Bropho & Anor v The State of Western Australia

Robert Bropho and Graeme Merritt (the applicants) sought special leave to appeal to the High Court of Australia against a decision of the Full Court of the Supreme Court of Western Australia. The dispute concerned the legal interests of Aboriginal people in their heritage, specifically in relation to the State of Western Australia and various government bodies. The applicants argued that the Full Court's decision, if left unchallenged, would establish unsatisfactory legal principles regarding Aboriginal heritage rights.

The primary legal issue before the High Court was whether Aboriginal people possess a legally recognisable interest in their heritage, absent physical use or involvement with that heritage. The applicants contended that the majority decision of the Full Court, which suggested such use was a prerequisite for a recognisable interest, was erroneous. This raised a further question as to what constitutes a "person aggrieved" in matters of Aboriginal heritage, and how this differs from the general community, particularly in light of precedent such as *Ogle v Strickland*.

The applicants' argument focused on the interpretation of "persons aggrieved" and the requirement for a legally recognisable interest in heritage. They submitted that the Full Court's majority decision, particularly the reasoning of Justice Anderson, wrongly equated a recognisable interest with habitual physical use of a heritage site. This, they argued, would unduly restrict the ability of Aboriginal people to assert rights concerning their cultural heritage. The applicants sought to distinguish this approach from other cases where standing had been granted to individuals with a demonstrable connection to the subject matter, even without direct physical use.