In this matter the applicant, Ms Talbott, acting on behalf of the Gomeroi Traditional Custodians (GTC), sought judicial review over two decisions made in relation to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Act). The Commonwealth Minister for the Environment was the respondent. Abraham J dismissed the application and ordered Ms Talbott to pay limited costs.
Background
Upon application by Indigenous custodians, s 10 of the Heritage Act grants the Minister discretionary power to make a declaration to protect an area from injury or desecration. The declaration can be made where the Minister is satisfied the area is significant to First Nations People and is under threat, considering a report in relation to the area, and any other matters the Minister thinks relevant (s10(1)(d)). Section 10(4) lists the factors the report must address, including the effects of a declaration on the proprietary or pecuniary interests of non-Indigenous persons (s 10(4)(e)).
Ms Talbott is a Gomeroi woman and member of the GTC group. In April 2015, she applied for the protection of multiple culturally significant sites under s 10. In 2017, the applicant added sites and further details. In total, the GTC sought declaration protection for eight interconnected areas and three significant trees. These areas were threatened given their proximity near or within the proposed Shenhua Watermark Coal Mine site.
In 2019, the Minister received a report for each application, and denied to make a declaration for either. The Minister’s reasoning explained that the mine’s threat to Indigenous heritage was outweighed by its social and economic benefits. On GTC’s behalf, Ms Talbott sought review over the decisions to decline declaration.
Submissions
Applicant
The applicant submitted that s 10(1)(d) did not permit the Minister to consider the public interests of the mine. Rather, Ms Talbott submitted that relevant considerations under the section are limited by s 51(xxvi) (the race power), the constitutional source of the Heritage Act. The Act’s constitutional validity was argued to be dependent on whether the law operates differentially based on race. This was founded on the argument that s 51(xxvi) is a purposive power, meaning any laws enacted under this power are limited to its purpose. Therefore, it was argued that action taken by the Minister under the Heritage Act must comply with the purpose of both the Act and the race power. The applicant submitted that the purpose of s 10(1)(d) is the special protection of Indigenous heritage. Based on this, the Minister made an error of law in considering social and economic benefit, which did not differentiate in accordance with the race power.
The applicant also submitted that it was necessary for s 10(4)(e) and s 28 (just compensation for diminished proprietary rights) of the Heritage Act to comply with s 51(xxxi) of the Constitution. These provisions were used to argue that the interests considerable are limited to existing interests rather than future interests.
Respondent
The Minister submitted that imposing an implied limitation on the legislation based on the character of the law is contrary to precedent and settled principles. s 10 was submitted to confer broad discretion and allows for a range of considerations, including social and economic consequences. It was argued that this does not reduce its character as a law under the race power. The Minister hence disputed a requirement that all discretions under the race power must be exercised with differential operation.
Decision
Justice Abraham held that the social and economic benefits of the mine was a relevant consideration encompassed by s 10(1)(d). This was largely due to the broad terms of s 10(1)(d), and the residual discretion the Minister has even when satisfied a significant area is threatened. It was held that deciding to make a declaration necessarily involves balancing competing factors.
The Race Power (51(xxvi) of the Constitution)
Although upholding the race power is the constitutional basis for the Heritage Act, Abraham J rejected the submission that the power limits permissible considerations to only those that differentiate race. His honour found this was irreconcilable to the other parts of the Act and inconsistent with the text of the provision itself. s 10(1)(d) was interpreted as ensuring the Minister considers all effects a declaration may have on other interests, not only matters within the race power. The discretion conferred was deemed to allow room for such considerations. His honour articulated s 51(xxvi) is a plenary power which allows the enactment of any laws provided there is sufficient connection to the power. As s 10 is only triggered by application from an Aboriginal group, it has sufficient connection. His honour held this does not require all Minister’s decisions under legislation connected to this power to uphold the character of s 51(xxvi).
The Compensation Power (51(xxxi) of the Constitution)
Abraham J also rejected the applicant’s submission that s 10(4)(e) complies with the compensation power, and thereby held the Minister is not required to consider compensation under s 28 Heritage Act. It was found this would limit the meaning of the section without proper basis as s 10(4)(e) considers proprietary or pecuniary interests. Pecuniary interests are irrelevant to s 28, and both are irrelevant to s 51(xxxi) which considers property acquisition. Abraham J held if s 10(4)(e) was intended to have this purpose, this would have been provided for.
At [42], his honour did note that the applicant could have possibly pursued the fact that the Minister’s reasoning did not refer to information relating to s10(4)(e) as possible compensation. However, it was noted this would be an option for compensation not proof of the Minister acting inconsistently to the legislation.
Overall, it was held that the social and economic impacts to the community are relevant considerations under s 10, and there was no ground of review to question the decisions.