Starkey v State of South Australia
[2011] SASC 34
•17 March 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
STARKEY & ANOR v STATE OF SOUTH AUSTRALIA & ORS
[2011] SASC 34
Judgment of The Honourable Justice Sulan
17 March 2011
ABORIGINALS - HERITAGE PROTECTION - SOUTH AUSTRALIA
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - DISCLOSURE OF EVIDENCE AND MATERIAL FACTORS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - CONSEQUENCE OF FAILURE TO ACCORD PROCEDURAL FAIRNESS
Judicial review of Minister's grant of authorisation to damage, disturb or interfere with Aboriginal site - third defendant applied for authorisation - unanimous request for delegation of Minister's powers made by Aboriginal people at consultation meeting - Act mandates Minister to delegate when requested by "traditional owners" - Minister not satisfied those at meeting were "traditional owners" - Minister reserved decision on delegation - Minister granted third defendant's application for authorisation - whether authorisation was contrary to law - whether Minister was required to delegate her powers - whether consultation engaged in by Minister was contrary to law.
Held: Authorisation was not contrary to law - Minister was not required to delegate her powers - Minister did not accord procedural fairness to those requesting delegation - Minister did not act for an improper purpose in refusing to delegate - failure to accord procedural fairness did not invalidate authorisation - the Minister sufficiently discharged her consultation obligations under the Act.
Aboriginal Heritage Act 1988 (SA) s 3, s 6, s 9, s 11, s 12, s 13, s 23, s 35; Supreme Court Civil Rules 2006 (SA) r 200, referred to.
Kioa v West (1985) 159 CLR 550; Mobil Oil Australia v FCT (1963) 113 CLR 475, applied.
Straits Exploration (Australia) Pty Ltd v The Kokatha Uwankara Native Title Claimants [2011] SAERDC 2, distinguished.
STARKEY & ANOR v STATE OF SOUTH AUSTRALIA & ORS
[2011] SASC 34Civil
SULAN J
Introduction
This is an action for judicial review of an authorisation made by the second defendant, the Minister for Aboriginal Affairs and Reconciliation, under section 23 of the Aboriginal Heritage Act 1988 (SA). The authorisation gave the third defendant, Straits Exploration (Australia) Pty Ltd (“Straits”), permission to damage, disturb or interfere with any Aboriginal sites, objects or remains that may exist on Lake Torrens and a portion of Andamooka Island (“the Lake Torrens site”) designated for mining exploration activity.
Pursuant to Rule 200 of the Supreme Court Civil Rules 2006, the plaintiffs require the permission of this Court to proceed for judicial review. It was agreed between the parties at the interlocutory stage that the application for permission to seek judicial review would be heard with the substantive action.
The plaintiffs are members of their respective Aboriginal communities. The first plaintiff, Robert John Starkey, is Kokatha Wati and the second plaintiff, Vince Coulthard, is chairperson of the Adnyamathanha Traditional Lands Association.
Straits is the holder of an Exploration License incorporating an area of approximately 320km2 of Lake Torrens and approximately 25km2 of the south-western corner of Andamooka Island. It intends to undertake mineral exploration activities within the Lake Torrens site including drilling on Andamooka Island and on the bed of the main salt lake of Lake Torrens.
The Act
Before considering the issues raised in the application, it is necessary to refer to a number of relevant provisions of the Act. The Act has as its object the provision for the protection and preservation of the Aboriginal heritage.
Section 3 defines Aboriginal objects and Aboriginal sites:
Interpretation
In this Act, unless the contrary intention appears –
Aboriginal object means an object –
(a) of significance according to Aboriginal tradition; or
(b) of significance to Aboriginal archaeology, anthropology or history,
and includes an object or an object of a class declared by regulation to be an Aboriginal object but does not include an object or an object of a class excluded by regulation from the ambit of this definition;
…
Aboriginal site means an area of land –
(a) that is of significance according to Aboriginal tradition; or
(b) that is of significance to Aboriginal archaeology, anthropology or history,
and includes an area of an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition; …
The traditional owner of an Aboriginal site or object means an Aboriginal person who, in accordance with Aboriginal traditional, has social, economic or spiritual affiliations with, and responsibilities for, the site or object.
The functions of the Minister for Aboriginal Affairs under the Act include taking measures which are practicable for the protection and preservation of Aboriginal sites, objects and remains, and to assist in searches for the purpose of discovering Aboriginal sites or objects. An Aboriginal Heritage Committee is established under the Act, consisting of representatives of Aboriginal communities to advise the Minister in carrying out her functions in respect of the discovery and preservation of Aboriginal sites. Section 9 provides:
Central and local archives
(1)The Minister must keep central archives relating to the Aboriginal heritage.
(2) Part of the central archives (to be entitled the “Register of Aboriginal Sites and Objects”) must contain entries describing, with sufficient particularity to enable them to be readily identified, sites or objects determined by the Minister to be Aboriginal sites or objects.
(3) The Minister must not remove an entry from the Register of Aboriginal Sites and Objects unless the Minister determines that the site or object to which the entry relates is not an Aboriginal site or object.
Section 11 provides that entry of a site or object into the Register will be conclusively presumed to be an Aboriginal site or object. Section 12 enables any person who proposes to take action in relation to a site or object, if that action may constitute an offence, to apply to the Minister who shall advise if the object or site is entered in the Register of Aboriginal Sites and Objects.
As to areas upon which sites or objects may be located, the Minister must determine whether areas, sites or objects should be entered in the Register if the Minister receives an application. Before making a determination under the Act, or authorisation, or declaration, the Minister must take all reasonable steps to consult Aboriginal groups which, in her opinion, have a particular interest in the matter.
Section 12 relevantly provides:
(1) If a person proposes to take action in relation to a particular object and that action may constitute an offence against this Act if the object is an Aboriginal object, the person may apply to the Minister under this section.
(2) On an application under subsection (1), the Minister must—
(a) if the object is entered in the Register of Aboriginal Sites and Objects, give the applicant written notice that it is so entered;
(b) if the object is not entered in the Register, determine whether it should be so entered and give the applicant written notice of the determination.
(3) If a person proposes to take action in relation to a particular area and that action may constitute an offence against this Act if the area is, is part of or includes an Aboriginal site or if an Aboriginal object is located in the area, the person may apply to the Minister under this section.
(4) On an application under subsection (3), the Minister must—
(a) determine whether any entries should be made in the Register of Aboriginal Sites and Objects in relation to sites or objects in the area that are not so entered and give the applicant written notice of the determination; or
(b) subject to subsection (5), give the applicant written notice of the location of each Aboriginal site or object in the area that is entered, or that the Minister has determined should be entered, in the Register.
(5) The Minister must not disclose the exact location of a site or object if, in the Minister’s opinion, the disclosure is likely to be detrimental to the protection or preservation of the site or object or to be in contravention of Aboriginal tradition.
As part of the process of preserving and protecting Aboriginal sites and objects, the Minister must consult widely with Aboriginal groups.
The Act prohibits damage to, disturbance of or interference with any Aboriginal site or object without an authority issued by the Minister. If the Minister grants an authorisation, the Minister can impose such conditions as the Minister deems appropriate.
Section 13 requires the Minister to consult with certain classes of persons and individuals before making determinations or granting authorisations, including an authorisation pursuant to section 23.
Section 23 provides:
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;
(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.
As part of that process, the Minister must consult widely with Aboriginal groups.
Section 13 provides:
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)and –
(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.
Section 6 deals with the Minister’s power to delegate. Section 6 provides:
(1) The Minister may delegate any of the Minister’s powers or functions under this Act other than the power to authorise the commencement of proceedings for an offence against this Act.
(2) The Minister must, at the request of the traditional owners of an Aboriginal site or object, delegate the Minister’s powers under sections 21, 23, 29 and 35 to the traditional owners of the site or object.
(3) A delegation under this section—
(a) must be in writing; and
(b) may be subject to such conditions as the Minister considers appropriate; and
(c) may authorise the sub-delegation of a specified power; and
(d)if made to the holder of a specified office or position, empowers any person holding or acting in the office or position to exercise the delegated powers; and
(e) is revocable at will; and
(f) does not prevent the Minister from acting personally in any matter.
(4) The Minister must not revoke a delegation under subsection (2) without the consent of the traditional owners.
A person is, therefore, prohibited from interfering with an Aboriginal site or damaging an Aboriginal object unless they obtain an authorisation from the Minister. Before granting an authorisation, the Minister must consult. The Minister is empowered to delegate her powers and must delegate her powers under section 23 to the traditional owners, if they make a request.
Background
The plaintiffs allege, and it is accepted that, the Lake Torrens site is significant to their respective communities for reasons which are protected from being divulged by section 35, which provides that a person must not, in contravention of Aboriginal tradition, divulge information relating to an Aboriginal site, object or remains or Aboriginal tradition.
In early 2008, the Minister received the Lake Torrens Aboriginal Site Record, to which Mr Starkey was an informant. The Minister was provided with a revised site card on 29 April 2008, which sets out the significance of the Lake Torrens site to Kokatha people. The site was not, and has never been, “registered” in the Register of Aboriginal Sites and Objects established under section 9. It is not disputed that Lake Torrens is an Aboriginal site within the meaning of the Act.
On 27 November 2009, Straits applied to the Minister for authorisation under section 23 in respect of the Lake Torrens site. The specified areas of the Lake Torrens site that were the subject of the application were generally described:
·seven circular drill target zones (radius 500m), of size 0.78km2 each – total area of 5.46km2
·new access tracks needed to service the target zones – total area 0.083km2
·maintenance and utilization of existing tracks from the boundary of the Recorded Site to the mesh runway for access to the lake – total area 1.16km2
·maintenance and utilization of existing camp and buffer zone – total area 0.22km2
·maintenance and utilization of existing drill hole disturbance areas (TD4, TD6 and WMC water bore) for recovery of drilling water and for rehabilitation purposes – total area 0.11km2
·new emergency evacuation and helicopter support routes from the new drill target zones to camp – total area 0.051km2
·non-ground disturbing activity of 148 extension and infill gravity survey stations.
A section 13 consultation meeting was held in respect of the section 23 application on 19 December 2009, at Port Augusta. The meeting was publicly notified in the Adelaide Advertiser and the Port Augusta Transcontinental newspapers on or around 5 December 2009. Notice of the meeting was also sent to Mr Osker Linde of South Australian Native Title Services Ltd on 14 December 2009. This letter invited Aboriginal people and Aboriginal organisations who wished to comment to attend the meeting, or to make telephone or written submissions. It was not disputed that Mr Linde acted as Mr Starkey’s legal advisor at all relevant times.
Mr Starkey and Mr Coulthard both allege that they were not personally invited to take part in the meeting. The Minister disputes this. A mailing list for the letter sent to notify potentially interested parties of the meeting was produced. The mailing list includes Mr Starkey, as well as Mr Graham Harbord of Johnston Withers, Mr Coulthard’s legal counsel at the relevant time.
Mr Starkey did not attend the meeting. However, other Kokatha people, including Mr Starkey’s brothers Andrew and Mick Starkey, and Mr Linde did attend.
Mr Coulthard’s evidence is that he was advised of the meeting by community people and attended the meeting. Several other members of the Adnyamathanha people also attended.
The meeting was also attended by representatives of Straits, South Australian Native Title Services, Primary Industry and Resources SA, the Aboriginal Affairs and Reconciliation Division and by a consultant anthropologist, Mr Peter Bindon.
At the consultation meeting, two motions were passed unanimously by the Kokatha and Adnyamathanha people present. The minutes of the meeting record these motions as:
That the timelines [sic] for submissions to the Minister be extended to 26 February 2010.
That the Minister for Aboriginal Affairs and Reconciliation be asked to delegate his authority under s6(2) in respect of the s23 application to relevant traditional owners.
On 9 February 2010, Mr Linde, at the invitation of the Minister, provided written submissions on behalf of Mr Starkey in relation to the section 23 application. Mr Coulthard did not provide written submissions. According to his evidence, although he was aware that the meeting had passed a motion requesting that the deadline for written submissions be extended, Mr Coulthard was never advised by the Minister that any additional time had been granted. Mr Coulthard’s evidence was that he was not in a position to provide written submissions by 24 December 2009, the initial deadline for providing such submissions.
The Minister granted the section 23 application on 7 July 2010. The Minister did not impose any conditions on the authorisation. The authorisation was in the following terms:
I authorise the applicant together with its partners, staff, contractors and subcontractors and any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL #4296 to:
(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.
in accordance with the application lodged on 27 November 2009.
On the same day, the Minister wrote to Mr Linde reserving consideration of the request to delegate her authority under section 6(2). The Minister stated that the question of traditional ownership was not clear in the case of the Lake Torrens environs, due to a possible overlap with Adnyamathanha and other individuals who had asserted a traditional interest in the course of consultations. The Minister stated that until there was certainty as to traditional ownership and work was complete on delegation guidelines, she was reserving consideration of applications for delegation under section 6(2) and would communicate a decision at the section 13 consultation meeting for the Straits Exploration application once she had reached a decision on that application.
I set out the letter in full:
Mr Osker Linde
Senior Legal Officer
South Australian Native Title Services
Level 4/345 King William Street
ADELAIDE SA 5000Dear Mr Linde
I am writing to you as the legal representative of the Kokatha Uwankara native title claimant group in relation to a request which I have received to grant delegations under section (2) of the Aboriginal Heritage Act 1988 (the Act) to the traditional owners of Lake Torrens.
You may be aware that other Aboriginal groups have sought delegations under this part of the Act for other areas of the State.
Whilst I recognise that the Act mandates the granting of delegations to traditional owners, I am also mindful that I must ensure that the exercise of delegation occurs with due process and in accordance with general principles of administrative law.
Staff in the Department of the Premier and Cabinet, Aboriginal Affairs and Reconciliation Division (DPCAARD) have been working with the State Aboriginal Heritage Committee to develop a Framework for Delegations that includes guidelines, conditions and general procedures for handling matters under the Act in a manner that would accord with my own responsibility to be accountable to the Parliament of South Australia for the administration of the Act.
I am also aware that the question of traditional ownership is not clear in the case of the Lake Torrens environs. I understand that there is a possible boundary overlap with Adnyamathanha which has already been established as a native title holder through a consent determination. You should also be aware that in the course of consultations about the Straits Exploration’s application I received submissions from individuals who asserted a traditional interest separate from the native title interest.
Until there is certainty as to traditional ownership and work is complete on delegation guidelines, I am reserving consideration of applications for delegation under section 6(2). This decision will be communicated to groups in attendance at the section 13 consultation meeting for the Straits Exploration application once I have reached a decision on that application.
Yours sincerely
[signature]
Grace Portolesi
MINISTER FOR ABORIGINAL AFFAIRS AND RECONCILIATION[7] July 2010
No ultimate decision relating to the application for delegation under section 6(2) was ever communicated to the plaintiffs and it appears that the Minister did not make, or has not made a decision.
Relief sought
The plaintiffs seek declarations and orders, which I summarise:
·a declaration that the section 23 authorisation granted by the Minister is contrary to law and an order certiorari to quash the authorisation;
·a declaration that the reservation of the Minister’s decision to delegate her powers to the traditional owners pursuant to their request is contrary to law and an order requiring the Minister to make a decision on the delegation of her powers;
·a declaration that the consultation engaged in by the Minister prior to the section 23 authorisation was contrary to law and an order requiring the Minister to consult with their respective communities, including the plaintiffs themselves, on the significance of the Aboriginal site, objects or remains described in the Lake Torrens site card;
·a declaration that the consultation engaged in by the Minister prior to reserving her decision to delegate her authority is contrary to law and an order requiring the Minister to consult with their respective communities, including the plaintiffs themselves, on the request to delegate her authority pursuant to section 6(2) of the Act; and
·a declaration that, in relation to the site card, recorded as site number 6436-7, the Minister is required to determine whether a ruling should be made in the Register of Aboriginal Sites and Objects, and an order requiring the Minister to determine whether an entry should be made in the said Register in relation to the said site card.
The section 23 authorisation
Mr Hayes QC, who appeared for Mr Starkey, contends that the section 23 authorisation was invalid on two grounds. First, it is submitted that the Minister was required to make a determination pursuant to section 12 prior to making a section 23 authorisation. Secondly, it is submitted that the scope of the authorisation was so broad as to be incapable of meaningful application.
It is not in dispute that, prior to the section 23 authorisation being granted by the Minister, there had been no determination as to whether the Lake Torrens site was an Aboriginal site or whether there existed any Aboriginal objects or remains on the site. Mr Hayes submits that it was necessary for the Minister to satisfy herself of these matters before granting authority under section 23 of the Act. He submits that, on its proper construction, a Ministerial determination under section 12, of whether a site is an Aboriginal site or contains Aboriginal objects or remains, is a pre-condition to any authorisation being granted under section 23. He contends that when section 23 is read together with section 12, the proper course was for Straits to first apply under section 12(1) and/or section 12(3) and have the Minister make a determination under section 12(2) and/or section 12(4). Only after this determination is made would it be appropriate for the Minister to grant an authorisation under section 23. As no section 12 application or determination was ever made, it is submitted that the Minister’s decision to grant authority under section 23 was contrary to law.
In support of this argument, it is submitted that the purpose of section 12 is to identify Aboriginal sites, objects and remains when they face a potential threat and to protect them from such a threat once identified; or to consider whether there are good reasons to allow them to be damaged. Mr Hayes contends that the section 23 authorisation has left no work for section 12 to do, circumventing the mechanism for the identification and protection of Aboriginal heritage.
Counsel for the Minister, the Solicitor-General, contends that the definition of Aboriginal site in section 3 of the Act is not limited to those areas determined to be sites pursuant to a section 12 application. He submits that section 12 merely provides a mechanism to provide clarity and certainty for a party in Straits’ position, and to protect that party from an allegation that section 23 of the Act has been breached, if the Minister determines that the relevant area includes an Aboriginal site or object.
Counsel for Straits, Mr Hoffman QC, adopts the Minister’s contention on this issue and further submits that any argument that an application under section 12 of the Act is a prerequisite to a section 23 application ignores the permissive language in section 12(1) and section 12(3). He contends that Parliament could have used proscriptive language but the fact it did not do so, and instead used the permissive language which stipulates that a person “may” apply to the Minister, evidences the intention of the legislature that an application under section 12 is not a necessary prerequisite to any decision the Minister might make pursuant to section 23.
The submissions on behalf of the Minister and of Straits are, in my view, correct. There is nothing in the wording of either section 12 or section 23 which expressly or by implication makes a determination under section 12 a pre-requisite to the granting of an authorisation pursuant to section 23.
In fact, to the contrary and consistent with Mr Hoffman’s submission, the language of section 12 is clearly permissive rather than mandatory. Section 12 grants a party in Straits’ position the opportunity to have a determination made by the Minister as to whether a site or object is an Aboriginal site or object as defined by section 3, in circumstances where that party is aware, but uncertain, that taking action in relation to that site or object may constitute an offence. The purpose of section 12 is therefore to give a party such as Straits certainty as to whether it is safe to proceed with their action without fear of committing an offence, or whether it is necessary to seek an authorisation under section 23. This interpretation of section 12 is further supported by section 11 of the Act, which makes any determination under section 12 conclusive in legal proceedings.
Mr Hayes’ submission that section 12 would have no work to do if a determination under that section was not a pre-requisite to a section 23 authorisation is misconceived. Even if it is not a pre-requisite to the grant of a section 23 authorisation, section 12 still has an important role to play where a party is unsure of whether a site or object is an Aboriginal site or object. In such circumstances, even though a section 12 determination is not a pre-requisite to the grant of a section 23 authorisation, the section 12 determination will have two functions. First, it will decide whether it is necessary for the applicant to seek a section 23 authorisation at all. Secondly, if it is necessary for the applicant to obtain a section 23 authorisation, the section 12 determination will narrow and define the scope of the required authorisation, such as to assist in the application process to the Minister.
However, in circumstances such as the present where Straits was aware of the significance of the Lake Torrens site, it would be unnecessary and duplicative to go through the process of applying to the Minister under section 12 merely to confirm what Straits already knew. Rather, where an applicant is aware of the existence of an Aboriginal site or object, and is aware that its intended action is likely to constitute an offence under the Act, the applicant might choose not to apply for a section 12 determination, but seek the Minister’s authorisation under section 23 from the outset. That is what Straits did in this case and the Minister was entitled to deal with the application under section 23 without having made a prior determination under section 12.
It follows that the Minister’s decision to authorise Straits to damage, disturb or interfere with the Lake Torrens site is not invalid by reason of the fact there was no prior determination made under section 12 of the Act.
The scope of the authorisation
Mr Hayes’ second argument for the section 23 authorisation being contrary to law is that its scope was so broad as to be incapable of meaningful application. The basis for this submission is that the identity of the persons falling within the classes described in the authorisation could not be presently known or determined and the numbers of such persons are potentially infinite.
It is also contended that the authorisation did not sufficiently identify the Aboriginal sites and objects which were subject to the authorisation. Mr Hayes submits that such identification was necessary in a section 23 authorisation and that the purported authorisation is defective for its failure to specifically identify any Aboriginal sites or objects which the named parties to the authorisation were permitted to damage, disturb or interfere with.
The Solicitor-General contends that it would be impractical for the identities of all persons who may be associated with Straits’ activities in the future to be listed in advance. Rather, he contends that it is sufficient for the purposes of the Act that the section 23 authorisation name classes of persons readily capable of identification at any given point in the future. He contends that the persons falling within the classes described in the authorisation are capable of such identification.
Mr Hoffman contends that each of the relationships set out in the authorisation are recognised legal categories which the Court would have no difficulty in identifying. He also submits that the exploratory activities proposed are strictly limited and the locations at which those activities are to take place are strictly defined.
I accept the defendants’ contentions regarding the identification of the persons in the section 23 authorisation. It is necessary for practical purposes and for reasons of commercial efficacy that a section 23 authorisation in these circumstances allows associated parties aside from Straits to undertake the relevant activities under the authorisation.
Furthermore, it is unnecessary and impractical for each and every person who may at some point be authorised to damage, disturb or interfere with the Lake Torrens site to be specifically identified. Rather, the categories of person listed in the authorisation should be such that any given person at any given future time can be readily identified as falling within the authorised classes of person or otherwise. I am satisfied that in this case, the classes of person authorised by the Minister pursuant to section 23 are sufficiently defined.
The Aboriginal sites and objects subject to the section 23 authorisation are also sufficiently specified by the terms of the authorisation. Although individual sites or objects are not identified in the authorisation, the authorisation does specifically identify the areas of land which are the subject of Straits’ application, as well as expressly granting the authorisation to be in accordance with Straits’ application.
As with the identification of the authorised parties, it is sufficient that any given site or object be readily capable of identification as being within the class of sites or objects which are subject to the authorisation, or otherwise. The authorisation, read with Straits’ application, ensures that the areas of land subject to the authorisation are geographically identifiable. The authorisation permits the specified parties to damage, disturb or interfere with any Aboriginal site or object within those areas. Therefore, there is no ambiguity as to what activities may be undertaken on which areas of land.
Mr Hayes submits that the authorisation gives Straits “carte blanche” to damage, disturb and interfere with Aboriginal sites and objects as it desires without consideration for the heritage which is being disturbed. This may be so, however there is nothing in the Act which prohibits the Minister from making such an authorisation. There has been no suggestion in this case that the Minister has acted unreasonably or exercised her powers for an improper purpose.
The Minister’s section 23 authorisation is therefore not invalid for being too broad to be of meaningful application.
The reservation of the section 6 delegation decision
Mr Hayes submits that under what is referred to as the “Lake Torrens arrangement”, the Kokatha and Adnyamathanha recognise each other’s interest in the cultural heritage of Lake Torrens and consider each other as being traditional owners of the site. It is submitted that the unanimous support of the request for delegation by the Aboriginal persons present at the Port Augusta consultation meeting is consistent with the Lake Torrens arrangement, as was the unanimous opposition to the Minister granting a section 23 authorisation to Straits.
Mr Hayes and Mr Llewellyn-Jones, who appeared for Mr Coulthard, submit that the Minister was expressly obliged by section 6(2) of the Act to delegate her powers in these circumstances. They submit that the Minister’s failure to delegate can only be justified if the Aboriginal persons who requested the delegation are not to be considered traditional owners.
Mr Hayes contends that the Minister’s failure to delegate her authority to the traditional owners of the Lake Torrens site was contrary to section 6(2) of the Act. It is also submitted that no lawful section 23 authorisation could be made by the Minister before the request for delegation had been conclusively determined, and therefore the Minister had no relevant power to grant Straits’ application.
In response to the issue of section 6 delegation, the Solicitor-General contends that the operation of section 6(2) is subject to the provisions of sections 6(3) and 6(4). He contends that several implications arise from the combined reading of subsections 6(2) and 6(3).
The first such implication is that the Minister must be satisfied, on the basis of information provided to support the request under section 6(2), that the persons seeking a delegation are in fact “the traditional owners”. The Solicitor-General also contends that it is incumbent upon the Minister to satisfy herself that the traditional owners are fit and capable persons to exercise the Executive power of the State. He contends that it is implied that all of the traditional owners must be identified and given the opportunity to advise as to whether they wish to be included in the delegation. He contends that to do otherwise would result in those first in time enjoying a superior position to those who subsequently request a delegation. It could result in competing claims of persons who seek a delegation.
Mr Hoffman makes a related submission that there was no request of delegation to “the traditional owners”, as defined under section 3 and required under section 6(2). He makes reference to the motion passed at the Port Augusta consultation meeting, which sought a delegation to the “relevant traditional owners” and contends that in a context where there is uncertainty as to who “the traditional owners” are, this construction is inherently vague and could not be given effect.
The Solicitor-General asserts that no submissions or information were put to the Minister to support the request for a delegation of power, and that it was for the Kokatha and Adnyamathanha requesting the delegation to establish that they were the exclusive traditional owners within the meaning of the Act. He further submits that it was for the alleged traditional owners to demonstrate that they had the capacity and ability to properly exercise the executive powers of the State.
This issue turns on the correct interpretation of the words “the traditional owners” in section 6(2), and whether it can correctly be said that the request for delegation made at the Port Augusta consultation meeting was made by “the traditional owners” of any Aboriginal sites and objects that exist on the Lake Torrens site.
The phrase “the traditional owners”, on its face, might be taken to mean all of the traditional owners of an Aboriginal site or object. However, to construe section 6(2) in such a way would make it unworkable. It is likely to be impractical or even impossible to comprehensively and exhaustively identify and survey each and every member of an Aboriginal community satisfying the definition of traditional owner in section 3. Rather, for the purposes of section 6(2), “the traditional owners” must be interpreted as meaning a person or group of persons who are traditional owners and who can be identified as representing the traditional owners as a whole. Importantly in the context of this case, such a representative must be able to be sufficiently identified as having the authority in relation to the relevant Aboriginal sites and objects to act on behalf of the traditional owners as a whole of such sites and objects.
As is pointed out by the Solicitor-General, there is no evidence before the Minister as to the standing, in relation to the Lake Torrens site, of any or all of the people who passed the resolution requesting delegation of the Minister’s powers at the Port Augusta consultation meeting. No such evidence was provided to the Minister at the consultation meeting, nor at any subsequent time before 7 July 2010, when the Minister granted the section 23 authorisation. Furthermore, no evidence was put before the court in this regard.
The Minister was therefore justified in refusing to delegate her powers under section 23 until further material was put before her, showing that those people making the request for delegation were in fact the traditional owners for the purposes of the Act.
I am satisfied that the Minister was correct in concluding that there was uncertainty as to the traditional ownership. The Minister was correct to not simply delegate her powers based on request at the Port Augusta consultation meeting. Although the Minister did not act in accordance with principles of procedural fairness in reserving her decision on delegation, I am not satisfied that this failure invalidates the section 23 authorisation made by the Minister in this case.
Procedural fairness
However, there are several factors of this case which, taken together, have led me to the conclusion that the Minister, in failing to determine the section 6 request for delegation without informing those who sought the delegation of the defects in their request, constitutes a failure to afford the plaintiffs procedural fairness.
Procedural fairness broadly refers to the right of a party affected by a decision to have notice of, and an opportunity to respond to, any relevant matters including the case put against it. The threshold test of when there is a duty to act in accordance with natural justice is when a decision is such as to affect “rights, interests and legitimate expectations of the individual citizen in a direct and immediate way”.[1] In Kioa v West Mason J said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council; Salemi [No. 2]; Ratu; Heatley v. Tasmanian Racing and Gaming Commission; F.A.I. Insurances Ltd. V. Winneke; Annamunthodo v. Oilfields Workers’ Trade Union. The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interest.
The reference to “legitimate expectation” makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No. 2] Barwick C.J. expressed the view that the expression “legitimate expectation” adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of “legitimate expectation” extends to expectations which go beyond enforceable legal rights provided that they are reasonably based …
…
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.[2] (Citations omitted)
[1] Kioa v West (1985) 159 CLR 550, 584.
[2] Ibid 582-3, 584.
Mason J stated that this test was subject only to the clear manifestation of a contrary statutory intention. Such an intention does not appear in the Act. In Kioa, Mason J said:
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation, (1963) 113 C.L.R. 475, at pp. 503-504, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “the particular statutory framework”. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546, at pp. 552-553.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2] (1977) 137 C.L.R., at p. 451, per Jacobs J.[3]
[3] Ibid 584-5.
Deane J said:
In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness.
…
The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision-maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case.[4]
[4] Ibid 632-3.
This threshold test is met in this case, due to the interest of both the Kokatha and Adnyamathanha people in the protection of the Lake Torrens site, which is sacred to them.
Further, those persons present at the meeting formed an expectation that their delegation request would be acted upon by the Minister. Whether such an expectation was legitimate or not is a question of fact which is not always easy to determine. However, in this case, it appears plain that the persons who were party to the motion did hold a legitimate, albeit not necessarily correct, expectation that the Minister was required to delegate her authorisation powers under section 23 to the relevant traditional owners.
The next question to be considered is what action, in this case, the Minister must take in order to afford the plaintiffs procedural fairness. There are two rules to which the Minister is required to have regard, being the hearing rule and the bias rule. The hearing rule requires that any person affected by a decision be informed of the case being put against it and given an opportunity to respond to that case. It is not suggested that the bias rule is relevant to this case.
The test for whether the hearing rule has been satisfied is the standard of fairness. There are no fixed rules. The standard of fairness is broadly and flexibly applied. What is fair in a given situation depends upon the circumstances.[5] The statutory framework is of crucial importance in determining what is required. In Mobil Oil, Kitto J stated:
By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter.[6]
[5] Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475.
[6] Ibid 503-4.
Another relevant factor to consider in determining whether the standard of fairness has been met is the disclosure or otherwise of the provisional views of the decision maker. Although a decision maker is not required to disclose provisional views, the law attaches importance to the need to disclose the critical issue or factor on which the decision is likely to turn, so that the person affected may have the opportunity to deal with it.[7]
[7] See Kioa v West (1985) 159 CLR 550, 587.
Some seven months passed between the Port Augusta consultation meeting at which the request for delegation was made and the Minister informing Mr Linde that she was reserving her decision. Although this delay can partly be explained by the fact that a state election took place during March 2010, resulting in a caretaker government and a change of minister, this was an extremely long period of time to reserve a decision without communicating with those who requested the delegation and without ultimately ever making a decision.
More importantly, over the course of this seven month period, the Minister did not at any stage notify the persons who made the request for delegation of her reservations regarding their status as traditional owners under the Act. The persons who voted at the Port Augusta consultation meeting were not informed of the fact that the Minister was minded to refuse their request, or reserve her decision as to their request, until the very same day that the Minister gave the section 23 authorisation.
Given that one of the purposes of the Act, and of section 6(2) specifically, is to allow traditional owners to have a direct role in the protection of their own heritage, the delay in informing the applicants of her concerns about the request for delegation, whether or not that request is to be regarded as one made by the “traditional owners” of the Lake Torrens site, failed to afford the plaintiffs procedural fairness.
What is the effect of the Minister’s conduct?
The Solicitor-General contends that there was neither a sufficient nor valid request before the Minister to require her to delegate her authority under section 6. Further, he contends that the Minister is not required to determine the section 6 request before exercising her power under section 23. The evidence before the Minister was that a motion had been passed by community representatives. There was no information before her as to whether any or, if so, who in the group who passed the motion satisfied the definition of traditional owner. I am satisfied that the Minister did not have the information that was required for her to make a delegation.
The Solicitor-General contends that sections 6 and 23 operate independently. He submits that it is within the Minister’s discretion to exercise her power to make the section 23 authorisation before determining a request that may have been made to the Minister to delegate her powers under section 23. He submits that, even if the Minister is required to determine the section 6 request, that does not invalidate the authorisation she has granted under section 23. He accepts that there may be a situation in which, if the Minister refuses to act on a valid request pursuant to section 6 and circumvents the request by granting an authorisation, that could amount to an abuse of power. If that be the case, there may be a basis to attack the authorisation on the ground that she has exercised her powers under section 23 for an improper purpose. No such allegation has been made in this case. He submits that there is no requirement that the Minister must delay a decision under section 23 until a section 6 request has been resolved.
The Solicitor-General contends that the protection of Aboriginal heritage does not depend upon the identification of the traditional owners. The Minister has that responsibility under the Act. It is submitted that the authorisation is, therefore, not invalid.
Mr Hoffman submits that before a delegation can be made, the Minister must have received a request from the traditional owners. The request in this case failed to identify who were the traditional owners in circumstances in which a number of groups have made claim. In the circumstances, the Minister could not have made a valid delegation.
In my view, although section 6(2) requires the Minister to delegate her functions under section 23 to traditional owners, if so requested, the section does not prohibit the Minister from exercising her powers under section 23 after a section 6 request has been made. Although there is a clear relationship between section 6(2) and section 23, if Parliament had intended to prohibit the Minister from exercising her powers under section 23 until a request under section 6 had been resolved, that would have been made clear.
It may be that the Minister is required to make extensive inquiries to ascertain if a person or group who request a delegation are the traditional owners, or are authorised to represent the traditional owners. Such an investigation may take a considerable time. If the Minister was prohibited from exercising her powers under section 23 while such investigations were continuing, it could have major consequences for those seeking the authorisation. The progress of a proposal may be delayed indefinitely while the Minister investigates competing requests for a delegation, or where several different groups claim traditional ownership of the site.
In my view, the Minister has a responsibility to preserve Aboriginal heritage, but that must be subject to the Minister having the authority to act, when requested, to authorise interference with Aboriginal sites or objects if satisfied that there is a legitimate reason.
One further issue which should be noted is the inherent difficulty in ascertaining who is empowered to represent an Aboriginal group, or in this case, the traditional owners of an Aboriginal site. It goes without saying that an Aboriginal community is not a corporation of which there are directors who are charged with management responsibilities. Rather, it can be difficult to identify who exactly represents a community such as the Kokatha or Adnyamathanha people.
Must the traditional owners demonstrate that they have the ability to properly exercise executive power
I reject the Minister’s contention that the alleged traditional owners must demonstrate that they have the ability to properly exercise the executive powers of the state. If there is a valid request of the traditional owners under section 6(2) of the Act, the Minister is mandated to delegate her powers under section 23 to those traditional owners, regardless of the Minister’s opinion of the traditional owners’ fitness or capability to exercise those powers. The plain wording of the Act does not allow for this subjective judgment of the desirability of delegation to the traditional owners.
Can the Minister act pursuant to section 23 when she has delegated her authority?
The third and final implication relied upon by the Solicitor-General was that although the Minister must delegate her powers under section 6(2) in relation to a section 23 determination if properly requested, such delegation is expressly subject to the limitation that the Minister is not prevented from acting personally, under section 6(3)(f). The Solicitor-General therefore contends that, even if she had delegated her powers under section 23, nevertheless, she would have been entitled to act personally. In other words, the Minister’s failure to delegate, even if wrongful, did not affect her power to make an authorisation under section 23.
Mr Hayes submits that the policy underpinning the Act is that the functions in the Act are to be granted to the traditional owners, rather than the Minister. He contends that section 6(3)(f) is inconsistent with section 6(2) and section 6(4), and that the proper construction of section 6 is that the provisos in section 6(3) are to be read as applying only to delegations made pursuant to section 6(1) and are not applicable to delegations granted pursuant to a request by the traditional owners under section 6(2).
A literal interpretation of section 6 leads to the conclusion that the Minister retains the power to grant a section 23 authorisation regardless of whether the Minister has delegated her powers pursuant to a request under section 6(2).
The weakness in such an interpretation is exposed by considering a situation where the Minister is compelled to, and does, delegate the power to make an authorisation under section 23 to the traditional owners. According to the literal interpretation propounded by the Solicitor-General and Mr Hoffman, in such a situation both the traditional owners and the Minister would hold the power to make the authorisation, due to the effect of section 6(3)(f). This would lead to the result that despite a request for delegation by the traditional owners, which the Minister is mandated to grant, the Minister would be able to override their wishes and grant authorisation to disturb, damage or interfere with an Aboriginal site or object, regardless of the delegation.
This result appears to be contrary to the purposes of section 6(2), one of which is to allow the traditional owners of Aboriginal sites and objects to take control of the section 23 authorisation process when they so request.
That this was the intent of the legislature is supported by the manner in which section 6(2) came into being. The Aboriginal Heritage Bill originally put before Parliament did not contain either of section 6(2) or section 6(4), but was limited to section 6(1) and section 6(3). Section 6(2) was a late amendment which was inserted in order to give greater decision making power to the traditional owners of Aboriginal sites and objects. It would be repugnant to the purpose of section 6(2) for the Minister to retain the power to grant a section 23 authorisation against the wishes of the traditional owners of an Aboriginal site or object despite a proper request for delegation by the traditional owners.
In this way, a literal interpretation of section 6(3) is fundamentally inconsistent with a request for delegation under section 6(2). The preferable view is that section 6(3) is to be read as applying only to delegations made by the Minister pursuant to section 6(1).
Therefore, if there had been a valid request of the traditional owners for delegation in this case, the Minister would have been obliged to delegate her powers under section 23 to the exclusion of herself. The result of this is that any authorisation given by the Minister under section 23 after a wrongful refusal to delegate is beyond the Minister’s power, and necessarily invalid.
If the Minister was or is so required to delegate her powers pursuant to 6(2), such delegation of powers are to her own exclusion, delegating exclusive power under section 23 to the traditional owners without any consideration of the capability of the traditional owners to exercise the powers of the state.
It should be noted, however, that if such delegation is granted, it would be necessary for the traditional owners to exercise the powers delegated to them in a manner consistent with established principles of administrative law.
The issues of construction of section 6 are particularly complex, due in no small part to the unsatisfactory drafting of the section. Section 6 is difficult to interpret, its subsections exposing internal inconsistencies which are not easily reconciled. Ultimately it is a matter for Parliament to determine whether the difficulties in application of the section require resolution.
Consultation
Mr Hayes contends that the Minister breached her duty to consult under section 13 in three respects. First, the consultation on the section 23 authorisation was inadequate. Secondly, the Minister did not consult at all on the section 6 request for delegation. Thirdly, the Minister did not consult in relation to the Lake Torrens site card.
As to the section 23 authorisation, Mr Hayes submits that as Kokatha Wati and as an informant to the site card, Mr Starkey should have been considered by the Minister to have at least been an Aboriginal person with a particular interest in the matter, if not a traditional owner with such an interest. Counsel submits that the Minister did not personally consult Mr Starkey when under an obligation to take all reasonable steps to do so. He submits that had the Minister consulted with Mr Starkey, she would have been informed as to the significance of the site according to Aboriginal tradition, as well as to the question of traditional ownership.
The Solicitor-General submits that Mr Starkey was aware of the Port Augusta consultation meeting but did not attend. He further contends that due to Mr Linde’s attendance at the meeting, and the making of written submissions on Mr Starkey’s behalf which were considered as part of the recommendation to the Minister, Mr Starkey was adequately consulted in relation to the section 23 authorisation. Mr Hoffman’s submissions on this issue mirrored those of the Minister.
Mr Starkey’s complaint in relation to the consultation on the section 23 authorisation can be shortly dealt with. Although Mr Starkey did not attend the Port Augusta consultation meeting, written submissions were made by his solicitor on behalf of “the Kokatha Uwankara native title claim group and the informants and traditional owners of the recorded sites Lake Torrens and Andamooka Island.” In receiving and considering these submissions, the Minister took reasonable steps to consult with the Kokatha community, thereby complying with her obligations under section 13. Mr Starkey was an informant of the recorded sites and was therefore one of the Kokatha people on whose behalf submissions were made. It was not necessary for the Minister to consult with Mr Starkey individually.
In relation to the request for the section 6(2) delegation, Mr Hayes submits that the Minister did not take any reasonable steps to consult on the identity of the traditional owners with any of the Aboriginal persons who attended the Port Augusta consultation meeting. He contends that had the Minister consulted with the Kokatha and Adnyamathanha who were present at that meeting, she would have been made aware of the Lake Torrens arrangement concerning the protection of the cultural heritage of Lake Torrens. He further submits that the Minister was not relieved of her duty to consult on the question of traditional ownership merely because of a belief in the existence of competing claims to native title rights. In fact, it was submitted that the Minister’s duty to consult was heightened in those circumstances.
The Solicitor-General contends that a section 6 delegation is neither an “authorisation” nor a “determination”, and that section 13 of the Act was therefore not enlivened in relation to the request to delegate. The Solicitor-General’s submission is, in my view, correct. Section 6 does not refer to the decision of whether to delegate being a “determination” or “authorisation”. This is in contrast to other sections of the Act which do explicitly make reference to determinations[8] and authorisations.[9] It can be implied that if Parliament had intended a decision on delegation to be considered a “determination” or an “authorisation”, it would have used that specific language as it did in other sections of the Act.
[8] See Aboriginal Heritage Act 1988 (SA) s 12.
[9] See Aboriginal Heritage Act 1988 (SA) s 23.
Any decision to delegate pursuant to section 6 is not a determination or authorisation for the purposes of the Act, and the duty to consult is not enlivened in relation to a delegation decision under section 6.
The Register of Aboriginal Sites and Objects
Mr Hayes submits that as a result of the alleged duty, considered below, of the Minister to determine whether the Lake Torrens site should be entered on the Register of Aboriginal Sites and Objects on the basis of the Lake Torrens site card, the Minister was under a duty to consult with Mr Starkey as an informant to the site card. He contends that the Minister was required to enter the Lake Torrens site on the Register of Aboriginal Sites and Objects, by reason of the site card provided to her and the operation of section 13(2). He submits that the site card is the only method by which traditional owners can bring about registration of an Aboriginal site or object. He submits the language of section 12, referring to persons proposing to take action which might constitute an offence against the Act, does not envisage traditional owners as applicants. It is submitted that the site card expresses the views of the traditional owners as to the significance of the site, which views are bound to be accepted by the Minister by virtue of section 13(2), which provides:
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.
Therefore, it is submitted that the Minister was bound to accept the views expressed in the site card, determine that the Lake Torrens site was an Aboriginal site and enter the site and objects in the Register.
It was further submitted that, under the section 12 determination process that Mr Hayes contends should have taken place before the Minister granted authorisation under section 23, the Minister was bound to accept the views expressed in the site card and enter the Lake Torrens site and objects in the Register.
The Solicitor-General submits that site cards merely constitute an administrative mechanism providing a practical way of recording sites based on information provided. It is submitted that the practice of producing site cards arose outside of the Act as a matter of convenience and has no role to play in terms of decision making under the Act.
Although it is true that the Minister is bound to accept the views of the traditional owners in relation to the significance of a site or object in Aboriginal culture, it does not follow that the site cards constitute a method for the traditional owners to register sites and objects in the Register of Aboriginal Sites and Objects. There is no reference in the Act to site cards. The information contained in site cards may well be relevant when the Minister is determining whether or not a site should be entered into the Register, however I accept the submission of the Solicitor-General that site cards, of themselves, have no formal role to play in the scheme of the Act.
Mr Coulthard’s contentions
Mr Llewellyn-Jones substantially accepts and adopts Mr Hayes’ submissions. The primary respect in which Mr Llewellyn-Jones went beyond those made by Mr Hayes was in relation to the interaction between section 12 and section 23. Mr Llewellyn-Jones detailed an eight-step process which he submits the Minister was required to follow before making a decision on the section 23 authorisation.
First, a party, in this case Straits, would propose to take action in relation to a particular area, in this case the Lake Torrens site. The Minister would then be required to determine whether any entries should be made in the Register.
Secondly, the Minister would be required to take all reasonable steps to consult with the groups set out in section 13(1)(d)-(f).
Thirdly, the Minister may, subject to following the appropriate process, not accept the views of all of those groups except for the traditional owners.
Fourthly, the Minister must accept the views of the traditional owners, as mandated by section 13(2). If the traditional owners advise the Minister that the site is of significance according to Aboriginal tradition, the Minister must enter the site onto the Register.
Fifthly, if at the end of the section 12 process envisaged by the first four steps, the site is on the Register, the Minister would be required to notify the party proposing to take action in relation to the area of her determination.
Sixthly, if the site was on the Register, the party proposing to take action could make an application under section 23 for authorisation of action that would otherwise constitute an offence under the Act.
Seventhly, the Minister must undertake another consultation process with the parties listed in section 13(1)(d)-(f) in relation to the section 23 decision.
Finally, the Minister must make a determination under section 23, with the discretion to not accept or disregard the views of every group listed in section 13(1)(d)(f) including the traditional owners, subject to the issue of delegation under section 6.
Mr Llewellyn-Jones contends that the Minister erred in commencing the process under section 23 before undertaking the condition precedent, namely the section 12 process.
In my view, there is no requirement in the Act, either express or implied, which requires that a determination under section 12 is a necessary pre-requisite to the Minister granting an authorisation under section 23.
Mr Llewellyn-Jones further submits that the Minister failed to reasonably consult Mr Coulthard in relation to the section 23 grant of authority. It is alleged that Mr Coulthard was never consulted directly by the Minister and was merely advised of the Port Augusta consultation meeting one day prior to its occurrence by members of the Adnyamathanha community.
However, Mr Coulthard was in attendance at the meeting, and neither he nor his legal representatives made any contact with the Minister in relation to the matter after the Port Augusta consultation meeting.
I agree with the Solicitor-General’s contention. In holding the Port Augusta consultation meeting, which was attended by Mr Coulthard, and inviting written submissions, the Minister discharged her obligation under section 13 to take reasonable steps to consult with traditional owners and other interested Aboriginal persons.
ERD Court decision
After oral argument but before the delivery of this judgment, the decision of the Environment, Resources and Development Court in Straits Exploration (Australia) Pty Ltd v The Kokatha Uwankara Native Title Claimants[10] was brought to my attention. Mr Starkey and the Minister made further written submissions relating to the decision in that Court. The decision in the ERD Court bears no direct relevance to the issues raised before me.
[10] [2011] SAERDC 2.
Conclusion
I have determined that the Minister’s delay in determining the request for delegation amounts to a failure to observe the requirements of natural justice or procedural fairness. The delay in responding to the request for delegation and the failure to inform the plaintiffs that the Minister was unclear as to the question as to traditional ownership in the case of the Lake Torrens environs amounted to a failure to afford the plaintiffs procedural fairness. However, for reasons which I have earlier expressed, the failure of the Minister to act in a timely manner in respect of the request for a delegation does not assist the plaintiffs in the relief they seek. As I have concluded that the Minister is empowered to grant a section 23 authorisation at a time after a request for a delegation has been made, then her failure to act in a timely way is not a sufficient basis to make the declarations and orders sought.
I would grant permission to the plaintiffs to proceed with this action for judicial review, pursuant to Rule 200 of the Supreme Court Civil Rules 2006. As to the substantive orders sought, for the reasons I have given I would refuse the application for a declaration that the authorisation given by the Minister to Straits, pursuant to section 23 on 7 July 2010, was contrary to law and I would refuse to grant an order in the nature of certiorari to quash that authorisation.
Further, I would refuse to grant a declaration in relation to the site card, as sought in paragraph 2.4 of the summons, and I would refuse to make an order in the nature of mandamus requiring the Minister to determine whether entry should be made in the Register of Aboriginal Sites and Objects in relation to the site card, recorded as Site Number 6436-7237.
I would refuse the application for a declaration that the consultation engaged in by the Minister prior to the authorisation given by the Minister, pursuant to section 23, was contrary to law.
I would refuse the application for an order that the Minister consult with the traditional owners, namely the Kokatha people, including the first plaintiff and Adnyamathanha people, including the second plaintiff, on the significance of the Aboriginal site, objects or remains described in site card recorded as Site Number 6346-7237.
I would refuse the application for a declaration that the decision by the Minister of 7 July 2010 refusing to delegate her powers to the traditional owners, at their request, was contrary to law.
I would refuse to make an order requiring the Minister to delegate her powers to the traditional owners, pursuant to the request, and I would refuse to make the declaration that the consultation engaged in by the Minister prior to her decision refusing to delegate her authority to the traditional owners, pursuant to section 6, was contrary to law.
As I have indicated, I consider that the delay that has occurred and the failure of the Minister to determine the request for delegation has been a failure to afford the applicants procedural fairness. I therefore make an order in the nature of mandamus requiring the Minister to confer with the representatives of the Kokatha people, including the first plaintiff, and the Adnyamathanha people, including the second plaintiff, on the request to delegate her authority to the traditional owners, pursuant to section 6.
It may well be that the order I have made will be of limited effect, because a valid authorisation pursuant to section 23 has been made by the Minister, but that is a matter for the parties to consider.
I will hear the parties on the question of costs.
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