Onus v Minister for the Environment

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.