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Supreme Court of Western Australia |
Last Updated: 14 May 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION : ROBINSON -v- FIELDING [2015] WASC 108
CORAM : CHANEY J
HEARD : 27 NOVEMBER 2014, 23 DECEMBER 2014, WRITTEN SUBMISSIONS 6 FEBRUARY 2015
DELIVERED : 1 APRIL 2015
FILE NO/S : CIV 1838 of 2014
BETWEEN : KERRY ROBINSON
First Applicant
DIANA ROBINSON
Second Applicant
AND
GAVIN FIELDING
VANESSA KICKETT
IAN MCLEOD
KEN MCCRAKEN
AARON RAYNER
(ABORIGINAL CULTURAL MATERIALS COMMITTEE)
First Respondent
PILBARA PORT AUTHORITY
Second Respondent
MINISTER FOR INDIGENOUS AFFAIRS
Third Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
Catchwords:
Aboriginal heritage - Sacred site - Standing to seek judicial
review - Whether Aboriginal Cultural Materials Committee misapplied
Aboriginal Heritage Act 1972 (WA) -
Whether procedural fairness observed - Right to be heard
Words and
phrases - Sacred site
Legislation:
Aboriginal
Heritage Act 1972
(WA)
Aboriginal
Heritage Amendment Act (No 2) 1980 (WA)
Result:
Decision of first respondent quashed
Matter referred back
to first respondent
Category: B
Representation:
Counsel:
First Applicant : Mr G M McIntyre SC & Mr P A Sheiner
Second Applicant : Mr G M McIntyre SC & Mr P A Sheiner
First Respondent : No appearance
Second Respondent : Ms M K Watts
Third Respondent : No appearance
Intervener : Mr G T W Tannin SC
Solicitors:
First Applicant : Roe Legal Services
Second Applicant : Roe Legal Services
First Respondent : No appearance
Second Respondent : M Watts Legal
Third Respondent : No appearance
Intervener : State Solicitor for Western Australia
Cases referred to in judgment:
Introduction1 The applicants, Diana and Kerry Robinson, are a sister and brother who are part of the Marapikurrinya family group (or clan estate) and part of the Kariyarra native title claim group.[1] They are both directors of Marapikurrinya Pty Ltd (MPL), a company which carries out heritage work including the commissioning of anthropological and archaeological heritage surveys in the Port Hedland area.[2]
2 The applicants filed an application for judicial review on 17 June 2014, and an amended application on 27 October 2014, seeking judicial review and a writ of certiorari in relation to a decision of the Aboriginal Cultural Materials Committee (ACMC or Committee) made on 18 December 2013 pursuant to s 18(2) of Aboriginal Heritage Act 1972 (WA) (AH Act). The decision to be reviewed is described in the application as follows:
The forming of an opinion for the purposes of s 18(2) of the Aboriginal Heritage Act 1972 (WA) as to whether there was an Aboriginal Site on the land and waters the subject of a notice dated 17 October 2013 submitted by the Port Hedland Port Authority that the Minister consent to the use of the land and waters the subject of the notice and/or the making of a recommendation to the Minister in relation to that notice that the proposed use of the land and waters would not impact upon any Aboriginal sites.
3 At the hearing of the matter on 27 November 2014, counsel for the applicants clarified their position to be that this was 'one decision with two elements',[3] being the decision that Marapikurrinya Yintha was not an Aboriginal site and, secondly, the recommendation made by the ACMC to the Minister for Aboriginal Affairs (the Minister). However, counsel also stated that the applicants sought orders quashing both decisions.[4] It is clear from the grounds of review that they are all directed to the ACMC's determination that Marapikurrinya Yintha was not an Aboriginal site, as that expression is used in the AH Act. It was that decision which conditioned the recommendation to the Minister, so that if that decision is set aside, it necessarily follows that the recommendation to the Minister cannot stand.
4 In essence, the applicants contend that the ACMC misconstrued the expression 'sacred site' as it is used in the AH Act and, in doing so, took into account irrelevant considerations, failed to have regard to relevant considerations, failed to exercise an independent discretion, denied the applicants procedural fairness and acted unreasonably.
5 The first respondent (the ACMC) and third respondent (the Minister) filed notices of intention to abide on 11 July 2014 and 12 November 2014 respectively. The second respondent, the Pilbara Port Authority (PPA) (which was the Port Hedland Port Authority (PHPA) at the time these proceedings were commenced), did not file a notice to abide nor did it make any submissions prior to the hearing of the matter. Counsel for the PPA appeared at that hearing and clarified that its position was that it wanted to make sure that the notice they issued pursuant to s 18 of the AH Act (the Notice) was not being challenged and that the matter was heard in a prompt manner. Being satisfied of both of those matters counsel then requested, and was allowed, to be excused from the hearing.
6 On 24 October 2014, the Attorney General filed a chamber summons seeking leave to intervene, or alternatively to appear as amicus curiae in these proceedings. On 30 October 2014, I made orders, by consent of the parties, granting the Attorney General leave to intervene and be heard in relation to this application.
Statutory Framework7 The AH Act is 'an Act to make provisions for the preservation on behalf of the community of places and objects customarily used by, or traditional to, the original inhabitants of Australia or their descendants, or associated therewith, and for other purposes incidental thereto'.
8 Section 5 describes the places to which the Act has application. It provides:
This Act applies to
(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
(c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
(d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.
9 The expression 'Aboriginal site' is defined to mean a place to which the Act applies by the operation of s 5.
10 The ACMC is established by s 28 of the AH Act. Section 39 sets out the functions of the Committee as follows:
(1) The functions of the Committee are
(a) to evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons;
(b) where appropriate, to record and preserve the traditional Aboriginal lore related to such places and objects;
(c) to recommend to the Minister places and objects which, in the opinion of the Committee, are, or have been, of special significance to persons of Aboriginal descent and should be preserved, acquired and managed by the Minister;
[(d) deleted]
(e) to advise the Minister on any question referred to the Committee, and generally on any matter related to the objects and purposes of this Act;
(ea) to perform the functions allocated to the Committee by this Act; and
(f) to advise the Minister when requested to do so as to the apportionment and application of moneys available for the administration of this Act.
(2) In evaluating the importance of places and objects the Committee shall have regard to
(a) any existing use or significance attributed under relevant Aboriginal custom;
(b) any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;
(c) any potential anthropological, archaeological or ethnographical interest; and
(d) aesthetic values.
(3) Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place or object for the purposes of this Act.
11 Section 37 establishes the position of Registrar of Aboriginal Sites, whose function it is to administer the day to day operations of the ACMC and perform other functions allocated by the AH Act. Section 38 requires that the Registrar, so far as practicable, is to maintain a register of all places and objects to which the AH Act applies.
12 Section 17 makes it an offence for any person to excavate, destroy, damage, conceal, or in any way alter, any Aboriginal site unless that person is acting with the authorisation of the Registrar under s 16 or with the consent of the Minister under s 18. Section 16 permits the Registrar, on the advice of the ACMC, to interfere with Aboriginal sites.
13 Section 18 provides for the owner of land to obtain consent from the Minister to use land for a purpose which would otherwise breach s 17. PPA is an owner of land for the purposes of s 18. Section 18(2) and s 18(3) provide:
...
(2) Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.
(3) Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either
(a) consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
(b) wholly decline to consent to the use of the land the subject of the notice for the purpose required,
and shall forthwith inform the owner in writing of his decision.
14 Section 18(5) provides a right to the owner of any land who is aggrieved by the decision of the Minister to apply to the State Administrative Tribunal for a review of the decision.
Background15 The Registrar of Aboriginal Sites maintains a Register of all protected areas, Aboriginal Cultural material and all other places and objects to which the AH Act applies.[5] The Marapikurrinya Yintha is a body of water encompassing the waters of the Port Hedland harbour together with numerous creeks adjoining those waters. Its significance to Aboriginal people will be discussed further below. The Marapikurrinya Yintha was entered onto the Register of Aboriginal sites on 6 August 2008. This occurred after the ACMC considered a s 18 notice and formed an opinion that the Marapikurrinya Yintha was an Aboriginal Site under that AH Act.
16 On 6 August 2008, the ACMC considered a s 18 notice issued on 17 April 2008 by BHP Billiton Iron Ore Pty Ltd (BHPIO) on behalf of the Port Hedland Port Authority and Mount Newman Iron Associates in relation to new berths to be located at Nelson point and further dredging of Port Hedland Harbour.[6] In forming an opinion that the Marapikurrinya Yintha was an Aboriginal Site, the ACMC took into account:
17 Prior to forming its 6 August 2008 opinion, the ACMC also undertook a consultation process with the applicants. This included an oral presentation by the applicants to the ACMC on 9 July 2008 in relation to the significance of the Marapikurrinya Yintha.[8] Then on 10 July 2008, by letter from the ACMC to Christensen Vaughan (then solicitors for the applicants), the applicants were given an opportunity to comment and respond to the Barber report.[9] On 21 July 2008, the applicants responded via email to the ACMC, which included written submissions and a letter from Mr Nic Green of Anthropos providing an anthropological response to the Barber report.[10]
18 The Anthropos report, which was prepared for MPL and BHP, states that the Port Hedland Harbour is associated with a Warlu (rainbow serpent), about which it says:[11]
19 The rainbow serpent is also referred to as Kata-Katara, which is a name for a rainbow snake which is an ancestral being associated with Yintha (living water). It is a significant figure in indigenous mythology.[12]
20 The Anthropos report also stated:[13]
The Marapikurrinya Consultants advised that Area B cited for land reclamation is part of the Marapikurrinya Yintha Aboriginal site and as such holds ethnographic significance to the Marapikurrinya people. They have advised that they do not agree with the proposed land reclamation for Area B as this will adversely affect the Warlu and may cause the Warlu to become angry, which may result in flooding and heightened cyclonic activity within the Port Hedland area (see Anthropos Australis: 2008a).
21 The ACMC considered further s 18 Notices on 16 October 2008, 2 December 2009 and 3 August 2011 and on each occasion proceeded on the basis that the Marapikurrinya Yintha was an Aboriginal Site under that Act.[14]
22 At its meeting on 16 October 2008, the ACMC considered two further ethnological surveys by Anthropos, dated April 2008 and May 2008 and prepared at the request of MPL and BHP. It also considered two Aboriginal archaeological surveys prepared at the request of MPL and Fortescue Metals Group Ltd. These were an April 2008 report by G Jackson, R & S Coughlan, and a May 2008 report by S Coughlan, G Jackson, W Mitchell and J Stedman. The Committee resolved to extend the boundary of the Marapikurrinya Yintha site to the low water mark.
23 At the meeting on 2 December 2009, the ACMC considered views of Aboriginal representatives regarding the location of the boundary line of the site, but declined to alter the boundary.
24 At the 15 August 2011 meeting, the Committee concurred with the Departmental site assessment recommendations, maintaining that the Marapikurrinya Yintha was a site to the low water mark, as was consistent with the Committee's previous decisions on the site. The ACMC did not concur with the Department of Aboriginal Affair's (the Department) professional advice and recommendations in relation to the s 18 notice, ultimately providing consent to the notice with conditions.
25 The next s 18 notice considered by the ACMC in relation to the Port Hedland Harbour was the notice of 17 October 2013, which I discuss in detail below. In July 2013, prior to the ACMC considering that notice, the ACMC had adopted new guidelines in relation to s 5 of the AH Act, which included public release of a document titled 'Section 5 of the Aboriginal Heritage Act 1972 (WA)' (s 5 Guidelines).[15] The guidelines list criteria that will be taken into account when determining whether a place is a sacred, ritual or ceremonial site which are additional to the criteria specified in s 39 of the AH Act, including that '[f]or a place to be a sacred site requires that it is devoted to a religious use rather than a place subject to mythological story, song or belief'.[16]
The current application26 On 17 October 2013, the Department received a notice pursuant to s 18 of the AH Act submitted by the Port Hedland Port Authority (PHPA) to impact a registered Aboriginal heritage site on portions of Lot 370, on Deposited Plan 35619, Port Hedland, for the development, operation and maintenance of a port and associated infrastructure (the 2013 s 18 Notice).[17] The PHPA sought to use part of the Port Hedland harbour to construct and operate a new berth facility called Lumsden Point (Lumsden Point development). As discussed above, at that time Marapikurrinya Yintha, which covered all waters of Port Hedland harbour including the area of the Lumsden Point development site, remained on the on the Register of Aboriginal sites.
27 The 2013 s 18 Notice included a report dated 2013 and titled 'A report on the Aboriginal heritage values within the Port Hedland Port Authority's proposed general cargo wharf, Lumsden Point, Port Hedland, Western Australia' prepared by Mr Robert Brock (the Brock report),[18] an archaeologist employed by the PHPA. The report notes that:
The Port Collaboration and Heritage Agreement (PCHA) between Marapikurrinya Pty Ltd (MPL) and the PHPA does not require a heritage survey to be conducted in an area previously surveyed in relation to activities of the nature and impact of the proposed development activities (PCHA, Schedule 1, Section 4).
The purpose of this report is to identify the previous heritage surveys undertaken within the footprint of the proposed [general cargo wharf] and detail the heritage values within that area in support of an application under section 18 of the Aboriginal Heritage Act 1972 (AHA).[19]
28 The Brock report then identifies six previous Aboriginal heritage survey reports and one archaeological salvage report that relate to the Lumsden Point development footprint.[20] The Brock report concludes that three of the heritage survey reports 'were undertaken for a nature and activity comparable to the current proposed works',[21] and that they 'comprehensively identify the Aboriginal heritage values in the Lumsden Point area. As a result of subsequent development works in the Lumsden Point area, namely BHPBIO's Dredge Material Management Area associated with its Rapid Growth Project 5, and design by PHPA to avoid Aboriginal heritage sites where possible, PHPA's proposed GCW will impact upon only one Aboriginal heritage site DAA Site ID 22874 Marapikurrinya Yintha'.[22] The Brock report makes a final recommendation that the PHPA lodge an application under s 18 should it need to impact DAA Site ID 22874 Marapikurrinya Yintha.[23]
29 On 25 November 2013, an anthropologist employed by the Department produced a Site Summary Report for Site ID 22874 Marapikurrinya Yintha (Department report), the purpose of which was described in the report as 'a reassessment of registered Aboriginal site DAA 22874 (Marapikurrinya Yintha) and achievement of a resolution as to whether s 5 of the AH Act remains applicable'.[24]
30 The Department report outlines the archaeological and ethnographic surveys that had been undertaken in Port Hedland since the early 1990s. It refers to surveys undertaken by Louis Warren in 1994 and 1995 and Ryan Hovingh in 1998, in which no mention of the Marapikurrinya Yintha was made. It then refers to a survey by Nic Green and Gavin Jackson in 2006, in which Kerry Robinson was one of the Aboriginal informants. It refers to two further ethnographic surveys by Nic Green and Kyoto Metz of Anthropos in 2008, noting that in the first of these surveys Green and Metz concluded that the informants involved wanted the boundary of the Marapikurrinya Yintha extended to include the whole of the Port Hedland Harbour.[25] The Department report then refers to an archaeological survey of Fortescue Metal Group Ltd's south east settlement ponds in 2009 by Australian Cultural Heritage Management, which involved Aboriginal informants who identified as Coastal Kariyarra, including Kerry Robinson. During this survey there was no mention of the Marapikurrinya Yintha. It refers to three further heritage surveys by Anthropos in 2009, in which Aboriginal informants, who identified as Coastal Kariyarra as well as informants from neighbouring areas, stated that all waters and major tributaries flowing into the Port Hedland Harbour were yintha and that the Kata-Katara lived in that water.[26]
31 The Department report then discusses the Barber report at length, identifying issues raised by Barber in relation to the Green and Metz report including:
32 The Department report then refers generally to subsequent survey reports by Anthropos, Green, Metz and others which continued to assert that the Marapikurrinya Yintha encompasses the entire Port Hedland Harbour, but without specifying the dates of those reports or listing them in the section entitled 'Previous Reports'. The Department report does not refer to the applicants' response to the Barber report, which was provided to the ACMC on 21 July 2008, nor to the letter from Anthropos in response to the Barber report of 14 July 2008.[28]
33 The Department report then contains a section entitled 'Registrar's Points to Consider' which includes:
34 The Department report concludes by stating that '[b]ased on the information provided, DAA 22874 (Marapikurrinya Yintha) is no longer a site to which section 5 of the AHA applies'.[30]
35 On 28 November 2013, the Department report and the 2013 s 18 Notice were circulated to members of the ACMC, along with agenda items 3.3.1 and 3.3.2 for the ACMC meeting planned for 11 December 2014 and a map in relation to the land subject to the 2013 s 18 Notice and DAA Site 22874. Agenda Item 3.3.1 reads as follows[31]:
ABORIGINAL CULTURAL MATERIALS COMMITTEE
AGENDA ITEM 3.3.1
SECTION 5 ASSESSMENT ABORIGINAL HERITAGE ACT 1972
Heritage places for assessment:
|
Item #
|
DAA #
|
Place Name
|
Place Type
|
Current Assessment
|
For Resolution
|
|
1
|
22874
|
Marapikurrinya Yintha
|
Mythological, Named Place
|
5(b)
|
Not a site
|
36 In agenda item 3.3.2, under a heading 'ACMC Decision', it reads:
Will the Purpose breach section 17 of the Aboriginal Heritage Act 1972 if consent is not granted?
If the ACMC concurs with the Departmental assessments, no sites will be impacted by the Purpose.
Points to consider (include if necessary conditions detailed in agreements between parties):
37 On 3 December 2013, the Registrar wrote to Ms Raechel Paris, the Acting CEO of the PHPA, requesting additional information in relation to the Site, stating that her view was that the ethnographic information submitted with the 2013 s 18 Notice 'does not demonstrate evidence of the Aboriginal heritage sites on the land subject of the notice'.[33] In particular, additional information was sought in relation to details of specific rituals and ceremonies associated with the Marapikurrinya Yintha and the KataKatara; and specific places in, surrounding or associated with the Port Hedland harbour which specifically concern the Marapikurrinya Yintha and the Kata-Katara.[34]
38 On 4 December 2013, Mr Paul Mackey, the Environment and Heritage Manager at PHPA, wrote to the Registrar noting that the Department had requested that consideration of the 2013 s 18 Notice be deferred from the December 2013 to the February 2014 meeting of the ACMC. He then stated that the PHPA is unable to accept that request because of the impact of the delay on project timeframes. Mr Mackey said that the PHPA recognised 'that the site is of a deep cultural importance to the traditional owners and respects those views'. He stated that 'the PHPA considers it may be difficult to obtain further cultural information regarding the Yintha within this timeframe due to the upcoming period of customary Law and cultural activities',[35] and that the PHPA had been in seven months of negotiations with MPL and Yamatji Marlpa Aboriginal Corporation (the native title representative body for the Kariyarra native title claimants) with a view to reaching a heritage agreement.[36]
39 On 16 December 2013, the Department received a letter from Mr Nicholas Green, the CEO of Anthropos Australia, stating that Anthropos had been requested to review the 2013 s 18 Notice on behalf of MPL, and that in the view of Anthropos the PHPA had not provided sufficient information to enable the ACMC
...to assess the significance of registered Aboriginal Site ID 22874 (Marapikurrinya Yintha) under s 5 and 39 of the Aboriginal Heritage Act, at this particular location, because they have not undertaken a heritage survey for the particular purpose nor have they provided evidence of the informed consent of the Kariyarra native title claimants about their Section 18 Notice.
The Kariyarra native title claimant group, defers to the Marapikurrinya family, has consistently provided evidence in numerous heritage survey reports since 2008, many undertaken by this firm, regarding the existence of the Kata-Katara within the Port Hedland Harbour and the importance and significance of the Marapikurrinya Yintha, which is beyond doubt.'[37]
40 The letter goes on to say that, in the opinion of Anthropos, the PHPA has used historical survey reports that they do not have exclusive copyright of, and that these reports 'are normally for a particular proponent and purpose and are not transferrable unless by agreement'.[38] Mr Green notes that the letter from Mr Mackey (referred to above) indicates that it may be difficult to obtain cultural information concerning the Yintha within the timeframe, but that Anthropos suggests 'this is not an appropriate or relevant reason for not trying to obtain such information through the auspices of a properly constituted heritage survey'.[39]
41 On 17 December 2013, the Department received by email a letter from the PHPA responding to the letter from Mr Green (referred to above). The email states that the 'PHPA has made reasonable efforts to identify any issues or concerns that MPL or the wider Kariyarra community may have with the proposed General Cargo Wharf development',[40] and then contains a table outlining various telephone calls, emails and meetings with MPL and Diana Robinson.
42 On 18 December 2013, the ACMC held an ordinary meeting in which it considered the 2013 s 18 Notice. According to Ms Tanya Butler, the Registrar of Aboriginal Sites, at the meeting, the Chairman noted the correspondence from Mr Green received on 16 December 2013 and the email from the PHPA received by email on 17 December 2013, but did not distribute that correspondence to other members.[41] The ACMC made the following resolutions:[42]
RESOLUTION 2013/185
The Committee resolved that the site assessment listed at Table K3 of Appendix K be confirmed and endorsed.
RESOLUTION (2013/ 186) (No Sites, Government infrastructure)
Resolved that the Minister be advised that, upon current knowledge, the purpose described in Item 6 of the Notice as the development, operation and management of a port and associated infrastructure (the Purpose), will not impact upon any Aboriginal sites within the meaning of section 5 of the AHA on the land described in Item 4 of the Notice as a portion of the land parcel Lot 370 on Deposited Plan 35619, located approximately 2km south of Port Hedland, as shown in Attachment 3 of the Notice titled 'Section 18 Land, Proposed Lumsden General Cargo Wharf Area with Coordinates' dated 15 October 2013 (the Land).
Table K3 referred to in resolution 2013/185 appears as follows:[43]
|
Item #
|
DAA #
|
Place Name
|
Place Type
|
Current Assessment
|
For Resolution
|
|
1
|
22874
|
Marapikurrinya Yintha
|
Mythological
|
5(b)
|
Not a site
|
43 On 4 April 2014, the applicants' solicitors made a Freedom of Information request in relation to documents concerning the ACMC's decision on 18 December 2013 in relation to the Lumsden Point development. The request made reference to the Marapikurrinya Yintha site having been 'removed from the register in or about December 2013'.[44]
44 On 14 April 2014, Ms Butler responded by letter, saying:
I am able to assure you that the Aboriginal Cultural Material Committee (ACMC) at its meeting on 11 December 2013 considered the Marapikurrinya Yintha only in so far as it intersected with the proposed development envisaged in the Port Hedland Ports Authority section 18 notice dated 17 October 2013. Your clients were provided with a copy of that notice and the only survey report considered by the Committee was that Authored by Mr Robert Brock dated 2013. On the basis of that material the Committee formed the opinion that there is no place on the subject land to which the Aboriginal Heritage Act 1972 (Act) applies. I emphasise that opinion was in respect of the land the subject of the section 18 notice only.
Regrettably, in error, the opinion of the Committee was misinterpreted by this Department and DAA 22874 was removed from the Register. This error has been acknowledged and is being rectified under my direction as a matter of urgency. I apologise on behalf of the Department for the error and shall confirm to you when these sites have been restored to the Register. You will be aware that by dint of the definition of Aboriginal site in the Act, section 4, preservation under the Act continues to be afforded to all Aboriginal sites to which the Act applies whether registered or not.
45 Ms Butler's letter is difficult to reconcile with Resolution 2013/185 and Resolution 2013/186 which would appear to be predicated on the ACMC concurring with the Departmental assessment that Marapikurrinya Yintha, in its entirety, is not a site. The position appears to be, however, that Marapikurrinya Yintha remains on the Register of Sites maintained under s 38 of the AH Act. I will return to that issue later in these reasons.
Grounds of Review46 The grounds of review are stated in the amended application of 27 October 2014 as follows:
which were necessary to be taken into account in determining whether the site was of importance and special significance to persons of Aboriginal descent.
47 A number of the grounds, as expressed above, give rise to the same issue. The issues which arise for determination are:
48 In response to the application, the intervener raised an issue as to whether or not the applicants have standing to bring these proceedings.
49 It will be necessary, before considering the issues raised in the grounds of appeal, to clearly identify the decision to which objection is taken.
Standing of the applicants50 Before addressing each of the individual grounds it is necessary to determine whether the applicants have standing to bring this application.[45]
51 The general rule is that unless a private right has been interfered with, a person will only have standing to commence proceedings if they have a special interest in the subject matter of the proceedings. A special interest is an interest beyond that of the general public and beyond a mere intellectual or emotional concern.[46] Gibbs J discussed the meaning of special interest in Australian Conservation Foundation Inc v Commonwealth:[47]
[A]n interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.
52 In Kioa v West,[48] Brennan J further elaborated upon the test of 'special interest'. His Honour stated:[49]
And in cases concerned with the enforcement of public law duties at the suit of persons who had no private law right to enforce, this Court held that a plaintiff had standing if he had a special interest in the subject matter of the litigation (Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257; 146 CLR 493 and Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 36 ALR 425; 149 CLR 27). An adverse and distinctive affection of the applicant's interests by the exercise of the power which he seeks to impugn gives rise to a peculiar grievance or special interest in the subject matter of the litigation. Such an affection of interests provides a criterion of greater validity than "legitimate expectation" which focuses on the state of the applicant's mind.
53 The rule is flexible and the nature and subject matter of the action will determine what amounts to a special interest.[50] As Brennan J warned in Onus v Alcoa of Australia Ltd,[51] to deny standing may 'deny to an important category of modern public statutory duties an effective procedure for curial enforcement'.[52]
54 The applicants do not assert that a private right has been interfered with. They submit that they have a special interest in the subject matter (the site) which is over and above that of every member of the general public as a consequence of:[53]
(a) Their role as Marapikurrinya consultants nominated to take part in the survey and s 18 consultations resulting in the Anthropos report;
(b) The ongoing relationship between the Marapikurrinya people and the Warlu in Port Hedland Harbour, by 'ceremonial practices enacted as part of everyday life, including spraying, by spitting, salt water into the Harbour and calling out the name of the Warlu prior to fishing and camping in the area';
(c) The Marapikurrinya people, including the applicants, have cultural responsibility as custodians to maintain the place for future generations and to care for, protect and guide people who enter the area from disturbing the Kata-Katara;
(d) The Marapikurrinya people, including the applicants, have walked historic fishing and hunting tracks through the mudflats and mangroves, camped, fished collected bush food and imparted cultural information to their children around the Port Hedland Harbour and creek systems;
(e) The Marapikurrinya people, including the applicants, are native title claim group members in relation to the area;
(f) They are directors of MPL, the entity which both facilitated the heritage surveys which identified the Marapikurrinya Yintha and is a party to a heritage agreement with the PPA; and
(g) They were previously afforded procedural fairness by the ACMC including the right to a hearing and to comment on adverse material by the ACMC in relation to the Marapikurrinya Yintha.
55 The applicants rely on the decision of Martin CJ in Woodley v Minister for Indigenous Affairs,[54] submitting that, for the reasons listed above, they have a special interest as did the applicants in Woodley. As the intervener submits, the decision in Woodley was made at the order nisi stage and the Court was not required to decide the issue of standing which had been conceded by the respondents.[55] However, as the applicants correctly submit, it is clear that his Honour regarded that Mr Woodley and the Yindjibarndi Aboriginal Corporation had standing.[56] His Honour said:[57]
Mr Woodley is a senior representative of the Yindjibarndi People and the Yindjibarndi Aboriginal Corporation is a corporate entity which is representative of the Yindjibarndi People. The Yindjibarndi People undoubtedly have a special interest over and above that of the community in general in the preservation of heritage value of this site. They also have every reason to suppose that their interests would be respected in the processes relating to the grant of consent.
56 In these proceedings, the applicants are similarly senior representatives of the Marapikurrinya group ('senior traditional spokespeople'[58]), who speak for the Port Hedland Harbour area under traditional Kariyarra laws.[59] Further, they are directors of MPL, which has agreements with the PPA in relation to heritage protection and management of the Port Hedland harbour.[60]
57 The intervener relies on the decision of Anderson J (with whom Franklyn J agreed) in The State of Western Australia v Bropho,[61] which was an application for judicial review of the Minister's decision to grant consent under s 18 of the AH Act to the redevelopment of the Swan Brewery. The applicants in that case claimed a special interest on the basis that he was a person of Aboriginal descent and a custodian of the particular parcel of land in accordance with the customs of his people, and that he had a cultural attachment with the land in question which was said to derive from the ancient belief that it was the place at which the Wagul exited the Swan River. The issue of standing was conceded by the appellant in that case, however Anderson J observed:[62]
I would have very considerable doubt about the standing of the respondent to bring any kind of action arising out of a contention or alleged contravention of the Aboriginal Heritage Act in relation to the Swan Brewery site ... I do not think that a member of a group of people with a particular subjective concern to protect or preserve a particular site whether for its perceived environmental or spiritual or cultural or heritage qualities, obtains locus standi merely in virtue of that concern, however profound that concern might be.
58 The intervener contends that whilst the observations are obiter, they are persuasive because of the factual analogies to this case, as the applicants in this case are similarly custodians of the area in question, and their concern is of a spiritual nature.[63] However, this case can be distinguished on the basis that there is evidence that the applicants have physical interactions with the site, whereas Anderson J noted that the respondents in Western Australia v Bropho did not camp, fish, hold ceremonies, or take their children to the site or have any other direct physical interaction with the site.[64] In this case, the Anthropos report contains evidence of the Marapikurrinya people, including the applicants, walking the historic fishing and hunting tracks through the mangroves of the area, collecting bush medicine and bush tucker, fishing, crabbing and collecting shellfish, and then cooking their catch in the area.[65] The report also refers to the physical practices of spraying and calling the name of the Warlu that has been referred to above.[66]
59 I note that Malcom CJ agreed with the reasons of Anderson J subject to one qualification, being the doubts expressed by Anderson J as to the standing of Mr Bropho. It was the opinion of Malcom CJ that Mr Bropho had a sufficient interest to give him standing as a consequence of being a custodian of the site in accordance with the customs of his people and because of the longstanding cultural and spiritual attachment of his group to the site.[67] Whilst Malcom CJ noted that there was no elaboration of the customs by which Mr Bropho claimed to be a custodian, his Honour was of the view that the claim could not be dismissed as founded on only emotional or intellectual concern.[68] In his Honour's view, Mr Bropho had a 'special interest in the subject matter of the action' as the expression was used by Gibbs J in Australian Conservation Foundation Inc v Commonwealth.[69]
60 In written submissions, the intervener also submitted that the case could be contrasted with that of the applicants in Onus v Alcoa of Australia Ltd, which concerned possible destruction of sacred relics. In that case, in addition to the beliefs associated with the relics there was evidence of physical interaction with the relics. The intervener contended that the applicants in this case have not pointed to any evidence of their physical interaction with the land and water the subject of the notice.[70] I do not accept the submission that there was no physical interaction with the area, in view of the evidence contained in the Anthropos report, which I have referred to above at [58].
61 In view of the physical interactions between the Marapikurrinya people (including the applicants) with the site, the applicants' role as senior traditional spokespeople of the Marapikurrinya responsible for speaking for the Port Hedland Harbour, the applicants' role as directors of MPL, and because the applicants' interests would be distinctively and adversely affected by the decision of which they seek judicial review, the applicants should be regarded as having a special interest in the site which gives them standing to bring these proceedings.
The ACMC's decision62 On its face, the resolution made by the ACMC (being Resolution 2013/185) appears to be a decision that the Marapikurrinya Yintha is not a site for the purposes of the AH Act. That aspect of the decision is not confined, on its face, to only that part of the Marapikurrinya Yintha which was within the area of the Lumsden Point development. The Department report contains criticisms of the evidence upon which the Marapikurrinya Yintha had been accepted and registered as an Aboriginal site. The criticisms are not specific to the area covered by the Lumsden Point development as outlined in the s 18 Notice. Its conclusion is that the Marapikurrinya Yintha, being Registered Site DAA 22874, is no longer a site to which s 5 of the AH Act applies.
63 The agenda considered by the ACMC at its meeting on 18 December 2013 recites that 'if the ACMC concurs with the Departmental assessments, no sites will be impacted by the purpose'.[71] There is nothing to suggest that the Committee's resolution (2013/186) to the effect that no sites would be affected was based on anything other than the ACMC accepting the Departmental recommendation that the Marapikurrinya Yintha was not a site. The basis upon which the Registrar asserted in her letter of 14 April 2014 to the applicants' solicitors that the ACMC 'considered the Marapikurrinya Yintha only in so far as it intersected with the proposed development'[72] and that the site was removed from the register in error is, therefore, not readily apparent. There is no evidence apparent on the materials before the Court, which includes all materials before the ACMC when it made its decision on 18 December 2013, which would support a differentiation in the characterisation of the portion of the Marapikurrinya Yintha within the Lumsden Point development area from the balance of the area over which the Marapikurrinya Yintha extends.
64 I raised with the applicants and the intervener the inconsistency between the Registrar's letter of 14 April 2014 (and in particular the advice that the site remained on the register) and the Committee's decision that the Marapikurrinya Yintha was not a site for the purposes of the AH Act. In response, the intervener submitted that the assertion in the Registrar's letter is not supported by the evidence, and that the only available inference is that the Committee considered the whole of the site in assessing whether it is an Aboriginal site for the purposes of the Act. I agree that that inference should be drawn.
Exercise of independent discretion65 Ground 1 asserts that the ACMC did not exercise an independent discretion in reaching the decision as to whether or not there was an Aboriginal site on the land and waters the subject of the notice. There is no merit in this ground.
66 Essentially, as I understand the applicants' contention, it is that the minutes of the meeting of 18 December 2013 do not reveal any questioning of the Department report, being the only material before the ACMC when it agitated that issue. As will appear below, the Department report was not the only material before the ACMC.
67 It is true that the minutes do not record the details of deliberation in relation to that agenda item. The minutes simply record:[73]
Following discussion and based on the information provided and the Departmental advice received, the Committee made the site assessment listed at Table K3.
68 Resolution 2013/185 then follows.
69 The agenda for the 18 December 2013 meeting identifies the decision to be taken by the ACMC as whether the purpose of the 2013 s 18 Notice would breach s 17 of the AH Act if consent were not granted. In that context, a number of points to consider are identified, and it is said:[74]
If the ACMC concurs with the Departmental assessments, no sites will be impacted by the Purpose.
70 The 2013 s 18 Notice itself had been provided to the ACMC on 28 November 2013 along with the agenda for the 18 December 2013 meeting, the Department report, and a map prepared by the Department in relation to the land the subject of the 2013 s 18 Notice. As noted above, the 2013 s 18 Notice included the Brock report, which made reference to the previous Aboriginal heritage survey reports and briefly described their contents and conclusions.
71 There is no reason to conclude that the ACMC did not consider all of the materials before it. The minutes record that there was discussion on the topic (although the content of the discussion is not revealed), and that the decision was made on the basis of information provided and the Department report. Likewise, there is no basis to conclude that the ACMC did not assess the materials before it in determining whether or not it agreed with the recommendation of the Department report.
72 Ground 1 is not made out.
Proper construction of s 5(b) of the AH Act73 It is common ground in these proceedings that the question of whether or not the AH Act applies to the Marapikurrinya Yintha turns upon whether it falls within s 5(b) and in particular whether it is a 'sacred site' which is of importance and special significance to persons of Aboriginal descent. The answer to that question is critical to many of the grounds of review.
74 It is reasonable to conclude, and I do conclude, that in assessing whether the Marapikurrinya Yintha was a site for the purposes of s 5, the ACMC had regard to considerations found within the s 5 Guidelines which it had published approximately six months before considering the 2013 s 18 Notice.
75 The s 5 Guidelines, so far as they concern the expression 'sacred site' as used in s 5(b) of the AH Act, provide:
The threshold test is whether the place is a "sacred, ritual or ceremonial site". If so, the place is a Site if "of importance and special significance to persons of Aboriginal descent".
Additional to the criteria in section 39 of the Act, the following will be taken into account when determining whether a place is a sacred, ritual or ceremonial site:
Sacred site
76 The s 5 Guidelines also stipulate criteria additional to s 39 of the AH Act in relation to a 'ceremonial site' and 'ritual site'.[76] The matters to be evaluated by the ACMC in relation to the importance of places or objects prescribed by s 39 of the AH Act are set out above at [10].
77 The reason for concluding that the ACMC had regard to considerations found in the s 5 Guidelines in determining whether the Marapikurrinya Yintha was a sacred site are that:
78 It is also apparent from the Department report that a number of other factors relevant to the question of whether or not the Marapikurrinya Yintha was a site to which the AH Act applies, beyond those referred to in the s 5 Guidelines, were identified.
79 For present purposes, it is necessary to consider the proper construction of s 5(b) of the AH Act. In particular, it is necessary to construe the expressions 'site' and 'sacred'.
80 The s 5 Guidelines assert that 'site' has a narrower meaning than 'place' as those words are used in s 5.
81 The expression 'Aboriginal site' is defined in s 4 to mean 'a place to which this Act applies by the operation of s 5'. The terms of s 5 are set out above at [8]. That section applies the Act to 'any place of importance or significance' where traditional cultural object have been left (s 5(a)), 'any sacred, ritual or ceremonial site which is of importance and special significance' (s 5(b)), 'any place' associated with Aboriginal people which is of historical, anthropological, archaeological or ethnographical interest which should be preserved (s 5(c)), and 'any place where objects' are traditionally stored (s 5(d)). It is thus apparent that 'places' as referred to in s 5(a), s 5(c) and s 5(d) are, by definition, 'Aboriginal sites'.
82 The proscription in s 17 is against the excavation, destruction, damage, concealment or alteration of any 'Aboriginal site'. That must necessarily include any of the places referred to in s 5. Section 18 requires the consent of the Minister where an owner intends to do anything which might adversely affect 'any Aboriginal site on that land'. Section 39 requires the ACMC to evaluate the importance of places and objects, and, in doing so, to regard '[a]ssociated sacred beliefs and ritual or ceremonial usage' as the primary consideration in the evaluation of any place or object (s 39(2) and (3)).
83 It is clear that the expression 'Aboriginal site' as used in the AH Act includes 'places' of the nominated kind. In that context, 'site' does not have a narrower meaning than 'place'. The question is whether the use of the word 'site' in s 5(b), as distinct from s 5(a), s 5(c) and s 5(d) which use the word 'place', connotes that some narrower, or perhaps different, meaning than 'place' as used in s 5, and thus bears some different meaning from that conveyed by its use in the defined term 'Aboriginal site'.
84 The Macquarie Dictionary defines 'sacred site' as 'a site that is sacred to Aboriginal people or as otherwise of significance according to Aboriginal tradition'. That is a circular definition which requires attention to be given to the individual words 'site' and 'sacred'. The Macquarie Dictionary defines 'site' as 'the position of a town, building, etc, especially as to its environment'; or 'the area on which anything, as a building, has been or is to be situated'.[78] The Oxford Online Dictionary provides an additional definition being 'a place where a particular event or activity is occurring or has occurred'.[79]
85 The Macquarie Dictionary defines 'sacred' as:[80]
86 The intervener contends that, having regard to the dictionary definitions of 'site', the term as used in s 5(b) of the AH Act denotes a location on which a particular thing is devoted to a particular use. It is submitted that when used in conjunction with the term 'site', 'sacred' is used in the sense 'appropriated or dedicated to a religious purpose'.
87 In the context of legislation dealing with Aboriginal culture, the word 'sacred' must necessarily contemplate spiritual and mythological purposes. The words 'ritual' and 'ceremonial' are clearly referrable to cultural purposes, although such purposes may substantially overlap with sacred purposes. The evidence suggests that the Marapikurrinya Yintha is associated with the mythology surrounding the KataKatara. The question is whether, if no specific activities associated with that spiritual belief have been identified, that means that the whole of the Marapikurrinya Yintha is not relevantly a 'site' for the purposes of s 5(b) and is, therefore, not a 'sacred site'.
88 In my view, there is no reason to read the expression 'site' as being somehow narrower than 'place'. As the dictionary definitions indicate, the ordinary use of the word 'site' might relate to the location of a building, or a town. It is not a word which, by itself, connotes some narrowly constrained area. What constrains the area to which the word relates is the object or activity associated with it. Thus, if an area of land or water is associated with some religious or spiritual belief, that area is capable of being described as a 'sacred site' for the purposes of s 5(b). The question of specific activities taking place on the land may be relevant to the assessment of the level of importance or special significance, not to the question of whether or not the area concerned is a 'sacred site'.
89 The contrary construction was said by the intervener to be supported by the legislative history of s 5 of the AH Act. As originally enacted, s 5(b) of the AH Act referred to 'any place, including any sacred, ritual or ceremonial site, which is of importance or of special significance to persons of Aboriginal descent'.
90 Section 5 was amended by s 2 of the Aboriginal Heritage Amendment Act (No 2) 1980 (WA). The two changes to the form of s 5(b) were that:
91 The intervener argued that the terms of parliamentary debate, in relation to the amendment to the Act in 1980, support the proposition that the amendment was designed to confine the places to which the Act would apply.
92 Before considering the parliamentary debates, it is necessary to have regard to the other amendments made to s 5 in 1980. All four paragraphs of s 5 were amended. Section 5(a) was amended by inserting the words 'of importance and significance' after the opening words 'any place'. Section 5(c) was amended by changing the words 'which may be of historical, anthropological, archaeological or ethnographical interest' to 'which is of historical, anthropological, archaeological or ethnographical interest'. In addition, the words 'and should be preserved because of its importance and significance to the cultural heritage of the state' were added at the end of s 5(c). Section 5(d) originally read:
Any place where objects to which this Act applies are stored, or to which such objects have been taken or removed under the provisions of this Act.
It was replaced with the following:
Any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.
93 It can be seen that the focus of the amendments to s 5(a), s 5(b) and s 5(c) was on introducing or reframing considerations of importance and significance. The amendment to s5(d) appears to limit the Act from applying to places where objects are stored other than by tradition or as a result of the application of the AH Act. At the second reading speech on 2 September 1980, the Minister for Cultural Affairs said:[81]
It is therefore proposed to make a number of amendments to the Act. The first amendment will, to some extent, tighten the provisions of the section relating to the places to which the Act will apply.
The alterations are moderate ones; however, it is hoped that in practice, the interpretation of this section of the Act will more nearly approximate the original purpose for which the Act was introduced and result in the Act being confined in its application to Aboriginal places and objects of importance and significance, worthy of preservation.
94 In the committee, Mr Skidmore, supporting amendments to the Bill proposed by the opposition, was engaged in the following exchange with the responsible minister:[82]
Mr SKIDMORE: That is the effect of removing the words "any place". The Minister is restricting it to the criteria of sacred, ritual, or ceremonial significance. The original Act says "any place". Who will say a site is important or significant'? That is the basis of the dispute at Noonkanbah and elsewhere.
The criterion is to be the importance the Government is prepared to place upon a site, as distinct from the importance the Aboriginal community places upon it. That is something the Government cannot understand. It cannot comprehend the depth of feeling these people have about places which arc sacred to them. They are not necessarily ceremonial sites. A sacred site might be a river, a stream, a mountain, or a featureless piece of land in the Simpson Desert or the Gibson Desert, or out on the Rawlinson Range. Any of those places could be of great significance to an Aboriginal community. But the Government is saying, "We will not have a bar of that; we want to tie the people down to the three criteria of sacred, ritual, or ceremonial significance."
Mr Grayden: Or a place of importance and significance.
Mr SKIDMORE: Who determines whether or not a place is important?
Mr Grayden: The Trustees of the Museum.
95 In subsequent exchanges, debate proceeded on the basis that the deletion of the words 'any place' potentially removed from the operation of the Act, places which might be of importance or special significance to Aboriginal persons for reasons other than being sacred, ritual or ceremonial sites. In concluding debate, Mr Grayden said:[83]
Mr GRAYDEN: I am afraid I cannot agree with members of the Opposition in their criticism of this proposed new section. They will have to agree with me that the Act is worded extraordinarily loosely. After all, the whole object of the Bill is to preserve places of consequence to living Aborigines and places of consequence to the Australian heritage. Instead of the legislation being limited to that particular intention, it was worded loosely and it could apply to any place in the State irrespective of whether or not a place was of any importance or significance at all. Paragraph (b), applied to any place, including any sacred, ritual, or ceremonial site which is of importance or of special significance to persons of Aboriginal descent. All we are seeking is to delete the passage "any place, including" so that the paragraph will apply to any sacred or ceremonial site.
There has been some criticism of the final paragraph of the proposed new section as a result of the inclusion of the word "traditionally".
96 In my view, the debates concerning the amendments to the Act in 1980 do not support the contention that the expression 'sacred site' was to be narrowly construed. The thrust of the amendments was to introduce or strengthen the considerations of importance or significance of particular places as a criterion for qualification as an Aboriginal site. The deletion of the reference to 'places' in s 5(b) was intended to do no more than to prevent the Act applying to places of importance or significance for reasons other than them being sacred, ritual or ceremonial sites or otherwise falling within s 5(a), s 5(c) or s 5(d).
97 It follows that, in my view, the s 5 Guidelines are inconsistent with the proper construction of s 5 to the extent that they assert that the meaning of 'site' is narrower than 'place'.
98 Nor do I consider that for a place to be a sacred site, it must be devoted to a religious use rather than be subject to mythological story, song or belief. Presumably, that assertion in the s 5 Guidelines reflects the need, referred to in the Department report, for evidence of specific rituals, ceremonial or cultural activities associated with the site. Section 5(b) distinguishes between sacred sites, ceremonial sites and ritual sites. No doubt some sites might properly be ascribed more than one of those descriptors. To suggest, however, that for a place to be a sacred site, specific rituals or ceremonies are required to be associated with it, is to deny the expression 'sacred site' any separate meaning. There is no justification for treating the word 'sacred' as conveying no meaning beyond ritual or ceremonial.
99 It follows that, to the extent that the ACMC brought to account the lack of evidence of specific rituals, ceremonial or cultural activities associated solely with the site, as invited to do by the Department report, it acted upon a misconstruction of s 5 of the AH Act.
100 Ground 2 of the application asserts that the respondent failed to decide whether the land and waters the subject of the 2013 s 18 Notice was of importance and special significance to the applicants as required under s 5 and s 18 of the AH Act. It is clear that the Committee specifically resolved that the Marapikurrinya Yintha was not a site under s 5(b). It is not recorded in the minutes whether that decision was based upon the conclusion that it was not a 'sacred site', or whether it was not a site 'of importance and special significance' to persons of Aboriginal descent'. In my view, it is reasonable to infer that the basis for the decision was that it was not a sacred site, and thus, had that been correct, the Committee would not have needed to determine whether or not it was of importance or special significance. I draw that inference because of the terms of the Department report which, in turn, relied on the Barber report, both of which are directed to the question of whether or not the Marapikurrinya Yintha is a sacred site at all, rather than whether or not it is a sacred site of importance or significance. It follows that, on the basis of the materials available, I conclude that the Committee did not give consideration to the question of whether or not the Marapikurrinya Yintha was a place of importance or special significance because the question did not arise for consideration in light of the conclusion that it was not a sacred site.
101 Grounds 2 and 7(a) assert that the failure to address that consideration constitutes a jurisdictional error. I agree that, in order to form an opinion under the section that there is an Aboriginal site on the area the subject of the 2013 s 18 Notice, the ACMC was required to give consideration to the importance and significance of any sacred site affected by the proposed works. If it specifically concluded that no sacred site existed on the area concerned, then logically no question as to importance or significance arose for consideration. Grounds 2 and 7(a) are dependent upon the outcome of those grounds which assert error in the ACMC's approach to determination of the preliminary question, namely whether the Marapikurrinya Yintha was a site at all, regardless of its importance or significance.
102 Ground 3 asserts that the ACMC made a jurisdictional error by having regard to matters set out in the s 5 Guidelines and failed to have proper regard to the criteria set out in s 5 or s 39 of the AH Act. As I have already concluded, the Committee did have regard to the tests set out in the s 5 Guidelines. To the extent that the Committee had regard to the proposition that the meaning of 'site' is narrower than 'place', and to the requirement for devotion to a particular religious use, the ACMC misapplied the proper tests under s 5 and s 39. By requiring evidence of specific religious use, the ACMC did not have regard to associated sacred beliefs as the primary consideration as required by s 39(3). The ACMC asked itself the wrong questions and identified the wrong issues, thereby falling into jurisdictional error.[84] Ground 3 is made out.
103 Grounds 4 and 5 appear to be slightly different ways of expressing ground 3 and are made out for the same reasons.
104 Ground 6 asserts that the ACMC took into account the irrelevant considerations in forming an opinion as to whether there was an Aboriginal site on the land. The irrelevant considerations are said to be the alleged lack of evidence of specific rituals, ceremonies and cultural activities, the extent that the mythology of the KataKatara and Marapikurrinya Yintha compared with similar mythologies, and the 'lack of cultural logical explanation in relation to the boundaries' of the Yintha. In order to make a jurisdictional error by taking into account the irrelevant considerations, the considerations must be considerations to which the decision-maker was not entitled to have regard. As was noted in A v Corruption Crime Commissioner:[85]
It must be recognised that, between matters a decision maker is bound to take into account, and those irrelevant considerations which the decisionmaker is prohibited from considering, there may be a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law. It has been emphasised that a decision maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an exhaustive list of all matters which the decision maker might conceivably regard as relevant Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, 375; PekoWallsend, 39 (Mason J); Lo v Chief Cmr of State Revenue [2013] NSWCA 180 [9].
105 In my view, none of the matters referred to in ground 6 were impermissible irrelevant considerations. Specific rituals, ceremonies or cultural activities related to the Marapikurrinya Yintha are clearly relevant to, although not determinant of, the question of whether or not the Yintha was a sacred site. The absence of evidence of those matters was relevant, albeit not determinative. Similarly, the distinctiveness of the mythology, and its cultural logic in relation to boundaries, were proper matters of inquiry, at least in relation to the importance or significance of the site. Ground 6 is not made out.
106 Ground 7(b) is that the ACMC failed to take into account a relevant consideration, being various specified documents relating to earlier s 18 notices. This ground was dealt with cursorily in the applicants' written submissions that are to the effect that as the ACMC considered the Barber report, which was not part of the material submitted by the PPA, it was incumbent upon the ACMC to have regard to the applicants' response to that report, and it failed to do so.
107 In order to constitute a 'relevant' consideration, the material concerned must be material which the ACMC was bound to consider.[86]
108 In the context of a decisionmaker acting on a report from officers of the relevant department, Mason J said in Minister for Aboriginal Affairs v PekoWallsend Ltd:[87]
Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
109 In this case, the Department report made reference to the fact that, following the Barber report, 'Anthropos Australis Pty Ltd, Green, Metz and others have continued to assert that the Marapikurrinya Yintha encompasses the entire Port Hedland harbour area' and that:[88]
they have stated, as a means of asserting its importance and significance, the coastal Kariyarra people undertake specific rituals to greet the KataKatara (rainbow snake) such as blowing on the water and throwing sand into it. They also state the Kariyarra have specific songs for the Marapikurrinya Yintha.
110 The Department report then identified a number of relevant reports, including those of Anthropos and Brock.
111 The applicants' submissions did not identify a specific relevant material fact within the documents referred to in ground 7(b) that was not otherwise present on the material that was before the Committee. That ground was not further elaborated in oral submissions. The real issue appears to be whether the applicants were accorded procedural fairness in that they were denied the opportunity to specifically raise their position, no doubt reflected in the earlier documents referred to in ground 7(b), in the context of consideration of the 2013 s 18 Notice.
112 In the absence of any specific identification of the material facts which are alleged to have been relevant but not considered, ground 7(b) has not been made out.
Procedural fairness113 Grounds 8 and 9 assert failures on the part of the ACMC to accord procedural fairness to the applicants. Ground 8 asserts a failure to provide an opportunity to comment on the report and recommendations contained in the Department report. Ground 9 asserts a failure to have regard to materials submitted by the applicants in relation to the Barber report and submissions in relation to earlier s 18 notices made on 27 August 2008 and 15 September 2008.
114 In addressing these grounds, it is necessary to consider whether there was any duty to accord procedural fairness to the applicants in relation to the 2013 s 18 Notice, and if so, the content of the duty and whether the duty was breached.
115 Earlier in these reasons, I dealt with the question of the applicants' standing to bring this application, and with the comments of the majority in The State of Western Australia v Bropho on that question, which can be contrasted with the view of Malcolm CJ in that case, and Martin CJ in Woodley v Minister for Indigenous Affairs.[89] In The State of Western Australia v Bropho, Anderson J said:[90]
Perhaps it is right to say that an interest which is such as to attract the principles of natural justice will always give standing, whereas a peculiar grievance which gives standing at common law to bring suit, will not always involve a legitimate expectation that will be protected by the principles of natural justice, or, will not always attract that aspect of those principles which requires the decision maker to accord a hearing to the aggrieved person. As Brennan J pointed out in R v Ludeke; Ex parte Customs Officers Association of Australia [1985] HCA 31; (1985) 155 CLR 513, 528; 59 ALR 417:
There is no necessary correspondence between an interest which warrants the issue of a prerogative writ in the exercise of the court's discretion and an interest which requires the repository of a statutory power to hear the person who has that interest before making an order that affects it.
But see Kioa v West, supra, per Brennan J at CLR 621 2.
116 As noted above, Malcolm CJ concluded that Mr Bropho has standing to bring the proceedings for judicial review. He also considered that, for the same reasons, Mr Bropho was entitled to be heard by the Committee which made the recommendation to the Minister under s 18(2) of the AH Act. The opportunity to be heard had, in fact, been extended to Mr Bropho by the Committee, but he had not taken up that opportunity. Malcolm CJ then considered whether the Minister, exercising his function under s 18(3) of the AH Act, was obliged to extend a right to be heard to Mr Bropho. He concluded that the Minister was not so obliged given that Mr Bropho had been given an opportunity to be heard before the Committee in relation to its deliberations under s 18(2), but that had not availed himself of that opportunity. There was, therefore, 'no foundation for any legitimate expectation on the part of ... Bropho that he would be given an opportunity "to be heard to explain to the Minister the importance to them of this site and to support the Committee's recommendations"'.[91]
117 Those observations must be read in light of the more recent statement by Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 v Minister for Immigration and Citizenship[92] that the phrase 'legitimate expectation', when used in the field of public law, adds nothing and is an unfortunate expression that should be disregarded. Rather, the question is whether the conduct of the decisionmaker is apt to adversely affect the sufficient interest of a party claiming the entitlement to procedural fairness.[93]
118 In Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division,[94] Brennan J said:
There can be no universal criterion by which to determine whether a repository of a statutory power is bound to hear a person who is not directly involved in its proceedings before making an order that indirectly affects that person's interests: see de Smith; Judicial Review of Administrative Action, 4th ed (1980), p 196. Regard must be had to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 411 - 412), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf R v Town and Country Planning Comsr; Ex parte Scott [1970] TASStRp 13; [1970] Tas SR 154, pp 182 - 187; [1970] TASStRp 13; 24 LGRA 108, pp 137 - 141). But that is not an absolute rule.
119 It is necessary first to consider the language of the statute. In The State Western Australia v Bropho,[95] all three judges agreed that nothing expressed in the AH Act was sufficient to evince a legislative intent to preclude the principles of natural justice so as to displace the common law requirement for procedural fairness in the decisionmaking process under s 18.[96] Clearly enough, the Committee had, and recognised, a duty to observe procedural fairness in relation to the PPA. A more difficult question is whether, having regard to the terms of the AH Act, and to its purpose and objects, the Committee has a duty to accord procedural fairness to the applicants, the Marapikurrinya family group of which the applicants are members, or possibly to MPL.
120 The object of the Act is said to be to 'make provision for the preservation on behalf of the community, of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants ...'.
121 The function of the ACMC under s 18(2) of the AH Act is to 'form an opinion as to whether there is any Aboriginal site on the land' concerned, and 'evaluate the importance and significance of any such site' in order to make a recommendation to the Minister as to whether consent to the proposed use of the land should be given by the Minister. It is then the function of the Minister under s 18(3) to consider the recommendation and make a decision whether or not to consent 'having regard to the general interest of the community'. There is an obligation on the Minister to inform the owner, in writing, of his decision, although there is no obligation to inform any Aboriginal persons who may have an interest in any affected site.
122 Under s 18(5), the owner of land who is aggrieved by a decision of the Minister made under s 18(3) is given a right to apply for a review of the Minister's decision by the State Administrative Tribunal. In Traditional Owners - Nyiyaparli People and Minister for Health Indigenous Affairs,[97] the State Administrative Tribunal held that the right to seek a review of the decision was confined to the owner of land, and did not extend to Aboriginal persons to have an interest in the sites on the land the subject of the s 18 proposal.
123 There is nothing in the process set out in s 18 which expressly requires consultation with Aboriginal people with interests in sites on the land the subject of a s 18 notice.
124 Section 10 provides that it is the duty of the Minister to ensure that places of sacred, ritual or ceremonial significance to persons of Aboriginal descent should be recorded and their relative importance evaluated so as to make their preservation and protection effective and coordinated.
125 Section 15 obliges any person with knowledge of places or things to which the Act applies to report the existence of those places or things to the Registrar unless the person has cause to believe that the existence of the thing or place is already known to the Registrar.
126 Section 19 deals with protected areas. It requires that where the Committee recommends to the Minister that an Aboriginal site should be declared a protected area, the Minister should give notice to any person who might be entitled to give notice under s 18(2) and 'to any other person the Minister has reason to believe has an interest that might be specially affected if the declaration were made'. Section 19(2) provides:
(2) A person aggrieved by a recommendation for the declaration of a protected area may make representations in writing to the Minister setting out the grounds upon which he is aggrieved and the Minister may, if he is satisfied that the complainant has shown reasonable cause why his interest in the matter should be taken into consideration, direct the Committee to consider the representations and report to him on them.
127 Section 34 deals with the procedure of the ACMC and provides that it must conduct proceedings in such manner as may be prescribed, and until prescribed, the convening of meetings and the procedures to be adopted are matters for the ACMC itself to determine. No procedures have been prescribed under s 34.
128 It is clear that the AH Act focuses on the 'interest of the community' in the preservation of places of significance to Aboriginal people. That is reflected in the purpose of the Act which is expressed as being for 'the preservation on behalf of the community' of significant places. It is the 'general interest of the community' to which the Minister must have regard in making a decision under s 18(3). The duty of the Minister expressed in s 10 is to ensure the recording of places 'on behalf of the community'.
129 Notwithstanding that overall focus on the interests of the community generally, it is plain that the effective operation of the AH Act requires input of some kind from Aboriginal people. Aboriginal people are necessarily the principal source of information as to the existence of sites to which the AH Act applies, and as to the significance and importance of those sites.
130 The intervener submitted that, if the ACMC was required to accord procedural fairness to persons in the position of the applicants, significant and insurmountable practical problems would arise. Those problems include determining how to identify people within the class to whom procedural fairness was to be accorded, how they might be told of the substance of the issues before the ACMC, and by what mechanism they might be given an opportunity to respond. I will return to that submission below.
131 As well as looking at the statutory framework under which the ACMC operates, it is, in my view, necessary to have regard to the particular decision which the ACMC is confronting in order to determine whether, in any given case, there is an obligation to accord procedural fairness to anyone other than the proponent of a s 18 notice. Not only is that necessary to ascertain the existence of any duty of procedural fairness, but also the content of that duty in the particular case concerned.
132 In Plaintiff S10/2011 v Minister for Immigration and Citizenship,[98] Gummow, Hayne, Crennan and Bell JJ agreed with the observation of Brennan J in Kioa v West [99] where he said:
The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.
133 They also referred with approval to the passage earlier in Brennan J's reasons where he said:[100]
There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature, when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.
134 The decision taken by the ACMC on 18 December 2013, as recorded in Resolution 2013/185, was to confirm the assessment contained in the Department report that the Marapikurrinya Yintha was not a site for the purposes of the AH Act. In effect, the decision reversed the decisions taken in relation to earlier s 18 notices, and was inconsistent with the previous registration of the Marapikurrinya Yintha under the AH Act. The process which had led to the Marapikurrinya Yintha being accepted as a site for the purposes of the Act in 2008 and 2009 is outlined above at [16] - [17] and [21] - [22]. That process included significant input from the applicants through their consultation in the context of the preparation of the Anthropos report, the oral presentation by the applicants to the ACMC on 9 July 2008, and the opportunity given to, and taken up by, them to respond to the Barber report in July 2008.
135 The Department report, which was clearly fundamental to the decision taken by the ACMC on 18 December 2013, recommended that the ACMC no longer recognise the Marapikurrinya Yintha as a site and raised numerous considerations for the ACMC (see [31] above).
136 The letter of 3 December 2013 from the Registrar to Ms Paris of PHPA sought comment on two specific matters related to the considerations identified in the Department report. It does not appear that the Department report was provided to the PHPA nor was there any other request for submissions on the numerous other considerations which the Department report identified for the ACMC's consideration.
137 The PHPA's response for December is referred to above at [38].
138 The PHPA continued to urge recognition of the Marapikurrinya Yintha as a 'site of deep cultural importance to the traditional owners'. The response made clear that, by reason of an upcoming period of customary law and cultural activities, the further cultural information sought by the ACMC, through the Registrar, would not be available.
139 It is clear from the course of conduct illustrated by the treatment of the various s 18 notices which have been discussed earlier in these reasons that the ACMC recognises the need to have information from the affected Aboriginal groups as to the existence, significance and importance of sites which might be affected by proposed works. That requirement appears generally to have been met by the provision of anthropological reports commissioned and provided by the s 18 proponent. That approach is an appropriate and practical way of addressing the performance of the ACMC's statutory function under s 18. It can be seen from the conduct of the ACMC in relation to the opinion which it formed on 6 August 2008 that, having identified the applicants as representatives of the affected Aboriginal group, the Committee provided them with the opportunity to make an oral presentation prior to making its decision.
140 In my view, the scheme of the AH Act is such that the ACMC is obliged, as a matter of procedural fairness, to ensure that it has sufficient information from the Aboriginal persons who might be affected by a decision as to the existence, significance and importance of sites which might be affected by a proposal under s 18. That does not mean that it is necessary, as a general rule, to specifically invite persons who might be affected by the decision to make either written or oral submissions before a s 18 decision is made. It may be sufficient to meet the obligation of the ACMC that it invites the proponent to provide appropriate reports which canvass the inquiries made of, and views expressed by, those Aboriginal groups with a connection to the land. Whether anything more might be required in any particular case is a matter to be considered in light of the individual circumstances of each case.
141 As observed by Brennan J in the passage from Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division[101] set out above at [118], regard must be had to all the circumstances of a case, including, relevantly for present purposes, 'the stage the proceedings have reached when the repository of the power learns of' the interests which are to be affected.
142 In this case, the ACMC was confronted with a decision which, in effect, changed the basis upon which it had approached the earlier s 18 notices which related to the Marapikurrinya Yintha. As a result of the process undertaken in 2008, the earlier s 18 notices had all been dealt with on the basis that the Marapikurrinya Yintha was a site for the purposes of the Act, and recommendations were made for the Minister to consent to the proposal notwithstanding that fact.
143 The applicants were entitled to expect that the 2013 s 18 notice would be dealt with on that basis. They had played a significant part in the identification and acceptance of the Marapikurrinya Yintha as a site for the purposes of the AH Act. The ACMC was well aware of the identity of the representatives of the affected Aboriginal group. The practical problems identified in the intervener's submission (and referred to above at [130]) did not arise in the circumstances confronting the ACMC. In my view, the ACMC was bound to provide an opportunity to the applicants as representatives of the Kariyarra family group to respond to the proposal contained in the Department report to cease to recognise the Marapikurrinya Yintha as a site for the purposes of the Act. In part at least, that obligation was implicitly acknowledged in the Registrar's letter of 3 December 2013. That letter did not, however, seek information in relation to all of the issues raised by the Department report and, in any event, the PHPA's response made clear that no opportunity had been given to the applicants to deal with the issues which were raised before the ACMC made its decision.
144 In those circumstances, I consider that ground 8 is made out.
145 Ground 8 is, in effect, an alternative to ground 9. In view of the matters raised in the Department report which went beyond the arguments in the Barber report and raised issues which the applicants had had no opportunity to respond, the materials submitted by the applicants in July 2008, which are referred to in ground 9, may well have been inadequate to satisfy the ACMC's duty to allow the applicants to be heard in relation to the decision to no longer treat the Marapikurrinya Yintha as a site. The substance of the failure of the ACMC to accord procedural fairness to the applicants is to be found in ground 8 rather than ground 9.
Unreasonableness146 Ground 10 asserts that the decision that the Marapikurrinya Yintha was not a site was unreasonable or arbitrary. The substance of the applicants' submission on this ground was that the ACMC formed its opinion that there was not an Aboriginal site on the land on the correct statutory basis as required by s 18 of the AH Act. They relied on the observations of Gageler J in Minister for Immigration and Citizenship v Li,[102] that the implication of reasonableness as a condition of the exercise of discretionary power requires that a decisionmaking authority acting under statute must exercise its discretion according to law and to reason within the limits set by the subject matter, scope and purpose of the statute.
147 This ground adds nothing to grounds 3, 4 and 5, which I have found to have been made out. It is not necessary to deal with it further.
Conclusion148 For the reasons above, I uphold grounds 3, 4, 5 and 8. The other grounds should be dismissed. It is appropriate that the decision of the ACMC of 18 December 2013 should be set aside, and the matter be referred back to the ACMC to reconsider its recommendations to the Minister in light of these reasons.
[1]
Affidavit of Kerry John Robinson, affirmed 17 June 2014
[5] [8].
[2]
Affidavit of Kerry John Robinson, affirmed 17 June 2014
[10].
[3]
ts 55 (27 November
2014).
[4]
ts 7 (27 November 2014).
[5]
Aboriginal
Heritage Act 1972 (WA) s
38.
[6]
Resolution ID 5826 (extracted from minutes of ACMC meeting, 6 August
2008).
[7]
Resolution ID 5826 (extracted from minutes of ACMC meeting, 6 August
2008).
[8]
Affidavit of Kerry John Robinson, affirmed 17 June 2014, [20] and
KJR5.
[9]
Affidavit of Kerry John Robinson, affirmed 17 June 2014, KJR5,
110 111.
[10]
Affidavit of Kerry John Robinson, affirmed 17 June 2014, KJR7,
115 124.
[11]
Anthropos report, 2008, 22 -
23.
[12]
Anthropos report, 2008,
17.
[13]
Anthropos report, 2008,
24.
[14]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB3, page
66.
[15]
Affidavit of Mihiarangi Myrna-May Pripi, sworn 17 June 2014, attachment MMP23,
page
200.
[16]
Affidavit of Mihiarangi Myrna-May Pripi, sworn 17 June 2014, attachment MMP23,
page
200.
[17]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, page
6.
[18]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, page
16.
[19]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, page
18.
[20]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, pages
18 -
19.
[21]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, page
28.
[22]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, page
29.
[23]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB1, page
30.
[24]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, TMB3, page
69.
[25]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, TMB3, pages 67 -
68.
[26]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, TMB3, page
68.
[27]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, TMB3, page 68 -
69.
[28]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB3, pages
69 -
70.
[29]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB3, pages
70-72.
[30]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB3, page
72.
[31]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB4, page
76.
[32]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB4, page
78.
[33]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB6, page
80.
[34]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB6, pages
80 -
81.
[35]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB7, page
82.
[36]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB7, page
83.
[37]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB8, page
84.
[38]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB8, page
84.
[39]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB8, pages
84 -
85.
[40]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB9, page
86.
[41]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014
[12].
[42]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB10, pages
90 - 91.
[43] Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB10, pages 92.
[44] Affidavit of Mihiarangi Myrna-May Piripi, affirmed 17 June 2014, attachment MMP10, page 97.
[45]
Outline of submissions of the intervener, 24 November 2014 [23] -
[30].
[46]
Australian
Conservation Foundation Inc v
Commonwealth (1980) 146 CLR
493;
Onus
v Alcoa of Australia Ltd
[1981] HCA 50; (1981) 149 CLR
27.
[47]
Australian
Conservation Foundation Inc v
Commonwealth (1980) 146 CLR
493, 530 -
531.
[48]
Kioa
v West [1985] HCA 81; (1985)
159 CLR
550.
[49]
Kioa
v West [1985] HCA 81; (1985)
159 CLR 550, 621 -
622.
[50]
Shop
Distributive & Allied Employees Association v Minister for Industrial
Affairs [1995] HCA 11;
(1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh
JJ).
[51]
Onus
v Alcoa of Australia Ltd
[1981] HCA 50; (1981) 149 CLR 27, 73.
[52]
Onus
v Alcoa of Australia Ltd
[1981] HCA 50; (1981) 149 CLR 27, 73 (Brennan J); see also
Bateman's
Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty
Ltd
[1998] HCA 49; (1998) 194
CLR 247, 267 [52] (Gaudron, Gummow & Kirby
JJ).
[53]
Submissions in reply of applicants in support of application for judicial
review, dated 26 November 2014 [9].
[54]
Woodley
v Minister for Indigenous
Affairs
[2009] WASC
251.
[55]
Outline of submissions of the intervener, 24 November 2014 [25];
Re
Minister for Indigenous Affairs; Ex parte Woodley [No
2] [2009] WASC 296
[6].
[56]
Woodley
v Minister for Indigenous
Affairs
[2009] WASC 251
[38].
[57]
Woodley
v Minister for Indigenous
Affairs
[2009] WASC 251
[38].
[58]
Affidavit of Kerry John Robinson, affirmed 17 June 2014
[7].
[59]
Affidavit of Kerry John Robinson, affirmed 17 June 2014
[7].
[60]
Affidavit of Kerry John Robinson, affirmed 17 June 2014 [10] - [11].
[61]
The
State of Western Australia v Bropho
(1991) 5 WAR
75.
[62]
The
State of Western Australia v Bropho
(1991) 5 WAR 75, 90 - 91 (Anderson J;
Franklyn J agreeing).
[63]
Outline of submissions of the intervener, 24 November 2014
[29].
[64]
The
State of Western Australia v Bropho
(1991) 5 WAR 75,
90.
[65]
Anthropos report,
28 29.
[66]
Anthropos report,
23.
[67]
The
State of Western Australia v Bropho
(1991) 5 WAR 75, 78 - 79.
[68]
The
State of Western Australia v Bropho
(1991) 5 WAR 75,
79.
[69]
The
State of Western Australia v Bropho
(1991) 5 WAR 75, 79 citing
Australian
Conservation Foundation Inc v
Commonwealth (1980) 146 CLR
493.
[70]
Outline of submissions of the intervener, 24 November 2014
[30].
[71]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, attachment TMB4, pages
78.
[72]
Affidavit of Mihiarangi Myrna-May Piripi, affirmed 17 June 2014, attachment
MMP6, page
84.
[73]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, Attachment TMB10,
page
90.
[74]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, Attachment TMB4,
page
78.
[75]
Affidavit of Mihiarangi Myrna-May Piripi, affirmed 17 June 2014, attachment
MMP23, page
200.
[76]
Affidavit of Mihiarangi Myrna-May Piripi, affirmed 17 June 2014, attachment
MMP23, page
200.
[77]
Memorandum from the Registrar of Aboriginal Sites to the Minister for Aboriginal
Affairs, 28 July 2014, Contentious Issues, point
4.
[78]
Macquarie dictionary (6th revised edition,
2013).
[79]
Oxford English Dictionary (online edition,
2013).
[80]
Macquarie dictionary (6th revised edition, 2013).
[81]
Western Australia,
Parliamentary
Debates, Legislative
Assembly, 2 September 1980, 839 (Mr W L Grayden, Minister for Education,
Cultural Affairs and
Recreation).
[82]
Western Australia,
Parliamentary
Debates, Legislative
Assembly, 10 September 1980, 1254 (Mr W L Grayden, Minister for
Education, Cultural Affairs and
Recreation).
[83]
Western Australia,
Parliamentary
Debates, Legislative
Assembly, 10 September 1980, 1256 (Mr W L Grayden, Minister for
Education, Cultural Affairs and
Recreation).
[84]
Craig
v State of South Australia
[1995] HCA 58; (1995) 184 CLR 163,
179.
[85]
A
v Corruption and Crime
Commissioner [2013] WASCA
288; (2013) 306 ALR 491
[90].
[86]
Minister
for Aboriginal Affairs v PekoWallsend
Ltd [1986] HCA 40; (1986)
162 CLR 24, 39
(Mason J).
[87]
Minister
for Aboriginal Affairs v PekoWallsend
Ltd [1986] HCA 40; (1986)
162 CLR 24, 30 31
(Mason J).
[88]
Affidavit of Tanya Maree Butler, affirmed 22 July 2014, Attachment TMB3,
page
69.
[89]
Woodley
v Minister for Indigenous
Affairs
[2009] WASC
251.
[90]
The
State of Western Australia v Bropho
(1991) 5 WAR 75,
91.
[91]
The
State of Western Australia v
Bropho
(1991) 5 WAR
75.
[92]
Plaintiff
S10/2011 v Minister for Immigration and
Citizenship [2012] HCA 31;
(2012) 246 CLR
636.
[93]
Plaintiff
S10/2011 v Minister for Immigration and
Citizenship [2012] HCA 31;
(2012) 246 CLR 636, 659
[65] [66].
[94]
Re
Ludeke; Ex parte Customs Officers Association of Australia, Fourth
Division [1985] HCA 31;
(1985) 155 CLR 513,
528.
[95]
The
State of Western Australia v Bropho
(1991) 5 WAR
75.
[96]
The
State of Western Australia v Bropho
(1991) 5 WAR 75, 92
(Anderson J), 79 (Malcolm CJ), 82
(Franklyn J).
[97]
Traditional
Owners - Nyiyaparli People and Minister for Health, Indigenous
Affairs [2009] WASAT
71.
[98]
Plaintiff
S10/2011 v Minister for Immigration and
Citizenship [2012] HCA 31;
(2012) 246 CLR 636
[66].
[99]
Kioa
v West [1985] HCA 81; (1985)
159 CLR 550,
619.
[100]
Kioa
v West [1985] HCA 81; (1985)
159 CLR 550,
616 617.
[101]
Re
Ludeke; Ex parte Customs Officers Association of Australia, Fourth
Division [1985] HCA 31;
(1985) 155 CLR
513.
[102]
Minister
for Immigration and Citizenship v
Li [2013] HCA 18; (2013) 249
CLR 332, 370 371.
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