Nona v The Hon Andrew Powell MP
[2013] QPEC 46
•19 September 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Nona & Ors v The Hon Andrew Powell MP & Anor [2013] QPEC 46
PARTIES:
GINA NONA, ROY MCDONNELL, FRANCIS BRISBANE, BERNARD CHARLIE, WALTER MOSES
(Applicants)v
THE HON ANDREW POWELL MP, MINISTER FOR ENVIRONMENT AND HERITAGE
(First Respondent)
andSILVERBACK PROPERTIES PTY LTD
(ACN 067 400 088)
(Second Respondent)FILE NO/S:
27 of 2013
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
19 September 2013
DELIVERED AT:
Cairns
HEARING DATE:
11 September 2013
JUDGE:
Everson DCJ
ORDER:
Application dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – APPLICATION - validity of declaration of a nature reserve
Nature Conservation Act 1992 (Qld), s 22, s 44, s 45, s 46, s 173B
Nature Conservation (Protected Areas) Regulation 1994 (Qld), s 8
Nature Conservation (Protected Areas) Amendment Regulation (No.2) 2012 (Qld)
Statutory Instruments Act 1992 (Qld), s 7, s 20Di Marco v Brisbane City Council & Ors [2006] QPELR 731
Project Blue Sky v ABA (1998) 194 CLR 355COUNSEL:
D Yarrow for the Applicants
M Hinson QC & J Brien for the Respondent
T Fantin for the Co-RespondentSOLICITORS:
Cape York Council Aboriginal Corporation for the Applicants
Crown Solicitor for the Respondent
MacDonnells Law for the Co-Respondent
Introduction
This is a proceeding for a declaration brought by the applicants pursuant to s 173B of the Nature Conservation Act 1992 (“NCA”). The applicants challenge the validity of the declaration of the Steve Irwin Wildlife Reserve Nature Refuge (“SIWR”) which was declared a nature refuge under the NCA with effect from 14 September 2012.[1]
[1]Ex 1 para 19.
The SIWR is situated in the county of Delhunty and described as part of Lot 4 on SP222990.[2] It is in the north western part of the Cape York Peninsula adjacent to the Wenlock River.[3]
[2]Ibid para 20.
[3]Affidavit of Mr Moharich Ex MMM22 p 198.
The applicants assert that they are traditional owners of the land the subject of the SIWR.
In the course of the hearing the issues in dispute narrowed considerably. The only issue remaining for determination is whether the first respondent failed to observe the procedural requirements in s 44(1) and (2) of the NCA that the proposal for the SIWR specify the proposed management intent for the area. It is alleged by the applicants that the proposed management intent was insufficiently described such as to render the proposal invalid and the consequential declaration of the SIWR invalid.
Relevant Legislation
The object of the NCA is “the conservation of nature”.[4] This object is achieved by, among other things, the declaration and management of protected areas[5] which are defined to include nature refuges.[6] Each nature refuge is to be managed in accordance with the declared management intent and the conservation agreement for the area.[7] The declared management intent must contain a statement of:
[4]NCA s 4.
[5]NCA s 5.
[6]NCA s 14.
[7]NCA s 15.
“ (a) the area’s significant cultural and natural resources and values; and
(b) the proposed management intent for, and any proposed use of, the area.”[8]
[8]NCA s15(3).
Section 22 of the NCA states:
“A nature refuge is to be managed to –
(a) conserve the area’s significant cultural and natural resources; and
(b) provide for the controlled use of the area’s cultural and natural resources; and
(c) provide for the interests of landowners to be taken into account.”
Part 4 Division 4 deals specifically with the establishment of protected areas which as noted above include nature refuges. Section 44 relevantly states:
“(1)If the Minister is satisfied that an area should be declared a protected area, the Minister must prepare a proposal for the declaration.
(2)The proposal for the declaration must—
(a)describe the lands to be included in the area; and
(b)specify the proposed class of protected area and the proposed management intent for the area.”
The next step in the process is entering into a conservation agreement for the area which is relevantly set out in s 45 in the following terms:
“(1) If the Minister and landholders concerned agree on—
(a) a proposal that an area should be a protected area; and
(b) the class of the protected area; and
(c) the management intent for the area; and
(d) the terms of a proposed conservation
agreement for the area to be made between the State and the landholders;
the Minister must, for the State, enter into the conservation agreement. …”
Section 46 then provides that the Governor in Council may, by regulation, declare an area the subject of a conservation agreement as a nature refuge. Relevantly, the regulation must specify the declared management intent for the area.[9] This requirement is reflected in the Nature Conservation (Protected Areas) Regulation 1994 which relevantly states in s 8:
[9]NCA s 46(2)(a).
“(1) For each nature refuge—
(a) the significant cultural and natural resources and values of the nature refuge are stated in the conservation agreement for the refuge; and
(b) the proposed management intent for, and use of, the refuge are to do the following only in accordance with the conservation agreement for the refuge—
(i) manage and conserve the significant cultural and natural values of the refuge;
(ii) permit or restrict, or require to be conducted, particular activities in or in relation to the refuge;
(iii) permit or restrict the use of the land in the refuge for a particular purpose;
(iv) permit or restrict access to the land in the refuge by particular persons or animals.”
The SIWR was declared a nature refuge by the Nature Conservation (Protected Areas) Amendment Regulation (No.2) 2012. This is a “statutory instrument” as defined by s 7 of the Statutory Instruments Act 1992 (“SIA”). Pursuant to s 20 of the SIA it is presumed to have been validly made in the absence of evidence to the contrary.
Relevant considerations
Under cover of a letter dated 27 June 2008, the first respondent forwarded a proposal for the declaration of the SIWR to the Cape York Land Council, the body representing the applicants. The proposed management intent was stated therein in the following terms:
“The proposed nature refuge will be managed in accordance with a conservation agreement between the Lessee and the Minister. In particular:
· manage and conserve the significant cultural and natural values of the refuge;
· permit or restrict, or require to be conducted, particular activities in or in relation to the refuge;
· permit or restrict the use of the land in the refuge for a particular purpose;
· permit or restrict access to the land in the refuge by particular persons or animals.”[10]
[10]Affidavit of Mr Moharich Ex MMM8 p 47.
In the subsequent Conservation Agreement entered into between the successor of the first respondent and the second respondent, clause 3 stated:
“3.1Subject to clause 2.2, the Lessee will conduct its operations in a manner which is consistent with—
(a)the Management Principles for nature refuges as set out in section 22 of the Act;
(b) the Declared Management Intent as set out in section 8 of the Nature Conservation (Protected Areas) Regulation 1994;
(c) this Agreement; and
(d) the Management Plan (if any)
3.2It is not intended that this Agreement or the subsequent declaration of the Steve Irwin Wildlife Nature Refuge will be binding on, or affect, the interests of native title holders.”[11]
SCHEDULE 2 thereafter set out the significant natural resources to be protected and SCHEDULE 3 the management conditions to protect them.
[11]Affidavit of Mr Moharich Ex MMM21 pp 173-174.
A Management Plan was subsequently prepared to guide management of the SIWR. It has been revised on a number of occasions.[12] The applicants contend that the Conservation Agreement and subsequent Management Plan did not adequately address cultural resources within the SIWR, and in particular, the likely presence of aboriginal human remains.
[12]Affidavit of Ms Connelly para 9.
On the evidence before me, I accept that the applicants are each traditional owners with a legitimate interest in the conservation and management of the cultural resources relating to their ancestors which are likely to be present within the SIWR.[13] It is uncontentious that the Conservation Agreement and the current Management Plan do not specifically address the preservation and management of aboriginal human remains which may be present within the SIWR.
[13]Affidavit of Mr Moharich Ex MMM12 p 65; Affidavit of Mr McDonnell; Affidavit of Mr Brisbane; Affidavit of Ms Nona; Affidavit of Mr Moses; and Affidavit of Mr Redmond.
A proceeding of this type is akin to proceedings invoking judicial review. As a consequence this Court does not embark upon a consideration of the merits of the decision of the first respondent but rather is confined to considering whether the decision is legally flawed.[14] In undertaking this task guidance is found in the majority decision of the High Court in Project Blue Sky v ABA[15] where it was observed:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of upholding void every act done in breach of the condition.”[16]
[14]See Dimarco v Brisbane City Council & Ors [2006] QPELR 731 at 733.
[15](1998) 194 CLR 355.
[16]Ibid at 388-389 per McHugh, Gummow, Kirby and Hayne JJ.
Subsequently, their Honours observed that an appropriate test for determining the issue of validity is to ask “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.”[17]
[17]Ibid at 390.
Decision
It is submitted by the applicants that the general terms of the proposed management intent submitted to the Cape York Land Council under cover of the letter dated 27 June 2008 were insufficient such as to render the process for the declaring of the SIWR invalid.
The first matter for consideration is whether the process for declaring a nature reserve pursuant to the NCA mandated a more detailed statement of the proposed management intent for the proposal pursuant to s 44. I find that it did not. Not only is there an absence of an express provision to this effect, but having regard to the legislative process for the declaration of a protected area contained in the NCA, it is self-evident that the proposed management intent predates the management intent for the area in question which is to be specified in the subsequent conservation agreement. In these circumstances it is to be expected that the proposed management intent for an area would be in general terms.
Secondly, I need to consider whether there can be discerned a legislative purpose to invalidate the declaration of the SIWR, in the event that the proposed management intent was found to be insufficient. There is nothing contained in the NCA which suggests that this is so. There is, for example, nothing in the wording of s 45 or s 46 which prescribes what must be done pursuant to s 44(2). There is certainly nothing in s 45 which suggests that compliance with s 44, to a certain threshold level of particularity, is essential to the making of a conservation agreement. There is nothing in s 46 which suggests compliance with s 44 to a certain threshold level of particularity is a prerequisite to the making of a valid regulation to declare a nature refuge.
Thirdly, I need to consider whether a legislative purpose to invalidate a declaration of a nature reserve because of an inadequately specified proposal can be discerned having regard to the subject matter and object of the NCA. As noted above the object of the NCA is the conservation of nature and the object is to be achieved in part by declaring and managing protected areas which include nature refuges. While it is true that management principles for nature refuges extend to conserving significant cultural resources and controlling the use of them,[18] these matters are not the primary focus of the NCA. There is no evident legislative purpose that a declaration of a nature refuge should be invalid where the proposed management intent failed to address cultural resources.
[18]NCA s 22.
Finally, I need to consider the consequences for the parties of holding void the declaration of the SIWR. This goes to the exercise of my discretion. While, pursuant to the declaration of the SIWR, the second respondent has expended in excess of three million dollars and proceeded to establish a research centre to undertake research into rare and endangered animals and manage adverse impacts within the SIWR,[19] the applicants can point to no tangible detriment to their interests as a consequence of the declaration of the SIWR. Their particular concerns in respect of aboriginal cultural heritage are expressly addressed by the Aboriginal Cultural Heritage Act 2003 and they are unaffected by the declaration of the SIWR. Conversely, I am satisfied that in the event the SIWR was declared invalid, the second respondents could suffer prejudice in terms of the investment they have made in the SIWR pursuant to the Conservation Agreement. In the exercise of my discretion, I would, regardless of my findings concerning the construction of the NCA, decline the relief sought given the absence of demonstrable prejudice to the rights of the applicants.
[19]Affidavit of Ms Connelly paras 31 and 32.
Conclusion
The regulation establishing the SIWR is presumed to be valid pursuant to s 20 of the SIA. There is nothing in the wording of the NCA which warrants a declaration of invalidity as a consequence of the proposed management intent described pursuant to s 44 either having regard to the wording of this provision itself or the legislative scheme of the NCA. In circumstances where the applicants can demonstrate no tangible prejudice to their interests, I dismiss the application.
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