Talbott v Minister for the Environment

Case [2020] FCA 1042

FEDERAL COURT OF AUSTRALIA

Talbott v Minister for the Environment [2020] FCA 1042

File number: NSD 1209 of 2019
Judge: ABRAHAM J
Date of judgment: 22 July 2020
Catchwords: ADMINISTRATIVE LAW – application for judicial review of the decisions of the Minister for the Environment declining to make a declaration pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – whether the Minister took into account an irrelevant consideration in considering the social and economic impacts to the local community – where applicant argues that s 51(xxvi) of the Constitution constrains administrative action under s 10 – consideration of s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Legislation:

Constitution ss 51(xxvi), 51(xxxi)

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 4, 10, 10(1)(d), 10(1)(c), 10(3), 10(4), 10(4)(e), 28

Cases cited:

Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1

Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337

Murphyores Incorporated Pty Limited v Commonwealth [1976] HCA 20; (1976) 136 CLR 1

Marcus Clarke and Co Ltd v The Commonwealth [1952] HCA 50; (1952) 87 CLR 177

Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 58; (1947) 75 CLR 495

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183

Tickner v Chapman (1995) 57 FCR 451

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

JT International SA v Commonwealth of Australia [2012] HCA 43; (2012) 250 CLR 1

Lacey v Attorney-General for Queensland [2011] HCA 10; (2011) 242 CLR 573

Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373

Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168

Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457

Spence v Queensland [2019] HCA 15; (2019) 367 ALR 587

Date of hearing: 13 May 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 96
Counsel for the Applicant: Ms K C Morgan SC with Mr M Seymour
Solicitor for the Applicant: Ms R Koroglu of the Environmental Defenders Office
Counsel for the Respondent: Mr S Free SC with Ms K Pham
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 1209 of 2019
BETWEEN:

VERONICA JOYCE (DOLLY) TALBOTT

Applicant
AND:

MINISTER FOR THE ENVIRONMENT (COMMONWEALTH)

Respondent

JUDGE:

ABRAHAM J

DATE OF ORDER:

22 JULY 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs, limited to $1000.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ABRAHAM J:

  1. The applicant, Veronica (Dolly) Talbott, a Gomeroi woman and member of the Gomeroi Traditional Custodians group (GTC), on behalf of the GTC,…

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Details
AGLC
Talbott v Minister for the Environment [2020] FCA 1042
Case
[2020] FCA 1042
Decision Date

CaseChat Overview and Summary

The case of Talbott v Minister for the Environment concerned a judicial review application brought by the applicant against the Minister for the Environment. The applicant sought a declaration that the Minister had erred in declining to make a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The applicant argued that the Minister had taken into account irrelevant considerations, specifically the social and economic impacts to the local community, in deciding not to make the declaration. The applicant claimed that the Minister's consideration of these factors was constrained by s 51(xxvi) of the Constitution.

The primary legal issue before the court was whether the Minister had indeed taken into account irrelevant considerations in the context of s 10 of the Heritage Act. The court needed to determine the scope of the Minister's discretion under s 10 and whether the social and economic impacts to the community were relevant considerations. Additionally, the court had to assess if the applicant had established that the Minister's consideration of these factors was constitutionally constrained. The court considered the language of s 10, which permits the Minister to take into account "such other matters as he or she thinks relevant," and weighed this against the argument that s 51(xxvi) imposed a limitation on the exercise of administrative power.

The court found that the applicant had not demonstrated that the social and economic impacts to the community were irrelevant considerations under s 10. The court held that the language of the statute clearly allowed the Minister to consider a wide range of factors, including social and economic considerations. The court also rejected the argument that s 51(xxvi) constrained the Minister's discretion in this context, noting that the Constitution did not limit the Minister's ability to weigh competing interests as part of the decision-making process under the Heritage Act. Consequently, the applicant's claim for judicial review was dismissed.

The court ordered that the application be dismissed and that the applicant pay the respondent's costs, limited to $1000. This outcome underscores the broad discretion afforded to the Minister under s 10 and the limited scope for judicial intervention based on the applicant's grounds of review.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs, limited to $1000.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant also referred to s 28, which addresses compensation for acquisition of property. Factual background In an application dated 28 April 2015, the applicant claimed protection under the Heritage Act for sites of Aboriginal cultural significance (2015 application). In an application dated 21 December 2017 the applicant claimed protection under the Heritage Act for additional sites of Aboriginal cultural significance and provided more detail about the sites of Aboriginal significance listed in the 2015 application (2017 application). That 2017 application also consolidated all prior information provided in the 2015 application. The 2017 application sought protection and preservation from injury and desecration of 8 interconnected areas and 3 trees all of significance to the GTC. On 17 August 2016, the then Minister appointed Ms Susan Phillips as the reporter with respect to the 2015 application under s 10(1)(c) of the Heritage Act. On 14 March 2017, Ms Phillips submitted her report. On 12 February 2018, the then Minister appointed Ms Phillips as the reporter with respect to the 2017 application. On 7 October 2018, Ms Phillips submitted her report. Minister’s reasons In relation to each application, the Minister gave detailed reasons, dated 26 June 2019 and 1 July 2019 respectively. Given the confined nature of the ground of review it is unnecessary to recite the reasoning contained therein in any detail. Suffice to say that in respect to each of the applications, the Minister was satisfied that: an application for the purposes of s 10(1)(a) of the Heritage Act had been received; the specified areas are significant Aboriginal areas for the purpose of s 10(1)(b)(i) of the Heritage Act; and there was a threat of injury or desecration to the specified areas due to the proposed Shenhua Mine, for the purposes of s 10(1)(b)(ii) of the Heritage Act. As was required under s 10(1)(c) of the Heritage Act, the Minister was provided with and considered the reports and the representations received in relation to them from Ms Phillips, the nominated reporter. The Minister also gave consideration to other matters she considered relevant as required by s 10(1)(d) of the Heritage Act. In that regard the Minister stated in each of the reasons, that “it was open [to her] to take into account a wide range of policy and public interest considerations, including social and economic considerations”. The Minister also identified matters relevant “for the purposes of weighing the impacts of the project on Indigenous heritage against the social and economic benefits of the mine” (the language used in the first reasons). Although phrased slightly differently in the second reasons, the Minister engaged in the same process, with a weighing of competing matters against the impact of the Shenhua Mine on the applicants “as a result of the likely destruction of parts of their Indigenous cultural heritage”. The Minister declined to make a declaration pursuant to s 10 of the Heritage Act based on the reasons given, and “particularly” on the basis of the social and economic benefits of the mine. In respect to each application the Minister “considered that the expected social and economic benefits of the Shenhua Watermark Coal Mine to the local community outweighed the impacts of the mine on the Applicants as a result of the likely destruction of parts of their Indigenous cultural heritage”. Submission

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant has not established that the social and economic impacts to the community are irrelevant considerations in the Minister’s decisions to decline making a declaration under s 10. Conclusion The applicant has failed to establish the ground of review. The application is dismissed with costs (limited to $1000).

Ratio Decidendi

Legal Principle Established

Section 10, which empowers the Minister to make a declaration to preserve and protect significant Aboriginal areas, is relevantly in the following terms: 10 Other declarations in relation to areas(1) Where the Minister:(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;(b) is satisfied:(i) that the area is a significant Aboriginal area; and(ii) that it is under threat of injury or desecration;(c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and(d) has considered such other matters as he or she thinks relevant;he or she may, by legislative instrument, make a declaration in relation to the area.…(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and(iii) specifying an address to which such representations may be furnished; and(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:(a) the particular significance of the area to Aboriginals;(b) the nature and extent of the threat of injury to, or desecration of, the area;(c) the extent of the area that should be protected;(d) the prohibitions and restrictions to be made with respect to the area;(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);(f) the duration of any declaration;(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;(h) such other matters (if any) as are prescribed. The applicant also referred to s 28, which addresses compensation for acquisition of property. Factual background In an application dated 28 April 2015, the applicant claimed protection under the Heritage Act for sites of Aboriginal cultural significance (2015 application). In an application dated 21 December 2017 the applicant claimed protection under the Heritage Act for additional sites of Aboriginal cultural significance and provided more detail about the sites of Aboriginal significance listed in the 2015 application (2017 application). That 2017 application also consolidated all prior information provided in the 2015 application. The 2017 application sought protection and preservation from injury and desecration of 8 interconnected areas and 3 trees all of significance to the GTC.