Kelaray Pty Ltd v Dare - [2023] SASCA 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
KELARAY PTY LTD v DARE & ORS
[2023] SASCA 46
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
11 May 2023
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION - SOUTH AUSTRALIA
In February 2020, the appellant applied for an authorisation under s 23 of the Aboriginal Heritage Act 1988 (SA) (AHA) in anticipation of a mineral exploration program that it proposed to undertake on Lake Torrens.
In June 2020, the Minister embarked upon a consultation program under s 13 of the AHA and provided a consultation package to consultees including the first, second and third respondents. The third respondent provided a submission opposing the grant of an authorisation.
On 29 December 2020, the Minister granted the authorisation under s 23 of the AHA which expressly authorised the appellant and its employees, agents or assignees to act in a manner that would otherwise contravene s 23 of the AHA (the Authorisation). The Authorisation was subject to six conditions imposed under s 14 of the AHA, as well as several further matters expressed as "expectations" on the part of the Minister.
The respondents brought an application for judicial review of the Minister’s decision to grant the Authorisation on various grounds asserting errors on the part of the Minister.
The primary judge upheld the review on a single ground, namely that the Minister misdirected himself and/or acted ultra vires by relying on the appellant’s Chance Find Procedures which is part of its cultural heritage management plan to protect Aboriginal sites, objects and remains. He did so on the basis that the power to grant an authorisation pursuant to s 23 of the AHA is limited by the other provisions of the AHA, such that it does not empower the Minister to grant an authorisation which is inconsistent with s 20 of the AHA. In his Honour’s view, the Authorisation granted by the Minister was inconsistent with s 20 because it detracted from the practical legal operation of that section. His Honour made orders allowing the application for judicial review and setting aside the Authorisation.
The applicant appeals the primary judge’s decision on grounds which challenge the conclusion that the Minister erred in granting the Authorisation in terms that were inconsistent with s 20 of the AHA.
The first, second and third respondents filed a notice of alternative contentions seeking to uphold the primary judge’s decision on grounds reflecting various of the unsuccessful grounds of review argued before the primary judge.
Held, (per the Court), allowing the appeal and setting aside the primary judge’s orders and dismissing the notice of alternative contentions:
1. The Authorisation granted under s 23 did not substantially impair the practical legal operation of the key provisions of the AHA, such as the powers vested in the Minister under ss 20 and 24.

2. None of the contended bases for challenging the validity of the Authorisation are made out.
Aboriginal Heritage Act 1988 (SA) ss 5, 7, 8, 9, 11, 12, 13, 14, 17, 19, 19A, 19H, 19I, 20, 21 23, 24, 26, 29, 35; Coroners Act 2003 (SA); Mining Act 1971 (SA), referred to.
Aust-One Investment Pty Ltd v New World Investments Pty Ltd [2022] NSWSC 137; Aust-One Investment Pty Ltd v New World Investments Pty Ltd [2023] NSWCA 22; Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia [2022] SASC 91; Donne Place Pty Ltd v Conan Pty Ltd [2005] QCA 481; Donut King Australia Pty Ltd v Barber [1999] SASC 241; Kilmaley Investment Pty Ltd v City of Wanneroo [2019] WASCA 156; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Starkey v State of South Australia (2011) 111 SASR 537; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; Tito v Waddell (No 2) [1977] Ch 106; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, considered.

KELARAY PTY LTD v DARE & ORS
[2023] SASCA 46
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: In February 2020, the appellant (Kelaray) applied for an authorisation under s 23 of the Aboriginal Heritage Act 1988 (SA) (AHA) in anticipation of a mineral exploration program that it proposed to undertake on Lake Torrens.
The Minister responsible for determining whether to grant the authorisation was the then Premier. In June 2020, the Department of the Premier and Cabinet embarked upon a consultation program, under s 13 of the AHA, and provided a consultation package to consultees including the first respondent (Mr Dare), who is an elder of the Barngarla people, and the second respondent (Mr Bilney), who is a member of the third respondent (the Barngarla Determination Aboriginal Corporation RNTBC (BDAC)). BDAC provided a submission on behalf of the Barngarla people opposing the grant of an authorisation.
On 29 December 2020, the Minister granted Kelaray an authorisation under s 23 of the AHA to conduct its exploration program (the Authorisation). It expressly authorised Kelaray and its employees, agents or assignees to act in a manner that would otherwise contravene s 23 of the AHA; namely, to damage, disturb or interfere with any Aboriginal site, object or remains. The Authorisation was subject to six conditions imposed under s 14 of the AHA. The covering letter to the Authorisation also included reference to several further matters expressed as “expectations” on the part of the Minister.
Mr Dare, Mr Bilney and BDAC (together, the Barngarla parties) brought an application for judicial review of the Minister’s decision to grant the Authorisation. They did so on grounds of review which the primary judge summarised as involving complaints that the Minister:[1]
a.erred in placing any weight on the prospect that Kelaray would meet the ‘expectations’ which the Minister had set out in a letter informing Kelaray of his determination but which were not expressed to be conditions of the authorisation (the expectation ground);
b.erred in imposing conditions which were not valid and in failing to impose additional conditions (the conditions grounds);
c.failed to take relevant considerations into account and took irrelevant considerations into account (the considerations grounds);
d.improperly delegated the statutory power to grant authorisations under s 23 to Kelaray (or others), gave an impermissible blanket authorisation to damage or interfere with Aboriginal sites, objects and remains or made a decision which was otherwise legally unreasonable in granting a general authority (the delegation ground);
e.authorised an impermissibly wide class of persons to damage or interfere with Aboriginal sites, objects or remains (the excessively wide class of persons ground);
f.invalidly authorised damage to, and interference with, an unlimited and indefinite class of items of Aboriginal heritage (the excessively wide items ground);
g.misdirected himself and/or acted ultra vires by relying on Kelaray’s Chance Find Procedures (CFP) which is part of its cultural heritage management plan to protect Aboriginal sites objects and remains (the Kelaray heritage plan ground).
[1] Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia [2022] SASC 91 (Primary reasons) at [5].
The primary judge rejected grounds of review (a) to (f),[2] but upheld (g).[3] His Honour held that the power to grant an authorisation pursuant to s 23 of the AHA is limited by the other provisions of the Act such that it does not empower the Minister to grant an authorisation which is inconsistent with s 20 of the AHA. In his Honour’s view, the Authorisation granted by the Minister was inconsistent with s 20 because it detracted from the practical legal operation of that section. His Honour made orders allowing the application for judicial review and setting aside the Authorisation.
[2] Primary reasons at [6]-[11].
[3] Primary reasons at [12], as elaborated upon at [101]-[112].
Kelaray has appealed the primary judge’s decision. It relies upon three grounds of appeal, each of which challenges the primary judge’s conclusion that the Minister erred in granting the Authorisation in terms that were inconsistent with s 20 of the AHA (that is, ground of review (g)).
The Barngarla parties are the first, second and third respondents on the appeal. They have filed a notice of alternative contentions that seeks to uphold the primary judge’s decision (namely, that the Authorisation is invalid and should be set aside) on a number of grounds, essentially reflecting various of the unsuccessful grounds of review that had been argued before the primary judge.
The fourth respondent on the appeal is the State of South Australia. While represented at first instance, it took no active part in the appeal.
In addressing the matters raised on appeal, it is appropriate to commence by identifying some of the key provisions in the AHA, before then setting out the factual background in some detail.
The Aboriginal Heritage Act
Central to this appeal is the operation of s 23 of the AHA, and in particular the Minister’s power to grant an authorisation to engage in conduct that would otherwise involve a contravention of that section. Section 23 provides:
23—Damage etc to sites, objects or remains
A person must not, without the authority of the Minister—
(a)     damage, disturb or interfere with any Aboriginal site; or
(b)     damage any Aboriginal object; or
(c)     where any Aboriginal object or remains are found—
(i)      disturb or interfere with the object or remains; or
(ii)     remove the object or remains.
Maximum penalty:
(a)     in the case of a body corporate—$50 000;
(b)     in any other case—$10 000 or imprisonment for 6 months.
An Aboriginal site or object is defined by s 3 of the AHA as a site or object which is of significance according to Aboriginal tradition or is significant to Aboriginal archaeology, anthropology or history.
In order to understand the operation of s 23, and address various of the issues arising on this appeal, it is necessary to consider that section in its statutory context.
As reflected in the long title of the AHA, it is an Act to provide for the protection and preservation of Aboriginal heritage. Consistently with this, s 5 describes the functions of the Minister under the AHA in the following terms:
5—Functions of the Minister
(1)     The functions of the Minister under this Act are—
(a)     to take such measures as are practicable for the protection and preservation of Aboriginal sites, objects and remains; and
(b)     to conduct, direct or assist searches for the purpose of discovering Aboriginal sites or objects; and
(c)     to conduct, direct or assist research into the Aboriginal heritage; and
(d)     to carry out any other function assigned to the Minister under this Act.
(2) The Minister must, in carrying out functions under this Act, consider any relevant recommendations of the Committee.
The Committee referred to in s 5(2) is the Aboriginal Heritage Committee established under s 7 of the AHA, being a committee of Aboriginal persons appointed by the Minister. The Committee’s functions are those identified in s 8 of the AHA (being to advise and assist the Minister in relation to the administration and operation of the AHA, and the protection or preservation of Aboriginal heritage), as well as to represent the interests of Aboriginal people throughout the State in the protection and preservation of Aboriginal heritage.
Under s 9 of the AHA, the Minister must keep central archives relating to Aboriginal heritage. These archives must include a Register of Aboriginal Sites and Objects. For the purposes of legal proceedings, the Minister’s decision to enter, or not enter, a site or object in the Register will be conclusive of whether or not that site or object is, or is not, an Aboriginal site or object (s 11). Persons proposing to take action in relation to a particular object or area may seek a determination from the Minister under s 12 as to whether an entry should be made in the Register.
The AHA provides a number of other means by which Aboriginal heritage is protected, such as the establishment of the South Australian Aboriginal Heritage Fund (s 19), the publication of Aboriginal Heritage Guidelines (s 19A) and the provision for local heritage agreements and their approval by the Minister (ss 19H and I). The Minister also has power to issue directions intended to protect Aboriginal heritage under ss 20(3) and 24, a matter addressed in more detail later in these reasons.
The AHA also contains a number of offence provisions. These include not only s 23, but also s 21 (which makes it an offence for a person to excavate land for the purpose of uncovering any Aboriginal site, object or remains without the authority of the Minister), s 29 (which makes it an offence for a person to sell or dispose of an Aboriginal object or remove an Aboriginal object from the State without the authority of the Minister) and s 35 (which makes it an offence for a person to divulge information relating to an Aboriginal site, object or remains, or Aboriginal tradition except as authorised or required by the AHA).
Each of these offence provisions, including s 23, is subject to authorisation by the Minister. It is apparent from the power to authorise conduct that would otherwise be proscribed that the protection afforded by the AHA is not intended to be unqualified. The AHA recognises that the public interest in the protection of Aboriginal heritage may need to be balanced against, for example, the public interest in permitting commercial activity (such as mineral exploration or construction work) that is of economic benefit to the State. The existence of the power to authorise conduct that would otherwise contravene s 23 is an acknowledgment that there will be circumstances in which it is appropriate to authorise an activity that involves some risk of damaging, disturbing or interfering with Aboriginal heritage.
Under s 14, the Minister may make any authorisation of conduct otherwise proscribed by the AHA subject to such conditions as the Minister considers appropriate:
14—Authorisations subject to conditions
(1) An authorisation may be given by the Minister under this Act on such conditions as the Minister considers appropriate.
(2) A person who, without reasonable excuse, contravenes or fails to comply with a condition of an authorisation under this Act is guilty of an offence.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in any other case—$10 000 or imprisonment for 6 months.
In deciding whether to grant an authorisation under these provisions, s 13 of the AHA requires that the Minister consult with the Aboriginal Heritage Committee as well as Aboriginal organisations and persons with an interest in the matter:
13—Consultation on determinations, authorisations and regulations
(1)     The Minister must—
(a)     before making a determination under this Act; or
(b)     before giving an authorisation under this Act; or
(c)     before a site or object is declared by regulation to be an Aboriginal site or object or is excluded by regulation from the ambit of the definition of Aboriginal site or object,
take all reasonable steps to consult with—
(d)     the Committee; and
(e)     any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and
(f)      any—
(i)      traditional owners; and
(ii)     other Aboriginal persons,
who, in the opinion of the Minister, have a particular interest in the matter.
(2) When determining whether an area of land is an Aboriginal site or an object is an Aboriginal object, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition.
(3)     This section does not apply to—
(a) a determination under section 24(8); or
(b)     an authorisation under section 27 or 36; or
(c) an authorisation under Part 3 in relation to which a local heritage agreement has been approved under section 19I.
One can see that ss 13 and 14 contemplate arming the Minister with the information and power necessary to assess and address the risks to Aboriginal heritage associated with any proposed authorisation.
A provision of particular significance in these proceedings is s 20:
20—Discovery of sites, objects or remains
(1) An owner or occupier of private land, or an employee or agent of such an owner or occupier, who discovers on the land—
(a)     an Aboriginal site; or
(b)     an Aboriginal object or remains,
must, as soon as practicable, report the discovery to the Minister giving particulars of the nature and location of the site, object or remains.
Maximum penalty:
(a)     in the case of a body corporate—$50 000;
(b)     in any other case—$10 000 or imprisonment for 6 months.
(2) This section does not apply to the traditional owner of the site or object or to an employee or agent of the traditional owner.
(3) The Minister may direct a person making a report to take such immediate action for the protection or preservation of the remains as the Minister considers appropriate.
(4) A person must not, without reasonable excuse, fail to comply with a direction of the Minister under this section.
Maximum penalty: $2 000 or imprisonment for 3 months.
The operation of this provision will be addressed in more detail later in these reasons. For present purposes it is sufficient to observe that s 20 obliges an owner or occupier of land who discovers an Aboriginal site, object or remains on their land to report this discovery to the Minister (s 20(1)).[4] It then permits the Minister to direct a person making a report to take such immediate action for the protection or preservation of any remains as the Minister considers appropriate (s 20(3)). It makes it an offence to fail to report a discovery or to comply with a direction made by the Minister (ss 20(1) and (4)).
[4] Noting that, under s 3, an “owner” of land is defined to include the holder of a mining tenement in respect of that land.
For reasons that are not entirely clear, s 20(3) only empowers the Minister to make directions in relation to Aboriginal remains that have been discovered and reported under s 20(1). It does not empower the Minister to make directions in relation to Aboriginal sites or objects discovered and reported under s 20(1). However, to the extent that this represents a potential lacuna in the legislative scheme, it is to some extent addressed by the Minister’s power to make directions as to Aboriginal sites, objects or remains under s 24 of the AHA, and in particular the power to give urgent directions under s 24(5):
24—Directions by Minister restricting access to sites, objects or remains
(1) Subject to this section, where the Minister is satisfied that it is necessary for the protection or preservation of—
(a)     an Aboriginal site, object or remains; or
(b)     a site, object or remains that the Minister has reason to believe may be an Aboriginal site, object or remains,
the Minister may give directions prohibiting or restricting—
(c)     access to the site or an area surrounding the site or to the object or remains;
(d)     activities on or in relation to the site or an area surrounding the site or in relation to the object or remains.
(2) The Minister must not give directions under subsection (1)(c) except with the approval of the Governor.
(2a)    The Minister must, before giving directions under this section, have regard to—
(a)     any local heritage agreement in respect of the site, object or remains; and
(b)     any agreement to which Part 3 Division A2 applies that relates to the site, object or remains.
(3)     Directions may be given under this section—
(a)     if limited in their application to a particular person or persons—by notice in writing to that person or those persons; or
(b)     if of general application—
(i)      by notice published in the Gazette; or
(ii) by notice published in a newspaper circulating generally throughout the State; or
(iii)by the erection of signs in the vicinity of the site, area, object or remains; or
(iv)    by a combination of methods referred to in this paragraph,
as the Minister considers appropriate in the circumstances.
(4) Subject to subsection (5), the Minister must, before giving any directions under this section, take reasonable steps to give not less than eight weeks notice of the proposed directions to—
(a)     the owner and occupier (if any) of private land in relation to which the directions apply; and
(ab) if there is a Recognised Aboriginal Representative Body in respect of the area in which the Aboriginal site, object or remains are located, or in respect of the Aboriginal site, object or remains—the Recognised Aboriginal Representative Body; and
(b)     the Committee; and
(c)     any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and
(d)     a representative of—
(i)      any traditional owners; and
(ii)     any other Aboriginal persons,
who, in the opinion of the Minister, have a particular interest in the matter.
(5) The Minister may, if satisfied that urgent action is necessary, give directions under this section without the notice required by subsection (4), but must, in that event, take reasonable steps to give the notice as soon as practicable after giving the directions.
(6)     A notice must—
(a)     set out the directions; and
(b)     give the reasons for the directions; and
(c)     state that any interested person or body may make representations to the Minister with respect to the directions; and
(d)     if given under subsection (3)(a), set out the penalty for contravening or failing to comply with a direction.
(7) Where directions are given under this section in relation to a site or object that is not entered in the Register of Aboriginal Sites and Objects, the Minister must, as soon as practicable—
(a)     determine whether the site or object should be entered in the Register; and
(b)     if the Minister determines that the site or object should not be entered in the Register—revoke the directions.
(8) Where directions are given under this section in relation to remains not known to be Aboriginal remains, the Minister must, as soon as practicable—
(a)     determine whether the remains are Aboriginal remains; and
(b)     if the Minister determines that the remains are not Aboriginal remains—revoke the directions.
(9)     The Minister must—
(a)     give due consideration to any representations made with respect to the directions; and
(b)     if satisfied (whether on the basis of such representations or otherwise) that the directions should be revoked or modified, revoke or modify the directions accordingly.

Whilst the power to give directions under s 24 extends to Aboriginal sites and objects, it is not as straightforward in its exercise as the s 20(3) power to make directions in respect of Aboriginal remains. The exercise of the power to give directions under s 24(1) requires the provision of eight weeks’ notice (s 24(4)). This notice period does not apply to urgent directions given under s 24(5), but all directions given under this section trigger a process (which includes representations from interested persons) leading to a determination by the Minister of whether the relevant site or object should be entered in the Register (s 24(7)).
Under s 26, it is an offence to fail, without reasonable excuse, to comply with a direction given under s 24.
Factual background
Kelaray is a wholly owned subsidiary of an ASX listed mining exploration company, Argonaut Resources Ltd. It is the holder of two exploration licences, being licences 5937 (the West Lake Torrens exploration licence) and 5945 (the Murdie exploration licence) (jointly, the Kelaray tenements).
Lake Torrens is a salt lake in central northern South Australia. The surface of the lake is usually dry. It is approximately 240 kilometres in length and averages 30 kilometres in width. The West Lake Torrens exploration licence covers an area that includes not only a portion of Lake Torrens, but also a portion of Andamooka Island and some of the western shoreline of Lake Torrens. The Murdie exploration licence covers an area within Lake Torrens immediately to the east of this.
In February 2020, Kelaray made an application for an authorisation under s 23 of the AHA (the Application). The Application was addressed to the then Premier, in his capacity as the Minister for Aboriginal Affairs and Reconciliation, and the Minister charged with the administration of the AHA. The authorisation was sought for the purposes of facilitating Kelaray’s exploration program on Lake Torrens, for which it had been granted the two exploration licences referred to above. The aim of the exploration program was to assess the potential for significant oxide copper-gold mineralisation through aerial gravity survey, infill gravity survey and deep diamond drilling. It was anticipated that the exploration program would take up to three years and include drilling in excess of 1,200 holes intended to target and define the anticipated resources, and constructing a campsite and a number of working sites.
The Application sought an authorisation in respect of an area of 793.6 km² within the Kelaray tenements, being an area that included not only a portion of the surface of Lake Torrens, but also a section of Andamooka Island and a 500-metre-wide section of the Lake Torrens shoreline (the Application area).
The activities proposed to be undertaken in the Application area were described as encompassing upgrading existing access tracks, creating new access tracks, drilling for water bores, constructing a new exploration camp on Andamooka island, clearing vegetation, constructing multiple access points, undertaking infill surveys, and deep diamond exploration drilling. The Application explained that the precise location of various of the activities, and indeed the nature and extent of the areas to be targeted by the exploration program, could not be known until the exploration work was in progress. The Application noted that because Kelaray might seek one or more joint venture partners to assist with the funding of the proposed exploration activities, which in turn might involve an assignment of an interest in the Kelaray tenements,[5] authorisation was sought in terms that would extend to successors in title to Kelaray’s rights in respect of the Application area. It also noted the involvement of numerous personnel in carrying out the contemplated activities.
[5] Subject to the vetting and authorisation contemplated by the provisions of the Mining Act 1971 (SA).
The Application acknowledged that the entirety of Lake Torrens, together with Andamooka Island and a 500-metre-wide area inland from its shoreline, was an Aboriginal site recorded in the central archive maintained under the AHA.[6] The site was recorded as a site of significance according to Aboriginal tradition and anthropology. The information on the site card was recorded from Kokatha informants. It related to anthropological creation stories that are restricted to men, and held in confidence. The Application made it plain that Kelaray did not seek a s 12 determination in respect of the site.
[6] Central archive site 6436-7237.
Given that the Application area was an Aboriginal site, it can be appreciated that it was necessary for Kelaray to seek authorisation because its exploration program would inevitably disturb and interfere with that site, and hence otherwise involve contravention of s 23 of the AHA. There was also a risk that Kelaray might discover Aboriginal objects or remains, or indeed additional Aboriginal sites,[7] while undertaking its exploration program, and hence a risk that its activities might damage, disturb or interfere with any such Aboriginal sites, objects or remains.
[7] That is, additional Aboriginal sites within, or overlapping with, the already recorded site.
In its Application, Kelaray outlined the measures that it would adopt in order to minimise the impact of its proposed activities upon the fragile environment within the Application area. Kelaray mentioned its history of engagement with Aboriginal groups and individuals claiming traditional interests over areas on and around Lake Torrens, including through a previous s 23 authorisation it had been granted in a nearby location. It mentioned the guidance as to potential Aboriginal interest in the Lake Torrens area that had been provided by the recent Federal Court proceedings dismissing the native title claims of the Kokatha, Adnyamathanha (including the Kuyani) and Barngarla people in that area (the Lake Torrens Overlap Proceedings).[8] It acknowledged that despite the dismissal of these claims there was expert anthropological evidence confirming the existence of Aboriginal heritage interests in and around the Application area (including a native title determination in favour of the Kokatha people in respect of an area immediately adjacent to the western shoreline of Lake Torrens).
[8] Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 (Mansfield J); on appeal, Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36 (Reeves, Jagot and White JJ).
Kelaray indicated its intention to continue consulting with the Kokatha and Kuyani people as to its proposed exploration activities. It also indicated that internal protocols would be put in place to address the discovery of any previously unidentified remains or artefacts that were, or were suspected to be, of archaeological or cultural significance (referred to as Chance Finds). It explained that the internal protocols would require that it cease activities in the vicinity of Chance Finds which could damage, destroy or interfere with those remains or artefacts, and require that it comply with legislative requirements in relation to the discovery of human remains. The attachments to the Application included copies of Kelaray’s Offshore/Nearshore Exploration Program for Environmental Protection and Rehabilitation (E-PEPR) and Cultural Heritage Management Plan (CHMP). The latter in turn attached a copy of Kelaray’s Chance Find Procedure (CFP).
It was against this background that Kelaray sought an authorisation in broad terms, not only as to the area, and persons and entities, covered by the Authorisation, but also as to the conduct that would be authorised. The Application did not identify any particular Aboriginal site, object or remains in respect of which authorisation was sought.[9] Rather, it sought authorisation under s 23 to damage, disturb or interfere with any sites or objects which are, or might be, Aboriginal sites or objects under the AHA, and which might be affected by the activities to be carried out pursuant to Kelaray’s exploration program. Further, for the reasons mentioned, Kelaray sought an authorisation that would extend to any assignee of an interest in the Kelaray tenements.
[9] Other than the Aboriginal site recorded in central archive site 6436-7237.
The Application was signed by Mr Lindsay Owler, the Managing Director of Kelaray.
In June 2020, the Department of the Premier and Cabinet (DPC), and in particular the area within that Department responsible for the management of the AHA (Aboriginal Affairs and Reconciliation (AAR)), embarked upon the consultation process required by s 13 of the AHA. The process was overseen by Mr Alexander van Wessem, the Principal Project Officer within DPC-AAR, whose role included managing the various applications received for authorisations and determinations under the AHA, and the consultation processes required by s 13 of the AHA.
Mr van Wessem began by seeking further information from Kelaray before preparing a consultation information package (CIP) in relation to Kelaray’s Application. He described the CIP, at 25 pages in length, as one of the longest and most detailed he had prepared. He noted that the Application area, and the wider region in which it was located, had a long history of Aboriginal interest, with many different groups involved.
The CIP commenced with a summary of the Application in terms similar to the above. It then provided a more detailed summary of the exploration activities proposed to be undertaken by Kelaray. It also included a summary of the pertinent aspects of Kelaray’s E-PEPR and CHMP (including its CFP).
Letters or emails enclosing the CIP were sent to over 100 consultees identified as potentially interested Aboriginal persons or organisations. These were followed by phone calls to remind consultees of the deadline for responses and to encourage responses. Public notices of the Application were placed in The Advertiser and The Plains Producer (a regional newspaper with a circulation in the mid north of the State). Public consultation meetings were not able to be held as a result of COVID-19 social distancing requirements, although some smaller meetings were held as part of the consultation process.
During the consultation period, DPC-AAR received 21 submissions from traditional owners and other Aboriginal persons or organisations.
As mentioned, the Barngarla parties were provided with the CIP. After obtaining an extension of the time within which to respond, BDAC provided a submission on behalf of the Barngarla people opposing the grant of an authorisation. The BDAC submission emphasised the importance of preserving the unique and significant Aboriginal heritage value of Lake Torrens. In support of the continued Aboriginal heritage value of the area, the submission referred to the numerous expert reports that had been filed in the Lake Torrens Overlap Proceedings. It contended that the public interest associated with these matters outweighed the public interest in any economic activity or growth that might flow from the contemplated exploration program. The submission challenged Kelaray’s track record in negotiating with Aboriginal interests and managing Aboriginal heritage interests.
On 7 December 2020, the Chief Executive of DPC provided the Minister with a departmental minute (the Minute). Appendix A to the Minute was a report prepared by AAR (the Report).
The Report was a lengthy document, being 50 pages in length, with a number of attachments. After a general introduction, the Report summarised the Application and Kelaray’s proposed activities in the area covered by the Application. The Report detailed the known Aboriginal heritage within the Application area. This included not only the Aboriginal site recorded in central archives, but also the interests and matters of heritage that had been revealed through the Lake Torrens Overlap Proceedings and through the s 13 consultation process more generally. The Report summarised the measures proposed by Kelaray to manage Aboriginal heritage in the area, as detailed in its CHMP and CFP. In this respect, it included the following:
The Applicant advises that the CHMP requires employees, contractors and visitors to adhere to its Chance Find Procedure and Stop Work Directions. These require works to cease in the event that suspected Aboriginal heritage is encountered, and that the discovery be reported to a site supervisor. A no entry ‘buffer zone’ will then be established around the discovery, with details to be reported to the CEO of Argonaut, the Applicant’s parent company. A cultural heritage expert will then engaged to visit the location. At the same time, the relevant Aboriginal group representatives will be informed and a site visit arranged. If the discovery is determined not to be Aboriginal heritage, works will proceed. If the discovery is Aboriginal heritage, a heritage expert will be commissioned to prepare a report that includes recommendations for mitigation, to be provided to the Argonaut CEO, AAR and relevant Aboriginal parties.
Following receipt of the expert report, the Argonaut CEO will oversee the implementation of any mitigation actions. Where the discovery is located beyond the Application Area, further authorisation under the Act to proceed with the works will be sought. Any discoveries of Aboriginal sites or objects must be reported to AAR, in accordance with Section 20 of the Act. In the event that possible ancestral remains are encountered, AAR’s Aboriginal Heritage Discovery Protocols concerning the discovery of ancestral remains will be implemented to manage the discovery.
The second paragraph of this extract from the Report acknowledged the continuing operation of s 20 of the AHA in requiring that the discovery of any Aboriginal site or object be reported to the Minister, through AAR.
The Report mentioned previous exploration drilling that had occurred on Lake Torrens and Andamooka Island, including pursuant to a previous authorisation granted to Kelaray.
The Report summarised the consultation process that had been undertaken pursuant to s 13 of the AHA, and indeed attached copies of all of the submissions that had been received. It summarised the advice from the Committee, which was opposed to the Application.
The Report then set out AAR’s own consideration of the Application. This included reference to it being well-known that the dune systems on the edge of the salt lakes may contain Aboriginal campsites and other tangible heritage features, such as artefacts and ancestral remains. It also included reference to Kelaray’s CFP, noting that it was based upon AAR’s Aboriginal Heritage Discovery Protocols for managing Aboriginal sites and objects, and specifically incorporated AAR’s protocol for dealing with ancestral remains. It stated that “AAR therefore considers the Chance Find Procedure to be an appropriate way of dealing with inadvertent archaeological discoveries.”
The Report concluded with AAR’s recommendation that the Minister not grant the authorisation sought. It set out various conditions that might be imposed upon any authorisation that the Minister was minded to grant, being the conditions that were ultimately imposed (see below). It also recommended that, were the authorisation to be granted, the covering letter to Kelaray should encourage it to take several additional measures. As will be seen, these matters were subsequently included in the covering letter that was sent to Kelaray.
The attachments to the Report included: the Application, maps depicting the Application area and various aspects of Kelaray’s exploration program, the CIP, the site cards for the Aboriginal site recorded in central archives, an extract from the reasons of Justice Mansfield in the Lake Torrens Overlap Proceedings summarising Aboriginal heritage associated with the Lake Torrens area, a summary of various heritage survey reports, a copy of various communications with consultees, the submissions received during the consultation (together with a summary of those submissions), Kelaray’s response to those submissions, and the minutes from the relevant meeting of the Committee.
Returning to the Minute to which the Report was attached, after stating that the purpose of the Minute was to seek a decision in relation to Kelaray’s application for an authorisation under s 23 of the AHA, the Minute commenced with a summary of the key features of the Application. It identified and described Kelaray’s tenements and exploration program, and mentioned Kelaray’s claim that its exploration program had the potential to create significant economic benefits for the State, including between 10 and 200 jobs.
The Minute explained that Lake Torrens was an Aboriginal site recorded in central archives, and that, like all large salt lakes in the State’s north, it plays a significant role in the cultural beliefs of a range of Aboriginal groups. The Minute explained that no native title existed over Lake Torrens, but that the Adnyamathanja, Anangu Pitjantjatjara Yankunytjatjara, Arabana, Barngarla, Kokatha and Kuyani people all attested to its spiritual importance and archaeological significance. It stated that ancestral remains were likely to be buried in places around the perimeter of the lake and its islands.
The Minute stated that part of Kelaray’s exploration program overlapped with the Kokatha native title determination area, but that this area was not included within the Application. Kelaray was intending to ‘risk manage’ heritage concerns in this area with the assistance of the Kokatha people, rather than relying upon a s 23 authorisation.
The Minute explained that in order to manage Aboriginal heritage during its exploration program, Kelaray had developed a CHMP and CFP to direct works within the Lake Torrens site. Kelaray had also developed a plan to minimise disturbance to the shoreline and surface of Lake Torrens, including by using matting and padding at lake access points, and pontoon-supported drill rigs on the surface of the lake.
The Minute summarised the outcome of the consultation process required by s 13 of the AHA. It explained that AAR had, on the Minister’s behalf, consulted with the Committee, traditional owners and other Aboriginal persons or organisations with an interest in the Application. It noted that 21 submissions had been received; that 15 expressed strong opposition due to the anticipated damage to the Lake Torrens site and the effects upon Aboriginal people; that three did not oppose; and that three neither opposed nor supported. Some consultees made requests for heritage agreements, Aboriginal monitors or heritage surveys.
The Minute noted that the Committee opposed the Application on the bases that: Lake Torrens is a key Aboriginal cultural site of great importance to many Aboriginal groups; the overwhelming majority of consultees were opposed to the exploration program because of its anticipated impacts upon heritage and culture; and there had been minimal support expressed by consultees.
The Minute also mentioned AAR’s recommendation that the Minister not grant the authorisation, bearing in mind: the Minister’s functions under the AHA, including to “take such measures as are practicable for the protection and preservation of Aboriginal sites”; the damage the exploration program will likely cause to the anthropological values at Lake Torrens, a pivotal Aboriginal heritage site important to groups across the State; the overwhelming opposition to the exploration program expressed by consultees; the Committee’s opposition; the potential risk to archaeological heritage within the Application area; and the asserted personal impacts to Aboriginal people.
The Minute added that, after considering his functions under the AHA, the results of the consultation, the Committee’s advice and AAR’s recommendations, the Minister may, in making his decision, properly weigh these considerations against the wider potential benefits of the exploration program to the State. AAR recommended that if the Minister were to grant the authorisation, then it should be made subject to conditions imposed under s 14 of the AHA.

The Minute concluded by setting out the following options for the Minister’s consideration:
1. Form the opinion there has been reasonable consultation about the ‘Lake Torrens Murdie Exploration Program’ (Program) under section 13 of the Aboriginal Heritage Act 1988 (SA) (Act), as evidenced by the report at Appendix A and the certification of the Crown Solicitor at Appendix B.
APPROVED / NOT APPROVED
2. Decide not to grant the Applicant authorisation for the Program under section 23 of the Act in light of your functions under the Act, the likely damage to the Lake Torrens Aboriginal site (6436-7237) by the Program, the strong opposition expressed by most consultees, and the advice of the State Aboriginal Heritage Committee (RECOMMENDED).
APPROVED / NOT APPROVED
3.   If you decide not to grant the authorisation, inform consultees of that decision by signing and sending the draft letters at Appendix D.
APPROVED / NOT APPROVED
4.   If you decide to grant the authorisation, sign the Premier’s authorisation instrument at Appendix C, subject to the conditions specified therein. (NOT RECOMMENDED)
APPROVED / NOT APPROVED
5.   If you decide to grant the authorisation, inform consultees of that decision by signing and sending the draft letters at Appendix E.
APPROVED / NOT APPROVED
6.   If you decide to grant the authorisation, write to the Committee to advise it of the reasons for your decision notwithstanding its advice.
APPROVED / NOT APPROVED
The Minister made his determination by marking the Minute to indicate that he had formed the opinion set out in the first option, and that he had approved the fourth to sixth recommendations. The Minister then subscribed to the Minute by signing and dating it 29 December 2020. The Minister also signed and dated the authorisation instrument (that is, the Authorisation), which had been included as Appendix C to the Minute.
The Authorisation itself recited the fact and nature of the Application that had been made, and attached a map of the area in respect of which authorisation was sought. It stated that the Minister had considered the Application, the submissions received during the consultation process under s 13 of the AHA, Kelaray’s response to those submissions, the advice of the Committee, the advice of AAR and other relevant considerations. The Authorisation then granted Kelaray authorisation under s 23 of the AHA to conduct its exploration program within the Authorisation area, stating:
The authority permits the Applicant to:
·damage, disturb or interfere with any Aboriginal site
·damage any Aboriginal object
·where any Aboriginal object or remains are found
odisturb or interfere with the object or remains
oremove the object or remains,
where reasonably necessary in the course of undertaking the Exploration Program, as described in the Consultation Information Package at Attachment 2.
The Applicant must nonetheless seek to minimise its impacts upon Aboriginal heritage during the Exploration Program wherever reasonably possible.
In terms of the persons or entities covered by the Authorisation, it provided:
The authorisation extends to Exploration Program activities reasonably undertaken by:
·the Applicant
·any person to whom the Applicant lawfully transfers or assigns the whole or part of its interests in any exploration authority (as defined in the Mining Act 1971 (SA)) that comprises or includes the whole or portion of the Authorisation Area (Permitted Assigns)
·any directors, employees, servants and agents of the Applicant or its Permitted Assigns from time to time
·any contractor or subcontractor engaged by or through the Applicant or its Permitted Assigns.
The Authorisation then set out the following conditions that were imposed under s 14 of the AHA:
1. The applicant must throughout the Exploration Program provide six-monthly progress reports documenting all ground disturbing works, and any Aboriginal heritage discoveries made or managed, within the Authorisation Area. The report must be provided to the nominated representatives of (together, the Aboriginal Parties):
·    Adnyamathanha Traditional Lands Association RNTBC
·    Anangu Pitjantjatjara Yankunytjatjara
·    Andyamathanha Yura Language and Heritage Association
·    Barngarla Determination Aboriginal Corporation RNTBC
·    Kokatha Aboriginal Corporation RNTBC
·    Viliwarinha Yura Aboriginal Corporation
·    the custodians listed on the site cards for the Lake Torrens Aboriginal site, as advised by AAR.
At minimum, the six-monthly report must include:
·    the anticipated timing, nature and location of current and future exploration drilling
·    updates on the nature and status of camps and access tracks
·    any proposed transitions to Phases B and/or C of the Exploration Program
2. The Applicant must, at the end of the Exploration Program, offer to facilitate visits to the Authorisation Area for up to two representatives from each of the Aboriginal Parties to observe the results of the rehabilitation measures undertaken by the Applicant.
3.   Any person or entity to whom the authorisation applies must comply with the Applicant’s ‘Chance Find Procedure’, relating to Aboriginal heritage discoveries (Applicant’s Procedure), which must not be inconsistent with AAR’s Aboriginal Heritage Discovery Protocols as appended to the authorisation instrument (AAR’s Protocols) (Attachment 3). In the event of any inconsistency between the Applicant’s Procedure and AAR’s Protocols, AAR’s Protocols must apply.
4.   Any person or entity to whom the authorisation applies must comply with the Applicant’s Exploration Programs for Environment Protection and Rehabilitation relating to the Exploration Program, as may be lawfully amended or approved from time to time.
5.   The Applicant and its Permitted Assigns must ensure that all personnel involved with ground disturbing activities associated with the Exploration Program undertake an appropriate induction that has been approved by AAR to ensure that they are aware of their obligations under the Aboriginal Heritage Act 1988 (SA) and the Coroners Act 2003 (SA), prior to taking part in these activities.
6.   The Applicant and any person to whom this authorisation applies must not access the area known as Crombie Ridge during or as part of the Exploration Program, as that area is defined on the map at Attachment 1, save for showing the area on the ground to assist avoidance.
Importantly for the purposes of the present matter, Condition 3 of the Authorisation mandated compliance with Kelaray’s CFP and, to the extent of any inconsistency, AAR’s Aboriginal Heritage Discovery Protocols. Kelaray’s CFP (which was attached to its CHMP), was in the following terms:
Chance Find Procedure and Stop Work Directions
Stop Work Directions
In the event any employee, contractor or visitor coming across suspected Aboriginal heritage sites or objects, work in that area must immediately STOP and the Chance Finds Procedure instituted. If objects found resemble skeletal materials, the find will trigger the SA State ‘Remains Protocol’, a copy of which is held by the Project Manager.
Chance (new) Finds Procedure
Step 1 - For any work of a ground disturbing nature, a Land Disturbance Permit (LDP) must be issued by the Project Manager, based on environmental and heritage surveys of the land in question. A LDP does not necessarily mean that Aboriginal heritage sites or objects are not present, so personnel, particularly mobile plant operators, should be alert to the potential for Chance Finds.
Step 2 - In the event that suspected Aboriginal heritage sites or objects are found (a “Chance Find”), personnel must cease work at that location and immediately report the find to their direct supervisor.
Step 3 - The Supervisor must then establish an appropriate no-entry buffer zone around the Chance Find and report it within 24 hours to the Project Manager. The size of the buffer zone will depend on the nature of the find. A minimum buffer of 10m should be applied. For suspected remains or fragile archaeological sites or objects, a buffer of up to 50m may be appropriate. The supervisor must then record and report to the Argonaut CEO the following information: description of the find, photographs of the find, GPS coordinates, date and time of the find, details of the person who made the find, and the nature of the work that led to the find.
Step 4 - The Argonaut CEO will arrange for a Cultural Heritage Expert to visit the site and conduct investigations. Simultaneously, the CEO will inform any relevant Aboriginal group representatives and arrange appropriate Aboriginal custodial representation at the site.
Step 5 - If the Chance Find is determined by the Heritage Expert and/or any Aboriginal custodial representatives not to be Aboriginal sites or objects, works can proceed. Otherwise work will remain suspended and an official report, which will include recommended mitigation actions, will be prepared by the Heritage Expert. This report will be provided to the Argonaut CEO, AAR and Aboriginal parties.
Step 6 - The Argonaut CEO will oversee implementation of any mitigation actions and seek written clearance from AAR to proceed with works.
The CFP then referred to, and incorporated a copy of, the AAR Protocol for the discovery of Aboriginal sites and objects.
In fact there are two AAR Aboriginal Heritage Discovery Protocols, one dealing with the discovery of skeletal remains and the other dealing with the discovery of sites and objects. Both were attached to the Authorisation, and were in the following terms:
By letter dated 29 December 2020, the Minister wrote to Kelaray, attaching a copy of the Authorisation. The letter commenced by reciting the background of the Application and consultation, before informing Kelaray that it, and others described in the Authorisation, had been granted authority under s 23 of the AHA to damage, disturb or interfere with any Aboriginal sites, objects or remains in carrying out its exploration program, as detailed in the Authorisation. The letter noted and summarised the six conditions attached to the Authorisation. The letter also set out various further measures which the Minister expected or encouraged Kelaray to take:
I acknowledge that the Authorisation gives Kelaray authority to undertake works that will likely result in interference with the Lake Torrens Aboriginal Site. However, I expect Kelaray to honour its undertaking to ensure that its staff and contractors do not access areas of high cultural sensitivity especially on Andamooka Island, in addition to Crombie Ridge. Further, I expect Kelaray to minimise disturbance to Aboriginal heritage during the Exploration Program by complying with its own Ground Pressure Management Plan; using low-ground pressure drill rigs on the surface of Lake Torrens; and otherwise ensuring disturbance to the shoreline and surface of Lake Torrens is minimised as far as practicable.
I also expect Kelaray to adhere to its Cultural Heritage Management Plan (CHMP) throughout the Exploration Program as your company has undertaken to do. To this end, Kelaray is required to ensure that any Aboriginal heritage discovered during the Exploration Program is recorded appropriately, reported to AAR, and stored or relocated in accordance with the wishes of Traditional Owners.
I further acknowledge that Kelaray’s E-PERPs impose on it a range of requirements to ensure that any impacts to the authorisation area as a result of the Exploration Program are rehabilitated in accordance with the Mining Act 1971 (SA).
I ask Kelaray to consider Aboriginal employment wherever possible throughout the Exploration Program, and specifically to prioritise the employment of Traditional Owners. I also encourage Kelaray to consider engaging Aboriginal heritage monitors:
·nominated by Kokatha Aboriginal Corporation RNTBC (KAC) to observe initial ground disturbing works, including the preparation of drill pads, excavation of sumps and exploration drilling to a depth of 5 m, undertaken within those parts of the authorisation area that overlap with KAC’s native title determination area
·nominated by Adnyamathanha Traditional Lands Association RNTBC, Anangu Pitjantjatjara Yankunytjatjara, Adnyamathanha Yura Language and Heritage Association, Barnargla Determination Aboriginal Corporation RNTBC, KAC, Viliwarinha Yura Aboriginal Corporation and the listed custodians of the Lake Torrens Aboriginal Site (Aboriginal Parties), and any other relevant Traditional Owners, to observe the initial ground-disturbing works, including the preparation of drill pads, excavation of sumps (where required) and exploration drilling to a depth of 5 m, undertaken on Andamooka Island.
I also encourage Kelaray to maintain a register of staff and contractors who access the authorisation area in connection with the Exploration Program and to make such a register available to AAR upon written request.
Lastly, I expect Kelaray to make reasonable efforts to engage and consult with the Aboriginal Parties, and any other relevant Traditional Owners, regarding approaches to minimising damage and disturbance to Aboriginal heritage that may be located within the authorisation area.
On the same day, the Minister wrote to the Chairperson of the Committee informing him of the Authorisation, and noting the Committee’s request to be informed of any Authorisation and the reasons for it. The letter explained that the Minister had taken into account: the application documentation submitted by Kelaray (including its own previous consultation with Aboriginal people and organisations); information held on central archives; the multiple measures proposed by Kelaray to manage heritage and mitigate damage during the Exploration Program; the views of Aboriginal parties (comprising the 21 submissions received during the consultation process); and the advice received from the Committee and AAR. In terms of reasoning for granting the Authorisation, the letter explained:
Having considered these matters, including Kelaray’s proposed mitigation strategies to avoid damaging Aboriginal heritage as far as possible, I have concluded that the Exploration Program will not permanently impact the anthropological and cultural heritage of Lake Torrens. Accordingly, I have granted Kelaray, and others described in the authorisation instrument attached to this letter (Authorisation), authority under section 23 of the Act to damage, disturb or interfere with any Aboriginal sites, objects or remains in relation to the Exploration Program, as detailed in the Authorisation.
The letter went on to set out the conditions that were attached to the Authorisation, as well as the expectations that had been set out in the covering letter to Kelaray. It noted that the general advice given by the Committee had been taken into account in choosing the conditions.
By letter dated 22 January 2021, BDAC, through its solicitors, requested reasons for the Minister’s decision. The Minister provided those reasons by letter dated 19 February 2021. The letter commenced in similar terms to the letter sent to the Committee. It listed the same matters that had been taken into account. It included a paragraph of reasoning in equivalent terms to the paragraph extracted above, before adding:
As the Minister responsible for the Act, I am required to protect Aboriginal heritage. However, the Act also gives me authority to authorise, when requested, potential interference with Aboriginal sites or objects if I am satisfied there is a legitimate reason to do so.
The inclusion of section 23 in the Act is a recognition that there are situations in which the benefit of certain activities to the state and wider community may outweigh potential impacts of those activities on Aboriginal cultural heritage. There is a clear public interest in protecting Aboriginal cultural heritage. There is also a public interest in testing and assessing whether an orebody lies under Lake Torrens which may be able to justify the development of a mine creating jobs, investment and other economic opportunities for South Australia.
The particular challenge in this case is to assess whether any impacts on Aboriginal heritage can be managed and minimised such that the Exploration Program can proceed with a high degree of confidence that it will not permanently impact the anthropological and cultural heritage of Lake Torrens.
I have taken very careful note of views expressed about the cultural heritage values of Lake Torrens, not only during the consultation process for Kelaray’s authorisation, but also during the relatively recent extensive consideration by the Federal Court of Australia of competing native title claims over the entire area of Lake Torrens. In both cases, there was not a unanimity of view. Nevertheless, I have imposed conditions on the authorisation, which will mean that Aboriginal interests will have a very strong influence in how Kelaray can conduct its Exploration Program to minimise impacts on cultural heritage.
As well as Aboriginal cultural heritage interests in Lake Torrens, I have also taken into account the following:
·there is a history of mineral exploration activity on Lake Torrens and close to its shoreline
·according to government records, the first exploration hole was drilled in 1960
·since the application of the Mining Act 1971 (SA) to exploration activities, 282 exploration licences have been granted over areas of Lake Torrens
·much of the exploration work was undertaken post discovery of Olympic Dam in the mid-1970s
·previous section 23 authorisations were approved in 2010 and 2018 by former governments to permit exploration on and in the vicinity of Lake Torrens
·Lake Torrens is considered to be one of the largest and most highly prospective regions in South Australia for hosting further discoveries of iron oxide copper gold mineral resources
·should exploration lead to the development of any proposal to undertake mining at Lake Torrens, a separate section 23 authorisation would have to be sought by the proponent.
The primary judge’s reasons for finding invalidity
As mentioned at the outset of these reasons, the primary judge held that the power to grant an authorisation under s 23 of the AHA is limited by the other provisions of the Act such that it does not empower the Minister to grant an authorisation which is inconsistent with s 20 of the AHA. In his Honour’s view, the Authorisation granted by the Minister in the present case was inconsistent with s 20 because it detracted from the practical legal operation of that section.
The primary judge commenced with a summary of his critical reasoning:
[12]The breadth of the authorisation to damage, interfere or disturb Aboriginal sites, objects and remains allowed by the CFP subverts the statutory requirement of s 20 of the Aboriginal Heritage Act that any proposed action in relation to a particular object or site be brought to the Minister’s attention as soon as practicable after its discovery so that the Minister may consider whether or not, and how, to best protect items of Aboriginal heritage. The authority granted by the determination is conditional on adherence to Kelaray’s Cultural Heritage Management Plan (CHMP) including its CFP, but the CFP allows interference with an object or site in accordance with the advice of expert anthropologists or Aboriginal representatives of its choice before the Minister is notified. The terms of the authorisation thereby substantially detract from the efficacy of the obligation imposed by s 20 of the Aboriginal Heritage Act by denying the Minister any practical opportunity to give a direction pursuant to s 20 of the Aboriginal Heritage Act before the object or site is interfered with. The power to grant an authorisation pursuant to s 23 of the Aboriginal Heritage Act is limited by the other provisions of the Act such that it does not empower the Minister to grant an authorisation which is inconsistent with s 20 of the Aboriginal Heritage Act. The authorisation granted in this case is inconsistent with s 20 because it detracts from the practical legal operation of that section.

The primary judge’s more detailed reasoning appears at various places in his reasons.
In summarising the key provisions of the AHA, the primary judge emphasised the importance of s 20 in protecting items of Aboriginal heritage by encouraging the reporting of discoveries, and that the effectiveness of the section was dependent upon s 23 operating to prevent the finder from damaging, disturbing or interfering with the discovered site, object or remains until the Minister has had an opportunity to consider the exercise of his powers under the AHA:
[32]… [Section 20] has the purpose of protecting items of Aboriginal heritage by encouraging persons to bring their discoveries to the attention of the Minister who may then consult the traditional Aboriginal owners, his departmental officers and other persons with the appropriate expertise to determine whether the site or object is an item of Aboriginal heritage as defined and give direction to preserve it if appropriate. … Importantly, s 20 of the Aboriginal Heritage Act does not in terms empower the Minister to dispense with the obligations the section imposes on owners of land including mining tenements.
[33]In large measure, the effectiveness of s 20 of the Aboriginal Heritage Act in protecting Aboriginal heritage is dependent on its joint operation with s 23. A person who discovers an item of Aboriginal heritage, which he or she has no reason to believe is not such an item, is required by s 20 to report the discovery to the Minister. The finder is also prohibited by s 23 from interfering with it unless and until the Minister authorises that interference. An authority granted pursuant to s 23 which authorises interference before the Minister has had an opportunity to consider the exercise of his s 20 power substantially reduces that protection. An authorisation of the kind mentioned in the preceding sentence would detract from the practical legal operation of s 20 of the Aboriginal Heritage Act.
When summarising the conditions attached to the Authorisation granted by the Minister, and in particular Kelaray’s CFP and the AAR Aboriginal Heritage Discovery Protocols, the primary judge included three paragraphs (at [57]-[59]) describing what he considered to be deficiencies in the CFP, not cured by the AAR Protocols, in ensuring that Aboriginal heritage items are protected by the prompt reporting of discoveries, and the provision of an opportunity for the Minister to consider exercising statutory powers in respect of those discoveries. It will be necessary to return to this aspect of the judge’s reasoning.
Later in the primary judge’s reasons, he rejected an argument that s 23 did not permit an authorisation in the broad terms in which it was granted in the present case. At the conclusion of this section of his reasons, his Honour returned to the relationship between the operation of ss 20 and 23:
[99]However, as we shall see, the risk to items of Aboriginal heritage identified by reference to a wide class may be minimised if the authority granted pursuant to [s 23] of the Aboriginal Heritage Act is conditional on reporting the discovery to the Minister in accordance with s 20 of the Aboriginal Heritage Act and allowing a period of time for the Minister to act before the items are interfered with.
[100]In that way the coherent operation of ss 20 and 23 is maintained. Responsibility for both fixing the period of time in which the items can not be interfered with and acting promptly within that stipulated time so that the interests of the applicant and the State in expedition on the one hand, and the protection of Aboriginal heritage on the other rests with the Minister.
The judge then set out the critical passage of his reasoning under the heading ‘Kelaray’s Chance Find Procedure – Inconsistency with s 20’. His Honour commenced:
[101]The fundamental difficulty in the authorisation granted by the Minister arises out of the interaction between ss 20 and 23 of the Aboriginal Heritage Act, and the purported authorisation of Kelaray to interfere with items of Aboriginal heritage in accordance with the advice of Aboriginal monitors or archaeologists it selects, before the Minister is notified of the find pursuant to s 20 and before the Minister can consider giving contrary direction pursuant to s 20(3).
[102]Section 20 is of central importance to the effectiveness of the scheme for the protection of Aboriginal heritage enacted by the Aboriginal Heritage Act. Items of Aboriginal heritage and Aboriginal remains might be scattered in locations all over the State and in particularly remote locations. The economic development of the vast regions of the State puts items of Aboriginal heritage at risk. The obligation to notify the Minister of the discovery of items of Aboriginal heritage is necessary if the statutory powers conferred on the Minister are to be exercised effectively. In particular, if notification is given as soon as practicable after a chance find, the Minister can first consider whether the item is of Aboriginal heritage, and in that respect is bound by the advice of the traditional owners, before considering whether to give a direction pursuant to s 20(3) of the Aboriginal Heritage Act as to the protection or preservation of the remains as the Minister considers appropriate. The direction given by a Minister may not be a determination or authorisation under the Aboriginal Heritage Act for the purposes of s 12, but the Minister may nonetheless consult in the way contemplated by s 13 as a matter of good public administration for which the Minister will be accountable.
[103] There is no power to exempt a person from the obligation imposed by s 20 of the Aboriginal Heritage Act. Absent an authorisation given pursuant to s 23 of the Aboriginal Heritage Act, a person reporting a find cannot pre-empt the Minister’s consideration of the powers conferred by ss 5, 8[10] and 20(3), by interfering and even destroying the items before a determination and/or a direction is given. However, the failure to appropriately condition the authorisation granted to Kelaray immunises it from prosecution for a breach of s 23 of the Aboriginal Heritage Act for interfering with items of Aboriginal heritage in a way which undermines the effectiveness of s 20. The Aboriginal Heritage Act does not authorise the grant of an authority which would allow persons to interfere with items of Aboriginal heritage discovered by them before they comply with the obligation imposed by s 20. A person may still be liable to prosecution for failing to report a chance find as soon as practicable pursuant to s 20 of the Aboriginal Heritage Act but an authorisation which is not conditioned in a way which allows s 20 its full operation would permit that person to escape the burden of any direction which might be given pursuant to s 20(2)[11] in order to protect the item of Aboriginal heritage.
[10] It seems this was probably intended to be a reference to s 12.
[11] It seems this was probably intended to be a reference to s 20(3).
At this point in his reasons, the primary judge referred to the decision of Doyle CJ in Newchurch v The Minister for Aboriginal Affairs and Reconciliation (Newchurch),[12] rejecting a challenge made to an authorisation given under s 23 concerning work on the site of the new Royal Adelaide Hospital and South Australian Health and Medical Institute. We address this decision in more detail later in these reasons. However, as the primary judge in the present case observed, Doyle CJ noted that it was not a condition of the authorisation in Newchurch that the Minister be notified if an Aboriginal object or remains were to be found, enabling the Minister an opportunity to consider what should be done with the object or remains. Doyle CJ described this as “surprising”, saying that he would have thought that the Minister would want an opportunity to consider what should be done if an Aboriginal object or remains were found, bearing in mind the terms of s 5(1)(a) of the AHA. However, he held that this was “not something that can affect the validity” of the authorisation.[13]
[12] Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29.
[13] Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [136] (Doyle CJ).
We interpolate that Doyle CJ may have overlooked the continuing operation of s 20(1) in requiring that any discovery of an Aboriginal object or remains be reported to the Minister as soon as practicable. Importantly for present purposes, however, it is apparent that his Honour did not regard an impairment of the Minister’s opportunity to exercise his powers in respect of discovered objects or remains as a matter going to the validity of the impugned authorisation.
In not attaching any significance to these observations of Doyle CJ in Newchurch, the primary judge said that they were not made in the context of a challenge to the authority based upon s 20 of the AHA. He said that the only point made by Doyle CJ was that speaking generally, and in the abstract, a grant is not invalidated by failing to impose a sensible condition. The primary judge also said that, because the authority in that case did not extend to the removal of an object, it was likely that, in the “practical operation” of the authorisation granted in that case, the Minister would be notified of any find before the item was removed.[14]
[14] Primary reasons at [108].
Returning to the primary judge’s reasoning, his Honour concluded his reasons by saying:
[109]Kelaray’s CFP and the protocol developed by the AAR do not condition the authority to interfere with items on the Minister first being given an opportunity to consider whether or not to exercise his or her statutory powers pursuant to s 20 of the Aboriginal Heritage Act. True it is that Kelaray would still be liable to prosecution for failure to comply with s 20 of the Aboriginal Heritage Act despite the grant of the authority. However, allowing Kelaray to remove, and interfere with, an item of Aboriginal heritage without first complying with s 20, substantially diminishes the power of oversight and review by the Minister and puts items of Aboriginal heritage at risk.
[110]The obligation to report, and the Minister’s powers, under s 20 of the Aboriginal Heritage Act can be accommodated within the grant of a s 23 authority in a number of ways. Most obviously the authority can be framed such that the authority to interfere or remove with items is conditioned on the passing of a period of time after making the report should the Minister not otherwise direct. Alternatively, the degree of interference might be limited to taking steps which minimise the interference until the determination has been received.
[111]The conferral of the powers in the Minister to
•     determine that items are of Aboriginal heritage,[15]
• give directions pursuant to ss 20 and 24 of the Aboriginal Heritage Act, and
•     authorise a person to enter land to find and take possession of items of Aboriginal heritage.
lead to the conclusion, that an authorisation granted pursuant to s 23 must not substantially detract from the practical legal operation of those provisions in a way which substantially compromises the Minister’s statutory powers to protect items of Aboriginal heritage. The provisions to which I have referred, by necessary implication, limit the power to grant an authority pursuant to s 23.
[112]The failure to impose conditions on the authority which allow the scheme and in particular, ss 12 and 20 of the Aboriginal Heritage Act, to fully reflect the intention to protect Aboriginal heritage results in the invalidity of the authority.
[15]   Aboriginal Heritage Act (1988) ss 5, 8 [noting again that the reference to s 8 was probably intended to be a reference to s 12].
It is necessary to make several observations about his Honour’s reasoning.
The first is that his Honour was correct to approach consideration of the scope of the s 23 power to grant authorisations by reference to its context within the overall scheme for the protection of Aboriginal heritage provided for in the AHA, and to construe both that power, and the operation of the other relevant provisions within the Act, in a coherent manner and having regard to the overall scheme and purpose of the AHA.[16] Plainly the AHA enacts a scheme for the protection and preservation of Aboriginal heritage. At the same time, as observed earlier, it does not do so in an unqualified way.
[16] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at [42] (French CJ, Hayne, Crennan, Kiefel and Keane JJ), applying Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ).
The second is that, in addressing the practical legal operation of s 20, the primary judge emphasised its role both in requiring that any discovery of an Aboriginal site, object or remains be reported to the Minister (s 20(1)), and in empowering the Minister to make directions under s 20(3). The judge also emphasised the role of s 23 in ensuring that the Minister has an opportunity to exercise his powers in relation to any discovery that is reported, including by making a direction under s 20(3).
As to the s 20(1) obligation to report discoveries to the Minister, it is important to remember that this obligation remained unaffected by the grant of an authorisation under s 23. Regardless of what Kelaray’s CFP provides as to the timing of any notification to the Minister of discoveries (or ‘chance finds’), the obligation under s 20(1) continues to operate, and to require that any discovery of an Aboriginal site, object or remains be reported to the Minister as soon as practicable.
The judge referred (at [103] and [109]) to the potential for a person to be prosecuted for a failure to report a chance find as soon as practicable pursuant to s 20(1) of the AHA, and so did not entirely overlook the continued operation of this aspect of s 20. However, at other times in his reasoning, it appears that the judge may have lost sight of the continued operation of the reporting obligation under s 20(1), and to that extent overstated the scope for the Authorisation to impair the practical legal operation of s 20. This is perhaps most clearly seen in his Honour’s references (at [12], [101] and [109]) to certain steps being taken prior to the Minister ever being notified of a discovery. As explained later in these reasons, even if the wording of the CFP did permit this to occur, the CFP must be read together with the AAR Protocols and the continued operation of s 20(1). That subsection continues to require that the Minister be notified “as soon as practicable” after a discovery is made. It would not permit notification to occur at some later time, and only after experts and Aboriginal representatives have attended and advised.
As to the power to make directions under s 20(3), and the importance of s 23 in ensuring that the Minister has an opportunity to consider exercising that power, the judge appears to have overlooked that this power is confined to a power to make directions in relation to Aboriginal remains. At times, his reasons appear to assume that this power extends to all forms of Aboriginal heritage, and hence to Aboriginal sites and objects. Any impairment of the opportunity to exercise the Minister’s power under s 20(3) is thus only relevant to Aboriginal remains, and not Aboriginal sites or objects.
That said, as there is a power to make directions in relation to sites and objects under s 24 of the AHA, albeit with the complications described earlier, the general effect of his Honour’s reasoning remains valid. Indeed, his Honour referred to s 24 in paragraph [111] of his reasons; and in paragraphs [111] and [112], his Honour expressed his conclusion of invalidity in terms that an authorisation granted pursuant to s 23 must not substantially detract from the practical legal operation of the provisions of the AHA, including not only s 20 but also ss 5, 12 and 24. Put another way, his Honour concluded that an authorisation granted pursuant to s 23 must not substantially impair the protections afforded to Aboriginal heritage by the key provisions of the AHA. In particular, it must not authorise interference with Aboriginal sites, objects or remains without the Minister having the opportunity to consider the exercise of his statutory powers (particularly his power to make directions under ss 20(3) and 24) upon receiving a report under s 20(1) of the AHA.
The third observation to be made is that his Honour referred, on several occasions, to the potential for the Minister to consider the exercise of his power under s 12 to determine whether an entry should be made in the Register of Aboriginal Sites and Objects. The power under s 12, however, is not one that the Minister may exercise of his own motion; it is predicated upon an application being made to the Minister by a person proposing to take action in respect of a particular object or area. It is therefore difficult to understand how the Authorisation can be said to interfere with the Minister’s powers under s 12 of the AHA. His Honour’s reference to this section (for example, in paragraph [112]) appears misplaced.
The fourth observation is that the basis for the primary judge’s finding of invalidity appears to have been that the AHA does not empower the Minister to grant an authorisation under s 23 which is inconsistent with, or substantially detracts from the efficacy or practical legal operation of, the key provisions of the AHA (particularly ss 20 and 24). We address the merits of this finding of invalidity later in these reasons, when addressing Kelaray’s grounds of appeal. The important point for present purposes is to emphasise that his Honour went further than holding that inconsistency with, or impairment of, the practical legal operation of the key provisions of the AHA, or the protections otherwise provided by these provisions, is a mandatory relevant consideration in the Minister’s decision to grant or condition an authorisation.
A holding to this latter effect might have justified a finding of invalidity if the Minister did not take this consideration into account. Alternatively, a holding to this effect might have supported a finding of invalidity if the decision to grant the Authorisation was legally unreasonable by reason that it did not meaningfully address the scope for the Authorisation to impair the practical legal operation of ss 20 and 24 of the AHA. We address (and reject) these potential lines of argument later in these reasons.
However, his Honour does not appear to have reasoned in either of these alternative ways. Rather, his Honour appears to have reasoned more directly that s 23 does not empower the Minister to grant an authorisation which is inconsistent with, or which substantially detracts from the efficacy or practical legal operation of, the key provisions of the AHA. We are mindful of the scope for overlap in the categories of jurisdictional error, but for reasons developed below, there are conceptual differences between these different grounds for invalidity which, in some cases, remain significant.
The grounds of appeal
In challenging the primary judge’s decision that the Authorisation granted to Kelaray pursuant to s 23 of the AHA was invalid, Kelaray relied upon three grounds of appeal (each supported by various particulars):[17]
[17] Amended slightly to conform to the abbreviations adopted in these reasons.
1. The Trial Judge erred in law in concluding (at [12] and [103], [109] to [113]) that an authorisation under s 23 of the AHA must by necessary implication be conditioned by express conditions securing compliance with ss 20 and/or 24 in circumstances where:
1.1 an authorisation under s 23 may be granted without any conditions attached, such that there can be no implication that it is necessary for an Authorisation to be made subject to conditions imposed under s 14(1) concerning ss 20 and 24 of the AHA;
1.2 an authorisation may lawfully permit all the conduct that is otherwise prohibited by s 23 such that there can be no implication that an authorisation under s 23 is limited by ss 20 and/or 24 of the AHA.
2. The Trial Judge erred in law and/or in law and fact in concluding (at [12] and [103], [109] to [113]) that the Authorisation under s 23 of the AHA substantially detracted from the legal and practical operation of ss 20 and 24 of that Act in circumstances where:
2.1 an authorisation under s 23 may be granted without any conditions attached such that there can be no implication that it is necessary for an Authorisation to be made subject to specific conditions concerning ss 20 and 24 of the AHA;
2.2 the question arising on judicial review was not the effect of an authorisation (or its legal and practical operation) on s 20 (or s 24) but on the legal limits governing the power to grant an authorisation under the AHA;
2.3 the Authorisation under s 23 did not purport to relieve the grantee (Kelaray) from the statutory obligation to make a report of a discovery of Aboriginal sites, objects or remains under s 20, which statutory obligation remained;
2.4 the Minister’s power under s 20(3) is only available in respect of Aboriginal remains and does not extend to directing a person to take action for the protection or preservation of Aboriginal sites or objects;
2.5 there could not be any ‘discovery’ of an Aboriginal site after the Authorisation was provided because the whole of the Authorisation Area was an Aboriginal site (as defined) when the application for the Authorisation was made and when the Authorisation was granted;
2.6 Condition 3 to the Authorisation requiring compliance with Kelaray’s CFP required both a cessation/pause of activity and a report to the Minister’s Department in the case of the discovery of any Aboriginal remains, and thus did not detract from the legal and practical operation of s 20 in respect of Aboriginal remains or the power of the Minister to protect Aboriginal remains under s 20(3);
2.7 Condition 3 to the Authorisation requiring compliance with Kelaray’s CFP required a cessation/pause of activity and a report to the Minister’s Department in the case of the discovery of any Aboriginal sites or objects, and thus did not detract from the legal and practical operation of ss 20 or 24 in respect of Aboriginal sites or objects;
2.8 the Authorisation did not preclude the Minister from taking action under s 20(3) or urgent action under s 24(5) if the Minister considered it necessary to do so following a report in accordance with the CFP;
2.9 in the alternative, on the premise that the statutory obligation under s 20 remained, Condition 3 could be severed from the Authorisation, leaving the statutory obligations untouched by the Authorisation and the Authorisation otherwise valid.
3. The Trial Judge erred in law and/or in law and fact in finding that the Minister misdirected himself or otherwise acted ultra vires in granting the Authorisation under s 23 of the AHA in circumstances where:
3.1 an authorisation under s 23 may be granted without any conditions attached such that there can be no misdirection at law in not attaching a condition to secure compliance with ss 20 or 24;
3.2 an authorisation under s 23 may be granted without any conditions attached such that the Minister cannot act ultra vires in granting an authorisation within the terms of s 23;
3.3 Condition 3 to the Authorisation requiring compliance with Kelaray’s CFP required both a cessation/pause of activity and a report to the Minister’s Department in the case of the discovery of any Aboriginal remains, and thus did not detract from the legal and practical operation of s 20 in respect of Aboriginal remains or the power of the Minister to protect Aboriginal remains under s 20(3);
3.4 Condition 3 to the Authorisation requiring compliance with Kelaray’s CFP required a cessation/pause of activity and a report to the Minister’s Department in the case of the discovery of any Aboriginal sites or objects, and thus did not detract from the legal and practical operation of ss 20 or 24 in respect of Aboriginal sites or objects.

However, the Barngarla parties contended that there were difficulties with the scope of the Authorisation in the present case, and in particular its extension to permitted assigns, given the terms of the conditions imposed upon the Authorisation.
The key difficulty was said to arise from the fact that, whilst Conditions 3 to 6 are expressed in terms that apply to a permitted assign of an interest in the Kelaray tenements, Conditions 1 and 2 are not. They are expressed as applying to the applicant (that is, Kelaray). The Barngala parties contend that the Authorisation is legally unreasonable insofar as it contemplates application to permitted assigns in circumstances where two of the conditions are expressed as applying only to Kelaray.
In the scenario contemplated by Kelaray’s application, this apprehended difficulty would not arise. If Kelaray were (with the requisite approval of the Minister under the Mining Act) to assign a partial interest in the Kelaray tenements to a joint venture party, then the Authorisation and conditions could continue to operate effectively in their own terms. Kelaray would continue to be involved in the exploration and there would be no difficulty with the responsibility for compliance with Conditions 1 and 2 resting with Kelaray rather than with the joint venture partner as a permitted assign.
It may be accepted, however, that the position is more complicated to the extent that the Authorisation contemplated an assignment of the entirety of Kelaray’s interest in the Kelaray tenements. Focusing on this scenario, the Barngarla parties contended that whilst Kelaray might continue to be bound by Conditions 1 and 2, this would be unsatisfactory in circumstances where Kelaray no longer had any interest in the exploration program. It is the potential ineffectiveness of Conditions 1 and 2 in this scenario that is said to render the Authorisation unreasonable.
However, as Kelaray pointed out in its submissions, there are answers to this asserted difficulty. The first lies in the potential for assignment of the Authorisation itself to any permitted assign of the Kelaray tenements. The second lies in the Minister’s retention of control over any assignment of the Kelaray tenements under the Mining Act.
As to the first, any assignment of the Kelaray tenements could be, and almost inevitably would be, accompanied by an assignment of Kelaray’s rights under the Authorisation. Precisely because Kelaray might otherwise be left with obligations under Conditions 1 and 2, it seems likely that Kelaray would insist upon an assignment of its rights under the Authorisation as part of any transaction in which it assigned its entire interest in the Kelaray tenements. Kelaray referred to authority for the proposition that where the rights which are assigned are conditioned upon obligations, those conditions will ordinarily pass to the assignee as part of the assignment.[39] Under this approach, the assignment of Kelaray’s rights under the Authorisation would carry with it the obligations under the six conditions imposed upon that Authorisation. The assignee would step into Kelaray’s shoes in this respect, and hence become responsible for compliance with its obligations under those conditions, including Conditions 1 and 2.
[39] Tito v Waddell (No 2) [1977] Ch 106 at 290, 297 (Megarry VC); applied in Australia, at least to the extent of the so-called ‘conditional benefit principle’, as opposed to the full breadth of ‘the pure principle of benefit and burden’ contemplated by Megarry VC, in Donut King Australia Pty Ltd v Barber [1999] SASC 241 at [22]-[25] (Duggan J, Doyle CJ agreeing); Aust-One Investment Pty Ltd v New World Investments Pty Ltd [2022] NSWSC 137 at [94]-[150] (Robb J); Aust-One Investment Pty Ltd v New World Investments Pty Ltd [2023] NSWCA 22 at [75]-[133] (Mitchelmore JA), at [175]-[259] (Kirk JA).
As we understand the Barngarla parties’ response to this submission, they do not directly challenge the proposition that any assignment of the Authorisation would carry with it the obligations under the conditions attached to that Authorisation. Rather, they challenge whether the Authorisation would be assignable at all. They argue that because s 23 is expressed in terms that “a person must not, without the authority of the Minister …” it follows that it only empowers the Minister to authorise a particular person or persons; and that, as a matter of construction of the AHA (particularly ss 14(2) and 17(1)(f)), a s 23 authorisation is personal to the authorised person(s) and not assignable.[40] By extending the Authorisation to permitted assigns, it was argued that the Minister was purporting to grant an assignable authorisation, which the AHA did not permit.
[40] Citing Donne Place Pty Ltd v Conan Pty Ltd [2005] QCA 481 at [8]-[9], [27], [32]-[34] (Keane JA, McMurdo P and Atkinson J agreeing); Kilmaley Investment Pty Ltd v City of Wanneroo [2019] WASCA 156 at [138], [141], [146]-[159], [162]-[163] (Murphy, Beech and Pritchard JJA).
In its submissions, Kelaray argued that this was to attach too much significance to the use of the word “person” in s 23. It argued that the word is intended merely to identify the persons or entities to whom liability might attach, and hence whom might be the subject of an authorisation; it is not intended to make the rights under any authorisation personal in nature, or to otherwise affect their assignability. Kelaray also argued that reliance upon the reasons of Keane JA in Donne Place Pty Ltd v Conan Pty Ltd[41] was misplaced because in that case the very instrument creating the rights sought to be assigned (a permit to discharge waste into a Council sewer) expressly stated that those rights could not be transferred or assigned.
[41] See previous footnote.
It is not necessary for present purposes to reach a conclusion as to whether or not Kelaray’s rights under the Authorisation would be capable of assignment, in the event that it assigned the entirety of its interest under the Kelaray tenements to a permitted assign. We do not think that the terms of the Authorisation make any assumption as to the assignability or otherwise of the rights which it confers. The Authorisation’s reference to a permitted assign is a reference to an assignee of an interest in the Kelaray tenements and not an assignee of the rights under the Authorisation. As such, we do not think that the assignability or otherwise of the Authorisation is a matter that is relevant to the validity of the Authorisation.
Further, and in any event, to the extent that there is any difficulty with the assignability of the Authorisation, and hence associated risk with the enforcement of Conditions 1 and 2, in the event that Kelaray were to seek to assign its entire interest in the Kelaray tenements, that is a matter that remains within the Minister’s control. As mentioned, any assignment of the Kelaray tenements would be subject to Ministerial consent under the Mining Act. Any concern about the enforceability of the obligations under the conditions attached to the Authorisation – particularly Conditions 1 and 2 – could be addressed by the Minister at that time. The Minister could no doubt withhold consent until satisfied that compliance with Conditions 1 and 2 can be satisfactorily achieved.
In short, we do not consider that any complications that might arise in the event of an assignment of the entirety of Kelaray’s interest in the Kelaray tenements to another party are sufficient to render the Authorisation that was granted either beyond power or legally unreasonable.
In the context of addressing Contentions 4 and 5, the Barngarla parties made a submission that challenged the effectiveness of the wording in Condition 5 of the Authorisation, being the condition that requires the applicant and its permitted assigns to ensure that “all personnel” involved with ground disturbing activities undertake an appropriate cultural heritage induction. They argued that there was no reason to exempt contractors and subcontractors – who were also covered by the Authorisation – from ensuring that their personnel undertake the same induction.
However, as Kelaray pointed out in its reply submissions, this argument proceeds upon a misconceived understanding of the operation of Condition 5. While the obligation is upon Kelaray and its permitted assigns to ensure that the induction is undertaken, the induction must be undertaken by “all personnel” involved with ground disturbing activities – that is, the personnel of not only Kelaray and any permitted assign, but also the personnel of any contractors and subcontractors who might be retained to assist in those activities. Properly understood, there is no lacuna in the operation of Condition 5.
The Barngarla parties also advanced an argument that it could be inferred from the Minister’s statement (in his covering letter to Kelaray notifying it of its authorisation under s 23) to the effect that he expected Kelaray to adhere to its CHMP, that he must have regarded this measure as a matter of significance in his decision to grant the Authorisation. Yet he had extended the Authorisation to contractors, subcontractors and permitted assigns without requiring that they have any equivalent plan or strategies in place. As explained in the next section of these reasons, we are satisfied that the Minister understood the distinction between matters that he required be the subject of binding conditions, and matters that he was prepared to leave at the level of (non-binding) expectations. As the Minister did not make compliance with the CHMP a condition of the Authorisation, it is apparent that it was not a matter that he regarded as essential to his decision to grant the Authorisation. In the circumstances, we do not think that any short-coming in terms of ensuring that contractors, subcontractors or permitted assigns have an equivalent plan or strategies in place provides a basis for challenging the reasonableness of the Minister’s decision to grant the Authorisation.
To the extent that the Barngarla parties pressed any residual argument challenging the extension of the Authorisation to classes of persons including employees, agents, contractors and subcontractors of Kelaray or its permitted assigns, like the primary judge, we adopt the reasoning of Stanley J in Starkey (in the passage set out above) rejecting this argument.[42]
[42] Starkey v The State of South Australia (2011) 111 SASR 537 at [163]-[167] (David J agreeing); applied by the primary judge at [91], [96]-[98].
Contentions 11, 12 & 13: the Minister’s expectations
Contentions 11, 12 and 13 address the Minister’s inclusion of various matters, expressed as “expectations”, in his covering letter to Kelaray notifying it of its authorisation under s 23 of the AHA.
Contention 11 complains that in taking into account the expectations he communicated to Kelaray, the Minister took into account material irrelevant considerations. Contention 12 complains that in granting the Authorisation on the basis of the expectations, the Minister misdirected himself at law. Contention 13 complains that it was legally unreasonable for the Minister to rely upon the expectations when granting the Authorisation.
As recounted earlier in these reasons, the Report attached to the Minute provided to the Minister for his consideration set out AAR’s recommendation that the Minister not grant the authorisation sought. However, it then set out various conditions that might be imposed upon any authorisation that the Minister was minded to grant. It also recommended that, were the authorisation to be granted, the covering letter to Kelaray should encourage it to take several measures.
When the Minister granted the Authorisation, he imposed the six conditions that AAR had recommended be imposed. His covering letter informing Kelaray that the Authorisation had been granted not only set out the conditions that had been included in the Authorisation itself, but shortly thereafter also identified the additional measures that he expected or encouraged Kelaray to take. The measures were the ones that the Report from AAR had recommended that the Minister encourage Kelaray to take.
The Barngarla parties’ submissions on appeal focus upon the four measures which were expressed as “expectations”, namely that Kelaray:
·honour its undertaking to ensure that its staff and contractors not access areas of high cultural sensitivity especially on Andamooka Island, in addition to Crombie Ridge;
·minimise disturbance to Aboriginal heritage during the exploration program by complying with its Ground Pressure Management Plan, using low-ground pressure drill rigs on the surface of Lake Torrens, and otherwise ensuring disturbance to the shoreline and surface of Lake Torrens is minimised as far as practicable;
·adhere to its CHMP throughout its exploration program, as it had undertaken to do; and
·make reasonable efforts to engage and consult with the Aboriginal parties, and any other relevant traditional owners, regarding approaches to minimising damage and disturbance to Aboriginal heritage that may be located within the authorisation area.
It is to be observed that the first of these expectations was already addressed, at least to some extent, by Condition 6 (which required that Kelaray and any persons covered by the authorisation not access the area known as Crombie Ridge); and that the second of these expectations was already addressed by Condition 4 (which required compliance with Kelaray’s E-PEPR, which in turn picked up the Ground Pressure Management Plan).
The Barngarla parties’ submissions focused upon the third and fourth expectations. They argued that the third and fourth expectations were irrelevant considerations because the AHA, in particular ss 23 and 14, contemplate that an authorisation may be granted subject to conditions, but leave no room for the imposition or expression of “expectations”. They argued that it was clear that the Minister regarded the measures in the third and fourth expectations – particularly compliance with Kelaray’s CHMP – as fundamental to the decision to grant an authorisation. Yet they were not imposed as conditions.
It was further argued that, to have regard to the measures in this way, and yet not give effect to them through conditions, was to have regard to irrelevant considerations. The measures were irrelevant considerations because, properly understood, they were not conditions of the Authorisation and hence were extraneous to the Authorisation actually granted. Alternatively, for the Minister to “expect” that certain measures will be taken, but not give them binding force, betrayed a misapprehension of the law, namely that those things would have binding force. In this way, the Minister misdirected himself at law.
The primary judge rejected this line of argument on the basis that it was premised upon an inference that the Minister granted the Authorisation in the mistaken belief that Kelaray would be legally bound to comply with the expectations. In his Honour’s view, there was no basis for this inference. His Honour reasoned that the failure to include the “expectations” within the conditions that were imposed, and the very use of the word “expect” when addressing the additional measures in the covering letter, showed that the Minister was alive to the difference and deliberately chose not to impose his expectations as conditions of the Authorisation.
We agree with the primary judge’s reasons for rejecting this line of argument. There is no basis for concluding that the Minister lost sight of the distinction between the conditions and expectations, and in particular the non-binding nature of the latter. In addition to the quite different language in which the conditions and expectations were expressed, it is relevant that only the former were included in the Authorisation itself. Further, as recounted earlier in these submissions, the Minute and Report to the Minister (which were the genesis of the expectations) made it plain that the measures contemplated by the expectations were quite separate from the conditions that would form part of the Authorisation. They were described as measures which the Minister might encourage Kelaray to pursue in the event that he were to grant it the Authorisation it had sought.
In other words, not only were the conditions and expectations expressed in quite different terms, but they were treated and considered separately throughout the Authorisation process.
The Barngarla parties challenged the primary judge’s reasoning on the basis that his Honour appears to have overlooked that some of the expectations had been given effect as conditions. This was said to be indicative of the Minister not clearly distinguishing between the conditions and non-binding expectations in the manner the primary judge found. We do not accept this challenge to the primary judge’s reasoning. The mere fact that there was some overlap between the conditions and expectations does not mean the Minister failed to distinguish between the legal significance of the two (as opposed to having potentially failed to identify the apparent overlap between the content of the two).
We would thus reject Contentions 11 and 12.
Turning to Contention 13, the Barngarla parties contended that it was legally unreasonable for the Minister to have granted the Authorisation without including the measures the subject of the third and fourth expectations as (binding) conditions under s 14 of the AHA; that the failure to do so lacked any evident justification, or was illogical and irrational. They sought to draw support for this contention from what they contended was the Minister’s own view as to the fundamental nature of the measures addressed by these expectations.
The primary judge rejected this contention on the basis that, having regard to the six-monthly reporting required by Condition 1, the compliance with Kelaray’s CFP (and AAR’s discovery protocols) required by Condition 3, and the fact that the conditions which were imposed were those recommended by AAR, it could not be said that the failure to incorporate the third and fourth expectations as additional conditions was unreasonable in the relevant sense.
The Barngarla parties challenged the primary judge’s rejection of this contention on the basis that it involved approaching the matter in the abstract, and overlooked the fundamental nature of Kelaray’s compliance with its CHMP to the Minister’s decision to grant the Authorisation. Given the fundamental importance of this measure to the Minister’s decision, it was argued that there was no evident justification for the Minister’s failure to include it as a condition.
The difficulty with this riposte to the judge’s reasoning is that it involved a reintroduction of the premise underpinning Contentions 11 and 12, which was correctly rejected. Once it is accepted that the Minister understood the distinction between conditions and expectations, it cannot be said that he regarded compliance with the measures that he made the subject of expectations rather than conditions as fundamental (in the sense of guaranteed or binding compliance with those measures being critical to the Minister’s decision to grant the Authorisation). It follows that the primary judge’s reasoning on this issue was sound, and should be upheld.
Conclusion
For the reasons given, we are not satisfied that any of the contended bases for challenging the validity of the Authorisation granted to Kelaray has been made out. We allow the appeal, and dismiss the notice of alternative contentions.
We set aside the primary judge’s orders (i) allowing the application for judicial review and (ii) setting aside the Minister’s decision to grant the Authorisation under s 23 of the AHA.