Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks & Anor

The Chief Executive Officer of the Aboriginal Areas Protection Authority (the Authority) sought judicial review of a decision by the Director of National Parks (the Director) to grant a permit under the *Environment Protection and Biodiversity Conservation Act 1999* (Cth) (EPBC Act) to a third party, Parks Australia, for the construction of a visitor centre and associated infrastructure within the Uluru-Kata Tjuta National Park. The Authority contended that the Director's decision was invalid because it failed to comply with the requirements of the EPBC Act, specifically concerning the protection of Aboriginal sacred sites.

The central legal issue before the Federal Court was whether the Director had properly considered and complied with the provisions of the EPBC Act, particularly section 354, which mandates that the Director must not take an action that would have a significant impact on a matter of national environmental significance unless the action is stayed or otherwise prevented from commencing. The Authority argued that the Director's decision to grant the permit, which authorised activities impacting sacred sites, was unlawful as it did not adequately address the potential for significant impact on these sites, nor did it demonstrate that the action was stayed or prevented from commencing.

Gleeson J found that the Director's decision-making process had failed to adequately consider the potential for significant impact on Aboriginal sacred sites, a matter of national environmental significance under the EPBC Act. The Court held that the Director had misinterpreted section 354 of the EPBC Act by treating the grant of a permit as a sufficient mechanism to avoid the prohibition against taking an action with a significant impact. Instead, the Court clarified that the Director must ensure that any action authorised by a permit does not have a significant impact, or that the action is stayed or prevented from commencing. Consequently, the Court concluded that the Director's decision was vitiated by error of law.

The Court ordered that the decision of the Director to grant the permit be quashed.