Traditional Owners - Nyiyaparli People and Minister for Health Indigenous Affairs
[2009] WASAT 71
•22 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: ABORIGINAL HERITAGE ACT 1972 (WA)
CITATION: TRADITIONAL OWNERS - NYIYAPARLI PEOPLE and MINISTER FOR HEALTH INDIGENOUS AFFAIRS [2009] WASAT 71
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 2 APRIL 2009
DELIVERED : 22 APRIL 2009
FILE NO/S: DR 47 of 2009
BETWEEN: TRADITIONAL OWNERS - NYIYAPARLI PEOPLE
Applicant
AND
MINISTER FOR HEALTH INDIGENOUS AFFAIRS
First RespondentTHE PILBARA INFRASTRUCTURE PTY LTD and FMG CHICHESTER PTY LTD
Second Respondent
Catchwords:
Aboriginal heritage - Notice of proposal to carry out works - Minister's consent to works - Holders of registered native title claim seek review - Standing to seek review Expression 'owner of any land' - Whether right of review confined to proponent of works aggrieved by Minister's decision
Legislation:
Aboriginal Heritage Act 1972 (WA), s 9, s 17, s 18, s 39, s 43, Part V
Interpretation Act 1984 (WA), s 19(1)(b)(i)
Native Title Act 1993 (Cth)
Racial Discrimination Act 1975 (Cth), s 10, s 10(1)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 20
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr A Slattery
First Respondent : Mr M Egan and Mr T Crewell
Second Respondent : Mr S Singh
Solicitors:
Applicant: Pilbara Native Title Service
First Respondent : State Solicitor's Office
Second Respondent : Sukhpal Singh
Case(s) referred to in decision(s):
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Nyiyaparli People sought a review of a decision of the Minister for Indigenous Affairs granting The Pilbara Infrastructure Pty Ltd and FMG Chichester Pty Ltd consent to the construction and operation of mine infrastructure and associated works in the Christmas Creek resource area. The approval was given pursuant to s 18(3) of the Aboriginal Heritage Act 1972 (WA). The need for the consent arose from the fact that the proposed works would be likely to detrimentally affect certain Aboriginal sites. The Nyiyaparli People were the holders of certain registered native title claims in relation to the land in question.
The Tribunal ordered that the holders of the consent be added as a second respondent to the application.
The Minister for Indigenous Affairs raised a preliminary issue in relation to the application for review. He asserted that the right to seek a review of the Minister's decision under s 18(5) of the Aboriginal Heritage Act 1972 (WA) was only conferred upon the owner of the land who had given notice of intention to carry out the works and who had sought the Minister's consent. Section 18(5) enabled 'the owner of any land' who is aggrieved by the Minister's decision to apply to the Tribunal for a review.
The Nyiyaparli People contended that the rights which they had in relation to the land brought them within the definition of 'owner of any land', and thus that they were entitled to seek review in the Tribunal.
The Tribunal considered the general scheme of the Aboriginal Heritage Act 1972 (WA), the proper construction of s 18, and the content of Parliamentary debate on the Act, and concluded that the right to seek a review of the decision only existed for the owner who had sought the consent, and was aggrieved by the Minister's decision on that application. Accordingly, it concluded that the applicant in these proceedings had no standing to seek review, and that the proceedings should be dismissed.
Background
On 8 December 2008, FMG Chichester Pty Ltd, on behalf of itself and The Pilbara Infrastructure Pty Ltd, submitted a notice under s 18 of the Aboriginal Heritage Act 1972 (WA) (AH Act) to the Aboriginal Cultural Material Committee (ACMC) established under the AH Act. The notice advised that the companies wished to use certain land in the Shire of East Pilbara for the purpose of construction and operation of mine infrastructure and associated works, including mining in the Christmas Creek resource area.
It is apparent that the notice was given because of the impact of the proposed works on a number of Aboriginal heritage sites. It would have been an offence under the AH Act to carry out the works without the consent of the Minister. In accordance with the requirements of the AH Act, the ACMC provided a recommendation to the Minister, and by letter dated 29 December 2008, the Minister granted approval for the works under s 18(3) of the AH Act.
Section 18(5) of the AH Act provides a right of review for 'the owner of any land' aggrieved by the Minister's decision under s 18(3). The Nyiyaparli People are the applicant in the Federal Court for a determination under the Native Title Act 1993 (Cth) (NT Act) of their registered native title claims in relation to land, including the land the subject of the consent.
The applicant commenced these proceedings for a review of the Minister's consent under s 18(5) of the AH Act. The application initially named the Minister for Indigenous Affairs as the respondent. Because the proceedings concern the interests of FMG Chichester Pty Ltd and The Pilbara Infrastructure Pty Ltd, those parties were joined by the Tribunal as second respondents.
The respondents raised a preliminary issue, being the standing of the Nyiyaparli People to bring the application under s 18(5) of the AH Act. These reasons address that issue.
The issues which arise for determination are:
i)Is the right of review under s 18(5) of the AH Act confined to the owner of the land who has sought the Minister's consent, or is anyone who comes within the expression 'the owner of any land', and who is aggrieved by the decision, entitled to apply for review?;
ii)If the right of review is not confined to the applicant for the consent, do the Nyiyaparli People come within the definition of 'the owner of any land'?; and
iii)If the Nyiyaparli People do not have a right of review under s 18(5) of the AH Act, does s 10 of the Racial Discrimination Act 1975 (Cth) create a right of review under the AH Act?
The scheme of the Aboriginal Heritage Act
The AH Act was first enacted in 1972. The purpose of the AH Act is 'to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia and their descendants …'
The AH Act applies to various places and objects which are culturally, spiritually or ceremonially significant to Aboriginal people. It imposes upon the Minister a duty to ensure, so far as is reasonably practical, that all places in Western Australia that are of traditional or current sacred, ritual or ceremonial significance to persons of Aboriginal descent should be recorded and their relative importance evaluated so as to enable coordinated and effective preservation.
The Act imposes a requirement that any person with knowledge of a significant Aboriginal place or object report its existence to the registrar or a police officer. Section 17 of the Act creates an offence on the part of any person who damages or removes objects or places protected by the Act, without the consent of the Minister under s 18. Section 18, which will be discussed in more detail below, provides a mechanism for obtaining the consent of the Minister to do an act which would otherwise be an offence against s 17.
Part V of the AH Act establishes the ACMC. It also establishes the position of Registrar of Aboriginal Sites. A register of places and objects is required to be maintained by the Registrar.
Section 39 establishes the functions of the ACMC. Those functions include:
a)to evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons;
b)where appropriate, to record and preserve the traditional Aboriginal lore related to such places and objects;
c)to recommend to the Minister places and objects which, in the opinion of the Committee, are, or have been, of special significance to persons of Aboriginal descent and should be preserved, acquired and managed by the Minister;
…
e)to advise the Minister on any question referred to the Committee, and generally on any matter related to the objects and purposes of this Act …
Section 43 of the AH Act imposes restrictions on persons dealing with Aboriginal cultural material unless the dealing is by a person of Aboriginal descent acting in a manner sanctioned by a relevant Aboriginal custom or otherwise in a manner authorised by the Minister to do so. The Minister has capacity to purchase Aboriginal cultural material and provides a capacity for compulsory acquisition of objects to which the Act applies.
The overall scheme of the Act is to place control of sites and objects to which the Act applies under the effective control of the Minister, acting on the advice of the ACMC. There is scope under s 9 of the AH Act for the Minister, by notice in the Gazette, to authorise 'traditional custodians' to perform specified duties of the Minister in relation to particular places or objects. The Act also seeks to preserve the rights of Aboriginal people to use the places or objects in accordance with traditional lore and custom. Control and decision-making in relation to places and sites to which the Act applies is otherwise to be exercised by the Minister acting on behalf of the community.
The operation of s 18
Section 18 of the AH Act reads:
18. Consent to certain uses
(1)For the purposes of this section, the expression the owner of any land includes a lessee from the Crown, and the holder of any mining tenement or mining privilege, or of any right or privilege under the Petroleum and Geothermal Energy Resources Act 1967, in relation to the land.
(1a)A person is also included as an owner of land for the purposes of this section if ‑
(a)the person ‑
(i)is the holder of rights conferred under section 34 of the Dampier to Bunbury Pipeline Act 1997 in respect of the land or is the holder’s nominee approved under section 34(3) of that Act; or
(ii)has authority under section 7 of the Petroleum Pipelines Act 1969 to enter upon the land;
or
(b)the person is the holder of a distribution licence under Part 2A of the Energy Coordination Act 1994 as a result of which the person has rights or powers in respect of the land.
(2)Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.
(3)Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either ‑
(a)consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
(b)wholly decline to consent to the use of the land the subject of the notice for the purpose required,
and shall forthwith inform the owner in writing of his decision.
(4)Where the owner of any land has given to the Committee notice pursuant to subsection (2) and the Committee has not submitted it with its recommendation to the Minister in accordance with that subsection the Minister may require the Committee to do so within a specified time, or may require the Committee to take such other action as the Minister considers necessary in order to expedite the matter, and the Committee shall comply with any such requirement.
(5)Where the owner of any land is aggrieved by a decision of the Minister made under subsection (3) he may apply to the State Administrative Tribunal for a review of the decision.
…
(7)Where the owner of any land gives notice to the Committee under subsection (2), the Committee may, if it is satisfied that it is practicable to do so, direct the removal of any object to which this Act applies from the land to a place of safe custody.
(8)Where consent has been given under this section to a person to use any land for a particular purpose nothing done by or on behalf of that person pursuant to, and in accordance with any conditions attached to, the consent constitutes an offence against this Act.
As can be seen, s 18(1) and s 18(1a) of the AH Act expand the interpretation of the expression 'the owner of any land'. It does so in a way which includes certain categories of interest which may lead to a need or desire to carry out activities on the land which might result in a breach of s 17 and for that purpose to give a notice to the ACMC under s 18(2). The right of review is conferred by s 18(5). The respondent contends that the expression 'the owner of any land' in that subsection is a reference to the same person who has, as 'the owner of any land', given notice to the committee under s 18(2). He contends that it is not open to some other person who might satisfy the definition of the expression 'the owner of any land' to initiate a review of a decision the Minister made under s 18(3) as a result of a notice by some other owner. For a number of reasons, I agree with that contention.
The first reason is that that construction, in my view, is consistent with the general scheme of s 18 and the Act generally. Provision for the Minister's consent arises in the context where a particular 'owner' wishes to undertake work (on the land which they 'own') which might interfere with places or objects of Aboriginal heritage significance. The scheme of the Act is to vest in the Minister the ultimate control of activities affecting such sites or objects. The interest which the Minister is required to preserve is the general interest of the community. The competing interest is that of the proponent of the particular activities which require consent. I am unable to see any basis upon which some other 'owner' of the type described in s 18(1) and s 18(1a) might be extended a right of review in the context of those competing interests. Another owner, who is not the proponent of the proposed activity, has no interest in whether the works are permitted. Nor could such other owner sensibly propound the general interest of the community, protection of which the Act reposes in the Minister. For that reason, I consider that the proper reading of s 18(5) is that the reference to 'the owner of any land' is a reference to 'the owner of any land' who has given the notice under s 18(2) and been informed of the Minister's decision under s 18(3).
A further reason for reaching that conclusion as to the proper construction of the section is that s 18(3) requires the Minister to 'inform the owner in writing of his decision'. If it were contended that a right of review should be given to any person who might be considered 'the owner of any land (in relation to the particular land concerned)', then it might be expected that the Act would require that all 'owners' be informed of the Minister's decision. Section 18(5) was amended by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) by, in effect, removing a right of appeal to the Supreme Court of Western Australia and substituting it with a right to seek review in the State Administrative Tribunal. That amending Act was enacted concurrently with the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 20 of the SAT Act requires a decision‑maker to give any person who has a right of review under an enabling Act notice of the decision and the right to have the decision reviewed. If it were contemplated that any person who might be within the description of the expression 'the owner of any land' should have a right of review under s 18(5) of the AH Act, then it might have been expected that s 18(3) of the AH Act would have been amended to provide for all 'owners' to be informed of the Minister's decision.
I am reinforced in that view as to the proper construction of s 18 by the extrinsic material to which counsel for the Minister drew my attention. In my view, it is open to have regard to that material pursuant to s 19(1)(b)(i) of the Interpretation Act 1984 (WA), to the extent that there is ambiguity in the expression 'the owner of any land' where it appears in s 18(5) of the AH Act. The potential ambiguity is illustrated by the respective positions of the parties in these proceedings. The respondents contend for the construction of that expression referred to above. The applicant contends that the absence of the words 'who had given notice to the Committee under s 18(2)' after the expression 'the owner of any land' in s 18(5) suggests that the right of review is conferred on any owner (as that term is defined) of the land in question.
The passages in the debate on the Second Reading of the Aboriginal Heritage Amendment Bill (No 2), which introduced s 18 in its present form (apart from the subsequent amendment to provide for review by this Tribunal rather than the appeal to the Supreme Court) make very clear the Parliament's intention. In debate in the Legislative Assembly on the Second Reading of the speech, Mr Pearce, member of the Opposition, expressed concern that the right of appeal being conferred was confined to the person proposing to do the works, but Aboriginal people with an interest in the particular site had no such right. Mr Pearce said (at page 1167 Hansard 9 September 1980):
Under the amending proposition, if someone applies to the Minister to destroy an Aboriginal sacred site and the Minister refused that privilege, then he may appeal against the Minister's decision to the Supreme Court ‑ that is to say, if someone wishes to ruin or destroy a site and the Minister for Cultural Affairs will not let him do it, he can go to the Supreme Court and seek to overrule the Minister.
So the right of appeal is only for those who wish to destroy sites. If a person wishes to protect a site he has no right of appeal at all.
In response, Mr Grayden, the Minister for Cultural Affairs, said:
But that is the whole purpose of the Act. You have the Museum on the one hand, and the Aboriginal Cultural Material Committee, on the other. You have the Minister and the Act protecting the Aboriginal site ‑ no appeal is necessary.
Mr Pearce made the same criticism of the Act later in the debate (at page 1172).
In his speech in reply, Mr Grayden said (at page 1190):
The Act already contains provision for appeal by an owner of freehold land, a mining tenement, or a pastoral lease. Presently such an appeal is to a local court, but under the Bill the appeal will be to the Supreme Court. The Act does not contain an avenue of appeal for Aborigines to a court, nor is there any need for such an appeal. The whole Bill is designed to protect the Aboriginal sites of consequence. The Aborigines are protected by the Aboriginal Cultural Material Committee, the Museum trustees, and the government of the day. The government is answerable to Parliament and to the people, it has an obligation to uphold and administer the Aboriginal Heritage Act. So there is no necessity for an appeal by Aborigines under any circumstances. It is not in the Act, and it is not in the Bill. There is no need for it.
Any Aboriginal site in this State will be protected automatically. Both the parent Act and the amending Bill provide that even the owner of the freehold land must apply to the Minister to seek permission to work that land. If the Minister does not give permission, the owner should be permitted to appeal to the court. The situation of a person who owns a mining tenement is exactly the same.
A similar debate occurred in the Legislative Council. Both Mr P Dowding and Mr R Hetherington, speaking in opposition to the Bill, drew attention to the fact that no right of review of a Minister's decision was given to Aboriginal people. An amendment was proposed seeking to change that position. In response, Mr W R Withers spoke against the proposed amendment on the basis that it would create complications in having to find, identify and notify all of the people concerned. He considered the conferral of a right of review on interests of Aboriginal people as being unnecessary. The proposed amendment to the Bill was defeated.
It is quite clear that Parliament construed the review provision in s 18 in the way contended for by the Minister in these proceedings, and to the extent of any ambiguity in the use of the expression 'the owners of any land' in s 18(5), the Parliamentary debate supports the construction which I consider to be correct.
Is the applicant the owner for the purposes of s 18?
Much of the emphasis in the applicant's written submissions was on the breadth that should be given to the expression 'owner' for the purposes of s 18 of the AH Act. Put broadly, the applicant submitted that the nature of the rights asserted in their native title claim, and the subject of registration of that claim, are analogous to those rights held by entities under the various Acts referred to in s 18(1) and s 18(1a). It must be borne in mind that the AH Act, and the amendment which introduced s 18 substantially in its present form, all predated the decision of the High Court in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)) and the enactment of the NT Act. The legal nature of the interest held by Aboriginal people in their country was perceived quite differently at the time the AH Act was enacted and amended. It is not, however, necessary to consider the impact, if any, of the development of the law in relation to native title on the provisions and operations of the AH Act. That is because, in light of the conclusions I have reached as to the limitation in s 18(5) as to who might seek a review of the Minister's decision, it does not matter whether the Nyiyaparli People might be owners of the land for the purposes of s 18. Because the Nyiyaparli People did not seek the Minister's consent to carry out activities, and were not the party to whom the consent was directed, they have no right of review regardless of whether they might come within the expression 'the owner of any land' for the purposes of s 18.
Racial Discrimination Act 1975 (Cth)
Section 10(1) of the Racial Discrimination Act 1975 (Cth) (RD Act) provides:
Rights to equality before the law
(1)If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2)A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3)Where a law contains a provision that:
(a)authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b)prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.
The applicant contends that, if the AH Act fails to confer upon the applicant the status of 'the owner of any land' and the right to apply to this Tribunal, it does so in circumstances where that right is conferred upon the holders of other forms of title pertaining to the same land. Consequently, it submits that s 10 of the RD Act:
operates, as a matter of Federal law, to confer the right upon (the applicant as) a holder of native title, to the same extent as the AH Act confers that right upon 'the owner of any land'.
They rely on the decision of the High Court in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [320].
In oral submissions, counsel for the applicant accepted that if any 'owner' of the land other than the 'owner' who had applied for the Minister's consent was precluded from seeking a review of the Minister's decision, then s 10 of the RD Act would have no application. In my view, that concession is correctly made. The conclusion which I have reached is that it is only the applicant for the ministerial consent who has the capacity to seek review under s 18(5). There may be a number of other persons who may have had the standing to seek the Minister's consent for work because they come within the definition of 'owner of any land' in s 18. The exclusion of owners other than the applicant for consent does not apply solely to the native title claimants. The exclusion has nothing to do with the nature of the interest claimed in the land by other owners. The native title claimants do not have a more limited right to review than persons of another race, colour or national or ethnic origin. Section 10 therefore has no application.
Conclusion
For the foregoing reasons, there is no right of review available to the applicant in relation to the Minister's consent. It follows that the application must be dismissed.
Order
The application is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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