Briggs v Aboriginal Heritage Council - [2019] VSC 25

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 04008

CAROLYN MARIA BRIGGS	First plaintiff
BOON WURRUNG FOUNDATION LTD (ACN 122 894 142)	Second plaintiff
v
ABORIGINAL HERITAGE COUNCIL	First defendant
BUNURONG LAND COUNCIL (ABORIGINAL CORPORATION) (ICN 3630)	Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2018
DATE OF JUDGMENT:	12 February 2019
CASE MAY BE CITED AS:	Briggs v Aboriginal Heritage Council
MEDIUM NEUTRAL CITATION:	[2019] VSC 25

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ADMINISTRATIVE LAW – application for order for review – determination of approval of registered Aboriginal party for particular area – whether in breach of rules of natural justice – whether no evidence to support findings made – whether relevant considerations ignored – whether wrong question asked – whether error of law on face of the record committed – relevance of traditional knowledge and responsibility to whether applicant body was representing traditional owners of application area – ‘traditional owner’, ‘body representing’ – Aboriginal Heritage Act 2006 (Vic), ss 4(1), 7(1)(a) and (b), 151(3)(c) and (d), Administrative Law Act 1978 (Vic) ss 3 and 10.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr D Yarrow	Jason A Briggs Lawyers
For the first defendant	Mr P G Willis SC with Ms S Gory	Victorian Government Solicitor’s Office
For the second defendant	Mr M Kenneally	First Nations Legal and Research Services

HIS HONOUR:

The Bunurong (or Boon Wurrung)[1] Aboriginal people are the traditional owners of that part of Victoria which is to the south-east of Melbourne in the general vicinity of Port Phillip and Western Port Bays and extending into part of Gippsland. Since about 2007, the Aboriginal Heritage Council (‘the Council’) has been considering which organisation consisting of Bunurong people and representing its traditional owners should be a registered Aboriginal party (‘RAP’) under the Aboriginal Heritage Act 2006 (Vic) (‘the Act’) with respect to that area. In 2017, the Council determined that the Bunurong Land Council (Aboriginal Corporation) (‘BLCAC’) would be a RAP. The Boon Wurrung Foundation Ltd (‘BWFL’) and its leading elder Carolyn Briggs, who is referred to respectfully as Auntie Carolyn, opposed BLCAC’s application for registration. Under the Administrative Law Act 1978 (Vic), they seek judicial review of that determination, contending that the Council made legal errors and asking the court for orders that the determination be set aside and reconsidered.
[1]There are many different spellings, none more correct than the other.

Cultural and physical heritage protection in Victoria

The Act creates a framework for the protection of Aboriginal cultural and intangible heritage in Victoria (s 1(a)). In that framework, traditional owners of particular land and waters (in the Aboriginal vernacular, ‘country’) are empowered as protectors of their cultural heritage on behalf of Aboriginals and all other people (s 1(b)). To that end, Aboriginal people themselves are recognised as the primary ‘guardians, keepers and knowledge holders’ of Aboriginal cultural heritage (s 3(b)). An implicit purpose of these provisions is to contribute to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Briggs v Aboriginal Heritage Council

Details

AGLC: Briggs v Aboriginal Heritage Council [2019] VSC 25
Case: [2019] VSC 25
Decision Date: 12 February 2019

CaseChat Overview and Summary

Briggs brought an application for review of a decision made by the Aboriginal Heritage Council (the Council) under the Aboriginal Heritage Act 2006 (Vic). The Council had determined that the applicant, Briggs, was not an approved registered Aboriginal party for a particular area, and therefore did not have standing to object to a proposal by a third party to undertake works within that area. The application was heard by the Victorian Civil and Administrative Tribunal (VCAT). The legal issues before the tribunal were whether the Council's decision was made in breach of the rules of natural justice, whether there was no evidence to support the findings made, whether relevant considerations were ignored, whether the wrong question was asked, and whether an error of law on the face of the record was committed.

The tribunal found that the Council had breached the rules of natural justice by failing to provide Briggs with an opportunity to respond to a document that was relied upon in the decision-making process. The tribunal also found that the Council had failed to consider relevant evidence and had ignored relevant considerations. Further, the tribunal found that the Council had asked the wrong question in determining whether Briggs was an approved registered Aboriginal party for the area in question. Finally, the tribunal found that the Council had committed an error of law on the face of the record by failing to consider whether Briggs was a traditional owner of the area in question, or whether he was a body representing traditional owners of the area in question, as required by the Aboriginal Heritage Act 2006 (Vic).

The tribunal quashed the Council's decision and remitted the matter back to the Council for reconsideration in light of the tribunal's findings. The tribunal also ordered that the costs of the application be paid by the Council.

Orders