1 April 2021
What you need to know
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Sections 9, 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) enable the Commonwealth Minister for the Environment to make a declaration for the protection and preservation of significant Aboriginal areas and objects from injury or desecration.
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The Senate's November 2020 Interim Report into the Juukan Gorge incident recommended an urgent review into the adequacy of the ATSIHP Act. These recommendations were echoed in the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Productivity Commission in its December 2020 report on Resource Sector Regulation.
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Critical comments in these reports about the limited number of declarations under the ATSIHP Act are unlikely to reduce the continuing upward trend in declaration applications being made that began in 2019.
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The Federal Court has also determined two judicial review applications in 2020, challenging decisions under the ATSIHP Act, revealing a willingness by the Court to interpret the words "Aboriginal tradition" in the ATSIHP Act broadly, acknowledging the complexities and nuances inherent in that phrase.
What you need to do
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Be aware that a protection application under the ATSIHP Act is a powerful means by which Traditional Owners can express dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.
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Land users should be prepared for the release of the Senate Committee's final report in October 2021 and the inevitable legislative reform that will follow.
Recap of the ATSIHP Act declaration application provisions
Sections 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) enable an Aboriginal person or a group of Aboriginal people to make an application to the Minister (in writing or orally) seeking a declaration for the preservation or protection of a specific significant Aboriginal area from injury or desecration.
A critical precondition to a declaration is that the Commonwealth Minister forms the view that the area is not adequately protected under State or Territory legislation.
Protection applications made in 2020 and 2021
We reported on a number of 2019 ATSIHP Act protection applications in our 2019 Native Title Year in Review article Not so sleepy after all: Commonwealth gets involved in Aboriginal and Torres Strait Islander Heritage Protection. As we predicted in that article, this trend has continued in 2020 and 2021. We summarise the current suite of applications below:
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Apparrlu on Murulag: This section 10 application was brought on behalf of the Kaurareg People for the purpose of protecting an area known as Apparrlu on Murulag (or Prince of Wales Island), and adjacent waters of the Torres Strait, Queensland. The applicants sought to protect the area from roadworks and harbour works proposed by the Torres Shire Council. In January 2020, the Reporter in this matter allowed an extension of time to make representations. On 9 March 2021, the ABC reported that the Torres Shire Council had abandoned its construction plans after obtaining the report prepared in accordance with section 10(4) of the ATSIHP Act.
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Former Anglican Holy Trinity Church grounds: A section 10 application was made on behalf of the Jerrinja Local Aboriginal Land Council to protect an area known as the former Anglican Holy Trinity Church grounds in Huskisson, New South Wales. The applicant sought to protect the area from proposed commercial and residential development. More details can be found here.
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Ravensworth: A section 10 application was made to protect an area known as the "Ravensworth Estate", and including Bowmans Creek and Glennies Creek in the Hunter Valley, New South Wales. The applicants claimed the area was under threat of injury or desecration from mining activities. More details can be found here.
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Warragamba Dam: This section 10 application, made by Aunty Sharyn Halls on behalf of the Gundungurra Aboriginal Heritage Association Inc, seeks to protect an area known as the Burragorang Valley, near Warragamba, New South Wales. The applicant attributes the potential injury or desecration to the proposed raising of the Warragamba Dam walls. More details can be found here.
Judicial review challenges to Ministerial decisions on protection applications
Third successful JR challenge to ATSIHP Act determination – Western Highway upgrade, Victoria
Onus v Minister for the Environment [2020] FCA 1807 involved a challenge to the Minister's decision not to make a declaration to protect six trees, and their surrounding area, near Ararat in Victoria. The applicants in this case had brought the application under sections 10 (protection of significant Aboriginal places) and section 12 (protection of significant Aboriginal objects) of the ATSIHP Act to protect the area and trees from the construction and realignment of the Western Highway.
This matter had a lengthy and complex history. In December 2018, Minister Price declined to make the declarations sought. That decision was quashed by consent by the orders of the Court and remitted for redetermination. Minister Ley then made a July 2019 decision again refusing to make the declarations. That decision was found to be invalid and the application was once again remitted for redetermination (see Clark v Minister for the Environment [2019] FCA 2027). Following the Court's order in Clark, Minister Ley made the determination the subject of this decision on 6 August 2020.
In respect of the section 10 application, the applicants argued that the Minister had failed to commission and receive a report under section 10(1)(c) of the ATSIHP Act. They contended that a change in circumstances since the original report was completed meant that it was no longer relevant. In the alternative, the applicants argued that the Minister's failure to obtain an up-to-date report was unreasonable.
The Federal Court rejected the applicants' arguments, noting that there is nothing in the Act requiring the Minister to obtain a further report when there is a significant change in the conduct being assessed.
The applicants also sought a declaration under section 12 of the ATSIHP Act to protect the trees as significant Aboriginal objects.
While the Minister was satisfied that five of the six trees were significant Aboriginal objects, she did not accept that they were under threat of injury or desecration from the highway alignment.
Griffiths J held that the Minister had acted unreasonably and/or on an incorrect understanding of the law. His Honour found that the Minister had committed three reviewable errors. Firstly, the Minister had overlooked some of the material and focused instead on whether the trees would be physically injured. In doing so, she fell into the same reviewable error identified by the Court in Clark. Griffiths J stated that the Minister had failed "to grapple with the complex and nuanced cultural and spiritual heritage associated with the trees and the effect on that heritage by the alignment of the highway in proximity to them" (at [121]).
Secondly, the Minister had concluded that the trees were not under threat of injury or desecration without knowing precisely the physical proximity of the highway alignment to the trees.
Thirdly, the Minister had failed to consider the application in so far as it related to the relationship between the five trees and the area beyond the Specified Area.
Griffiths J found that the Minister's findings and reasonings in relation to the section 10 application could be severed from those relating to the section 12 application. On that basis, his Honour directed that only the section 12 decision be set aside.
Griffiths J ordered Minister Ley to refer the section 12 application for reconsideration and determination by another Minister with responsibility for administering the Act, given this would be the third time Minister Ley had considered the section 12 application, with the previous two attempts having been set aside for jurisdictional error.
Minister may take into account the social and economic impacts of a declaration on non-Indigenous persons – application not successful in relation to Shenhua Watermark Coal Mine in NSW
In Talbott v Minister for the Environment [2020] FCA 1042, the applicant (on behalf of the Gomeroi Traditional Owners) applied for judicial review of the Minister's decision not to make a section 10 declaration over areas located within or close to the proposed Shenhua Watermark Coal Mine near Breeza in New South Wales.
The Minister had determined that the areas were "significant Aboriginal areas" for the purposes of the Act. She was also satisfied that the areas were under threat of injury or desecration. However, the Minister concluded that, on balance, the social and economic benefits of the mine to the local community outweighed the impacts on the applicant's cultural heritage.
The applicant argued that the Minister had taken into account an irrelevant consideration by considering the social and economic impacts of the mine on the local community. It was argued that there is a limitation on the matters the Minister may take into account when determining a section 10 declaration arising from the Act's constitutional source of power in section 51(xxxvi) of the Constitution (known as the race power).
The Federal Court rejected this argument, stating at paragraph 91:
The Heritage Act is a law that operates in connection with the subject matter of s 51(xxvi). It does not cease to operate in connection with that subject matter because it confers a discretion as to whether or not to make the declaration in s 10, which may be exercised by reference to, inter alia, non-racial considerations such as the social and economic impacts on the community of the declaration.
The application for judicial review was therefore dismissed.
On 1 September 2020, the SBS reported that the applicant had lodged a new application to protect the area, however this further application has not yet been notified in the Australian Government gazettes.
Calls for legislative reform
The Senate's November 2020 Interim Report into the Juukan Gorge incident recommended anurgent review the adequacy of the ATSIHP Act. These recommendations were echoed in the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Productivity Commission in its November 2020 report on Resource Sector Regulation.
The reports were highly critical of the limited number of declarations under the ATSIHP Act. According to the Productivity Commission Report there have been only 7 long term declarations made, out of 500 applications, since the commencement of the Act in 1984. The reports recommended that the Commonwealth Minister play a more active role under the ATSIHP Act to protect cultural heritage, rather than deferring to State legislative processes and using the ATSIHP Act as a last resort.
It is yet to be seen how this recommendation will play out in the Minister's consideration of applications for protection declarations under the ATSIHP Act.
Key Insights
The current level of legal, social and political developments in the Aboriginal cultural heritage space is unprecedented. Calls for reform have come not just from the Senate, but from the Independent review of the EPBC Act and the Productivity Commission report on Resource Sector Regulation.
Protection applications under the ATSIHP Act are a powerful means by which Traditional Owners can express their dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.
Land users should be prepared for the release of the Senate Committee's final report into the Juukan Gorge incident in October 2021 and the inevitable legislative reform that will follow.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
