Onus v Minister for the Environment [2020] FCA 1807
File number:
VID 599 of 2020
Judgment of:
GRIFFITHS J
Date of judgment:
17 December 2020
Catchwords:
ADMINISTRATIVE LAW – application for judicial review challenging the lawfulness of the Minister’s decision dated 6 August 2020 not to make declarations under ss 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Act) in relation to the effect on an area and certain trees claimed to be of particular significance for Aboriginals relating to the construction and alignment of a section of the Western Highway between Ararat and Buangor in Victoria – six grounds of judicial review raised – challenge to the lawfulness of the Minister’s decision in relation to the application for a declaration under s 10 of the Act dismissed – Minister’s decision in respect of the application for a declaration under s 12 of the Act found to be invalid in law and set aside – whether the Minister’s decision regarding ss 10 and 12 was severable – Minister directed to refer the s 12 application for reconsideration and determination according to law by another Minister with responsibility for administering the Act
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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The applicants, Djab Wurrung people, sought a judicial review of the Minister for the Environment's decision dated 6 August 2020, which declined their application for declarations under sections 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) regarding the Western Highway upgrade between Ararat and Buangor in Victoria. The applicants argued that the Minister's decision was unlawful on six grounds, including errors in fact, irrelevant considerations, and failure to consider relevant submissions. The applicants contended that the Minister based her decision on a non-existent fact, namely that a draft framework would effectively protect certain trees, which amounted to a reviewable error under section 5(3)(b) of the ADJR Act. Alternatively, they argued that the Minister misunderstood or misapplied her statutory task.
The court found that the Minister's decision in respect of the application for a declaration under section 12 of the Act was invalid in law and set aside. The court held that the Minister's finding that an alternative route (the Northern Option) would have similar Aboriginal heritage protection issues was incorrect because there was evidence to the contrary in the Phillips Report and the 2018 Builth Report. The court also found that the Minister failed to consider relevant submissions, specifically the representations regarding biodiversity and conservation issues, which were not irrelevant considerations contrary to the Minister's view. However, the court dismissed the challenge to the lawfulness of the Minister's decision in relation to the application for a declaration under section 10 of the Act.
The Minister was directed to refer the section 12 application for reconsideration and determination according to law by another Minister with responsibility for administering the Act. The respondent was ordered to pay the applicants' costs of the application, as agreed or taxed. The decision to not make a declaration under section 10 of the Act was upheld, as the court found that the impact on pecuniary interests, health and safety, and the extent to which the area was protected under State legislation outweighed the loss of Aboriginal heritage value in the Specified Area.
Orders
Orders of the court
1. The decision of the respondent dated 6 August 2020 not to make a declaration under s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is set aside from the date it was made.
2. The application dated 17 June 2018, insofar as it relates to s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), be remitted to the Minister with a direction that she refer the application for reconsideration and determination according to law by another Minister with responsibility for administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
3. The respondent pay the applicants’ costs of the application, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Before explaining why that is so, it is desirable to say something more about both the background to the matter and relevant parts of the Minister’s statement of reasons. B. The Minister’s statement of reasons and some background matters As noted above, the application for the making of the declarations is dated 17 June 2018. Relevantly, the application stated (emphasis added):Starting from 18 June 2018 there are proposed road works planned which will lead to the desecration of significant sites and objects, in particular, highly culturally significant trees. The significant Aboriginal areas and objects on Djab Wurrung country close to the Victorian town of Buangor on the VicRoads planned upgrade to the Western Highway.Attached to this application is a desktop report on the culturally modified trees along the planned road works (‘Report’).Of particular significance are hollow trees ‘E3’ and ‘E6’ detailed in the report, with photos attached [sic] at the end of this letter. E6 has been used by our people for over 50 generations.E3 & E6 are two highly culturally significant ancient hollow trees, which sit in a [sic] extremely significant area at the basin of the Hopkins river, and are connected to our songlines and stories that reach from Langi Ghiran, our black cockatoo dreaming site and also along the Hopkins river which is connected to our eel dreaming. VicRoads intends to physically destroy and remove these ancient trees that are particularly culturally significant to our women.These trees have been used by our ancestors for hundreds of years, over 50 generations, and have had multiple uses over time. They are extremely rare examples and the last remnants of such trees, most similar trees in the area have already been destroyed over the course of history. We are fighting to maintain and preserve what we have left, as these trees have played an important role in the health of our country and the wellbeing of our people for countless generations. They are living beings that embody our stories throughout this significant landscape. These old trees are named ‘Delgug’ meaning ‘tall person’. These trees are our ancestors and we must protect them to the best of our ability. Destroying them is severely upsetting, and brings bad fortune.… It is significant that the claimed cultural significance of the trees was not confined to their connection to the Specified Area (being the “Maximum Construction Footprint”), but extended beyond that to include songlines and stories reaching from Langi Ghiran (the Djab Wurrung people’s black cockatoo dreaming site) which is outside the Specified Area, as well as the Hopkins River (connected to Djab Wurrung people’s eel dreaming) which is outside the Specified Area). It is also to be noted from the application that the claimed cultural significance of the trees focused not only upon the physical use of those trees by Aboriginals over hundreds of years but also on their spiritual quality because they were viewed as embodying Aboriginal ancestors. These claims are vivid examples of the complex and nuanced nature of Aboriginal tradition.
Evidence
Evidence Before The Court
The applicants referred to [5.114] of the Minister’s statement of reasons in which she said (emphasis added):… I considered it possible that there could be other additional obstacles to the Applicants’ proposed ‘Northern Option’, such as Aboriginal heritage areas or objects, which had not yet been considered. There was no evidence before me that the Applicants’ proposed ‘Northern Option’ is free of such issues. The applicants complained that the Minister’s statement that there was no evidence before her that the Northern Option “is free of such issues” was “plainly false”. That was because both the Phillips Report and the 2018 Builth Report contained evidence to that effect. The applicants contended that because the Minister based her decision in part on a fact that did not exist (namely the absence of any evidence that the proposed Northern Option would not raise Aboriginal heritage protection issues), this amounted to a reviewable error under s 5(3)(a) of the ADJR Act. Alternatively, they contended that the Minister’s decision was affected by jurisdictional error because it was based on irrational reasoning (citing inter alia Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ). (vi) Ground 6: Error in the treatment of cost estimates The applicants described this error as involving the Minister’s assessment of costs which had been prepared for an entirely different route (namely Option 2) in considering the pecuniary interests of the Victorian Government if a declaration were made and assuming that the effect of making such a declaration would be to require an alternative route to construct the section of duplicated highway. The applicants contended that the Minister’s reliance on costings provided by MRPV in its letter dated 7 November 2018 involved the Minister taking into irrelevant considerations contrary to s 5(2)(b) of the ADJR Act. The applicant’s contentions on this issue had the following elements.(a)In its letter dated 7 November 2018, MRPV provided to the Minister costings drawn from an environmental effects statement prepared earlier in the process, comparing what was then labelled Option 1 (being the route that was ultimately approved) and Option 2 (being a route that was not available post April 2016). Neither option resembled the applicants’ proposed Northern Option. The Minister noted that the cost comparisons had been “provided for indicative comparison.”(b)Despite the Minister’s caveat that the references in the MRPV letter to the “northern alignment” (that is, the previous Option 2) was not and did not claim to be the same as the applicants’ proposed Northern Option, the Minister at [5.109] invoked the MRPV cost estimates of Option 2, then on the basis of that material, concluded that “I was satisfied that the alternative northern alignment would cost significantly more than the cost of the approved alignment.” (c)The Minister rejected an engineer’s analysis of the likely costs of the Northern Option (including that it may be cheaper than the approved option because it was shorter and less challenging in engineering terms) that had been provided by the applicants, because the Minister “prefer[red] the economic statistics and design information provided by MRPV” in the environmental effects statement that had compared Option 1 and Option 2 in 2012. (d)By the time of the Minister’s decision on 6 August 2020, it was no longer possible to build Option 2 because a section of the project beyond the point where the proposed Options 1 and 2 diverged had already been constructed by around April 2016. Accordingly, there was no possibility that granting the declarations sought by the applicants could result in the construction of the road along the Option 2 route.(e)In circumstances where, as the Minister herself acknowledged, Option 2 (referred to in the MRPV letter as the “alternate northern alignment”) was not the same as the Northern Option proposed by the applicants, and where it was not even possible for Option 2 to be pursued instead of the approved route if the declarations were made, the costings relating to Option 2 were irrelevant to the Minister’s consideration of the declarations under the Act.
Decision
Reasons for decision
For current purposes, it is sufficient to set out section 6 of the Minister’s statement of reasons, which identifies the reasons for her ultimate findings and decision in respect of both ss 10 and 12 of the Act (it will be necessary later to address other relevant parts of the Minister’s statement of reasons with specific reference to the six individual grounds of judicial review):6.Reasons for decision6.1To make a declaration under section 12 of the ATSIHP Act in relation to the Six Trees, I must be satisfied that the Six Trees are significant Aboriginal objects and are under threat of injury or desecration.6.2I was not satisfied that Tree E1 is a significant Aboriginal object. In reaching my conclusion, I placed significant weight on my finding that Aboriginal opinion is divided on the question of whether Tree E1 is of cultural significance. I also placed weight on my finding that the reports commissioned in relation to the Six Trees are inconclusive with respect to the significance of Tree E1, and did not provide detail about the uses or beliefs centred on Tree E1 (in contrast to the other trees subject to the Application). 6.3I was satisfied that Trees E2, E3, E4, E5 and E6 are significant Aboriginal objects. However, I was not satisfied that those trees are under threat of injury or desecration. In reaching this conclusion, I accepted that MRPV has made a commitment to avoid Trees E2, E3, E4, E5 and E6 as part of the Western Highway upgrade and has developed the Framework for identifying and monitoring trees. Although it is unlikely to be legally binding, I accepted that MRPV can reasonably be expected to honour this commitment. I was further satisfied that the commitment of MRPV and the Framework provide adequate protection against possible use or treatment of the trees in a manner inconsistent with Aboriginal tradition, over and above protection against physical removal or destruction of the trees. For these reasons, I was satisfied that the procedures described above mean that the trees are not likely to be used or treated in a manner inconsistent with Aboriginal tradition within the meaning of section 3(1) of the ATSIHP Act and, accordingly, they are not under threat of injury or desecration as defined. 6.4To make a declaration under section 10 of the ATSIHP Act in relation to the Specified Area, I must be satisfied that the Specified Area is a significant Aboriginal area and is under threat of injury or desecration. I accepted that, on balance, the Specified Area is a significant Aboriginal area. I also accepted that the Specified Area is under threat of injury or desecration within the meaning of section 10(1)(b)(ii) of the ATSIHP Act. I also received a report under section 10(4) of the ATSIHP Act (Section 10 Report), and I considered that report and the representations attached to that report. I was therefore satisfied that the preconditions for making a declaration under section 10 were met. 6.5I also considered ‘other matters’ that I consider to be relevant under section 10(1)(d), including: a. the effects on pecuniary interests of third parties;b. considerations relating to health and safety; andc. the extent to which the area is protected under State legislation.6.6Overall, I considered that considerations in favour of making a declaration under section 10 to protect and preserve the Specified Area from injury or desecration were outweighed by the considerations against the making of such a declaration. I acknowledged that the Specified Area for which protection is sought retains cultural value and connection to Country for the Applicants and the Djab Wurrung people. Having regard to the materials before me, I acknowledged that the Specified Area is of particular significance to Aboriginal people and I accepted that there is a threat of injury or desecration to the Specified Area. 6.7Nevertheless, these findings did not remove the need to weigh up competing considerations before making any decision pursuant to section 10. The need for this balancing exercise is inherent in the fact that section 10 of the ATSIHP Act does not compel me to make a declaration in circumstances where I found that the Specified Area is a significant Aboriginal area and is under threat of desecration or injury, and instead allowed me to consider ‘other relevant matters’ before deciding whether to make a declaration. 6.8With respect to the interests of third parties, I accepted that a declaration under section 10 of the ATSIHP Act would have a detrimental impact upon the pecuniary interests of the Victorian Government because of the significant ongoing financial costs resulting from the delay in commencement of construction, the termination of the relevant contract and the additional cost that would be incurred in pursuing an alternative route. I considered that this matter weighed substantially against making a declaration under section 10. 6.9I also found that the making of a declaration would have had some impact on the pecuniary interests of commercial communities who are likely to benefit from the improved transport efficiency the Project is expected to deliver. However, in the absence of any modelling as to the predicted extent of these benefits, I accorded low weight to the pecuniary interests of the community. 6.10With respect to health and safety considerations, I found that there are likely to be community road safety benefits in the construction of the Western Highway upgrade. In this regard, I accepted that the Project would have a positive impact on a broad section of the community. I consider that this matter weighs substantially against making a declaration under section 10, which would at the very least substantially defer or delay such community road safety benefits. 6.11With respect to the extent to which the area is protected under State legislation, I was satisfied that any area of Victoria which is of cultural heritage is protected from harm by the Aboriginal Heritage Act if it satisfies the definition of an Aboriginal place. I accorded significant weight to the fact that a CHMP under the Aboriginal Heritage Act was approved on 18 October 2013 by Martang as the relevant RAP and that it is an offence for a sponsor of an approved CHMP to knowingly, recklessly or negligently fail to comply with the conditions of the CHMP. I also placed some weight on the specific measures contained in the CHMP for the management of Aboriginal cultural heritage likely to be affected by the activity relating to the Project. I also accepted that MRPV has made a commitment in good faith to avoid five of the Six Trees (Trees E2, E3, E4, E5, E6). 6.12Accordingly, although I acknowledged the views of the Applicants on the CHMP and the role of Martang, I was satisfied that the Victorian Aboriginal heritage protection regime provides some degree of protection for the Specified Area. However, given that I accepted that the Specified Area is nevertheless under threat of injury or desecration, I considered that the extent to which this matter weighed against making a declaration under section 10 is slight. 6.13For these reasons discussed in paragraphs 6.5 to 6.12, I concluded that there was sufficient evidence to allow me reasonably to form the view that the impact on the pecuniary interests of third parties, the health and safety considerations supporting the Western Highway upgrade, and the extent to which the area is protected under State legislation outweighed the loss of Aboriginal heritage value in the Specified Area. 6.14Based on the material presented to me and for reasons set out above, I found that:a.I received an application for the purposes of section 10(1)(a) and section 12(1)(a) of the ATSIHP Act;b.I was not satisfied that Tree E1 is a significant Aboriginal object for the purposes of section 12(1)(b)(i) of the ATSIHP Act;c.on balance, I was satisfied that the Trees E2, E3, E4, E5 and E6 are significant Aboriginal objects for the purposes of section 12(1)(b)(i) of the ATSIHP Act;d.I was not satisfied that there is a threat of injury or desecration to Trees E2, E3, E4, E5 and E6 for the purposes of section 12(1)(b)(ii) of the ATSIHP Act;e.I was satisfied that the Specified Area is a significant Aboriginal area for the purposes of section 10(1)(b)(i) of the ATSIHP Act;f.I was satisfied that there is a threat of injury or desecration to the Specified Area for the purposes of section 10(1)(b)(ii) of the ATSIHP Act;g.I received a report under section 10(4) of the ATSIHP Act in relation to the Specified Area (the Section 10 Report) and considered the report and all representations attached to the report;h.after considering other matters that I considered to be relevant for the purposes of section 10(1)(d) of the ATSIHP Act, and carefully considering information and submissions to the contrary, I found that the following matters weighed against the exercise of my discretion to make a declaration under section 10:(i)a declaration would have had a detrimental impact upon the pecuniary interests of the Victorian Government;(ii)a declaration is likely to have had a negative impact, to some extent, on the pecuniary interests of the commercial communities who stand to benefit from the improved transport efficiency the Project is expected to deliver;(iii)a declaration would have had a detrimental impact on the significant community road safety benefits which are expected to arise from the construction of the Western Highway upgrade;(iv)the measures under the Aboriginal Heritage Act, the CHMP, and the commitment of MRPV, provide some degree of protection for the Specified Area and some mitigation of the impact of the Project on Aboriginal heritage across the Specified Area; andi.I found that, on balance, the matters that weighed against making a declaration under section 10 outweighed those matters which weighed in favour of making such a declaration.6.15In light of these findings, and for the reasons above, I decided not to make declarations under section 10 and section 12 of the ATSIHP Act. The applicants’ six judicial review grounds
Ratio Decidendi
Legal Principle Established
The applicants described the Minister’s error as involving the Minister basing her decision on a fact that did not exist (namely that the draft Framework effectively ensured the protection of the five trees) within the meaning of s 5(3)(b) of the ADJR Act. Alternatively, the error was described as a misunderstanding or misapplication of the Minister’s statutory task. (iv) Ground 4: Failure to take into account relevant considerations, namely submissions Having regard to the terms of ss 10(1)(c) and 10(3)(b) of the Act, the applicants contended that the reference in the former provision to “any representations attached to the report” is to representations received by the Reporter following the publication of a notice in the Gazette inviting submissions from interested persons which must be given due consideration, as required by the latter provision. The applicants focussed on the Minister’s statement in [5.28] of the statement of reasons where she said that many of the representations “additionally raised irrelevant considerations, such as biodiversity conservation issues”. Relying upon the Full Court’s decision in Tickner v Chapman [1995] FCAFC 1726; 57 FCR 451, the applicants contended that the Minister was obliged to consider all the representations (referring in particular to what Kiefel J said in Tickner at 495). The applicants also relied upon the statement in Tickner concerning the meaning of the obligation to “consider”, as recently approved in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [36]-[46]. The applicants contended that the Minister could not simply dismiss representations regarding biodiversity and conservation issues where there was an express statutory obligation to consider all the representations. This required the Minister to reflect upon them and then decide what weight to give them. The applicants contended that the representations regarding biodiversity and conservations issues were not irrelevant considerations, contrary to the Minister’s view. (v) Ground 5: Erroneous finding that an alternative route would have similar Aboriginal heritage protection issues This ground relates to an alternative route for the highway proposed by the applicants, commonly referred to as the “Northern Option”. The Northern Option generally followed the existing carriageway of the Western Highway and an existing powerline easement adjacent to it. In the 2018 Builth Report, Dr Builth regarded the powerline corridor on the northern side of the highway as “a largely cleared and previously disturbed area” which was “highly suitable for development as a road because [Dr Builth] found no culturally modified trees or related artefacts”. The Phillips Report noted at [128] that Dr Builth considered that VicRoads should investigate this option “as it requires no protection for Aboriginal significance” under the Act. The applicants referred to [5.114] of the Minister’s statement of reasons in which she said (emphasis added):… I considered it possible that there could be other additional obstacles to the Applicants’ proposed ‘Northern Option’, such as Aboriginal heritage areas or objects, which had not yet been considered. There was no evidence before me that the Applicants’ proposed ‘Northern Option’ is free of such issues.
