Briggs v Aboriginal Heritage Council
[2019] VSC 25
•12 February 2019
| 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 ensuring and realizing the rights of all peoples to self-determination specified generally in common article 1 of the International Covenant on Civil and Political Rights[2] and the International Covenant on Economic, Social and Cultural Rights[3] and elaborated specifically with respect to Indigenous peoples in the articles of the United Nations Declaration on the Rights of Indigenous Peoples.[4]
[2]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 Mach 1976) art 1.
[3]International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 1.
[4]GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).
Aboriginal Heritage Council
The Council is established under pt 9 of the Act and (among other things) performs functions relating to the protection of the traditional places and objects of Victoria’s Aboriginal people, including determining who will be RAPs for particular areas of country (ss 130–2).
Section 131(3) provides that each member of the Council must be an ‘Aboriginal person’[5] who –
[5]Section 4(1) of the Act defines an ‘Aboriginal person’ to mean ‘a person belonging to the indigenous peoples of Australia’.
(a)is a traditional owner or can demonstrate traditional ownership of an area in Victoria; and
(b) is resident in Victoria; and
(c)in the opinion of the Minister, has relevant experience or knowledge of Aboriginal cultural heritage in Victoria.
Thus, under the Act, members of the Council must be Aboriginal persons who are traditional owners of country in their own right, resident in Victoria and have experience or knowledge of Aboriginal cultural heritage in Victoria generally. As a traditional owner of their own country, they are required to have particular knowledge about traditions, observances, customs or beliefs associated with and, under Aboriginal tradition, have personal responsibility, or responsibility by family or clan membership for, that country (see s 7(1)(a) and (b) and the definition of ‘Aboriginal tradition’ in s 4(2)). Accordingly, members of the Council have the specialised Aboriginal knowledge and expertise which is necessary for determining who are, and should represent, the traditional owners of particular country, and issues relating to traditional knowledge and responsibility arising in connection with RAP applications.
Registered Aboriginal parties
The most important mechanism for giving effect to the principle of protecting Victoria’s Aboriginal heritage through Aboriginal people themselves which the Act enshrines is the appointment of RAPs for particular areas by the Council. A RAP is the primary source of advice and knowledge for all levels of government in relation to Aboriginal places and objects and has the statutory power to give agreement to what would otherwise be an offence with respect to the land, waters and objects concerned.[6]
[6]See generally Gunaikurnai Land and Waters Aboriginal Corporation v Aboriginal Heritage Council [2016] VSC 569 (28 September 2016) [16]–[24] (Bell J) (‘Gunaikurnai’).
Applications for RAP registration
Under s 150(2) of the Act, it is a requirement for RAP registration that the applicant be a corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). Among other things, this means that the applicant must be a membership-based Aboriginal corporation. BLCAC is and BWFL is not such a corporation. But since well before this requirement was introduced in 2016,[7] BWFL has been regarded as a leading Boon Wurrung organisation and Auntie Carolyn as a leading Boon Wurrung elder.
[7]The requirement was introduced by s 91(4) of the Aboriginal Heritage Amendment Act 2016 (Vic).
In determining applications to be registered as a RAP, the Council is mandatorily required to take certain matters into account (s 151(3)). As relevant to the present case, these matters include (s 151(3)(c) and (d)):
(c)whether the applicant is a body representing the traditional owners of the area to which the application relates;
(d)whether the applicant is a body representing Aboriginal people that has—
(i)a historical or contemporary interest in the Aboriginal cultural heritage relating to the area to which the application relates; and
(ii)demonstrated expertise in managing and protecting Aboriginal cultural heritage in that area.
Of particular relevance is para (c) and to some extent para (d), which the plaintiffs contend was not properly applied by the Council in the present case.
As can be seen, para (c) requires the Council to determine whether the applicant is a body representing ‘traditional owners’ in relation to the application area. This calls up the explanation of the concept of a traditional owner in s 7. Only s 7(1)(a) and (b) is here relevant:
(1)For the purposes of this Act, a person is a traditional owner of an area if—
(a)the person is an Aboriginal person with particular knowledge about traditions, observances, customs or beliefs associated with the area; and
(b) the person—
(i)has responsibility under Aboriginal tradition for significant Aboriginal places located in, or significant Aboriginal objects originating from, the area; or
(ii)is a member of a family or clan group that is recognised as having responsibility under Aboriginal tradition for significant Aboriginal places located in, or significant Aboriginal objects originating from, the area; …
The concept of ‘Aboriginal tradition’ is explained in a definition in s 4(1):
Aboriginal tradition means—
(a)the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and
(b)any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
To be a traditional owner for an area under s 7(1)(a) and (b), the person must: be an ‘Aboriginal person’, which is commonly established by reference to descent (among other potential criteria) (see the definition in s 4(1)); have particular knowledge about traditions, observances, customs or beliefs associated with the area; and under ‘Aboriginal tradition’ (see the definition in s 4(1)) have responsibility, or be a member of a family or clan group having responsibility, for significant Aboriginal places or objects in or coming from the area. As the Council correctly decided, it is not a requirement that the person reside in the area.
Previous applications for Bunurong RAP registration
After the Act was passed in 2006, three organisations contended for recognition as a RAP for Bunurong country. These were BLCAC, the Bunurong Land and Sea Association Incorporated (‘BLSAI’) and BWFL. The BLSAI eventually merged with BLCAC, leaving two single entities to contend for registration.
BLCAC has made three and BWFL has made two applications for RAP registration. The first two BLCAC applications were rejected, as were the two BWFL applications. The third BLCAC application was accepted (but for a smaller area). That is the registration legally challenged here.
In determining the applications, Council emphasised the importance of recognising as a RAP a single organisation capable of representing, and effectively representing in fact, all Bunurong people and traditional owners. However, as between BLCAC and BWFL, there has been and remains a dispute about who may legitimately claim to be, and be recognised as, Bunurong. Although the dispute involves matters relating to who has, and is entitled to hold, Bunurong traditional culture and knowledge, it centres around whether particular individuals are properly to be regarded as Bunurong ancestors when determining whether their living descendants are to be recognised as Bunurong and therefore entitled to be members of a Bunurong RAP organisation.
In attempting to resolve the many complex and highly sensitive issues raised, the Council has adopted a cautious and gradual approach. When rejecting the BLCAC and BWFL applications for RAP registration in 2009, the Council found that members of both organisations were traditional owners of Bunurong country. It refused the applications because neither group recognised the Bunurong apical ancestry, and the entitlement (really the traditional responsibility) to protect country, of all members of the other group.
The response of BLCAC in its imperfect second (2010) and then in its improved third (2017) applications was to expand its membership eligibility to recognise all of the hitherto disputed apical ancestors, thus entitling members of BWFL to be members of BLCAC. This led to the Council’s here-challenged 2017 decision to appoint BLCAC as a RAP.
The response of BWFL was to attempt to persuade the Council that a certain individual[8] (Jane Foster) who was accepted by BLCAC as a Bunurong apical ancestor could not properly be so regarded. Council rejected this attempt and approved the BLCAC application. By this time, BWFL was not eligible to be a RAP (see above). That explains why it did not then and does not now have a competing application. But it and Auntie Carolyn were rightly regarded by the Council as being and representing important stakeholders in the debate. No doubt they are considering their long-term options, of which this proceeding forms part, which I take into account in relation to standing issues (see below). The Council has found that BWFL members are traditional owners, and Auntie Carolyn is a distinguished elder. She and other Boon Wurrung traditional owners (who are represented in fact by BWFL) have a great stake in the RAP registration process, including appurtenant legal proceedings, because of their responsibility to protect country.
[8]It may be that BWFL objected to the recognition of more than one of the apical ancestors put forward by BLCAC.
It was in Council’s 2015 decision rejecting BWFL’s application that the issue of identifying the Bunurong apical ancestors was most comprehensively addressed. The following passage from the Council’s determination of that application explains both the issue and how it was addressed:
Reasons for Decision
Traditional and Familial Links
· Boon Wurrung ancestry
Over recent decades there has been a significant amount of research undertaken by Aboriginal and non-Aboriginal people to better understand Boon wurrung ancestors and their contemporary descendants. In this regard Council recognises with respect the outstanding contribution made by Carolyn Briggs and her family to community awareness and understanding of the Boon wurrung People’s identity and culture.
Regarding research into the ethno-historical records, Council has noted work undertaken by Dr Ian Clark, Dr Sue Wesson, Dr Fiona Skyring and Jacqueline D’Arcy. Council is also aware of the criticisms that have been made in relation to this work.
In its considerations, Council reviewed all the information and correspondence received from BWFL and the available research reports. According to this information, it appears that the only known Boon wurrung apical ancestors with living descendants are women who were abducted by sealers in the early [19th] century. It is recognised that other ancestors may be identified in future but present knowledge is limited to these women. Given the illegal and clandestine nature of these abductions, it is no surprise that the historical record is ambiguous where Boon wurrung ancestry is concerned. Council has noted different researchers use the words supported, asserted, unproven, possible and plausible to describe the likelihood of all of the named ancestors being Boon wurrung ancestors.
Council is aware that five women, collectively, have been identified as being the Boon wurrung ancestors. They are Jane Foster, Margery Munro, Eliza Nowen, Elizabeth Maynard and Louisa Briggs. On the basis of information currently available, Council accepts each of these women as Boon wurrung ancestors and will be unlikely to change this position unless new information comes to light that disproves any or all of these claims.
The ethno-historical records and work undertaken by the four experts referred to is extensive. In the present proceeding, the court was provided with and has considered this material.
In rejecting BWFL’s application (which it was then eligible to make), Council was at pains to acknowledge BWFL’s and Auntie Carolyn’s auspicious track record:
BWFL is known by Council to have had a long history of involvement in cultural heritage management. Council acknowledges and respects accomplishments by Carolyn Briggs and her family to revive and sustain Boon wurrung cultural heritage including the promotion of Boon Wurrung identity, language and history; partnerships with stakeholders in cultural heritage management; and protection of Boon Wurrung heritage. Council noted an account of BWFL’s accomplishments outlined in the Application.
However, the Council relied upon its long-standing policy on inclusivity, which is not here under challenge. As explained by the Council in the reason for its determination:
It is broadly recognised that it is for Traditional Owners themselves to develop their membership rules as part of establishing corporations that make RAP applications on their behalf. These rules may define members’ rights and obligations based on a variety of factors and considerations.
While Council recognises this, Council applies decision making principles concerning matters of group membership and inclusivity in its consideration of RAP applications. These principles align with the Act and native title legislation and include the following:
–Council gives priority consideration to applications made by groups who represent Traditional Owners.
–Council wants to ensure that groups recognised under the cultural heritage laws as best as possible reflect those under native title arrangements.
–Council encourages smaller groups to create sustainable RAP structures by working together to create a single RAP or develop co-operative arrangements with other Aboriginal organisations.
Applying this policy, the Council rejected BWFL’s application because its membership rules did not include the descendants of Jane Foster:
The current BWFL Constitution provides that BWFL membership is open to a person who identifies as an Aboriginal person and a descendant of an identified Boon Wurrung apical ancestor, and demonstrates an interest in and knowledge of Boon Wurrung culture and history. Council welcomed this change from an earlier Constitution which did not require BWFL members to be Boon wurrung Traditional Owners. However Council also noted BWFL’s membership rules and position about Boon wurrung ancestry currently prevent descendants of Jane Foster from applying for BWFL membership.
BWFL did not (and does not) accept the Council’s determination on this issue. In opposing BLCAC’s third application, it again sought to persuade the Council that Jane Foster could not be regarded as a Bunurong apical ancestor. When approving that application, and appointing BLCAC as a RAP, Council rejected BWFL’s submission on this subject. As stated in its reasons for decision:
In its deliberations, Council reviewed all relevant information and correspondence received on this issue, including available research reports, and determined that Council had not been provided with any new information that disproved its acceptance of all five Bunurong ancestors.
Application for judicial review
BWFL makes application under s 3 of the Administrative Law Act for an order for review of the Council’s determination. Section 3 provides:
Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.
The submissions made on behalf of the defendants in this court called into question whether the plaintiffs were ‘persons affected’[9] by the decision of the Council and whether the Council was a ‘tribunal’[10] within the meaning of this provision. While seriously doubting the correctness of the defendants’ submissions in this connection, I will determine the application upon the assumption that the plaintiffs are persons affected and that the Council is a tribunal as defined. I likewise seriously doubt the correctness of the defendants’ submission that the plaintiffs were not persons to whom the Council owed a duty of natural justice in relation to the determination of the BLCAC application but, when determining ground (b) of the application (see below), will assume that the duty was in law owed.
[9]See the definition of ‘person affected’ in s 2 of the Administrative Law Act 1978 (Vic).
[10]See the definition of ‘decision’ in s 2 of the Administrative Law Act.
As pressed at the hearing and stipulated in the amended proposed order for review, the grounds of the application were (ground (a) was not pressed):
(b)the first defendant failed to observe the principles of natural justice, or the requirements of procedural fairness, by:
(i)failing to inform the plaintiffs of the substance of the evidence of the second defendant concerning the extent to which it represented the traditional owners of the area to which its application related that was considered by the first defendant when making its decision;
(ii)failing to provide the plaintiffs with the opportunity to comment on that evidence before the first defendant made its decision;
(c)in making the finding that the second defendant was a body representing the ‘traditional owners of the decision area’ and ‘Aboriginal people with historical and contemporary interest in Aboriginal cultural heritage relating to the decision area (being the traditional owners of that area)’, the first defendant made a decision in the absence of any evidence or other material concerning:
(i)the knowledge of Aboriginal persons represented by the second defendant concerning the traditions, observances, customs or beliefs associated with the ‘decision area’; or
(ii)the responsibility of Aboriginal persons represented by the second respondent, or the families or clans of which those persons are members, under Aboriginal tradition for Aboriginal places in, and Aboriginal objects from, the ‘decision area’;
and so committed an error of law;
(d)in determining the application, the first defendant failed to consider a relevant consideration arising under ss 7(1) and 151(3)(c) of the Aboriginal Heritage Act 2006 (Vic) being:
(i)the ‘particular knowledge about traditions, observances, customs or beliefs associated with the area’ of persons represented by the second defendant; and
(ii)the ‘responsibility under Aboriginal tradition for significant Aboriginal places located in, or significant Aboriginal objects originating from, the area’ had by persons represented by the second defendant, or the families or claim groups recognised as having that responsibility of which those persons are members;
(e)in determining the application, the first defendant made a finding that the second defendant is a body representing traditional owners of the decision area’ by considering only the membership criteria under the second defendant’s rules and the identity of five persons whom the first defendant determined to be the ‘five Bunurong ancestors’, and in doing so the first defendant fell into error by asking itself the wrong question, namely whether membership of the second defendant was open to the biological descendants of the determined apical ancestors;
(f)in determining the application, the first defendant committed an error of law on the face of the record, namely that it applied the phrase ‘whether the applicant is a body representing’ in ss 151(3)(c) and (d) of the Aboriginal Heritage Act 2006 (Vic) in such a way as to conclude that the second defendant ‘represented’ Aboriginal persons eligible for membership under the second defendant’s rules whereas it should have construed the phrase to mean that the second defendant ‘represented’ the Aboriginal persons who were members of the second defendant at the time of the determination of the second defendant’s application for registration as a registered Aboriginal party under the Aboriginal Heritage Act 2006 (Vic).
I will now turn to the determination of these grounds.
Ground (b) (natural justice)
The plaintiffs’ submissions under this ground focussed upon the procedure adopted by the Council for determining the BLCAC application. According to that procedure, the Council received the application, and the material in support of the application, from BLCAC. Besides advertising the making of the application in the relevant area, the Council gave notice of the application to, and received submissions and material in response to the application from, certain organisations, including BWFL. It gave copies of those submissions and that material to BLCAC for comment and took its reply submissions and material into account. But it did not give copies of BLCAC’s application documents and reply submissions and material to BWFL for rebuttal or seek further submissions from BWFL before determining the application.
Upon the assumption that the rules of natural justice applied to BWFL when the Council was determining whether BLCAC should be a RAP, the general principles governing the application of those rules are well established.[11] It may be accepted in general terms that BWFL was entitled to be heard in relation to ‘credible, relevant and significant’ matters.[12] But the ‘real question’ concerns ‘what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made’.[13]
[11]See Snedden v Minister for Justice (2014) 230 FCR 82, 113–14 [175]–[178] (Middleton and Wigney JJ, Pagone J agreeing) (‘Snedden’).
[12]Kioa v West (1985) 159 CLR 550, 629 (Brennan J).
[13]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 335 [30] (Kiefel, Bell and Keane JJ).
Turning to that framework, div 2 of pt 10 of the Act enables eligible corporations (see s 150(2)) to make application for registration as a RAP, which the Council must determine (s 151(1)). The Act does not specify a particular procedure for the determination of applications for RAP approval. Under s 139(5), the Council ‘may regulate its own procedure’ when discharging this (and other) functions. In regulating its own procedure when determining the BLCAC application, Council gave BWFL (among others) notice of the application (see above). This was entirely appropriate, especially as BWFL (whose members were recognised as traditional owners) had been a previous applicant and having regard to the particular position of Auntie Carolyn as a distinguished Boon Wurrung elder.
It was submitted for the plaintiffs that the rules of natural justice required the Council to do more. On those submissions, the Council was required to give BLCAC’s application documents to BWFL and was also required to give BWFL the submissions and material provided by BLCAC in reply to BWFL’s submissions and material.
To the contrary, I cannot derive from the provisions of the Act, the particular processes followed in fact by the Council or anything about the nature and content of the application any requirement on the part of the Council to give BWFL and Auntie Carolyn any more opportunity to make submissions than was given. It is significant that, by reason of the long history of engagement by BWFL and BLCAC with the processes of the Council in relation to Bunurong RAP registration (see above), the parties well knew and appreciated what the central issues were.[14] These issues related to the identification of Bunurong apical ancestors and the plaintiffs’ position that BLCAC was not representing and could not represent Bunurong people and traditional owners. BWFL was given the opportunity to make and did make submissions in relation to those issues.
[14]See Snedden (2014) 230 FCR 82, 113 [176] (Middleton and Wigney JJ, Pagone J agreeing).
In coming to that conclusion, I have carefully considered the submissions made for the plaintiffs in this court that natural justice required the Council to obtain BWFL’s response in rebuttal to the submissions and material provided by BLCAC in reply. However, there is no rule that such a rebuttal opportunity must usually be given in a situation like the present. The plaintiffs’ submission therefore cannot succeed on that general basis. Moreover, having examined both the submissions and material provided by BWFL and the submissions and material provided by BLCAC in reply, I must conclude that there was nothing exceptional or new in what BLCAC put in reply. In the particular factual circumstances, Council was not required in fairness to give BWFL a further opportunity to make submissions in rebuttal. It was open to Council to consider the competing submissions and the material provided by BLCAC and BWFL against its previously announced decision that five women would be accepted as Bunurong ancestors unless new information disproved that conclusion, which is what it did.
Ground (c) (no evidence)
The gravamen of this ground is that, under s 151(3)(c), the Council could validly determine that BLCAC would be RAP approved for Bunurong country only if there was evidence to support a finding that it was an Aboriginal body representing traditional owners having traditional knowledge and traditional responsibilities of the Bunurong (see the definition of ‘traditional owner’ in s 7(1)(a) and (b) and the definition of ‘Aboriginal tradition’ in s 4(1), discussed above). In this case, BLCAC could only be a body representing those traditional owners if it possessed that knowledge and responsibility, of which there was no evidence. In the plaintiffs’ submission, Council’s determination of this issue was therefore an error of law.[15]
[15]See Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418 [91] (Hayne, Heydon, Crennan and Kiefel JJ).
Certain aspects of this submission may be accepted. It was not enough for the Council to determine that BLCAC represented Bunurong people by descent by having an appropriate and inclusive membership rule. The Council had to determine whether BLCAC was a body representing people who were Bunurong traditional owners, that is, people having that aboriginality and also having traditional knowledge and traditional responsibilities of the Bunurong (s 151(3)(c), read with s 7(1)(a) and (b) and the definition of ‘Aboriginal tradition’ in s 4(1)).
The submissions made by BWFL to the Council placed the cultural authority of BLCAC to represent Bunurong traditional owners in issue. It was submitted that BLCAC was not a body representing Bunurong traditional owners because it did not possess the necessary traditional knowledge and responsibilities, especially because members of BLCAC were located in Tasmania and Western Australia and not Victoria (see BWFL’s submissions dated 2 June 2017, eg at CB00923).
I must emphasise that the Act confers upon Council the exclusive jurisdiction to determine these questions as a specialised body comprised of respected Aboriginal persons who are traditional owners of their own country and have knowledge and expertise of Aboriginal cultural heritage in Victoria. Whether a RAP applicant is a body representing the traditional owners of the application area is a matter that lies at the heart of Council’s specialised knowledge and expertise. As traditional owners of their own country, members of Council are well placed to understand issues concerning traditional knowledge and responsibility in relation to other Victorian country. It is axiomatic that the decision of Council on such matters must be respected unless legal error is established.
On BWFL’s submissions under this ground, which were attractively developed by counsel, Council exclusively focussed upon identifying Bunurong apical ancestors and ignored whether BLCAC represented traditional owners having the necessary knowledge and responsibilities. The Council also ignored the interrelationship between these issues. It determined that BLCAC would be a RAP for Bunurong country because its eligibility rules had been amended to embrace the descendants of the five apical ancestors in question. It did so without determining whether BLCAC was a body representing Bunurong traditional owners, as to which there was no evidence in relation to the critical issues of traditional knowledge and responsibilities.
I reject these submissions for two main reasons:
·there was evidence supporting a finding or inference that BLCAC represented the Bunurong traditional owners in respect of the application area, having regard to their traditional knowledge and responsibilities; and
·to the extent that the reasons for Council’s determination focussed more heavily upon issues relating to the identification of Bunurong apical ancestors, this reflected the actual issues in contention between BLCAC and BWFL, both historically and in the contemporary period.
In relation to evidence that BLCAC was a body representing Bunurong traditional owners having regard to their traditional knowledge and responsibilities, the BLCAC application contains evidence, or evidence supporting reasonable inferences, in relation to these matters. I refer to the historical records and expert reports considered in previous determinations and referred to again by the Council in relation to the determination of the BLCAC application; to evidence of traditional and familial links of BLCAC members to Bunurong country, with which traditional knowledge and responsibilities are necessarily associated (see the application documents); to the first-dated letter of 10 February 2017 (CB00133) explaining a wood carving of Bungil; and to section 4 of the RAP application and especially the attachments, including letters of support in relation to cultural management expertise (which were relevant in relation to both s 151(3)(c) and (d)).
Having considered the application documents and other material before the Council, including the historical material, I also conclude that the Council was entitled to infer from this material facts supporting a conclusion that BLCAC was a body representing traditional owners of the application area, having regard to the elements of knowledge and responsibility that are inextricably bound up in the concept of traditional ownership. That BLCAC members possessed that knowledge and responsibility was inherent in practically the whole of the application and the information provided in support of it, and was inherent in the fact that membership would be open to all Bunurong (including Auntie Carolyn and others in her group) under the amended rules.
Without detracting from this conclusion, I would accept that BLCAC’s application and Council’s reasons for determination focus more upon the identification of Bunurong apical ancestors and the discharge of cultural heritage functions than upon the practice of customary law and the possession of traditional knowledge and responsibilities by BLCAC’s membership. Because the issues in contention between BLCAC and BWFL had in the past been mainly expressed and framed by reference to the dispute over the apical ancestors, this is completely understandable. It does not mean that BLCAC’s application and Council’s reasons for determination focussed exclusively on those issues or that there was no evidence to support Council’s finding in relation to BLCAC being a body representing traditional owners, and I do not so infer or conclude.
Ground (d) (relevant considerations)
By the express terms of s 151(3) of the Act, the Council ‘must take’ the considerations specified in paras (a)-(g) into account when determining an application for RAP approval. It is therefore mandatory for the Council to do so.[16] A failure to take these considerations into account is a ground upon which a determination may be subject to judicial review.[17]
[16]Gunaikurnai [2016] VSC 569 (28 September 2016) [29] (Bell J).
[17]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J, Gibbs CJ, Deane and Dawson JJ agreeing).
Properly interpreted, the concept of traditional ownership in s 151(3)(c) is to be understood by reference to the elements of traditional ownership specified in s 7(1)(a) and (b), as informed by the concept of ‘Aboriginal tradition’ defined in s 4(1). When applying s 151(3)(c), Council is therefore required to consider whether the RAP applicant is a body representing traditional owners in the multiple statutory dimensions, which reflect the multiple Indigenous dimensions, of that concept.
Counsel submitted for BWFL that, when applying s 151(3)(c), the Council only had regard to whether BLCAC was a body representing Aboriginal persons by reason of having an inclusive membership rule recognising all five apical ancestors. It did not have regard to whether the persons were traditional owners in the sense of having the particular traditional knowledge and responsibilities specified in s 7(1)(a) and (b). It did not mention these provisions or refer to their purpose and effect. It therefore failed to take mandatory considerations into account.
I do not accept this submission. Council’s reasons for determination make express reference to s 151(3)(c). Traditional owners are referred to as ‘Traditional Owners’, which signifies that this term had, to the Council, a special statutory meaning. In so emphasising this term, I think Council had in mind the explanation in s 7(1)(a) and (b) (as informed by the definition of ‘Aboriginal tradition’ in s 4(1)), which reflects the widely-accepted and well-understood concept of Indigenous traditional ownership, although it did not mention these provisions. Being traditional owners themselves (see above), members of the Council may be taken to have been very familiar with this concept.
Moreover, the Council frequently referred to the issue of whether Aboriginal persons had ‘traditional or familial links’ to Bunurong country, not just to whether they were Bunurong by descent. It acknowledged and accepted BWFL’s submission that BWFL was a body representing Bunurong persons who had maintained a connection to their culture, history and country. It acknowledged but rejected BWFL’s submission that RAP registration for BLCAC could destroy surviving Boon Wurrung cultural heritage. In granting RAP approval to BLCAC, the Council explicitly recognised the outstanding contribution made by Auntie Carolyn and her family to reviving and sustaining Bunurong cultural heritage, including the promotion of Bunurong identity, language and history. Separately to ‘biological connection’, the Council referred to and addressed the ‘cultural authority’ of certain BLCAC directors that BWFL had called into question. This necessarily involved consideration of matters of traditional knowledge and responsibility. It emphasised the importance of protecting and promoting Aboriginal cultural heritage in the decision area and the need for shared involvement in country by all traditional owners. All of these issues go beyond the narrow confines of Aboriginality by descent as a focus of analysis and relate to the multiple elements of the concept of Aboriginal traditional ownership. The Council did not fail to take into account the considerations in s 151(3)(c), understood by reference to s 7(1)(a) and (b) as informed by the definition of ‘Aboriginal tradition’ in s 4(1), even accepting that it did not refer to these latter provisions.
Ground (e) (wrong question)
The gravamen of this ground was that, in BWFL’s submission, the Council determined BLCAC’s application by asking itself whether it had an inclusive membership rule (whether membership was open to the descendants of all five apical ancestors). That was the wrong question and represented a constructive failure to exercise the statutory power to determine the RAP approval application.
Counsel developed this submission by carefully analysing paragraphs of the section of the reasons for determination which relate to the application of s 151(3)(c) of the Act. It was submitted that this analysis revealed that the Council had indeed asked this wrong question, and had failed to ask required questions about the broader considerations raised by that provision, read with s 7(1)(a) and (b) and the definition of ‘Aboriginal tradition’ in s 4(1).
I accept counsel’s submission that the Council would have asked the wrong question had it determined the BLCAC application for RAP approval by reference to the issue of apical ancestry alone. While important, this was not the only issue raised by s 151(3)(c). It was also necessary to consider matters relating to traditional knowledge and responsibility under s 7(1)(a) and (b) and the definition of ‘Aboriginal tradition’ in s 4(1).
But I do not accept that counsel’s paragraph by paragraph analysis reveals that the Council asked itself the wrong question and failed to consider required questions. This conclusion follows from what I have said already in relation to the other grounds relied upon.
Further, Counsel’s submissions under this ground, as with other aspects of the submissions made, fail fully to appreciate the wider significance of the finding made by Council about the apical ancestors. At a narrow level, the finding identified who the Bunurong encompassed as an Aboriginal people, which was important for a number of reasons, including for the application of Council’s inclusionary policy framework. But at a wider level, it raised issues about the identity of the traditional owners BLCAC was representing under the new inclusive membership rule, which necessarily involved consideration of matters of who had and held traditional knowledge and responsibility. Those matters had to be considered having regard to the finding. BWFL had placed them in issue, although its submissions on this subject really were inconsistent with the finding.
In the analysed paragraphs, Council considered these matters. Most of the discussion concerns the protection of Bunurong country, culture and heritage, having regard to the finding. The issue was whether BLCAC was a body representing Bunurong traditional owners having regard to those critical matters, upon the premise of the finding. In that connection, both its existing and potential membership were relevant (see below under ground (f)). In recognising the outstanding contribution made by Auntie Carolyn and her family, Council demonstrated that it understood the significance of matters of traditional knowledge and responsibility. The analysis in the discussion in this section of the reasons is to the effect that RAP approval was warranted because (among other things) BLCAC was a body representing traditional Bunurong owners. That was not just because, under the now inclusive membership rule, BLCAC was open to all Bunurong; it was also because BLCAC had legitimate cultural authority, that is, drew upon the traditional knowledge and responsibilities of Bunurong traditional owners whom it was representing.
Ground (f) (error of law)
Under this ground, which is closely related to ground (e), the plaintiffs contend that the Council committed an error of law on the face of the record in relation to the interpretation of s 151(3)(c) and (d) of the Act. If Council misinterpreted these provisions and this was manifest in its reasons for decision (which form part of the record),[18] it made an error of law on the face of the record, which is a jurisdictional error for which judicial review may be granted.[19]
[18]Administrative Law Act s 10.
[19]Gunaikurnai [2016] VSC 569 (28 September 2016) [52] (Bell J), citing Craig v South Australia (1995) 184 CLR 163.
The alleged error was misinterpreting the phrase ‘whether the applicant is a body representing’ in s 151(3)(c) (and (d)) so as to require textual consideration of BLCAC’s eligibility rule, rather than factual consideration of the identity, knowledge and cultural responsibility of its existing members. As applicant bodies must be membership-based Aboriginal corporations (see above), it is the existing and not the potentially eligible members who must be the focus of attention, and in relation to these matters.
I reject these reasons for two reasons. First, in s 151(3)(c) and (d), properly interpreted, the question whether the RAP applicant is a body representing the traditional owners or Aboriginal people of the application area is not confined to its existing members. It is permissible and may be highly relevant to consider the potential membership under the applicant’s eligibility rule, especially from the point of view of applying the inclusionary policy of the Council, which is valid under the Act. It is not determinative, because there may be reasons why, despite having inclusive eligibility rules, the applicant is not in fact a body representing the traditional owners or Aboriginal people of the applicant area. Aspects of BWFL’s submissions were along those lines and were considered, and rejected, by the Council.
Secondly, for the reasons given above, the Council did not focus upon issues of apical ancestry and membership eligibility to the exclusion of issues related to traditional knowledge and responsibility. It did not determine that BLCAC would be granted RAP approval because it now represented all traditional owners and all Bunurong people as a matter of textual rule eligibility, as if every otherwise eligible applicant body having such inclusive membership rules would obtain that approval. Council examined as a fact at the time of determining the application whether BLCAC was a body representing Bunurong traditional owners and people, which s 151(3)(c) and (d) required. Council’s consideration of this issue included matters going to the traditional knowledge and responsibilities and cultural authority of BLCAC’s existing members (see above).
Conclusion
BWFL and Auntie Carolyn have not established the grounds upon which they have sought judicial review of Council’s determination to grant RAP approval to BLCAC with respect to Bunurong country. The application for judicial review will therefore be dismissed and BLCAC’s registration stands.
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