FORREST AND FORREST PTY LTD and MINISTER FOR ABORIGINAL AFFAIRS
[2023] WASAT 28
•6 APRIL 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ABORIGINAL HERITAGE ACT 1972 (WA)
CITATION: FORREST AND FORREST PTY LTD and MINISTER FOR ABORIGINAL AFFAIRS [2023] WASAT 28
MEMBER: PRESIDENT PRITCHARD
DR S WILLEY, SENIOR MEMBER
MS C BARTON, MEMBER
HEARD: 22 TO 26 MARCH 2021 AND 3 TO 4 JUNE 2021
DELIVERED : 6 APRIL 2023
PUBLISHED : 6 APRIL 2023
FILE NO/S: DR 82 of 2019
BETWEEN: FORREST AND FORREST PTY LTD
Applicant
AND
MINISTER FOR ABORIGINAL AFFAIRS
Respondent
BUURABALAYJI THALANYJI ABORIGINAL CORPORATION
Intervener
Catchwords:
Review of Minister’s decision — Aboriginal Heritage Act 1972 (WA) s 18 — Application to construct Managed Aquifer Recharge Scheme (MARS) — Recommendation made by Aboriginal Cultural Material Committee (ACMC) — Minister’s decision to refuse to grant consent for the construction of the Applicant’s proposed MARS — Hearing de novo — Correct and preferable decision — Aboriginal site — Aboriginal Heritage Act 1972 (WA) s 5 — Consent of Minister required to excavate, destroy, damage or alter an Aboriginal site — Consent of Minister required to in any way alter, damage, remove, destroy, conceal an Aboriginal site — Aboriginal Heritage Act 1972 (WA) s 17 — Cultural significance of the Ashburton Mindurru River — Role of the Minister, ACMC, the Registrar of Aboriginal Sites and the responsible Department — Expert evidence — Cultural evidence — Anthropological evidence — Archaeological evidence — Hydrogeological and hydrological evidence — Environmental evidence — Evidence informing the general interest of the community — Unacceptable impact on cultural and spiritual connection with the Ashburton Mindurru River — Weight to be given to ACMC’s recommendation and Minister’s decision — Weight to be given to general interests of the community
Legislation:
Aboriginal Heritage Act 1972 (WA)
Aboriginal Heritage Regulations 1974 (WA)
Environmental Protection Act 1986 (WA)
Land Administration Act 1997 (WA)
Native Title Act 1993 (Cth)
State Administrative Tribunal Act 2004 (WA)Result:
The decision of the Minister is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr K M Pettit SC & Mr A J Papamatheos Respondent : Mr G Ranson Intervener : Ms S Wright & Ms V E Long-Droppert Solicitors:
Applicant : Green Legal Respondent : State Solicitor's Office Intervener : Castledine Gregory Cases referred to in decision:
A v Corruption and Crime Commissioner [2013] WASCA 288
Abraham v The Hon Charles Collier MLC [2016] WASC 269
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Daniel v Western Australia [2003] FCA 1425
De-Abreu and Legal Profession Complaints Committee [2022] WASAT 42
Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391
Harrington-Smith v State of Western Australia (2002) FCA 934; 121 FCR 82
Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3; (2020) 270 CLR 152
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
O'Sullivan v Farrer (1989) 168 CLR 201
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Robinson v Fielding [2015] WASC 108
Sanders v City of South Perth [2019] WASC 226
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Thomas Jacob v State of Western Australia – FCA WAD 6005 of 2003
Tickner v Bropho [1993] FCA 208; (2003) 114 ALR 409
Western Australia v Bropho (1991) 5 WAR 75
Wintawari Guruma Aboriginal Corporation RNTBC v Wyatt [2019] WASC 33
TABLE OF CONTENTS
1. CASE OVERVIEW
1.1 Background facts
1.1.1 The River and the MARS
1.2 The Minister's decision
2. LEGISLATIVE FRAMEWORK
2.1 Nature of the review
2.1.1 The operation of the AH Act
2.1.2The approach to preservation of Aboriginal places and objects under the AH Act
2.1.3 The role of the Minister, the ACMC, the Registrar and the responsible Department
2.1.4 The operation of s 18 of the AH Act
2.1.5 Consideration by the ACMC
2.1.6 Consideration by the Minister
3. ISSUES
4. WITNESSES AND DOCUMENTARY EVIDENCE
4.1 Witnesses
4.1.1 Applicant
4.1.2 Intervener
4.1.3 Respondent
4.2 Documentary evidence
5. EVIDENCE AND FINDINGS
5.1 Cultural evidence
5.1.1 Thalanyji witnesses
5.1.2 Findings in relation to the credibility and reliability of the Thalanyji witnesses
5.1.3 Anthropological evidence
5.1.4 Overview of the parties' contentions
5.1.5 Archaeological evidence
5.2 Hydrogeological and hydrological evidence
5.2.1 The experts called by the Applicant
5.2.2 The experts called by the Intervener
5.2.3 Joint Conferral Report
5.2.4 The evidence of Dr Vogwill and Mr Scott
5.2.5 Applicant's propositions
5.2.6 The MARS project and its hydrogeological and hydrological effect on
the River
5.2.7 Our findings on the effect of the MARS project on the River
5.2.8 Our overall findings on hydrogeology and hydrology
5.3 Environmental evidence
5.3.1 Expert witnesses
5.3.2 Overview of the parties' contentions
5.3.3 Terrestrial ecology
5.3.4 Aquatic ecology
5.3.5 Our findings on the environmental evidence
5.4 Evidence informing the general interest of the community
5.4.1 Overview of the parties' contentions
5.4.2 Witnesses
5.4.3 Overview of the anticipated benefits of the MARS identified by
the witnesses
5.4.4 Concluding observations in relation to the evidence concerning the general interest of the community
6. OUR EVALUATION ON THE REVIEW
REASONS FOR DECISION OF THE TRIBUNAL:
1The Ashburton River (River), also known as Mindurru,[1] in the Pilbara region is approximately 680 kilometres long. It rises at Bulloo Downs, approximately 70 kilometres south of Newman, and is bound by the Kenneth and Hamersley Ranges, flowing west‑north‑westerly, including through the Minderoo pastoral station (Minderoo), until it discharges into the Indian Ocean approximately 20 kilometres south of Onslow.[2]
[1] In these reasons we will refer to the Ashburton River as either the River or Mindurru.
[2] Exhibit 1.4 page 296.
2Forrest and Forrest Pty Ltd (Applicant) owns Minderoo. It developed a proposal for the construction of 10 weirs at varying intervals across the River that passes through Minderoo, together with associated bores and infrastructure, and access tracks (collectively, the Proposed Works). While the Applicant initially proposed the construction of 10 weirs, in the course of the hearing, counsel for the Applicant indicated that the Applicant did not press for the construction of the 10th weir.[3] We have therefore proceeded on the basis that the Proposed Works now involve the construction of nine weirs. Furthermore, the Applicant also initially proposed the construction of a quarry, at a site known as the Goodingu Outcamp, to extract granite for the construction of the weirs. However, the Applicant subsequently advised that it no longer pursued that part of the Proposed Works.[4]
[3] ts 55 – 56, 22 March 2021.
[4] Email from Applicant's solicitors dated 15 October 2021.
3The construction of the weirs would allow water to pool and be captured, which in turn will permit groundwater aquifers to be recharged. The use of weirs in this way is known as a managed aquifer recharge scheme (MARS or the MARS project).
4The objective behind the MARS is to enable greater water capture, which will then be put to productive and profitable agricultural uses at Minderoo, for example enhanced beef production, as well as cropping.
5That part of the River where the Proposed Works would be located has been designated as an 'Aboriginal site' for the purposes of the Aboriginal Heritage Act 1972 (WA) (AH Act).[5]
[5] For the purposes of the AH Act, the River has been given the Aboriginal site identifier ID 6540.
6Under the AH Act,[6] it is an offence for any person to excavate, destroy, damage or alter an Aboriginal site, unless they act with the consent of the Minister (Minister or Respondent), pursuant to s 18 of the AH Act. If the Applicant were to undertake the Proposed Works, without the consent of the Minister, it would arguably breach the AH Act. For that reason, the Applicant sought consent from the Minister, pursuant to s 18(3) of the AH Act, to undertake the Proposed Works.
[6] Aboriginal Heritage Act 1972 (WA) (AH Act), s 17.
7The Buurabalayji Thalanyji (Thalanyji) people are native title holders in this region and the Proposed Works are to be undertaken within an area subject to the Thalanyji Native Title Determination.[7] The River is particularly important to the Thalanyji people 'as a hunting and camping area and [for] ceremonial and mythological reasons.'[8] It was the cultural significance of the River for the Thalanyji people which led to its recognition as an Aboriginal site for the purposes of the AH Act.
[7] Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 (Hayes v State of Western Australia) (North J).
[8] Exhibit 2.44 page 1658.
8An Aboriginal heritage report obtained by the Applicant recognised that the MARS has the potential to have a 'major impact' on the River which 'cannot be underestimated'.[9] The Thalanyji people oppose the Proposed Works for a number of reasons including the impact 'on the ordained natural flow of the [R]iver,'[10] as well impacts on permanent pools in the River (known as yinta). The Thalanyji are also concerned about adverse impacts on the Thalanyji people, as well as possible adverse impacts on the flora and fauna and surrounding country.[11]
[9] Exhibit 2.44 page 1663.
[10] Intervener's Statement of Issues, Facts and Contentions (Intervener's SIFC) para 9(b)(i).
[11] Intervener's SIFC para 9(b).
9On 25 March 2019, the Minister refused to grant consent for the Proposed Works under s 18 of the AH Act (Minister's decision). The Minister's decision was 'based on the importance and special significance attributed by the Traditional Owners to the Ashburton (Mindurru) River'.[12]
[12] Exhibit 2 page 2.
10On 18 April 2019, the Applicant lodged an application for review of the Minister's decision, pursuant to s 18(5) of the AH Act (Review).[13]
[13] AH Act, s 18(5).
11On 16 October 2019, the Buurabalayji Thalanyji Aboriginal Corporation RNTBC (Special Administrator Appointed) (BTAC or Intervener), was permitted to intervene in the Review, on behalf of the Thalanyji people.
12By virtue of s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal's role on a review is to undertake a hearing de novo, which is not confined to matters that were before the original decision maker, and which may involve the consideration of new material. The purpose of a review is to produce the correct and preferable decision at the time of the decision upon the review.[14]
[14] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(2).
13The Review was heard over seven days in March and June 2021. A very significant volume of evidence was adduced, encompassing the hydrogeological, hydrological, environmental and economic implications of the Proposed Works, together with anthropological, archaeological and Thalanyji evidence as to the significance of the River as an Aboriginal site, and the likely impact of the Proposed Works on the Thalanyji people and their culture. The evidence encompassed all of the material which was before the Minister, together with additional evidence.
14Having carefully considered all of that evidence, together with the submissions of the parties and the Intervener, for the reasons that follow we find that the correct and preferable decision on the Review is to affirm the Minister's decision.
15In these reasons for decision, we deal with the following matters:
CASE OVERVIEW
1.1Background facts
1.1.1The River and the MARS
1.2The Minister's decision
2.LEGISLATIVE FRAMEWORK
2.1Nature of the Review
2.1.1The operations of the AH Act
2.1.2The approach to preservation of Aboriginal places and objects under the AH Act
2.1.3The role of the Minister, the ACMC, the Registrar and the responsible Department
2.1.4The operation of s 18 of the AH Act
2.1.5Consideration by the ACMC
2.1.6Consideration by the Minister
3.ISSUES
4.WITNESSES AND DOCUMENTARY EVIDENCE
4.1Witnesses
4.1.1Applicant
4.1.2Intervener
4.1.3Respondent
4.2Documentary evidence
5.EVIDENCE AND FINDINGS
5.1Cultural evidence
5.1.1Thalanyji witnesses
5.1.2Findings in relation to the credibility and reliability of the Thalanyji witnesses
5.1.3Anthropological evidence
5.1.4Overview of the parties' contentions
5.1.5 Archaeological evidence
5.2Hydrogeological and hydrological evidence
5.2.1.The experts called by the Applicant
5.2.2The experts called by the Intervener
5.2.3Joint Conferral Report
5.2.4The evidence of Dr Vogwill and Mr Scott
5.2.5Applicant's propositions
5.2.6The MARS and its hydrogeological and hydrological effect on the River
5.2.7Our findings on the effect of the MARS project on the River
5.2.8Our overall findings on hydrogeology and hydrology
5.3Environmental evidence
5.3.1Expert witnesses
5.3.2Overview of the parties' contentions
5.3.3Terrestrial ecology
5.3.4Aquatic ecology
5.3.5Our findings on the environmental evidence
5.4Evidence informing the general interest of the community
5.4.1Overview of the parties' contentions
5.4.2Witnesses
5.4.3Overview of the anticipated benefits of the MARS identified by the witnesses
5.4.4Concluding observations in relation to the evidence concerning the general interest of the community
6.OUR EVALUATION ON THE REVIEW
1. CASE OVERVIEW
1.1 Background facts
16The following facts are not in contest.
17The Applicant is the lessee of the pastoral lease over Minderoo.[15] The Applicant is also the corporate trustee of the MSPC Trust, the holder of the registered business name 'Minderoo Station'.[16]
[15] Pastoral lease number N094514.
[16] Respondent's SIFC (Respondent's SIFC) para 6.
18In 2018, the Federal Court made a native title determination in favour of the Thalanyji people over an area of land and waters described in that determination (Determination Area). The Court ordered that the Intervener 'hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act 1993 (Cth)'.[17]
[17] Hayes v State of Western Australia, Order 3.
19Minderoo is within the Determination Area.
1.1.1 The River and the MARS
The River
20The River is a major river in the Pilbara region. Its water comes from seasonal rainfall. The catchment area of land that feeds the River is called the Ashburton Robe and comprises an area of approximately 20,000 square kilometres.[18]
[18] Exhibit 3.10 paras 15 – 17.
21The River might loosely be described as ephemeral, in that it is not always in flow. Rather, the River flows in discrete 'pulses' after significant rainfall events within the catchment, which generally occur through the cyclone season in the later summer months (from January through until May). The River is most likely to be dry between August and November.[19] As we will come to explain, the point of the MARS is to capture the flowing water in the River so that the River is 'wetter' for longer, by creating pools of water behind each of the weirs. The pooling of the water allows the groundwater aquifers to recharge.
[19] Exhibit 3.10 para 24.
River flow
22River flow is typically measured in Gigalitres per year (GL/year). A GL is one billion litres, roughly equivalent to 400 Olympic sized swimming pools. The data from an upstream gauge (at Nanutarra) shows that the annual volume of water flowing down the River past Nanutarra since 1972 has ranged from 3 GL/year in 2007 to 4,518 GL/year in 1997. The average flow is 777 GL/year.[20]
[20] Exhibit 3.10 para 24.
23A graph showing the rate of flow at a specific point in a river or stream measured over time is called a 'hydrograph'. The River hydrograph is characterised by the following:
(a)the water level rises rapidly in the first days of a hydrograph to what is called the 'peak flow';
(b)after the initial peak, the water level falls steadily over a matter of weeks;
(c)the rate of fall of the water height becomes asymptomatic towards the end of the hydrograph, meaning that the flow tails off slowly in what is referred to as the 'tail flow';
(d)the end of the tail flow is a point where there will no longer be continuous surface water between two locations along the River: Nanutarra Bridge and Scotty's Wall. This is called the 'cease to flow' point;
(e)even after the cease to flow point is reached, water may still migrate downstream as groundwater 'throughflow' within the alluvial deposits beneath the riverbed; and
(f)each hydrograph of the River at Nanutarra may last for a month or more. Because the River does not flow continuously, there may be extended periods between hydrographs during which no surface river flow will be apparent. The length of these periods can vary from a matter of weeks to months. Since 1972, most of these 'drought' periods are less than six months but can sometimes reach up to 18 months, as occurred in 2009/10.[21]
[21] Exhibit 3.10 para 25.
Geomorphology of River pools
24As the River's water level falls, following the cease to flow point, the riverbed becomes progressively exposed and the open water retreats into a series of pools (River pools). The water in the River pools is almost entirely remnant surface water from the most recent flow event.[22]
[22] Exhibit 3.10 paras 27 and 28.
25Over the weeks and months after the cease to flow point, the water level in the River pools recedes due to a combination of open water evaporation, transpiration from trees accessing ground/surface water, and declining groundwater levels due to baseflow losses downstream. The water level in the River pools is hydraulically connected to the surrounding groundwater system in the alluvial aquifer.[23]
[23] Exhibit 3.10 para 28.
26The persistence of water in the River pools varies depending on the length of the drought period, the volume of each pool, and the balance of groundwater inflows and outflows. Over time, as the drought endures, some of the shallower pools will completely disappear. Some pools are temporary (ephemeral) and some are permanent (perennial).[24]
[24] Exhibit 3.10 para 29.
27The salinity of the River increases as water flow diminishes. When in flow, the water in the River is not saline. However, measurements taken at Ejardie Pool (also known as Camel Pool) suggest that salinity is concentrated to between 900 and 1,000 mg/L by the time the water area has reduced to being less than a quarter from the level at the point of cease to flow.[25]
[25] Exhibit 3.10 para 33.
Groundwater
28When in flow, the River's water level rises above the base of the River channel. As the water level rises, water from the channel infiltrates the riverbed and the side walls of the channel, raising the surrounding water table. This process creates a groundwater mound along parts of the River.[26]
[26] Exhibit 3.10 para 34.
29When water flows from the River into the adjacent groundwater mound it is known as 'losing stream'. Put another way, the River is losing water from the River channel to the riverbed and riverbank.[27]
[27] Exhibit 3.10 para 35.
30When the water level in the River falls below the level in the adjacent groundwater mound, water seeps back into the River (at a decreasing rate) and the groundwater mound recedes. This process is known as 'gaining stream'.[28]
[28] Exhibit 3.10 para 36.
31The process whereby water is absorbed into the groundwater mound (losing stream) and then released back (gaining stream) is dynamic and has the effect of attenuating and prolonging the tail flow of the River in each hydrograph. This dynamic process is known as 'baseflow discharge'.[29]
[29] Exhibit 3.10 para 37.
32After an extended period of drought, the water table in the groundwater mound will fall to the same elevation as the base of the River channel (around 12 metres deep).[30]
[30] Exhibit 3.10 para 39.
33When in flow, the River is laden with sediment, the vast majority of which is fine silt and clay which is suspended, giving the River a muddy brown appearance. 'Channel lag' is the process where the heavier sand and gravel is transported downstream at the bottom of the river flow. The material deposited via this process is known as 'alluvial deposits'.[31]
[31] Exhibit 3.10 para 40.
The MARS 'leaky weirs'
34The MARS is designed to capitalise on the groundwater processes of the River. That is, the weirs will operate in the context of water moving between the River and the groundwater mound and back (that is, losing stream and gaining stream).
35The function of the weirs is to increase the attenuation of the river flow or hydrograph in order to delay or elongate the passage of the final part of the flow event. This is achieved by creating a pool of water behind each weir wall. The intent is for the pool of water to 'lose stream' by being absorbed into the adjacent groundwater mound.[32]
[32] Exhibit 3.10 para 42.
36The process of pooling caused by the weirs, so as to artificially enhance groundwater recharge, is known as 'managed aquifer recharge'.[33] Each of the weirs would temporarily impound about 0.3 GL of surface water, but the volume of water contained in the River banks would be far greater.[34]
[33] Exhibit 3.10 para 43.
[34] Exhibit 3.10 para 44.
37The weirs do not prevent the downstream movement of groundwater through the alluvial aquifer. Groundwater will continue to flow around and beneath each of the weir walls over a period of a few months, and discharge back into the River channel downstream of each weir.[35]
[35] Exhibit 3.10 para 45.
38The use of the term 'weir' is therefore something of a misnomer in that it does not accurately describe its hydraulic effect. For that reason, the term 'leaky weir' is used to describe the weirs in a MARS, as the weirs are designed to allow water to 'leak' around and under them. This may be contrasted with a dam wall which is designed to hold water back.[36]
[36] Exhibit 3.10 para 46.
Design of the weirs
39It is proposed that each leaky weir will be constructed with a central concrete wall which rises 3 metres above the natural River base and descends 3 metres below the natural River base. The portion of a weir wall below a natural river base is often described as being 'keyed in' to the river base. Each weir wall is only as wide as the distance between the riverbanks. The design allows water to leak around the weir walls.[37]
[37] Exhibit 3.10 para 50.
40The top of the concrete wall of each weir will have a 'v-notch' cut into it, to enable a portion of the impounded water to be released in the weeks following the cease to flow point, which will mimic the natural tail flow hydrology of the River.[38]
[38] Exhibit 3.10 para 51.
41Abutting each central concrete wall, each leaky weir will have:
(1)a 30 metre 'downstream' slope of rock 'rip rap', a term used to describe a collection of large loose rocks deposited in embankments and breakwaters, to prevent erosion of soil – with a 1:10 gradient; and
(2)a 12 metre 'upstream' slope of mafic rock rip rap having a 1:4 gradient.[39]
[39] Exhibit 3.10 para 52.
42The upstream slope is far steeper than the downstream slope to deflect sediment lag deposits and other debris over the wall.[40]
[40] Exhibit 3.10 para 53.
43The intent of the leaky weirs is to delay a portion of the tail flow of each major flow event in order to recharge the aquifer, providing an opportunity to extract groundwater for months beyond each cease to flow point.
Minderoo's water licence
44Minderoo has in place a Groundwater Operating Strategy (Operating Strategy) which dictates ground water extraction practices.[41] The Operating Strategy is an adaptive bore field plan which limits the extraction depending on the groundwater level adjacent to Ejardie Pool as measured at a specific bore field monitor.[42]
[41] Exhibit 3.10 Annexure DIS52.
[42] Exhibit 3.10 para 58.
45Minderoo has the benefit of a water licence (granted under s 5C of the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act) which allows 13.2 GL of water to be extracted each year. This is based on three cropping cycles a year (which is only possible when the River is in flow throughout the three cycles). This does not always occur.[43]
[43] Exhibit 3.10 para 59.
46We discuss the grant of the water licence at [58] to [60] below.
The Existing Weir
47From 2003, the former owner of Minderoo, Murion Cattle Company Pty Ltd (Murion), developed plans and obtained approvals, including for the construction of a single leaky weir, as part of its plans to drought-proof the cattle station.[44] Although all approvals were obtained, Murion never constructed the leaky weir.
[44] Exhibit 3.10 paras 72 – 109.
48When the Applicant acquired Minderoo in July 2009, Mr Andrew Forrest, a director of the Applicant, engaged Mr Don Scott, who had previously been engaged as a hydrology consultant for Murion, and, amongst other things, instructed him to obtain the necessary approvals to construct the leaky weir for which Murion had obtained approval.[45]
[45] Exhibit 3.10 paras 110 and 111.
49That process involved the preparation of specialist hydrology reports as well as consultation with the Thalanyji people. By letter dated 24 September 2010, the BTAC confirmed that the Thalanyji people supported the construction of the proposed weir.[46]
[46] Exhibit 3.10 para 121.
50Having obtained a construction permit and a water licence, that weir was constructed between December 2010 and January 2011 (Existing Weir). Annexure A is a photograph of the Existing Weir, taken on or about 7 June 2011.[47] The photograph shows the Existing Weir at the point when the River is almost ceasing to flow over the concrete weir wall. It also shows water flowing through a v-notch as described at [40] above.
[47] Exhibit 3.10 para 126, Annexure DIS28.
Development of the MARS
51Mr Scott, who gave evidence at the Review hearing in his capacity as Minderoo's hydrological consultant, explained that the operation of the Existing Weir proved to be far more effective than originally anticipated.[48]
[48] Exhibit 3.10 para 128.
52Mr Scott explained that the Existing Weir was 'super' recharging that part of the fluvial aquifer, creating an extensive groundwater mound around the Existing Weir.[49]
[49] Exhibit 3.10 para 128.
53In light of the performance of the Existing Weir, the Applicant decided it would be desirable to establish additional weirs along the River with a view to drought-proofing Minderoo, as well as increasing its capacity for beef production.[50]
[50] Exhibit 3.10 para 129.
54On 29 January 2013, the Applicant, through its consultants Pennington Scott, wrote to the Department of Water seeking a 'major expansion' of the 'aquifer storage and recovery' scheme so as to 'drought‑proof' and 'intensify beef production'.[51] Approval was sought to amend the existing permits under s 5C and s 17 of the RIWI Act. In terms of the water licence, approval was sought to extract up to 14.4 GL of water per year (based on a total of 13 weirs).[52]
[51] Exhibit 3.10 Annexure DIS29.
[52] Exhibit 3.10 Annexure DIS29.
55Mr Scott also explained that, at around the same time, he became aware that Chevron Corporation, in conjunction with its Wheatstone Project, was looking for ways to provide additional fresh water to the town of Onslow.[53] (The Applicant referred to this proposal as the H2Onslow Project.[54]) Meetings were held with the Department of Water and a feasibility study was undertaken.[55] The Department of Water visited the project area and further information was requested.[56]
[53] Exhibit 3.10 para 132.
[54] Exhibit 3.10 para 136.
[55] Exhibit 3.10 paras 138 – 141.
[56] Exhibit 3.10 paras 147 – 148.
56Ultimately, the H2Onslow Proposal did not receive financial backing from Chevron. The H2Onslow Proposal was withdrawn in 2014.[57] However, further discussions continued with the Water Corporation in 2017 and 2018.
[57] Exhibit 3.10 paras 149 – 150.
57Notwithstanding the withdrawal of the H2Onslow Proposal, the Applicant advised Mr Scott that it wanted to continue to develop plans to drought-proof Minderoo.[58] To that end, the Applicant submitted a revised technical feasibility study to the Department of Water in around August 2014.[59]
[58] Exhibit 3.10 para 153.
[59] Exhibit 3.10 para 155.
A water licence and other approvals for the MARS project
58The revised technical feasibility study which the Applicant submitted to the Department of Water was based on a total of 11 weirs (10 new weirs, plus the Existing Weir) and proposed the grant of a licence to take 13.2 GL of water each year.[60] The Department of Water provided comments on the revised technical feasibility study in June 2015.[61] The Applicant subsequently provided the Department of Water with further technical information in support of the MARS.[62]
[60] Exhibit 3.10 para 155.
[61] Exhibit 3.10 para 158.
[62] Exhibit 3.10 paras 160 – 164.
59In the course of consideration of the Applicant's revised water licence, the Department of Water received comments from the BTAC.[63]
[63] Exhibit 3.10 para 166.
60On 17 February 2017, the Department of Water issued to the Applicant:
(1)a water licence (GWL 168145) which permitted the Applicant, during the period from 15 February 2017 to 14 February 2027, to take 13.2 GL of water per annum from the Ashburton alluvial aquifer for the purposes of irrigating up to 550 hectares of fodder crops; and
(2)a construction permit (PMB179486(1)) permitting the construction of 10 weirs on the River, during the period commencing 15 February 2017 and expiring on 14 February 2019.[64]
[64] Exhibit 3.10 para 168.
61On 23 June 2017, the Applicant applied to the Shire of Ashburton for development approval for the construction of 10 weirs at varying intervals along the River south of the Minderoo Station homestead.[65] Development approval for the weirs was required pursuant to the Shire of Ashburton Local Planning Scheme No 7.[66] Development approval was granted on 23 March 2018.
[65] Respondent's s 24 Bundle (Bundle) page 769.
[66] Shire of Ashburton Local Planning Scheme No 7, cl 5.1.1.
62Meanwhile, on 29 January 2016, the Pastoral Lands Board granted the Applicant a 'Permit for Agricultural Use' to grow various fodder crops within a 120 hectare area at Minderoo.[67]
[67] Exhibit 3.10 Annexure DIS42 para 159.
63On 22 November 2017, the Pastoral Lands Board granted the Applicant an agricultural permit approving the cultivation of various crops within nominated areas at Minderoo.[68]
[68] Exhibit 3.10 para 171.
The Applicant's application for the Minister's consent under s 18 of the AH Act
64On 19 July 2017, the Applicant wrote to the Minister giving notice that it intended to apply for consent pursuant to s 18 of the AH Act to use certain land (Land) to conduct works relating to the 'Agricultural Weir Project being established on Minderoo Station' (Purpose).[69]
[69] Exhibit 2.117 page 2223; by reference to the language in AH Act, s 18(2).
65On 20 July 2017, the Applicant lodged an application in the form of a notice under s 18 of the AH Act (Section 18 Notice) with the Department of Planning, Lands and Heritage (Department or responsible Department).[70] The Section 18 Notice identified the River (by reference to its Aboriginal site identifier ID 6540) as being an Aboriginal site that would be partially impacted by the Land being used for the Purpose.[71]
[70] Exhibit 2.5.
[71] Exhibit 2.5 para 790.
66The Thalanyji people were provided with an opportunity to comment on the Section 18 Notice. For the purpose of doing so, a survey of the Land was undertaken in September and October 2017. The report which was prepared following that survey concluded that in addition to the River, 10 Aboriginal archaeological sites would be affected by the Purpose.[72]
[72] The Aboriginal Cultural Management Committee (ACMC) would later determine that eight of these sites were Aboriginal sites for the purposes of the AH Act. See [68] in this regard.
67The Section 18 Notice was considered by the Aboriginal Cultural Material Committee (ACMC),[73] at its meeting on 8 May 2018. At that meeting, the ACMC resolved to recommend to the Minister that consent to use the Land for the Purpose be granted, subject to conditions, including the following condition (Condition 5) which read:
That the applicant avoids impact to the permanent pools.[74]
[73] As we discuss below, the ACMC is established under s 28 of the AH Act.
[74] Exhibit 2.162 pages 2718 – 2719.
68The ACMC's resolution[75] noted that the Purpose would impact upon eight Aboriginal sites within the meaning of s 5 of the AH Act on the Land. The eight sites were:
[75] Resolution 2018/051.
ID 37522
Mindurru (Ashburton River)
ID 37467
Barkatangee Artefact Scatter 1
ID 37466
Barkatangee Artefact Scatter 2
ID 37462
Barlathun Artefact Scatter
ID 37461
Goodingu Outcamp
ID 37464
Jiminu Pool Grinding Patches
ID 37463
Warralee West Artefact Scatter
ID 37468
Balchara Artefact Scatter
69Annexure B to these reasons contains a map of the River showing the location of the proposed weirs and granite quarry location.[76] Annexure C to these reasons is a map showing the location of various key places of relevance on the River.[77]
[76] Exhibit 2.3, page 769.
[77] Exhibit 3.6, Appendix C to Annexure SMH1.
70Following the ACMC meeting on 8 May 2018, the Registrar of Aboriginal Sites (Registrar)[78] resubmitted the Section 18 Notice to the ACMC for further consideration of Condition 5, which required that the MARS avoid impact to the permanent pools in the River.
[78] The Registrar of Aboriginal Sites is established under s 37(1) of the AH Act. An officer of the responsible Department is to be the Registrar of Aboriginal Sites and is appointed by the Chief Executive Officer of the Department. The function of the Registrar it to manage the day-to-day operations of the ACMC: AH Act, s 37(1).
71The ACMC further considered the Section 18 Notice, and Condition 5 in particular, at its meeting on 12 June 2018. The minutes of that meeting[79] noted:
It was discussed that the proposed impact areas of the weirs will either directly impact on the permanent pools or be in very close proximity to the permanent pools within the Mindurru river. The members discussed that it was therefore not possible for the Applicant to avoid impact to the permanent pools, making the condition difficult to implement. As a result of the discussions, the Committee resolved to:
1.Remove the suggested draft condition number 5 as resolved and drafted in the 8 May 2018 minutes; and
2. Due to the importance and special significance attributed to the permanent pools and the Mindurru river by the Traditional Owners and taking into account section 39(2) and 39(3) of the Aboriginal Heritage Act 1972, resolved to recommend to the Minister that consent be declined.
[79] Exhibit 2.163 page 2722.
72On 28 June 2018, the Section 18 Notice was submitted to the Minister, together with a Briefing Note prepared by the responsible Department.[80]
[80] Exhibit 2.2 page 13; the Section 18 Notice was Attachment 2.
73The Briefing Note set out the ACMC's recommendation and attached the Department's summary of the information contained in the Section 18 Notice, the ACMC's recommendation, and a map of the Land, as well as the submissions from the Applicant and the BTAC which had been made to the ACMC.
1.2 The Minister's decision
74On 25 March 2019, the Minister declined to consent to the use of the Land for the Purpose, pursuant to s 18(3) of the AH Act (Minister's decision).[81] The Minister informed the Applicant by letter dated 25 March 2019, that:
In accordance with my powers under section 18(3) of the [AH Act], … I hereby decline consent to the use of the land for the proposed Purpose…based on the importance and special significance attributed by the Traditional Owners to the Ashburton (Mindurru) River.
[81] Exhibit 2.1 page 1.
75The Minister's decision is the subject of the present Review.
2. LEGISLATIVE FRAMEWORK
2.1 Nature of the review
76Section 18(5) of the AH Act confers jurisdiction on the Tribunal to review the Minister's decision.[82]
[82] Cf SAT Act, s 13(1).
77Because the AH Act gives the Tribunal jurisdiction to review the Minister's decision, this matter arises in the Tribunal's review jurisdiction.[83] That being the case, our task is to hear the Applicant's application for consent to the Proposed Works under s 18 afresh, by way of a hearing de novo, and to make the correct and preferable decision at the time of our decision upon the review.[84] In doing so, we have functions and discretions corresponding to those which were exercisable by the Minister in making the Minister's decision.[85]
[83] AH Act, s 17(1).
[84] AH Act, s 27.
[85] SAT Act, s 29(1).
78On a review, no party bears any legal or practical onus of proof.[86] In a review of the present kind, the civil standard of proof applies. In these reasons, when we express ourselves to be satisfied as to the existence of a fact, we mean that we are satisfied on the balance of probabilities that the relevant fact has been proved.
[86] De-Abreu and Legal Profession Complaints Committee [2022] WASAT 42 [69].
2.1.1 The operation of the AH Act
79In order to understand the nature of the function exercised by the Minister under s 18(3), and by this Tribunal on a review of the Minister's decision, it is necessary to say a little more about the operation of the AH Act.
80As its name suggests the AH Act is concerned with the preservation of Aboriginal heritage, which is an important part of the heritage of Western Australia.[87] The long title of the AH Act indicates that it is an Act 'to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants, or associated therewith' (Aboriginal places and objects) and for other purposes incidental to that primary legislative purpose.
[87] Abraham v The Hon Charles Collier MLC [2016] WASC 269 (Abraham v Collier) [12] – [16].
81The AH Act establishes processes by which places and objects of special significance to Aboriginal people, past or present, can be protected and preserved as part of the cultural heritage of the State, and made available to Aboriginal people for purposes which accord with Aboriginal tradition.[88]
[88] Abraham v Collier [12].
82The term 'place' is not defined in the AH Act. It bears its ordinary meaning of 'a particular portion of space, or definite or indefinite extent'.[89] 'Places' are not protected under the AH Act unless they are, or may be, 'Aboriginal sites'. The term 'site' is also not defined, but its ordinary meaning includes 'a place, or position; a location',[90] and 'a place where something happens or has happened; the location of a specific event, occurrent, or activity'.[91] The term 'Aboriginal site' is defined in the AH Act to mean 'a place to which this Act applies by the operation of section 5'. In other words, 'places' will only constitute 'Aboriginal sites' for the purposes of the AH Act when some importance or significance attaches to that place in any of the ways described in s 5.
[89] Macquarie Dictionary Online.
[90] Oxford English Dictionary Online.
[91] Oxford English Dictionary Online.
83The AH Act sets out broad criteria for the places which, under the AH Act, are regarded as 'Aboriginal sites'.[92] By s 5 of the AH Act, the AH Act applies to:
(a)any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object … used for, or made or adapted for use for, any purpose connected with the traditional cultural life of Aboriginal people, past or present;
(b)any sacred, ritual or ceremonial site which is of importance and special significance to persons of Aboriginal descent;
(c)any place which, in the opinion of the ACMC, is or was associated with Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State; and
(d)any place where objects to which the AH Act applies are traditionally stored, or to which … such objects have been taken or removed, pursuant to the AH Act.
[92] AH Act, s 4.
84In Robinson v Fielding,[93] Chaney J held that the term 'sacred', as it is used in the context of the AH Act (in particular, s 5(b)), is not confined to places devoted to religious use but may be constituted merely by being 'subject to mythological story, song or belief'.[94] His Honour accepted that if an area of land or water was associated with a religious or spiritual belief, that area was capable of being described as a 'sacred site' for the purposes of s 5(b). His Honour held that the activities taking place on the land may be relevant to the assessment of the level of importance or special significance, but not to the question of whether or not the area concerned is a 'sacred site'.[95]
[93] Robinson v Fielding [2015] WASC 108 (Robinson v Fielding).
[94] Robinson v Fielding [97] – [98].
[95] Robinson v Fielding [88].
85We note that the Applicant does not agree that the word 'sacred' in the context of s 5(b) should be given that meaning. The Applicant submitted, by reference to its dictionary meaning, that the word 'sacred', when it relates to religion, connotes inviolability, and further submitted that even within religion, 'sacred' connotes ultimate or special significance as compared with 'other places, books or phenomena'. [96]
[96] Applicant's Opening Submissions para 33.
86We consider that the meaning given to the word 'sacred' by Chaney J in Robinson v Fielding was plainly correct. The ordinary meaning of the term 'sacred' includes 'entitled to veneration or religious respect by association with divinity or divine things; holy', 'regarded with reverence' and 'relating to or connected with religion (opposed to profane and secular)';[97] and 'regarded with or entitled to respect or reverence similar to that which attaches to holy things'.[98] We see no reason to confine the meaning of 'sacred', especially by reference to concepts deriving from Christian religious usage or traditions. In construing an Act established to deal with Aboriginal culture, the word 'sacred' must be understood to contemplate spiritual and mythological purposes consistent with that culture.[99]
[97]Macquarie Dictionary Online.
[98] Oxford English Dictionary Online.
[99] Robinson v Fielding [87].
87Furthermore, as the Respondent submitted, there is no support in the text or context of the AH Act for the Applicant's proposition that a place assessed to be a 'sacred site' because it is the subject of a mythological story, song or belief, as opposed to being sacred because of being of 'inviolable' religious significance, should be subject to a 'proportionally diluted' level of protection under the AH Act.[100]
[100] Respondent's Opening Submissions para 36; cf Applicant's Opening Submissions para 45.
88Finally, s 5(b) clearly contains two criteria – the first is whether there is a site which is a 'sacred, ritual or ceremonial site' and the second is whether the site is of importance or special significance to persons of Aboriginal descent. The construction adopted by Chaney J clearly reflected that statutory context.
89The Applicant referred to s 5(b) of the AH Act and the words 'importance and special significance'. It submitted that some meaning must be given to 'special'.[101] The ordinary meaning of the word 'special' includes 'exceptional in quality or degree; unusual; out of the ordinary', 'distinctive in some way; distinguished from others of the kind by a particular quality or feature', and 'in a special manner; especially, particularly'.[102] When used in conjunction with 'significance' the word 'special' indicates that the site in question must be one which has an unusual degree of significance, or that is especially or particularly significant, for persons of Aboriginal descent.
[101] Applicant's Opening Submissions para 36.
[102] Oxford English Dictionary Online.
90Whether a site is 'sacred' and of importance and special significance to persons of Aboriginal descent are factual questions.
2.1.2 The approach to preservation of Aboriginal places and objects under the AH Act
91The AH Act seeks to preserve Aboriginal places and objects in three ways.
92 First, its provisions facilitate the identification of Aboriginal places and objects so that their significance can be assessed and, if appropriate, they can be protected.
93By way of example, the AH Act obliges those with knowledge of the existence of places and objects which are or are likely to be Aboriginal places and objects to report their existence to the Registrar.[103] The AH Act also requires a person who has in their custody or control any object classified as Aboriginal cultural material for the purposes of the AH Act, to notify the Minister.[104] The Minister is under a duty to ensure that, so far as reasonably practicable, all places in Western Australia, and all Aboriginal cultural material, that are of traditional or current sacred, ritual or ceremonial significance, are recorded so that their importance can be evaluated and their preservation and protection secured and made effective.[105] Furthermore, the Registrar is required to maintain a register of the places and objects to which the AH Act applies.[106]
[103] AH Act, s 15.
[104] AH Act, s 41.
[105] AH Act, s 10.
[106] AH Act, s 38.
94 Secondly, the AH Act permits an evaluation of places and objects to ascertain whether they are Aboriginal places and objects, and if so, their importance and significance. Officers of the Department have powers under the AH Act to enter premises for the purposes of examining Aboriginal sites or places or objects to investigate whether they are of sacred, ritual or ceremonial significance to Aboriginal people.
95The role of evaluating the importance and significance of Aboriginal places and objects is conferred on the ACMC. We will return to discuss its role later in these reasons.
96 Thirdly, the AH Act permits Aboriginal places and objects to be protected from the risk of destruction, damage or loss in a variety of ways, and to be made available to Aboriginal people for purposes which accord with Aboriginal tradition.[107] We have already made reference (at [93]) to the recording and registration of places and objects, which facilitates their protection.
[107] Abraham v Collier [12].
97Further, in the case of Aboriginal sites of 'outstanding importance' the ACMC is able to recommend to the Minister that those sites be declared a protected area.[108] If the Minister considers that it is 'in the general interest of the community to do so;' the Minister may recommend to the Governor that the Aboriginal site be declared a protected area.[109]
[108] AH Act, s 19(1).
[109] AH Act, s 19(3), and in relation to the effect of such a declaration see also s 22, s 23, s 27 and see also the Aboriginal Heritage Regulations 1974 (WA) r 4 and r 5.
98In respect of Aboriginal objects, the ACMC may recommend to the Governor that an object or class of objects is of Aboriginal origin and is of sacred, ritual or ceremonial importance, or anthropological, archaeological or other special national or local interest, or of outstanding aesthetic value, and the Governor may declare that object or class of objects to be classified as Aboriginal cultural material.[110]
[110] AH Act, s 40; see also s 41, s 42, s 46 and s 47.
99As already noted, s 17 of the AH Act makes it an offence for a person to engage in certain conduct, including to excavate, destroy, damage, conceal or in any way alter any Aboriginal site or object on or under an Aboriginal site, or to deal with, or assume the possession, custody or control of any object on or under an Aboriginal site, unless that person has the authorisation of the Registrar (to excavate or remove any thing from an Aboriginal site) or the consent of the Minister under s 18.
100The AH Act also protects Aboriginal places and objects by creating offences for, amongst other things, destroying or damaging Aboriginal places, or selling or disposing of any object classified as Aboriginal cultural material,[111] and for damaging or removing objects in the possession or care of the Minister.[112]
[111] AH Act, s 43.
[112] Aboriginal Heritage Regulations 1974 (WA) r 6(d). It is also an offence to photograph, copy or reproduce an object classified as Aboriginal cultural material, or to publish any such reproduction, contrary to any prohibition on such conduct by the Governor by Order in Council: see AH Act, s 49.
101Finally, s 8 of the AH Act provides that Aboriginal places or objects which, by virtue of the operation of the AH Act, become subject to the custody or control of the Minister, may be made available to Aboriginal people for purposes sanctioned by Aboriginal tradition. Nothing in the AH Act is to be construed so as to take away or restrict any rights or interests of Aboriginal people in relation to any Aboriginal place or object.[113]
[113] AH Act, s 7.
102It is immediately apparent that the means by which places and objects are protected under the AH Act are very significant. They include criminal sanctions, and the displacement of ordinary property rights. The adoption of such significant means signals the importance attributed by the Parliament to the preservation of the Aboriginal cultural heritage of the State.
103However, it is also apparent that the protection afforded to Aboriginal sites and objects under the AH Act is not immutable. In so far as the use of land is concerned, s 18 of the AH Act gives the Minister the power to grant consent to the use of land for a purpose which will, relevantly, destroy, damage or alter, an Aboriginal site. The possibility of consent under s 18 to such interference, even to the point of destruction, with an Aboriginal site makes clear that the protection given to Aboriginal places and objects under the AH Act is not absolute. For that reason, it cannot be said that the AH Act evinces only a protective purpose in relation to Aboriginal sites.[114] Consent to such interference with an Aboriginal site may be given having regard to the general interest of the community. The discretion under s 18(3) of the AH Act has been described as 'very wide, going beyond consideration of the impact of a particular development on Aboriginal interests'.[115] Indeed, inherent in the whole process under s 18(3) of the AH Act is the possibility that Aboriginal cultural considerations may be outweighed by other factors relevant to the general interest of the community.[116]
[114] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [5] – [6] (Gleeson CJ); Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ and Hayne J).
[115] Tickner v Bropho [1993] FCA 208; (2003) 114 ALR 409, 431 (Black CJ).
[116] Western Australia v Bropho (1991) 5 WAR 75 (Western Australia v Bropho) [94] (Anderson J and Franklyn J agreeing).
104In preserving places of significance to Aboriginal people, the AH Act as a whole focuses on the 'interest of the community'. That that is so is reflected in the purpose of the AH Act, the Minister's duty under s 10 and the considerations the Minister is required to take into account under s 18(3) of the AH Act.[117] In addition, as the long title to the AH Act recognises, preservation of Aboriginal places and objects is done 'on behalf of the community' as a whole.
2.1.3 The role of the Minister, the ACMC, the Registrar and the responsible Department
[117] Cf Robinson v Fielding [128] (Chaney J).
105As can be discerned from this brief outline, the Minister, the ACMC, the Registrar and officers of the responsible Department have discrete roles in carrying out the objectives of the AH Act.
106The Minister has responsibility for the administration of the AH Act. Not surprisingly, the AH Act does not require that the Minister personally conduct activities, inquiries, and investigations about Aboriginal places or objects. Instead, the Minister will be assisted and advised by the staff of the responsible Department. However, the Parliament has also provided for the ACMC to undertake certain aspects of that advisory role.[118]
[118] Wintawari Guruma Aboriginal Corporation RNTBC v Wyatt [2019] WASC 33 (Wintawari v Wyatt) [150] (K. Martin J).
107The ACMC's role under the AH Act is to act as an advisory body,[119] drawing on the specialist knowledge and expertise of its members. Broadly speaking, its role is to advise the Minister in regard to the evaluation and preservation of Aboriginal sites and objects.[120] Under s 39(1) of the AH Act, its functions are:[121]
(a)to evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons;
(b)to record and preserve the traditional Aboriginal lore related to such places and objects;
(c)to recommend to the Minister places and objects which, in the opinion of the ACMC, are, or have been, of special significance to persons of Aboriginal descent and should be preserved, acquired and managed by the Minister;
(d)to advise the Minister on any question referred to the ACMC and generally on any matter related to the objects and purpose of the AH Act, including as to the application of moneys made available for the administration of the AH Act; and
(e)to perform the functions allocated to the ACMC by the AH Act.
[119] AH Act, s 28(1).
[120] Western Australia v Bropho [82] – [83] (Anderson J and Franklyn J agreeing).
[121] AH Act, s 39.
108The ACMC comprises appointed members and ex officio members.[122] The appointed members must be chosen from persons with special knowledge, experience or responsibility which will assist the ACMC in relation to the recognition and evaluation of the cultural significance of matters coming before the ACMC.[123] One of those appointed members must have specialised experience in anthropology related to the Aboriginal inhabitants of Australia.[124] The ex officio members of the ACMC are the Director of the Western Australian Museum (Boola Bardip), an authorised land officer for the purposes of the Land Administration Act 1997 (WA) and the person immediately responsible to the Minister responsible for Aboriginal affairs.[125] The provisions of the AH Act relating to the constitution of the ACMC thus ensure that it has extensive expertise in relation to the recognition and evaluation of the significance of places and objects to Aboriginal people.[126]
[122] AH Act, s 28(2).
[123] AH Act, s 28(4).
[124] AH Act, s 28(4).
[125] AH Act, s 29.
[126] Western Australia v Bropho [82] – [83] (Anderson J, Franklyn J agreeing).
109The Registrar is an officer of the responsible Department whose functions are to administer the day‑to‑day operations of the ACMC and to perform the functions allocated to the Registrar under the AH Act, including to maintain the Register.[127]
[127] AH Act, s 37.
110In the Minister's administration of the AH Act, including in the performance of the duty to ensure, so far as reasonably practicable, that all places and Aboriginal cultural material of traditional or current sacred, ritual or ceremonial significance, are recorded, preserved and protected, the Minister is required to have regard to, but is not (subject to any contrary indication in the AH Act) bound to give effect to, the recommendations of the ACMC and the Registrar.
111Against that background, we turn to consider, more specifically, s 18 of the AH Act.
2.1.4 The operation of s 18 of the AH Act
112Section 18 provides a mechanism by which an owner of any land (as defined) may interfere with an Aboriginal site or object that the AH Act would otherwise be directed towards preserving,[128] and without the risk of breaching the offence provision in s 17 of the AH Act in respect of any Aboriginal site that might be on the land in question.[129]
[128] Wintawari v Wyatt [330] (K. Martin J).
[129] AH Act, s 18(8).
113Having regard to the nature of the conduct which constitutes an offence under s 17 of the AH Act, the consent of the Minister provided under s 18 will constitute consent to the use of the land in a way which will, or may, result in the excavation, destruction, damage, concealment or alteration of an Aboriginal site on the land, or in the alteration, damage, removal, destruction, concealment, or assumption of possession, custody or control of an object on or under an Aboriginal site.
114This is a convenient point to mention an argument advanced by the Intervener that s 17 of the AH Act creates offences in relation to both physical interference with Aboriginal sites as well as to actions or omissions which may be said to result in damage to the spiritual beliefs of Aboriginal persons.[130] With respect, that construction of s 17 is untenable for at least three reasons. First, s 17 creates an offence for dealing in various ways (excavation, destruction, damage and so on) with an Aboriginal site or an object on or under an Aboriginal site. A site and an object are each tangible things. The offence is created when something is done to the site or object; necessarily that contemplates a physical impact on the site or object. Secondly, the ordinary and natural meaning of each of the words used in s 17(a) and (b) to describe the various ways of dealing with the site or object describes a physical impact on the site or the object.[131] Thirdly, even if the construction advanced by the Intervener were open as a constructional choice, it would leave open such a wide range of permutations as to render the law vague and uncertain. The construction of an offence provision which results in uncertainty should not be preferred if an alternative construction is open.
[130] ts 60 – 70, 22 March 2021.
[131] By way of example, the word 'excavate' means 'to make hollow by removing the inner part; make a hole or cavity in; form into a hollow, as by digging; to make (a hole, tunnel, etc.) by removing material; and to dig or scoop out (earth, etc.)'. Macquarie Dictionary Online.
115In any event, the Intervener's argument does not, strictly speaking, arise for consideration. This is not a case about an alleged contravention of s 17. The construction of s 17 arises only as an adjunct to the proper construction of s 18 of the AH Act. Furthermore, the Intervener's argument was directed to the possibility that the Tribunal might find that the Proposed Works would not in fact result in any of the physical impacts, described in s 17(a), on the various sites on the land. For the reasons set out below, we have found that the Proposed Works would result in an alteration of the River as an Aboriginal site.
116Returning, then, to s 18, that section relevantly establishes a two stage process. The first stage, under s 18(2), involves consideration of the proposed use of the land by the ACMC. The second stage, under s 18(3), involves consideration by the Minister.
2.1.5 Consideration by the ACMC
117The process for obtaining consent begins with the owner providing notice of the intended use of the land. The notice is provided to the ACMC to enable it to do three things:
(a)form a view as to whether there is any Aboriginal site on the land;
(b)evaluate the importance and significance of any such site; and
(c)make a recommendation to the Minister as to whether the Minister should consent to the use of the land for the purpose set out in the owner's notice, and (if applicable) as to the extent to which and the conditions upon which, that consent should be given.
118The ACMC must first form a view as to whether there is any Aboriginal site on the land. That question may not previously have been considered. Further, an owner is entitled to seek consent in respect of any Aboriginal site that 'might be' on the land. Even if an Aboriginal site has already been identified on the land in question, the ACMC will need to consider whether other Aboriginal sites may be on the land.
119In forming an opinion as to whether there is an Aboriginal site on the land, the ACMC will direct its attention to the criteria in s 5 of the AH Act, which are set out above at [83], and which require its consideration of whether the place is of importance and significance to persons of Aboriginal descent.
120Having formed the opinion that there is an Aboriginal site on the land, the ACMC is then required to evaluate the 'importance' and 'significance' of any such site. Given that the criteria of 'importance' and 'significance' are used both to identify an Aboriginal site, and to evaluate it, it is apparent that the exercise involved in the initial identification of an Aboriginal site may well intersect and overlap with the evaluation of that site's importance and significance from the perspective of recommending whether consent should be given.[132]
[132] Wintawari v Wyatt [331(e)] (K. Martin J).
121The criteria of importance and significance thus have two dimensions: the importance and significance of each Aboriginal site to people of Aboriginal descent, and the importance and significance of each Aboriginal site to the community more broadly, as part of the cultural heritage of the State.
122The criteria of 'importance' and 'significance' are 'inherently intangible and impressionistic criteria'.[133] Their use indicates that the evaluation the ACMC is required to undertake is inherently qualitative in character.[134]
[133] Wintawari v Wyatt [331(c)] (K. Martin J).
[134] Wintawari v Wyatt [331(c)] (K. Martin J).
123In evaluating the importance of places and objects, s 39(2) of the AH Act requires the ACMC to have regard to:
(a)any existing use or significance attributed under relevant Aboriginal custom;
(b)any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;
(c)any potential anthropological, archaeological or ethnographical interest; and
(d)aesthetic values.
124Furthermore, s 39(3) of the AH Act provides that the ACMC is to have regard to 'associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained' as the primary considerations to be taken into account in the evaluation of any place or object for the purposes of the Act. The criteria in s 39, and in s 39(3) of the AH Act in particular, provide loose guidance, or indications of relative priority, for the ACMC,[135] as opposed to matters which can properly be regarded as mandatory considerations in every case.[136]
[135] Wintawari v Wyatt [331(f) and (g)] (K. Martin J).
[136] Wintawari v Wyatt [332] (K. Martin J).
125In forming its opinion about the existence of an Aboriginal site, and its evaluation of the importance and significance of any such site, the ACMC will draw on such information as it is able to obtain about those matters. Aboriginal people are 'necessarily the principal source of information as to the existence of sites to which the AH Act applies, and as to the significance and importance of those sites'.[137] Other sources of information on which the ACMC may draw include reports by officers of the responsible Department following their investigations,[138] and reports from anthropologists.
[137] Robinson v Fielding [129] (Chaney J). Indeed, in some circumstances, the ACMC may be obliged to afford procedural fairness to Aboriginal people who might be affected by a decision under s 18, as to the existence, significance and importance of sites which are the subject of an application under s 18: Robinson v Fielding [140] – [141] (Chaney J); Abraham v Collier [77].
[138] Cf AH Act, s 51.
126In so far as it contemplates the ACMC making a recommendation as to whether, if an Aboriginal site is on the land, consent should be given to the use of that land for the owner's intended purpose, the AH Act requires the ACMC to evaluate 'on behalf of the community' the importance of places and objects alleged to be associated with Aboriginal persons.[139]
[139] AH Act, s 39(1)(a).
127The ACMC is also required to consider the extent to which the Minister should give consent to the proposed use of the land. In other words, the ACMC is required to consider whether the Minister's consent should be given to something less than what is sought by the owner. There is no express limit on the extent to which consent may be given. The ACMC will be entitled to consider whether consent should be given only to the proposed use on part of the land in question (for example, to minimise or avoid the impact of that use on an Aboriginal site on another part of the land) or whether the use should be limited to a particular period of time (for example, to avoid the permanent destruction, concealment or alteration of an Aboriginal site).
128Finally, the ACMC is required to consider whether it should recommend that consent be given on conditions.
129The limited range of recommendations that the ACMC is permitted to make under s 18(2) of the AH Act – recommending for or against the grant of consent, and (if applicable) the extent of that consent, and any conditions on which it should be given – imply that the ACMC reaches a conclusion that the impact of the proposed use of the land on any Aboriginal site on that land is regarded as tolerable, intolerable, or tolerable with conditions.[140]
[140] Wintawari v Wyatt [342] (K. Martin J).
130The ACMC must then submit the land owner's notice to the Minister, together with its recommendation in writing as to whether the Minister should consent to the use for the land owner's proposed purpose, the extent of that consent, and any conditions upon which consent should be granted.
131Consistent with the Applicant's submissions[141] we agree that once the s 18 process is engaged by an owner of land, the process must be completed by the making of a decision of the Minister pursuant to s 18(3) (or on review under s 18(5) of the AH Act). There is nothing in the language of s 18(2) that would suggest that the process terminates if the ACMC reaches a view that no 'site' will be affected by the owner's proposed use of the land. Even if that is the ACMC's opinion, the Minister is still required to determine whether to grant consent under s 18(3). That is because it is that consent which gives an owner of land the assurance of protection from the risk of contravention of s 17 if the land is used as proposed.
[141] ts 670 – 674, 4 June 2021.
2.1.6 Consideration by the Minister
132Subsection 18(3) of the AH Act provides:
Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either —
(a)consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
(b)wholly decline to consent to the use of the land the subject of the notice for the purpose required,
and shall forthwith inform the owner in writing of his decision.
133The Minister clearly has a discretion, under s 18(3), as to whether to give consent to the use of the land for the purpose required. That exercise of discretion involves two steps. The first step is to consider the ACMC's recommendation (first step). The second step is for the Minister to consider whether consent should be given to the use of the land or a specified part of the land, for the land-owner's proposed purpose, having regard to the general interest of the community (second step). If so, the Minister may consider whether that consent should be given subject to conditions.
The first step
134The first step requires the Minister to consider the recommendation of the ACMC.
135In our view, the ACMC's recommendation is a relevant consideration to which the Minister must have regard. That that is so follows, in our view, from three contextual considerations. First, this part of s 18(3) is expressed in mandatory language (the Minister 'shall' consider the ACMC's recommendation). Secondly, the existence of an obligation on the Minister to give consideration to the ACMC's recommendation is entirely consistent with the expertise, and the advisory role, given to the ACMC under the AH Act. Indeed, the scheme of the AH Act as a whole is that the Minister is required to have regard to all recommendations of the ACMC.[142] Thirdly, as already explained, the AH Act confers on the ACMC the role of an advisory body with expertise suited to the task, to conduct investigations into the existing of Aboriginal places and objects, and to evaluate their importance and significance.[143] The efficacy of that structure, and indeed the role of the ACMC under s 18(2), would be rendered nugatory if the Minister was not required to give consideration to the ACMC's recommendations.
[142] AH Act, s 11A.
[143] Wintawari v Wyatt [150] (K. Martin J).
136There are divergent authorities in relation to the content of a requirement for a decision-maker to take into account relevant considerations when exercising a statutory power.[144] One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged.[145] However, the preponderance of authority in this State,[146] is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter. We proceed on the basis that that is what is required of the Minister, and of the Tribunal in this case.
[144] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko‑Wallsend Ltd) [39] (Mason J).
[145] Peko-Wallsend Ltd [40] – [41] (Mason J).
[146] Sanders v City of South Perth [2019] WASC 226 [138] (Quinlan CJ); Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, LeMiere AJA agreeing) (but cf A v Corruption and Crime Commissioner[2013] WASCA 288; (2013) 306 ALR 491 [88] – [92]).
137Provided that the Minister gives proper, genuine and realistic consideration to the ACMC's recommendation, the weight the Minister gives to that recommendation in the Minister's ultimate decision is a matter for the Minister. However, there is also no doubt that the Minister is not obliged to follow the ACMC's recommendation.[147] In the absence of an express indication to the contrary, the AH Act provides that the Minister is not bound to give effect to any recommendation of the ACMC.[148]
[147] Wintawari v Wyatt [27] and [54] (K. Martin J).
[148] AH Act, s 11A.
138An issue which arose in these proceedings was whether the Minister is bound by the ACMC's opinion as to whether there is an Aboriginal site on the land the subject of the notice under s 18, and the importance and significance of any such site.
139The Applicant submitted that no weight should be given to the ACMC's opinion as to the existence of Aboriginal sites on the Land. The Applicant submitted that the Minister can reject the ACMC's opinion that the use of land will affect a 'site', and that the Minister can, in effect, reach a view that no site is affected and record that view.[149] In this case, the Applicant submitted that the MARS project does not affect any Aboriginal site on the Land.[150]
[149] ts 666 – 669, 4 June 2021.
[150] ts 665, 4 June 2021.
140The Respondent submitted that we ought to give the ACMC's recommendation 'significant weight' in the exercise of discretion.[151] That is so having regard to the ACMC's functions as a specialist advisory body on matters of Aboriginal heritage and culture under the AH Act.[152]
[151] Respondent's Closing Submissions para 15.
[152] Respondent's SIFC, para 34.
141In our view, the distinct role the ACMC has been given, under the AH Act, in forming an opinion as to whether there is an Aboriginal site on land and the importance and significance of any such site; its ability to gather information from relevant sources to reach its opinion and evaluation on those matters; and the expertise of its members to enable it to form the relevant opinions; powerfully support the conclusion that in the absence of any further information or evidence which cast doubt on the ACMC's opinion, the Minister would be expected to rely on the ACMC's opinion as to whether there is an Aboriginal site on any land, and the importance and significance of any such site, and to give it significant weight in the Minister's consideration as to whether consent should be given to proposed works. That is to be expected in light of the fact that it is not part of the Minister's functions under the AH Act to evaluate the importance and significance of places to ascertain whether they constitute Aboriginal sites. It is not necessary for us to finally determine whether the Minister, and in turn the Tribunal, is bound by the ACMC's opinion as to whether there are sites, including the River, on the land. As we explain below, the evidence leaves us in no doubt that the River is an Aboriginal site of importance and special significance to the Thalanyji people.
The second step
142The second step involves the Minister having regard to the general interest of the community in order to determine whether consent should be given to the land owner's use of the land for the purpose identified in the notice. There is no doubt that the general interest of the community is a consideration to which the Minister must have regard in determining whether to consent or refuse consent to the use of the land for the purpose identified by the owner.
143The 'general interest of the community' is not defined in the AH Act. In Western Australia v Bropho, Anderson J noted that the phrase 'general interest of the community' embraced consideration of a 'multitude of factors'.[153] In that case, his Honour used the term 'public interest' as being akin to the 'general interests of the community'.[154] We agree. Use of a statutory test such as 'in the public interest' is regarded as importing 'a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable"'.[155]
[153] Western Australia v Bropho [94] (Anderson J and Franklyn J agreeing).
[154] Western Australia v Bropho [94] (Anderson J and Franklyn J agreeing).
[155] O'Sullivan v Farrer (1989) 168 CLR 201, 216 (Mason CJ, Brennan J, Dawson J and Gaudron J); McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 [55] (Hayne J); see also Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [19] (Pullin JA)
144The use of the statutory test of the 'general interest of the community' in s 18(3) was plainly intended to permit the Minister to take into account a wide range of matters in discerning the general interest of the community.[156]
[156] Cf Re Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342 [67] (Wheeler JA and Wallwork J agreeing).
145Clearly, the second step involves both an evaluative exercise, and a balancing exercise. The Minister will have regard to the ACMC's recommendation – its opinion as to whether there is an Aboriginal site on the land, its evaluation of the importance and significance of any such site, and its assessment of the interests bearing on whether consent should be given. But the Minister is also required to evaluate the general interest of the community as a whole in deciding whether consent should be given. Those considerations must then be weighed up in a balancing exercise.
146That is not to suggest that what is involved is a binary balancing exercise – that is, that the matters taken into account by the ACMC necessarily sit on one side of the ledger and are somehow weighed up against the 'general interest of the community' identified by the Minister, the factors contributing to which sit on the other side of the ledger. That is because the matters bearing on the ACMC's recommendation (including its evaluation of the importance and significance of any Aboriginal site on the land) may overlap with the interests identified by the ACMC as being of relevance to its recommendation, and with aspects of the general interest of the community taken into account by the Minister. In the latter respect, the AH Act itself proceeds on the basis that the preservation of Aboriginal sites and objects thereon, which form part of the cultural heritage of the State, is in the interests of the community as a whole.
147In undertaking the evaluative and balancing exercise to determine whether consent should be given to the proposed use of the land, having regard to the general interest of the community, a variety of considerations may be of relevance. By way of example, they will include the degree of significance and importance of the site to people of Aboriginal descent; the significance and importance of the preservation of the Aboriginal site as part of the cultural heritage of the entire community; whether the proposed use of the land will involve the destruction of, or permanent damage or alteration to, the Aboriginal site; the nature of the benefits or advantages of the proposed use of the land for the community; whether the entire community or merely a small section of it may benefit; whether the benefit will be direct or merely indirect; and whether the benefit to the community can be achieved through other means which would not require destroying, damaging or altering an Aboriginal site.
591We turn, then, to make our evaluation and assessment for the purposes of our review under s 18(5) of the AH Act.
6. OUR EVALUATION ON THE REVIEW
592As discussed above, the first step of our analysis is to consider the recommendation made by the ACMC, and to give it proper, genuine and realistic consideration.
593We have set out above at [71] the details of the ACMC's recommendation.
594The ACMC was satisfied that the proposed MARS would impact on eight Aboriginal sites as defined in the AH Act, although its primary concern was that the MARS would impact on the River as an Aboriginal site. Apart from the River, the sites comprised five sites where artefact scatters had been located, the Jiminu Pool Grinding Patches, and the Goodingu Outcamp. All of those sites, apart from the Goodingu Outcamp, were sites where, or near to where, some of the proposed weirs would be located. As the Applicant advised during the hearing that it had found another location from which to source granite, the relevance of the Goodingu Outcamp fell away, and requires no further consideration.
595There is little information in the ACMC's recommendation which expressly explains the basis for its recommendation, but the following inferences can be drawn from it.
596 First, the recommendation stated that the ACMC resolved to recommend that consent be declined 'due to the importance and special significance attributed to the permanent pools and the Mindurru River by the [Thalanyji] and taking into account s 39(2) and s 39(3) of the [AH Act]'.
597It is thus apparent that the key basis for the recommendation was the importance and significance of the River and the permanent pools in it, to the Thalanyjji people, rather than the existence of sites of archaeological significance (by virtue of the presence of artefact scatters).
598 Secondly, the ACMC's reference to s 39(2) and s 39(3) permits some inferences to be drawn about its process of reasoning. As we have already observed, s 39(3) requires that 'associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place or object' for the purposes of the AH Act. Given that the ACMC relied on the importance and special significance of the River and its pools to the Thalanyji people, we infer that the primary considerations taken into account by the ACMC were the sacred beliefs of the Thalanyji people in relation to the River. Further, in relation to the pools which were thalu sites, we infer that the ACMC had regard to the historical ritual or ceremonial use of those pools, which also established the importance and special significance of the River to the Thalanyji people. Furthermore, given its reliance on s 39(2), it is also apparent that the ACMC must have had regard to: the significance which the Thalanyji people continue to attribute to the River and its pools, which occupy a central place in the Thalanyji people's spiritual beliefs; the reputed use or significance of the Bibinji Pool and Methering Pool as historical locations of thalu sites which remain significant to the Thalanyji people because of that historical association or sentiment; the aesthetic values of the River and its pools, having regard to the spiritual beliefs of the Thalanyji people; and the archaeological interest in the other sites along the river, as disclosed by the surveys which were done prior to the ACMC's consideration of the section 18 Notice.
599 Thirdly, in recommending that consent be given, the ACMC initially considered that while the various sites were of importance and significance, consent could be given to use of the Land for the MARS project, provided that that consent was given on condition that the Applicant avoid any impact to the permanent pools in the River. However, after the ACMC realised that the nature of the MARS project was such that it would not be possible to avoid an impact on the permanent pools in the River, it recommended that consent simply be refused. In other words, the ACMC concluded that it was not a viable option to give consent on any condition.
600 Fourthly, the ACMC's recommendation that consent be refused necessarily represents its conclusion that its evaluation of the importance and significance of the River as a site was such as to outweigh any interests (including the Applicant's interest, and the general interest of the community) in the pursuit of the MARS project. That permits the inference that the ACMC concluded that the importance and significance of the River, and the pools along the River, was considerable and that the interest of the community in the preservation of Aboriginal cultural heritage strongly supported the preservation of that site, and the withholding of consent for the use of the Land for Purpose, namely the MARS project.
601There is nothing on the face of the material which was before the ACMC to suggest that those conclusions, and its recommendation, were not supported by any evidence. We have rejected the Applicant's submission that the ACMC was misled by the Video.
602The ACMC's conclusions are entirely consistent with the conclusions we have reached, having regard to the evidence, about the importance and significance of the River, as an Aboriginal site, and to the impact of the MARS project on the River as an Aboriginal site. In summary our conclusions are as follows.
603 First, we have found that the River occupies a central role in the belief system of the Thalanyji people. We are satisfied that the Thalanyji people's deep connection to the River, and their belief in its healing properties, is such that the Thalanyji people's relationship to the River is properly regarded as deeply spiritual. We have also found that the Thalanyji people's beliefs in the water snake, which lives in the River, and which controls the natural flow of the River, are a central part of their spiritual beliefs in relation to the River. We have found that the Thalanyji people regard the existence of the semi-permanent pools in the River as an enduring expression of the existence of the water snake. We have also found that Bibinji pool and Methering pool are places of particular significance to the Thalanyji people in that historically they were the location of thalu sites.
604We have found that the entirety of the River is of spiritual significance to the Thalanyji people. We have found that in the Thalanyji culture, the River is regarded with deep respect and reverence, and for that reason, we have found that the River is sacred to the Thalanyji people.
605 Secondly, we have also found that the riverbank and the locations of the proposed weirs, are places where artefacts have been found, and that they and the Jiminu Pool Grinding Patches in the River are of archaeological interest and for that reason have importance and significance to the cultural heritage of the State. We have found that the MARS project will result in the destruction or loss of artefacts at the location of each proposed weir, and the deterioration or obscuring of the Jiminu Pool Grinding Patches.
606 Thirdly, because the natural flow of the River, and the role of the water snake in determining that natural flow, is of such central importance in the Thalanyji people's spiritual beliefs about the River, we have found that to interfere with the natural flow of the River (as will be the inevitable effect of the MARS project) will interfere in a significant way with a central tenet of the Thalanyji people's spiritual beliefs.
607We have found that, from the Thalanyji people's perspective, the implementation of the MARS project, which will affect the natural flow of the River, risks killing or harming the water snake, or causing the water snake to become angry, and that that would have a significant adverse impact on the Thalaynji people. This may occur in the form of fear or concern that the water snake may act in anger and cause harm to them, in the form of emotional harm that they will be held responsible to the water snake, in the form of spiritual harm flowing from action which interferes with one of the central tenets of their spiritual beliefs, and in the form of emotional harm in a sense of shame or failure in their personal responsibility, as custodians of the River, to prevent the MARS project from proceeding.
608We have also found that implementation of the MARS project will adversely impact on the Thalanyji people's appreciation of the aesthetics of the River. Given the significance of the River in the Thalanyji people's spiritual beliefs, the significance of that impact cannot be ignored.
609While we have found that if the MARS project proceeds, that would not 'devastate' the Thalanyji culture, we have nevertheless found that the consequences of the MARS project represent potential adverse impacts on the spiritual beliefs and the culture of the Thalanyji people. We have found that those impacts warrant significant weight in assessing the potential impact of the MARS project on Thalanyji culture.
610 Fourthly, we have found that it would not be possible to construct the MARS in a way which minimised the impact on the River as a site of importance and special significance to the Thalanyji people or which would avoid damage to other sites of archaeological significance in or along the River.
611We digress to note that for a period of time, prior to these proceedings, the River was de-listed as an Aboriginal site for the purposes of s 5 of the AH Act. That position was adopted by reference to the accepted understanding of the operation of the AH Act at that point in time. However, that understanding of the AH Act was revised in light of the decision of the Supreme Court in Robinson v Fielding. In light of that decision, the River was once again determined to be an Aboriginal site.[634]
[634] Applicant's Opening Submissions para 28; Exhibit 2.2 para 39.
612In practical terms, the Applicant submits that the entirety of the River is not a 'site' for the purposes of the AH Act. As we have already explained, we do not need to determine whether the entirety of the River is a site for the purposes of the AH Act. However, having regard to the decision in Robinson v Fielding we do not see any reason to doubt the correctness of the ACMC's conclusion that the River is capable of constituting a site. Furthermore, we have found that the River is a place which is sacred to the Thalanyji people, given its central role in their spiritual beliefs, including the fact that it is where the water snake lives. It is clearly a place of importance and special significance to the Thalanyji people. Indeed, it is a focal point of their culture. We are therefore in no doubt as to the correctness of the ACMC's conclusion that the River is an Aboriginal site for the purposes of the AH Act.
613We are not bound by the ACMC's recommendation (just as the Minister was not bound). However, given the expertise of the ACMC's members, its statutory role under the AH Act (as compared with the Minister's role), and the fact that its conclusions and recommendation are entirely consistent with the findings we have reached, having regard to the evidence on the Review, we have concluded that we should give considerable weight to the ACMC's conclusions and its recommendation. They weigh strongly against the grant of consent to the use of the Land for the Purpose, namely the MARS project. The preservation of Aboriginal culture, through the preservation of sites of importance and significance to Aboriginal people, is an important aspect of the preservation of the cultural heritage of the State. We have found that interfering with the natural flow of the River will cause spiritual harm to the Thalanyji people, by virtue of their concern that the water snake may die or leave the River, or become angry, and because the Thalanyji people will feel that they have failed in their duty as the custodians of the River. To permit a development of the River which would produce that outcome would be contrary to the objective of the AH Act to preserve Aboriginal culture as part of the cultural heritage of the State.
614Next we turn to consider whether the implementation of the MARS project would (relevantly) destroy, damage or alter the Aboriginal sites. For the reasons already given, we have found that the implementation of the MARS project would alter the River and the pools in it, because it would necessarily alter the natural flow of the River. We have found that that to implement the MARS project would therefore be to alter the River as an Aboriginal site. We have also found that the implementation of the MARS project would destroy some of the artefacts found at the sites of the proposed weirs, and will, over time, damage the Jiminu Pool Grinding Patches found in the River.
615We have also found that the implementation of the MARS project cannot be undertaken in any way which will avoid this alteration of the River as a site, or the destruction of the artefacts and of the Jiminu Pool Grinding Patches.
616The alteration of the River which will be effected by the MARS will be a permanent one. We take that permanent outcome into account in evaluating the impact of the MARS project. The permanent effect of the MARS project weighs strongly against the grant of consent to the use of the Land for the MARS.
617We have found the impact from the MARS on terrestrial flora and fauna will affect the importance and significance of the River, as an Aboriginal site, but that the magnitude of any such impacts on the River, as an Aboriginal site, is unlikely to be significant. Consequently, we do not give that impact any significant weight in our consideration of the ACMC's evaluation of the importance and significance of the River as an Aboriginal site, and the impact of the MARS on it.
618Next, we turn to the second step, namely our consideration of the general interest of the community.
619We take into account the Minister's decision, which was to refuse consent. We are not obliged to follow the Minister's decision. However, we consider that it warrants some weight in our evaluation of the general interest of the community, because it constitutes the opinion, formed by the Minister, as an elected Member of Parliament and as the Minister with responsibility for the operation of the AH Act, that the general interest of the community did not warrant consent being given to the use of the Land for the Purpose, namely the MARS project.
620We have found that the MARS will alter the River and the pools in it, in that it will alter the natural flow of the River. Leaving that effect to one side, if there were likely to be any adverse hydrological or hydrogeological impacts from the implementation of the MARS, they would not be in the general interest of the community. However, we have found no such adverse impacts. Other than for the alteration of the natural flow of the River, hydrological and hydrogeological impacts of the MARS project are neutral in our assessment of the general interests of the community.
621As for environmental impacts, we have concluded that the magnitude of any impact of the MARS project on terrestrial flora and fauna is unlikely to be significant. We therefore regard those environmental impacts as neutral in our assessment of the general interest of the community.
622Next, we have given consideration to all of the evidence in relation to the anticipated benefits of the MARS project which are said to be in the general interest of the community. Our findings as to the potential benefits from the implementation of the MARS project, and their relevance to the general interest of the community, are, in summary, as follows.
623 First, the primary and direct benefits of the MARS project will lie in enabling the Applicant to increase horticultural production and beef production at Minderoo. Each of those pursuits would result in an overall economic benefit for the Applicant over the longer term. Any such benefit constitutes a private benefit for the Applicant, rather than a benefit to the community. We accept that the MARS project has considerable merit as a novel means of seeking to utilise the natural supply of fresh water in the arid regions of northern Australia, so as to make more productive use of the land. In the end, however, the intended use of that water will be primarily directed to the Applicant's private benefit. As we have said, that private benefit to the Applicant does not warrant weight in our assessment of the overall general interest of the community.
624 Secondly, we have accepted that if the Applicant is able to increase horticultural production and beef production as a result of the ability to draw more water from the aquifers at Minderoo, that will have indirect benefits for the community. We accept that it is in the general interest of the community that a pastoral station is able to be put to its most profitable use for agricultural purposes. The MARS project would assist in the achievement of that objective. However, we do not consider that that warrants great weight in the overall assessment of the general interest of the community.
625 Thirdly, we accept that greater horticultural production, and thus an increased food supply, would constitute a benefit to the community. However, the uncertainties associated with the extent of that benefit are such that on our assessment, this consideration does not warrant significant weight in the overall assessment of the general interest of the community.
626 Fourthly, we accept that there will be a benefit for the community to the extent that the MARS project will protect beef production at Minderoo from the effects of drought,[635] and will thereby result in a more consistent turnover of cattle to the export and domestic consumption markets. We accept that there is a benefit to the community in the security of food production and of beef exports. However, because the source of such benefits will be confined to beef production at Minderoo, which is responsible for only a percentage of the total volume of beef produced in Western Australia each year, we give this consideration only modest weight in our overall assessment of the general interest of the community.
[635] Applicant's Closing Submissions para 251.
627 Fifthly, we have accepted that the pursuit of the MARS project is likely to create jobs. The creation of jobs clearly involves a community benefit. But the number of jobs likely to be created if the MARS is pursued is likely to be modest. In our overall assessment of the general interest of the community, this consideration warrants some weight. But the number of jobs likely to be created is such that only a modest weight should be given to this consideration in our overall assessment of the general interest of the community.
628 Sixthly, we accept that the possibility of an increase in gross domestic product as a result of the MARS would constitute a benefit for the community. But because the evidence did not permit the quantum of that benefit to be estimated, we do not give this consideration any significant weight in our overall assessment of the general interest of the community.
629 Seventhly, we accept that the MARS has some potential to be used as a demonstration project, the lessons from which would assist in developing further proposals of this kind, and that there would be some community benefit in that increased knowledge about alternative forms of water resource management. However, in our overall assessment of the general interest of the community, this consideration does not warrant significant weight.
630 Finally, because the use of the additional water as a source of water for the town of Onslow is, on the evidence, no more than a theoretical possibility, we give that consideration no weight in our assessment of the general interest of the community.
631Taking these various considerations relevant to the general interest of the community into account, our assessment is that the general interest of the community provides some support, but not to a compelling degree, for the implementation of the MARS project.
632In circumstances where:
(a)the ACMC formed the view that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;
(b)the implementation of the MARS project will have the permanent effect of interfering with the natural flow of the River, and will thereby alter the River as an Aboriginal site. It will also result in destruction of some of the artefacts found at the location of the proposed weirs, and will, over time, damage the Jiminu Pool Grinding Patches. Alteration of the River in this way will cause spiritual harm to the Thalanyji people in the manner we have described, and would be contrary to the underlying objective of the AH Act of preserving Aboriginal culture as part of the cultural heritage of the State;
(c)the Minister concluded, having had regard to the general interest of the community, that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;
(d)the considerations to which we have had regard as relevant to the general interest of the community provide some support, but not to a compelling degree, for the implementation of the MARS project;
we have concluded that the general interest of the community overall does not warrant consent being given to the use of the Land for the Purpose, namely the MARS project.
633In reaching that conclusion, we have taken into account our finding that the MARS project cannot be implemented in any way (including by the imposition of conditions on the grant of consent) which will avoid the alteration of the River as an Aboriginal site, the destruction of artefacts at the location of the proposed weirs, and damage to the Jiminu Pool Grinding Patches.
634We have also given consideration to whether consent should be given to the use of specified parts of the Land, by the grant of consent for only some of the proposed weirs. However, because the River itself is a site, alteration of that site (by the alteration of the natural flow of the River) cannot be avoided by proceeding only with the construction of some, but not all, of the weirs.
635For all of these reasons, we have reached the conclusion that the correct and preferable decision is that consent to the MARS project should be refused, and thus that the Minister's decision should be affirmed.
636The order which should be made is:
1.The decision of the Minister is affirmed.
637We will hear from the parties as to whether any other orders should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
TH
Research Associate to the Honourable Justice Pritchard
6 APRIL 2023
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