with `an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application'.[59]

The obligation to consider the report does not seem to preclude the Minister from adopting the reporter's findings and making `their satisfaction his or her own'. But it is unclear whether the obligation to consider the representations necessarily engages the Minister in a factual assessment of confidential material. It is open to suggest that the obligation `does not mean that [the Minister] must read every word of every document'. According to O'Loughlin J, `[t]he concept of his [sic] considering the representations must involve a balanced mixture of staff assistance and personal involvement'.[60] It may be argued that a `balanced mixture' would be effected by the Minister leaving consideration of the confidential material to the reporter.

Whether the result be achieved by principles of implied delegation, or by a realistic appraisal of the Minister's powers and functions under the Heritage Act, it seems that s/he will never be required to see all the evidence relating to the question of particular significance. This may leave enough room for the Minister to avoid offending the principles of confidentiality that may arise in relation to traditional Aboriginal information.

This approach is entirely consistent with the `scope, purpose and object' of the Heritage Act, being the preservation and protection of Aboriginal cultural heritage in the context of a political decision making process which ensures that claims are tested, and that the Minister is personally involved in the consideration and balance of competing interests. It is an approach which was echoed in another context where it was said that if the Minister for Immigration and Ethnic Affairs was obliged to consider all the material before the Committee for the Determination of Refugee Status, `there would not be much point in having a Committee'.[61] In the circumstances, it was considered unreasonable not to allow the Minister to adopt the findings of a Committee appointed for precisely the purpose of making a `determination'. By analogy, it may be unreasonable not to allow the Minister to adopt the `findings' of a reporter who may be appointed specifically for the purpose of receiving confidential traditional information.

Implications

It is argued that the notion of jurisdictional fact represents the high water mark for concerns over the veracity of claimants and the proof of tradition under the Heritage Act. In this sense, it accurately reflects the concerns raised by the applicants in the Crocodile Farm Case and the Hindmarsh Island Bridge Case as to `recent invention' and `conspiracy' on the part of claimants. However, the emphasis on proof in the doctrine disregards entirely the suggestion that Aboriginal heritage is as much a subjective concept as it is objective, and thus secrecy dictates of Aboriginal `law'.

It is suggested that if the inquiry into the objective and subjective aspects of the Heritage Act were exercised by separate individuals, the possibility of such conflicts would fade. In such a situation, the receipt of a report and the Minister's assessment of subjective material would constitute the condition precedent to the discretion. Therefore any attack on the Minister's `jurisdiction' would be confined by the nature of the doctrine itself which discloses a reluctance to interfere with an assessment of subjectively ascertained facts.[62] The remote possibility of review under this ground may therefore be rejected.

However, although the jurisdictional fact approach may be easily disposed of, the matter of delegation to the reporter is a more serious question. The notion that the Minister may adopt a report where it contains `facts and relevant considerations' tends to bring the issue back to the subject matter of the Heritage Act - the question being the scope of the relevant facts or considerations to which the Minister's attention should be drawn. It appears to have been accepted that, in the context of the Act, the `relevant facts' relate to the existence of `particular significance' rather than the nature of that significance per se,[63] although one can by no means be certain.

It is therefore critical to understand the precise subject matter of the Heritage Act and the impact of `particular significance' on the Minister's discretion before any argument over delegation can be determined. In practical terms, more emphasis should be placed either on reducing the evidential requirements of the Minister's discretion, or alternatively, on reviewing and improving the capacity to delegate. Notwithstanding these considerations, the question remains as to the extent to which the principles of procedural fairness restrain the capacity to withhold information from the holders of competing interests.

Conclusions

There is a clear nexus between the desire to obtain proof and community acceptance and the need to balance competing interests in the protection of Aboriginal cultural heritage. The appropriate mechanism for the achievement of these objectives, whilst preserving and respecting Aboriginal cultural heritage itself, is a difficult question, but one which may be answered with cognisance of the scheme established under the Land Rights (NT) Act. It is clear that there must be an expansion, rather than a limitation, of the application of avenues in administrative law which may serve to protect the confidentiality of traditional information. Without this concern it may be impossible to bridge the gap between Aboriginal customs and traditions, an element in the subject of protection, and the requirements of Australian law, a procedural template for decision making.

It seems reasonable to conclude that the language of the Heritage Act was chosen as an attempt to commandeer the terminology of the Land Rights (NT) Act and the World Heritage Act, and to accommodate narrow views regarding the scope of Commonwealth's legislative powers in section 51(xxvi) of the Constitution. Consequentially, there is an uncomfortable juxtaposition of disparate concepts in the critical expression `particular significance to Aboriginals in accordance with Aboriginal tradition'. The net result has been uncertainty as to what constitutes sufficient information for the Minister to make a decision under the Heritage Act.

At the same time, it seems reasonable to suggest the legislation was drafted in order to maximise the weight placed on the Minister's judgment, and to ensure the capacity of the Commonwealth scheme to respond to threats of injury or desecration. However, the consequence has been that assessments of the significance of sites become disjointed and highly `visible' for the purposes of judicial review.

Perhaps the greatest problem is that the stages of identification of Aboriginal heritage and the balance of competing interests both disclose a desire to have claimants prove the basis of their claim. Clearly a modicum of information is necessary in order to ascertain the existence of `significant Aboriginal areas' and, more importantly, to disprove assertions of recent invention, or conspiracy, which are thought to underpin claims to cultural regeneration. However, it is accepted that the concepts which the process would seek to prove are shaped by European perceptions `and do not necessarily fit with categories or concerns in Aboriginal culture'. In this respect it is misleading to speak of objectivity and it is misleading to speak of `proof'.[64] The point is that any notion of proof requires an active dialogue between the claimants and the decision makers, or more accurately between Aboriginal customs and traditions and Administrative law.

A final examination of the Land Rights (NT) Act will make this point abundantly clear. Through the expressions `common spiritual affiliation' and `primary spiritual responsibility', the Land Rights (NT) Act seeks to implement a particular conception of traditional Aboriginal `ownership'. These phrases have been said to have been chosen to overcome `the problem of being able to accurately convey in one language the concepts expressed in, and even unique to, another'.[65] In this respect the Land Rights (NT) Act may be seen as `a legislative attempt to bridge the void between two totally dissimilar systems of law',[66] insofar as they relate to ownership and property rights.

Without greater clarity in subject matter or in decision making roles, the process of protection under the Heritage Act must work harder to establish and maintain an effective dialogue. In the end, the difference between objective and subjective aspects of heritage must be recognised and respected in the context of a two stage decision making process. It is only then that the heritage protection scheme can improve respect for confidentiality and satisfy itself of the veracity of claims to traditional significance. Accordingly, it is necessary to build bridges between mainstream Australian law and Aboriginal customs and traditions in order to effect this dialogue, through a closer analysis of the meaning of `particular significance' and a re-examination of the roles of the reporter and the Minister under the Heritage Act. It is not permissible to traffic information out of the corpus of Aboriginal tradition without affording protection to the concerns of the claimants. If this were to be done, it may be better to build no such bridges at all than ones which only run one way.


[1] Section 50(1)(a)(i) & (ii). There have been five Commissioners: The Hon Mr Justice Toohey, Mr Justice Maurice, Mr Justice Kearney, Mr Justice Olney, and Mr Justice Gray.

[2]Section 50(3).

[3]Section 50(3)(a)-(d).

[4]See Uluru (Ayers Rock) National Park and Lake Amadeus/Luirja Land Claim, No. 4, 1980, para 71; Land Claim by Gurindji to Daguragu Station, No. 12, 1982, paras 117 & 118.

[5]See Re Toohey; Ex parte Stanton (1983) 57 ALJR 73, per Wilson J at 75 and Re Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 58 ALJR 243, per Gibbs CJ at 245 with whom Brennan, Deane and Dawson JJ agreed.

[6]Section 10(1)(a).

[7]Section 10(10(b).

[8]Section 3 (emphasis added).

[9]Section 10(4); Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409. A number of reports have been prepared for the Minister by Dr Senior, Mr G Neate, The Hon Mr Justice Stewart, The Hon Mr Justice Wootten, Mr J Menham, Mr G Jones, The Hon F Chaney, and Professor C Saunders.

[10]Hansard (Representatives), 9 May 1984, page 2130.

[11]Aboriginal and Torres Strait Islander Heritage (Interim) Protection Act 1984 (Cth), s33.

[12]Apparently, in the context of growing State involvement in the area, it was considered that the preferred Commonwealth scheme was `not warranted': The Hon Mr Holding, Ministerial Statement, Hansard (Representatives), 18 March 1986, page 1475.

[13] It seems that the anthropological model from which they derive fails to take account of inherent differences in the nature of traditional ownership between different claimant groups: Anthropology, Law and the Definition of Australian Aboriginal Rights to Land, K Maddock, Nijmegan, 1980. See Uluru (Ayers Rock) National Park and Lake Amadeus,/Luritja Land Claim, No. 4, 1980, para 85, per Toohey J; Kidman Springs Land Claim, para 5.11, per Maurice J where anthropological approaches are rejected. Note particularly McClaren Creek Land Claim

[, ]No. 32, 1991, para 4.4, per Olney J.

14 `Legal Language Across Cultures: Finding the Traditional Aboriginal Owners of Land', G Neate, (1980) 12 Federal Law Review, 18, page 211.

[15] Section 3.

[16] Aboriginal and Torres Strait Islander Heritage Protection Act 1984: Report to the Minister for Aboriginal Affairs on the Kakadu Conservation Zone, Hon Justice D.G. Stewart, May 1991 (`Stewart Report'), para 3.03.

[17] Booroloola Land Claim, No. 1, para 19, per Toohey J; Finnis River Land Claim, 1981, para 248, per Toohey J.

[18] The Hindmarsh Island Bridge Case, unreported, per O'Loughlin J at 36.

[19] Stewart Report page 21.

[20] Stewart Report page 21.

[21] The Commonwealth v Tasmania, [1983] HCA 21; (1983) 158 CLR 1 per Murphy J at 510.

[22] The Hon C Holding, Second Reading Speech, Hansard (Representatives), 9 May 1984, page 2133; see also Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409 per French J at 449.

[23] The Hon C Holding, Second Reading Speech, Aboriginal and Torres Strait Islander Heritage (Interim Protection) Amendment Act, 1986 (Cth), Hansard (Representatives), 16 April 1986, page 2420.

[24] Heritage Act, s3.

[25] `Power, Policy, Politics and Persuasion - Protecting Aboriginal Heritage under Federal Laws', G Neate, (1989) 6 Environmental and Planning Law Journal 214, page 225.

[26] Land Rights (NT) Act, s3.

[27] Which partially enacted the Convention for the Protection of the World Cultural and Natural Heritage.

[28] World Heritage Act, ss8 and 11.

[29] `Law and the Cultural Heritage', A Erh Soon Tay in Who Owns the Past, I McBryde (ed), OUP, Melbourne, 1985, page 136.

[30] `Law and the Cultural Heritage', ibid, page 133.

[31] [1983] HCA 21; (1983) 158 CLR 1 per Mason Brennan and Deane JJ, cj Gibbs CJ at 479-480, Dawson J at 572, and Wilson J at 520.

[32] Per Mason J at 501, Brennan J at 538 and Deane J at 552.

[33] Per Mason J at 501 (emphasis added).

[34] See Stephen J in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 39 ALR 417 at 642.

[35] The Hindmarsh Island Bridge Case per O'Loughlin J at 127.

[36] The Crocodile Farm Case, unreported, per Carr J at 44.

[37] Arule which may form part of the requirements of natual justice in the Administrative Decisions (Judicial Review) Act 1977 (Cth), s5(1)(a).

[38] Administrative Decisions (Judicial Review Act 1977 (Cth), ss5(1)(e) & 5(2)(g).

[39] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 per Deane J at 68.

[40] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 per Deane J at 68.

[41] Associated Provincial Oicture Houses v Wednesday Corporation [1947] EWCA Civ 1; (1948) 1 KB 223; see also Prasad v Minister for Immigration and Ethnic Affairs (1984) 6 FCR 155 per Wilcox J at 169.

[42] Administrative Decisions (Judicial Review) Act 1977 (Cth), ss5(1)(f) & 5(3)(a).

[43] That is, the language of 35(3)(a) `equates establishment of a particular matter with satisfaction that the matter was established', per Carr J, the Crocodile Farm Case at page 44.

[44] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA at 156.

[45] R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 per Scarman LJ at 110.

[46] R v Gray, Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 375.

[47] The Crocodile Farm Case per Carr J at page 44.

[48] See Queensland v Wyvill [1989] FCA 485; (1989) 25 FCR 512 per Pincus J.

[49] Administrative Decisions (Judicial Review) Act 1977 (Cth) s5(3).

[50] Administrative Decisions (Judicial Review) Act 1977 (Cth) s5(1)(f).

[51] The jurisdictional fact approach was alluded to by the full court in Australian Postal Corporation v Botany Municipal Council [1989] FCA 503; (1989( 69 LGRA 86, but rejected by Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 127 ALR 580.

[52] Queensland v Wyvill [1989] FCA 485; (1989) 25 FCR 512 per Pincus J at 519. This approach was upheld by the Full Bench of the Federal Court notwithstanding a difference of opinion as to the facts: Attorney-General (Cth) v State of Queensland (1990) 94 ALR 515 at 520-521 and 524.

[53] Between: Mount Isa Mines Limited And: The Australian Heritage Commission [1995] FCA 1095; (1994) 128 ALR 509.

[54] Sean Investments v Mackeller [1981] FCA 191; (1981) 38 ALR 363 per Deane J at 373.

[55] O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 per Mason J at 18-19.

[56] Taylor v Public Service Board [1976] HCA 36; (1976) 137 CLR 208 per Murphy J at 226.

[57] Heritage Act, s 31.

[58] Sections 10(1)(c) and 9.

[59] Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409 per Black CJ at 194.

[60] The Hindmarsh Island Bridge Case at 192.

[61] The Hindmarsh Island Bridge Case per Forster J at 10.

[62] Queensland v Wyvill [1989] FCA 485; (1989) 25 FCR 512 per Pincus J at 618.

[63] The concern in theHindmarsh Island Bridge Case seems to have been that the Minister, in his reasons for the decision, descended to detail regarding the substance of the women's business, thus taking the relevant considerations beyond the report provided: see O'Loughlin J at 123-124.

[64] Neate Report, page 39. See particularly Description and Comparison in Cultural Anthropology, A Goodenough, Aldine, Chicago, 1970, page 105; Convention, Translation, and Understanding: Philosophical Problems in the Comparartive Study of Culture, R Feleppa, SUNY, Albany, 1988; Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences, G Marcus and M Fisher, 1986, UCP, Chicago, pages 47 and 166.

[65] `Legal Languages Across Cultures: Finding the Traditional Aboriginal Owners of Land', G Neate, (1981) 12 Federal Law Review 187 at 193.

[66] Ibid at 210.


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