C A T C H W O R D S

 

 

ABORIGINES - Aboriginal Heritage - Administrative Law - Judicial Review - Significant Aboriginal area - Emergency declarations and more permanent declaration made by Minister to protect area - Whether the Minister in making declarations breached the rules of natural justice - Whether procedural fairness required reasonable notice of proposed emergency declarations to be given to owner and lessees of area - Whether reasonable opportunity should have been given to those persons to make submissions to Minister - Whether any evidence to justify making declarations - Whether decision to make declarations manifestly unreasonable - Whether error of law - Area the subject of special lease from State for development and use as a crocodile farm - State Minister for Aboriginal Affairs consented to such development and use - Whether State and State Ministers "persons aggrieved" by decisions to make declarations - Relief - Whether appropriate to grant declaratory relief in respect of emergency declarations whose term had expired.

 

 

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss. 3, 4, 9, 10, 11, 13, 14, 15

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.5, 16

Aboriginal Heritage Act 1972 (W.A.) ss 17, 18

 

 

 

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

Tickner v. Bropho (1993) 40 FCR 183

Kioa v. West (1985) 159 CLR 550

McVeigh v. Willarra Pty Ltd (1985) 6 FCR 857

Marine Hull and Liability Insurance Co Ltd v. Hurford (1985) 10 FCR 234

Durayappah v. Fernando [1967] 2 AC 337

Hodgens v. Gunn [1988] 1 Qd. R 1

de Verteuil v. Knaggs [1918] AC 557

Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24

South Australia v. O'Shea (1987) 163 CLR 378

Ansett Transport Industries (Operations) Pty Ltd v. Wraith (1983) 48 ALR 500

Arm Constructions Pty Ltd v. Commissioner of Taxation (1986) 10 FCR 197

Our Town FM Pty Ltd v. Australian Broadcasting Tribunal (1987) 16 FCR 465

Faulkner v. Conwell (1988) 21 FCR 41

Perry v. Director of Public Prosecutions (1985) 6 FCR 578

La Roche v. Cormack (1991) 33 FCR 414 

Beitseen v. Johnson (1989) 29 IR 336

 

 

 

 

THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA  v. MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Nos WAG 26, 39 and 53 of 1994

 

 

MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS v. MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

Nos. WAG 25, 40 and 45 of 1994

 

 

MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA v. THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA AND MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

No. WAG 55 of 1994

 

 

 

 

 

 

 

 

 

 

 

 

CARR J

PERTH

7 FEBRUARY 1995

 

 

 

 

 

IN THE FEDERAL COURT        )

OF AUSTRALIA                       )

WESTERN AUSTRALIA           )

DISTRICT REGISTRY              )

GENERAL DIVISION                )        Nos. WAG 26, 39 and 53 of 1994

 

 

B E T W E E N:                                   THE STATE OF WESTERN AUSTRALIA

 

                                                                           First-named Applicant

 

                                                          MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                           Second-named Applicant

 

                                                          MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                           Third-named Applicant

 

                                                          and

 

                                                          MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                           Respondent

 

 

                                                          Nos. WAG 25, 40 and 45 of 1994

 

                                                          MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS

 

                                                                           Applicants

 

                                                          and

 

                                                          MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                           Respondent

 

 

 

                                                          No. WAG 55 of 1994

 

                                                          MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                                      Applicant

                                                          and

 

                                                          THE STATE OF WESTERN AUSTRALIA

 

                                                                                      First Respondent

 

                                                          MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                                      Second Respondent

 

                                                          MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                                      Third Respondent 

 

                                           MINUTE OF ORDERS                                                        

 

 

JUDGE MAKING ORDER:  CARR J.

WHERE MADE:                   PERTH

DATE OF ORDER:               7 FEBRUARY 1995

 

 

A.   APPLICATION NOS WAG 25 AND 26 OF 1994

 

THE COURT:

 

1.       DECLARES that when the respondent made his decision on 3 February 1994 to make a declaration under s.9(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 which was published in the Commonwealth Government Gazette on 4 February 1994, in relation to an area of land near Broome, Western Australia, described as Broome Lot 2826:-

 

          (a)      the applicants were entitled under the rules of natural justice to receive reasonable notice of the respondent's intention to make that decision;

 

          (b)     were also entitled under those rules to a reasonable opportunity to make submissions in respect of that proposed decision;

 

          (c)      the applicants were not given such reasonable notice nor were they extended such a reasonable opportunity; and

 

          (d)     that accordingly breaches of the rules of natural justice occurred in connection with the making of that decision.

 

2.       ORDERS the respondent to pay the applicants' costs.

 

 

B.   APPLICATION NOS WAG 39 AND 40 OF 1994

 

1.       DECLARES that when the respondent made his decision on 4 March 1994 to make a declaration under s.9(3) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 which was published in the Commonwealth Government Gazette on 4 March 1994, in relation to an area of land near Broome, Western Australia, described as Broome Lot 2826:-

 

          (a)      the applicants were entitled under the rules of natural justice to receive reasonable notice of the respondent's intention to make that decision;

 

          (b)     were also entitled under those rules to a reasonable opportunity to make submissions in respect of that proposed decision;

 

          (c)      the applicants were not given such reasonable notice nor were they extended such a reasonable opportunity; and

 

          (d)     that accordingly breaches of the rules of natural justice occurred in connection with the making of that decision.

 

2.       ORDERS the respondent to pay the applicants' costs.

 

 

C.   APPLICATION NOS WAG 45 AND 53 OF 1994

 

THE COURT ORDERS THAT:

 

1.       The decision of the respondent made on 6 April 1994 to make a declaration under s.10(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to an area of land near Broome, Western Australia, known as Broome Lot 2826 prohibiting for a period of five years commencing on 6 April 1994 the carrying out of acts of the kind specified in Schedule 2 of that declaration, be set aside with effect from 16 March 1995 and that the matter to which that decision relates be referred to the respondent for further consideration.

 

2.       The respondent pay the applicants' costs.

 

 

 

 

 

 

 

D.   APPLICATION NO. WAG 55 OF 1994

 

THE COURT ORDERS THAT:

 

1.       The application be dismissed.

 

2.       The applicant pay the respondents' costs.

 

 

 

 

 

 

 

 

 

 

 

 

          NOTE:  Settlement and entry of Orders is dealt with in Order 36 of the Federal Court rules.

 

                                                     I N D E X

 

                                                                                                                                                                                                                                                                                                                                                                                                                   Page

 

Introduction                                                                                                   2

 

The Legislative Provisions                                                                                4

 

Factual Background                                                                                        8

 

A.     The First Declaration                                                                         20

 

         The State's Contentions:                                                                       22

 

         (i)          No Evidence                                                                          22

 

         (ii)         Failure to Consult; Natural Justice                                            24

 

         (iii)        Other Error of Law and Wednesbury

                      Unreasonableness                                                                   26

 

         (iv)        Improper Exercise of Power by Failure to take

                      a Relevant Consideration into Account                                       28

 

         Contentions on behalf of Mr and Mrs Douglas                                         29

 

         Contentions on behalf of the Commonwealth Minister                               30

 

         Conclusions - the First Declaration                                                         32

 

         Natural Justice or Procedural Fairness                                                    34

 

         What did procedural fairness require?                                                     36

 

         The "No Evidence" and related submissions                                             43

 

         The Alleged Improper Exercise of Power                                                49

 

 

 

B.      The Decision not to Revoke the First Declaration                                     51

 

         The State's Contentions                                                                        51

 

 

C.     The Second Declaration                                                                     54

 

         The State's Contentions                                                                        55

 

         Contentions on behalf of Mr and Mrs Douglas                                         57

 

 

 

         Contentions on behalf of the Commonwealth Minister                               58

 

         Conclusions - the Second Declaration                                                     59

 

 

 

D.     The Third Declaration                                                                        61

 

         The State's Contentions                                                                        62

 

         Contentions on behalf of Mr and Mrs Douglas                                         74

 

         Contentions of behalf of the Commonwealth Minister                                83

 

         Conclusions - the Third Declaration                                                        88

 

         Natural Justice or Procedural Fairness                                                    88

 

         Alleged Error of Law in Relation to the

         Assessment of Mr and Mrs Douglas' interests                                          98

 

         The allegation that the Third Declaration was

         made improperly as a de facto extension of the

         Emergency Declaration                                                                         99

 

         No evidence; Wednesbury unreasonableness                                         100

 

         Whether the Commonwealth Minister considered the

         representations attached to the Chaney Report                                       101

 

 

E.      The Commonwealth Minister's Application (No. WAG 55

         of 1994) for a declaration that the State, the Lands

         Minister and the State Minister lacked standing                                      107

 

         Conclusion                                                                                        110

 

 

F.      Whether relief should be granted in relation to

         the Emergency Declarations                                                                 112

 

 

 

 

IN THE FEDERAL COURT     )

OF AUSTRALIA                    )

WESTERN AUSTRALIA        )

DISTRICT REGISTRY            )

GENERAL DIVISION            )            Nos. WAG 26, 39 and 53 of 1994

 

 

B E T W E E N:                                   THE STATE OF WESTERN AUSTRALIA

 

                                                                           First-named Applicant

 

                                                          MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                           Second-named Applicant

 

                                                          MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                           Third-named Applicant

 

                                                          and

 

                                                          MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                           Respondent

 

 

 

                                                          Nos. WAG 25, 40 and 45 of 1994

 

                                                          MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS

 

                                                                           Applicants

 

                                                          and

 

                                                          MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                           Respondent

 

 

                                                          No. WAG 55 OF 1994

 

                                                          MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                                      Applicant

                                                          and

 

 

                                                          THE STATE OF WESTERN AUSTRALIA

 

                                                                                      First Respondent

 

                                                          MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                                      Second Respondent

 

                                                          MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

 

                                                                                      Third Respondent                                          

CORAM:      CARR J.

             7     FEBRUARY 1995

       

 

                                      REASONS FOR JUDGMENT

 

                                                   Introduction

 

          These seven applications, although not consolidated, were heard together.  They arise out of a series of three decisions made by the Minister for Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia ("the Commonwealth Minister") to grant two emergency declarations under s.9 and a declaration of a more permanent nature under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Commonwealth Act") in relation to an area of land, described as Broome Lot 2826 near Broome in Western Australia ("the Land").

          Those three decisions prevented (and the third decision still prevents) the development and use of the Land as a crocodile park for two periods of 30 days and a period of five years respectively.  The Land is the subject matter of a lease ("the Special Lease") granted on 31 January 1994 under s.116 of the Land Act 1933 (W.A.) by the Minister for Lands of the State of Western Australia ("the Lands Minister") to Malcolm McDonald Douglas and his wife Valerie Anne Douglas.  It is apparent from the terms of the Special Lease that it was granted to Mr and Mrs Douglas specifically for the Land to be developed and used as a crocodile park.

 

          In applications numbered WAG 26, 39 and 53, the State of Western Australia, the Lands Minister and the Minister for Aboriginal Affairs of the State of Western Australia ("the State Minister") seek review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of those three decisions made by the Commonwealth Minister and his decision not to revoke the first and the last of the three declarations.

 

          In applications numbered WAG 25, 40 and 45 Mr and Mrs Douglas similarly challenge the three decisions to make the declarations.  Finally, in application numbered WAG 55 of 1994 the Commonwealth Minister sues the State of Western Australia, the Lands Minister and the State Minister for declarations that they were not entitled to make a request that he furnish written statements of his factual findings and reasons under s.13(1) of the ADJR Act in relation to the three above-mentioned decisions and his decision not to revoke the first declaration.

 

 

          By an application made shortly before the hearing started, four Yawuru people (Mr Francis Djaigween, Mr Frank Sebastian, Mr Matthew Gilbert and Mr Joe Bernard) sought leave to intervene in these proceedings.  I gave them limited leave to intervene whereby their counsel, Mr G. Irving, had the right to be present at the bar table during the course of the proceedings and to address the Court at the conclusion of the hearing, but not to take any other part in the proceedings.  Mr Irving exercised the right to address the Court on behalf of the intervenors.

 

          For the benefit of anyone reading these reasons who is not a lawyer, I think it is appropriate that I should, very briefly, say something about the Court's function in this matter.  It is not for the Court, in applications of this type, to decide the merits of the matter in the sense of whether there should be a crocodile park on the Land.  That decision is an administrative one to be made by the executive arm of government.  The Court's role is to review the administrative decisions to ascertain whether they were made in accordance with the law, including any procedures which may expressly or by implication condition the administrative decision-making process.  As part of that process, the Court may have regard to the merits of a matter if the Court is asked to set aside a decision on the basis that the decision was so unreasonable that no reasonable decision-maker could have made it.  That is a step which the Court will not take lightly.  It proceeds with particular caution when considering a submission to that effect (i.e. of manifest unreasonable-ness) lest it usurps the administrative function of weighing and balancing the merits of the matter.

 

                                        The Legislative Provisions

          The relevant provisions of the Commonwealth Act are as follows:

                   "Interpretation

 

                   3 (1)  In this Act, unless the contrary intention appears: . . .

                   "Aboriginal tradition" means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships;

 

                   "area" includes a site;

                   . . .

 

                   "significant Aboriginal area" means:

                   (a)       an area of land in Australia or in or beneath Australian waters;

                   (b)       an area of water in Australia; or

                   (c)       an area of Australian waters;

                   being an area of particular significance to Aboriginals in accordance with Aboriginal tradition;

                   . . .

 

                     (2)  For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:

                   (a)       in the case of an area:

                              (i)           it is used or treated in a manner inconsistent with Aboriginal tradition;

                              (ii)          by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or

                              (iii)         passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or

                   . . .

 

                   Purposes of Act

 

                   4.  The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

                   . . .

 

 

                             PART II - PROTECTION OF SIGNIFICANT ABORIGINAL

                                                         AREAS AND OBJECTS

 

                                              Division 1 - Declarations by Minister

 

                   Emergency declarations in relation to areas

 

                   9.  (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; and

                   (b)       is satisfied:

                              (i)           that the area is a significant Aboriginal area; and

                              (ii)          that it is under serious and immediate threat of injury or desecration;

                   he may make a declaration in relation to the area.

 

                       (2)  Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.

 

                       (3)  The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.

 

                   Other declarations in relation to areas

 

                   10. (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 and has considered the report and any representations attached to the report; and

                   (d)       has considered such other matters as he thinks relevant;

                   he may make a declaration in relation to the area.

 

                       (2)  Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

 

                       (3)  Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he 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.

 

                   Contents of declarations under section 9 or 10

 

                   11.   A declaration under subsection 9(1) or 10(1) in relation to an area shall:

                   (a)       describe the area with sufficient particulars to enable the area to be identified; and

                   (b)       contain provisions for and in relation to the protection and preservation of the area from injury or desecration.

                   . . .

 

                  Making of declarations

 

                   13. (1)  In this section:

                   "declaration" means a declaration under this Division;

                   . . .

 

                       (2)  The Minister shall not make a declaration in relation to an area, object or objects located in a State, the Northern Territory or Norfolk Island unless he has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.

 

                       (3)  The Minister may, at any time after receiving an application for a declaration, whether or not he has made a declaration pursuant to the application, request such persons as he considers appropriate to consult with him, or with a person nominated by him, with a view to resolving, to the satisfaction of the applicant or applicants and the Minister, any matter to which the application relates.

 

                       (4)  Any failure to comply with subsection (2) does not invalidate the making of a declaration.

 

                       (5)  Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he shall revoke the declaration to the extent that it relates to the area, object or objects.

 

                       (6)  Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.

 

                   Publication and commencement of declarations

 

                   14. (1)  A declaration under this Division:

                   (a)       shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and

                   (b)       comes into operation on the date of publication in the Gazette or such later date as is specified in the declaration.

 

                       (2)  As soon as practicable after making a declaration under this Division, the Minister shall:

                   (a)       take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and

                   (b)       in the case of a declaration in relation to an area - serve a copy of the declaration on the Australian Institute of Aboriginal Studies and, if the Institute maintains a register of significant Aboriginal areas, it
shall enter the area in the register.

 

                       (3)  Any failure to publish a declaration in a newspaper or failure to comply with subsection (2) does not affect the validity of a declaration.

 

                   Declarations reviewable by Parliament

 

                   15.  Sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply to declarations as if in those sections references to regulations were references to declarations, references to a regulation were references to a provision of a declaration and references to repeal were references to revocation."

 

 

 

 

                                             Factual Background

 

 

          In 1987 Mr and Mrs Douglas were conducting a crocodile farm or crocodile park (I shall use the expressions inter-changeably) at Cable Beach near Broome and were looking for land on which to expand those activities.  They identified the Land as being most suitable because although most of the soil around Broome is sandy and porous, the Land is grey clay which is ideal for the construction of lakes.  By letters dated 20 July 1987 to the Department of Land Administration of the State of Western Australia ("DOLA") and the Shire of Broome respectively Mr and Mrs Douglas asked whether the Land could be made available to them for the above purpose.

 

          DOLA referred that request to some seven State governmental authorities or departments for their comments.

 

          In March, April and May 1991 a Heritage Officer (Ms Marlene Bruce) of the Western Australian Department of Aboriginal Sites consulted various members of the Yawuru People, being the principal Aboriginal clan in the relevant area, about the proposal to use the Land as a crocodile park.  The boundaries of the Land were
pointed out to those people and they were asked whether the Land was an Aboriginal site.  The three Yawuru people initially so consulted refrained from commenting other than to say that they wished to "go away and discuss the issue with the rest of the Yawuru people".  Ms Bruce also consulted a Mr Paddy Roe.  Mr Roe is not of the Yawuru clan but is a senior Aboriginal person who had been made custodian of Aboriginal law and sacred heritage of the Aboriginal people in the Broome locality.  At that time the Yawuru permitted Mr Roe to speak on their behalf about such matters.  Mr Roe was reported by Ms Bruce as stating that the creek and mangrove area near the Land formed part of a dreaming story to do with snakes' teeth and was not to be touched.  However, Mr Roe said that the Land "was okay" but that "the other Yawuru People" would need to be consulted.  On a subsequent occasion Ms Bruce was told by a Yawuru person that the Land had been used as a camping area.  Ms Bruce prepared two reports dated 22 May 1991 and 12 December 1991.  The 12 December 1991 report referred to differences within the Yawuru and the difficulty in getting them to agree on whether the Land was an Aboriginal site and the degree of its significance.  One of the Yawuru people who has obtained leave to intervene in these proceedings (Mr Matthew Gilbert) was mentioned in one of Ms Bruce's reports as having told her that the Land was a camping area, was not as important as a mythological site and had nothing to do with "Men's business".

 

          Between March 1991 and December 1991 discussions and negotiations took place between State public servants, including officers of the Aboriginal Sites Department and Mr Douglas in the course of investigations carried out pursuant to the Aboriginal Heritage Act 1972 (W.A.) ("the State Act") in respect of possible Aboriginal sites on the land.  Section 17 of the State Act, in summary, provides that it is an offence to excavate or in any way alter any Aboriginal site without the authorisation of the Trustees (the Trustees of the Western Australian Museum) under s.16 of the State Act or the consent of the State Minister under s.18 of the State Act.

 

          On 31 December 1991 Mr Douglas applied for ministerial consent under s.18 of the State Act.  Following Mr Douglas's application a comprehensive (over 100 pages) report was prepared by R. O'Connor & Associates Pty Ltd entitled "Report on the Broome Aboriginal Heritage Study" which dealt with the whole of the Dampier peninsula surrounding Broome and identified a track, used by Aboriginal persons engaged in initiation rituals ("the Initiates' Track"), which crossed through the southern sector of the Land. 

 

          Mr Douglas' application was considered by a committee known as the Aboriginal Cultural Materials Committee ("ACMC") on 20 February 1992.  One of the functions of the ACMC (pursuant to a delegation from the Trustees of the Western Australian Museum) was to make recommendations to the State Minister in relation to applications under s.18 of the State Act.  The ACMC recommended to the State Minister that consent be given to Mr Douglas to develop a crocodile farm on the Land "on condition that Mr F. Djaigween, Chairman of the Yawuru Aboriginal Corporation is in agreement".  On or about 17 March 1992 (the date on the letter is indistinct) the then State Minister gave her consent under s.18(3) of the State Act to DOLA for the development of a crocodile farm on the Land on condition that Mr Djaigween, Chairman of the Yawuru Aboriginal Corporation, was in agreement.

 

 

          By 29 May 1992 a Mr Brian Charlie had become the Chairman of the Yawuru Aboriginal Corporation and on that date and 3 June 1992 Mr Douglas and Mr Charlie respectively signed a memorandum evidencing Mr Charlie's agreement to the proposed development of a crocodile farm on the Land.  That memorandum was a very short document but dealt with such matters as regular consultation with and the employment of Yawuru and other local people during the construction stage and also in the conduct of the crocodile farm.

 

          On 15 July 1992 the State Minister gave an unconditional consent to the crocodile farm being developed on the Land "... as the conditions of the previous resolution were satisfied."

 

          On 24 September 1992 the Yawuru Aboriginal Corporation wrote to the State Minister expressing concerns about the consent which she had granted and asked her to "stop" her decision.  The third last paragraph of that letter read:-

 

                      "We are very concerned that the location proposed is on hunting, fishing and recreational land that holds historical significance to us."

 

 

 

The letter was signed by Mr Francis Djaigween who apparently by that time had resumed the office of Chairman of that Corporation.

 

          On 7 October 1992 there occurred what appears to be the first contact with the Commonwealth Minister in relation to this matter.  That contact took the form of a letter dated 7 October 1992 to the Commonwealth Minister from the Yawuru Aboriginal Corporation, also signed by Mr Djaigween.  In his letter Mr Djaigween referred to the fact that the Yawuru Corporation had written to the State Minister on 24 September 1992 "protesting her decision to grant an application for a crocodile farm near Broome" but that although no written response had been received from her, the Yawuru Aboriginal Corporation had received information that the State Minister was not prepared to review her decision.  The letter concluded with a request for the Commonwealth Minister's urgent intervention and use of his powers under what was referred to in the letter as the "Commonwealth Aboriginal and Torres Strait Islander Protection Act" (which is obviously a reference to the Commonwealth Act) "to over-ride the Western Australian Government's decision."  As Ms C. Wheeler, counsel for the State, the Lands Minister and the State Minister (hereinafter collectively referred to as the State) submitted and Mr E. Willheim, counsel for the Commonwealth Minister agreed, that letter would appear to constitute an application pursuant to s.9 of the Commonwealth Act for an emergency declaration in relation to the Land.

 

          The Commonwealth Minister did not respond to Mr Djaigween's letter dated 7 October 1992 until 20 April 1993.

 

          In the meantime, a Mr David Mardiros was commissioned by the Kimberley Land Council to prepare a report of an ethnographic survey of the Land.  Mr Mardiros's report ("the Mardiros Report") was prepared in November 1992 and was considered by a meeting of the ACMC held on three days namely 21 and 22 December 1992 and 7 January 1993.  Maps annexed to the Mardiros Report show an initiates' track linking the two "Law grounds" at Cunnin (Fisherman's Bend) and One Mile and passing through the south east portion of the Land.  The Mardiros Report
also referred, somewhat briefly, to the possibility of the significance of two Aboriginal traditions, identified as "The Two Men" and "The Song Cycle", at the site of the proposed crocodile farm.  Mr Mardiros recommended that further research be conducted to document properly the significance of these traditions.  A minute of the adjourned meeting of the ACMC held on 7 January 1993 contained the following:

 

                      "The Mardiros report and verbal comments by Mr Ken Colbung regarding his consultations with Mr Francis Djaigween and first-hand information from Mr Paul Sampi and Mr David Mowljarlai were discussed.

 

                      The Committee were advised that a track traversed by initiates and novices passed through a portion of the area and that the families of some of those participating in the ceremonies camped for the duration of the ceremonies, in a manner prescribed by traditional custom, on a much larger portion of the area.

 

                      As result (sic) of these discussions, the Committee determined that the area the subject of the application is a site under S.5(b) and (c) of the Act, and that it is significant under S.39(2)a, b and c.

 

                      RESOLVED to recommend to the Minister that consent to use the land the subject of the S.18 for a crocodile farm not be given."

 

 

 

          On 4 February 1993 the State Minister wrote to DOLA advising that she had received the above recommendation and on 20 May 1993 a representative of DOLA attended a meeting in Broome with the Acting Registrar of the Department of Aboriginal Sites, members of the Yawuru People, members of the Kimberley Land Council and an anthropologist and solicitor who were advising the Kimberley Land Council.  The meeting concluded with Mr Djaigween advising that the Yawuru People would further consider the matter.

 

          In the meantime, following a change of government in Western Australia, the present State Minister was appointed.  On 21 April 1993 the State Minister asked the Aboriginal Affairs Planning Authority and the Department of Aboriginal Sites to take
the roles of mediators towards resolving the matter and issued an instruction that "The traditional people should be involved in the negotiations as much as possible".  Twelve days later there occurred the first contact which the Commonwealth Minister had with the State Minister in relation to this matter.  This was by letter dated 3 May 1993 from the Commonwealth Minister in which he referred to an application "which I have recently received" (a reference to the letter from the Yawuru Aboriginal Corporation dated 7 October 1992, almost seven months previously) seeking protection under the Commonwealth Act "for an area of significance to Aboriginal people near Broome, upon which it is proposed to develop a crocodile farm".  The letter continued:

 

                      "I am advised that you are presently considering a report on the significance of the area from the Aboriginal Cultural Materials Committee prior to making any decision under S.18 of the Aboriginal Heritage Act 1972.

 

                      In accordance with S.13 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 I now seek your urgent advice as to whether there is under a law of the State of Western Australia, effective protection of the area from the threat of injury or desecration.

 

                      I also am advised that the area in question is vacant crown land which is claimed by the Yawuru under the principles established by the High Court in Mabo. 

 

                      I look forward to your early advice.

 

                      Kind regards."

 

 

 

          By letter dated 1 June 1993 the State Minister responded to the Commonwealth Minister's letter dated 3 May 1993 and described the protection extended under the State Act.  The State Minister referred to the State Act and described the ACMC as being the statutory committee which was obliged to present recommendations to him, and which had determined that the State Act applied to the
Land and that the Land was of significance to Aboriginal People under s.39 of the State Act.  The State Minister pointed out that under s.18 of that Act his duty was to make a decision as to whether the Land could be used for the purpose of developing the crocodile farm, having regard to the general interest of the community.  The letter continued:

 

                      "I have directed two of the Departments within my portfolio, the Department of Aboriginal Sites of the Western Australian Museum, and the Aboriginal Affairs Planning Authority, to facilitate meetings and negotiations between the stakeholders in this matter.  Principally, the stakeholders are Mr Malcolm Douglas, who wishes to develop the crocodile farm and the Yawuru people, as represented by the Yawuru Aboriginal Corporation and the Kimberley Land Council.

 

                      It does appear to be true that the Yawuru people have an interest in asserting any claim to native title they may hold.

 

                      To date, a meeting has been held between Mr Douglas and the Yawuru Aboriginal Corporation in which it was agreed that both these major stakeholders wished to pursue further the possibility of a negotiated settlement of this matter.  I have advised these two interests that I will be obliged to make a decision, as required by S.18 of the Act, after June 30 1993.  I will make my decision based upon the evidence then before me."

 

 

          The State Minister gave his consent under s.18 of the State Act by letter dated 8 July 1993.  In that letter the State Minister referred to two features of heritage significance to Aboriginal people as being:-

 

            "1.       a track that was traversed by initiates in the past to travel between two initiation grounds; and

 

            2.         an area that was used for camping by Aboriginal people, including the families of the initiates during the initiation ceremonies."

 

 

          The State Minister's consent under s.18 of the State Act, was given to the use of the Land for development as a crocodile farm and thereafter its use as a crocodile farm subject to:

 

            ·       a survey according to a plan to be approved by the State Minister which excised the initiates' track, as identified in the Mardiros Report, from the land to be made the subject of the Special Lease; and

 

            ·       the initiates' track being protected by Mr Douglas against disturbance caused by crocodile farming activities.

 

 

          The fact that the State Minister had granted this consent received some publicity in newspapers published in Western Australia in early July 1993.  On 16 July 1993 the Aboriginal and Torres Strait Islander Commission ("ATSIC") submitted a two page brief to the Commonwealth Minister and a draft letter for the Commonwealth Minister to send to the State Minister concerning the conditional approval which the latter had given. 

 

          The Commonwealth Minister signed that draft letter and sent it to the State Minister.  The letter referred to the question of protection being afforded to the Land, the ACMC determination that the State Act applied to the entire area of the Land and that the Land had significance to the Yawuru Aboriginal Corporation.  It concluded by asking the State Minister to provide further advice as to the decision which he had made and in particular the nature of any conditions which he had attached to the development approval.

 

          By letter dated 7 September 1993 the State Minister responded to the Commonwealth Minister's request, stating that the decision had not been an easy one to make and describing in general terms the matters which he had weighed up in reaching that decision.

 

 

          The Yawuru People then turned to the Courts.  While they did so there was no further communication from the Commonwealth Minister to the State Minister in respect of the matter.  In fact, as will be seen, it was only after the Yawuru People were unsuccessful in obtaining interlocutory injunctions in the Courts that the Commonwealth Minister made the first emergency declaration on 3 February 1994 - some five months later.

 

          On 13 September 1993 Mr Djaigween and others filed an application and statement of claim in this Court.  In those proceedings the applicants sought interlocutory injunctions restraining the grant of the Special Lease and restraining Mr and Mrs Douglas from any development work.  The proceedings were transferred to the Supreme Court of Western Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).  The interlocutory injunction proceedings were heard in the Supreme Court of Western Australia by Owen J. from 7 December 1993 onwards and as a result of certain observations made by his Honour, further meetings between the parties took place on the Land in respect of the possibility of a further excision from the proposed Special Lease to provide more protection for the Initiates' Track.  The Initiates' Track, so it appeared during the course of the Court proceedings, was not on a fixed path but took a course which varied with the height of the tides.  Mr and Mrs Douglas agreed to some further excision, with the result that there was an available Initiates' Track except on about four occasions each year when the tides were at their very highest levels.  As will be seen, this further excision did not satisfy the Yawuru.  The evidence was that the Initiates' Track had been used only once for that purpose in the previous 20 years and that occasion was after Mr Douglas had sought to develop the Land as a crocodile park.  On 18 January 1994 Owen J. refused
the application for an interlocutory injunction and on 28 January 1994 Anderson J. refused an application for an interim injunction pending the hearing of an appeal from Owen J's judgment.

 

          On Sunday 30 January 1994 Mr Michael O'Donnell, a solicitor employed by the Kimberley Land Council, wrote by facsimile transmission to the Commonwealth Minister on behalf of the Yawuru People applying for an emergency declaration under s.9 of the Commonwealth Act and a declaration under s.10 of the Commonwealth Act to preserve and protect the Land from injury and desecration.  The Land was described in that letter as being of particular significance to the Yawuru People in accordance with their traditions, customs, observances and beliefs.

 

          After identifying the Land by reference to maps, the Kimberley Land Council's letter referred to the Mardiros Report, the recommendation of the ACMC that the State Minister not consent to the proposed use of the Land, a report by Dr Patrick Sullivan ("the Sullivan Report"), certain proceedings pending in the High Court of Australia, the Supreme Court proceedings, including the refusal by the Supreme Court to grant an interlocutory injunction, and the existence of an appeal against that decision.  Owen J's findings were set out and there was a factual submission in that letter which the State contends was directly contrary to the findings made by Owen J.  That factual submission was, in summary, that the construction of the crocodile park would cause irreparable harm by destroying a significant area and effectively prohibiting the use of the Land in accordance with Yawuru traditions, customs, observations and beliefs.  The original of that letter and copies of the documents referred to in it were received by the Commonwealth Minister on 1 February 1994.

          On 2 February 1994 Mr Michael O'Donnell, on behalf of the Kimberley Land Council, faxed another letter to the Commonwealth Minister.  This letter referred to his application dated 30 January 1994 for an emergency declaration, stated that he had been advised "that work has commenced on the site of the Crocodile Farm lease area and that the lease has also been granted", and sought the Minister's urgent consideration of an emergency declaration "... as time is now running out". 

 

          On the same date a native title determination application was lodged with the National Native Title Tribunal's Brisbane Registry, in which the applicants were described as "the Yawuru People", in respect of an area of land and sea almost surrounding Broome and which included the Land. 

 

          Also on 2 February 1994 Application No. WAG 13 of 1994 was lodged in this Court.  In that application ("the second Federal Court application") the applicants were named as "Yawuru Peoples"  In the second Federal Court application the applicants sought a determination of native title and an interlocutory injunction restraining Mr and Mrs Douglas from excavating, altering and carrying out various other activities on the Land.

 

          During the adjourned hearing of the application for that interlocutory injunction Mr and Mrs Douglas made an arrangement with the solicitors for the applicants in the second Federal Court application whereby 48 hours notice would be given of any further works to be carried out on site.  It is relevant to note that this arrangement was made at about 6.00 pm Western Standard Time on 3 February 1994.  On that basis, the hearing of the application for an interlocutory injunction which commenced on 2 February 1994 was further adjourned to 3 March 1994.

 

          The issues raised in the second Federal Court action insofar as interlocutory relief was concerned were, in my opinion, substantially the same as the issues raised in the interlocutory proceedings in the Supreme Court action.  On 3 March 1994 I made an order transferring the second Federal Court application to the Supreme Court of Western Australia.

 

                                            The First Declaration

 

          In the meantime, on 3 February 1994, the Commonwealth Minister signed an emergency declaration under s.9 of the Commonwealth Act ("the First Declaration").  That declaration was gazetted on 4 February 1994 and read as follows:-

 

                                             "COMMONWEALTH OF AUSTRALIA

 

                                      Aboriginal and Torres Strait Islander Heritage

                                                           Protection Act 1984

 

                                               DECLARATION UNDER SECTION 9

 

            I, ROBERT EDWARD TICKNER, Minister for Aboriginal and Torres Strait Islander Affairs, being satisfied that:

 

            (a)    the area in Western Australia described in Schedule 1 is a significant Aboriginal area; and

 

            (b)    the area is under serious and immediate threat of injury or desecration;

 

            declare under section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 that, for the preservation and protection of the area from injury or desecration, acts of the kind specified in Schedule 2 must not be carried out without my consent during the period of 30 days beginning on the day on which this declaration is published in the Gazette.

 

                                                                 SCHEDULE 1

 

                                                        DESCRIPTION OF AREA

 

            1.     The area of land known as Broome Lot 2826.

 

 

                                                                 SCHEDULE 2

 

                                                            PROHIBITED ACTS

 

            1.     Bulldozing, grading, drilling or excavating, or any other act that will, or is likely to, injure or desecrate, the area or part of the area described in Schedule 1.

 

 

            2.     Deliberately killing, cutting down, damaging or removing any vegetation within the area described in Schedule 1.

 

 

            Dated  3rd February 1994

 

 

                                    [signature of the Commonwealth Minister]

 

                                    Minister for Aboriginal and Torres Strait       

                                    Islander Affairs"

 

 

 

          Before moving to consider the complaints made on behalf of the State and Mr and Mrs Douglas about the legality of the First Declaration, there is what might be described as a preliminary point to be mentioned. The Commonwealth Minister submits that the applicants are not "persons aggrieved" within the meaning of s.5(1) of the ADJR Act and thus lack standing to apply for an order of review in relation to this emergency declaration and the other decisions of the Commonwealth Minister which it seeks to challenge.  The Commonwealth accepts, however, that the State is a `body politic' and is therefore a `person' by virtue of s.22(1)(a) of the Acts Interpretation Act 1901 (Cth).

 

          In view of the relationship between the three declarations, I propose to deal with the questions of standing and relief at the conclusion of these reasons.

 

 

 

                            The State's Contentions in Relation to the

                                               First Declaration

 

 

1.       No evidence to justify the making of the First Declaration

 

          Ms Wheeler submitted that the application for a declaration, together with the attachments and the ATSIC briefs which constituted the material before the Minister when he made the First Declaration were ambiguous, confusing and not capable of sustaining a finding that the Land was a significant Aboriginal area.  First, it was said that in determining that the Land was significant the Commonwealth Minister erred in not drawing a distinction between areas of particular significance in accordance with Aboriginal tradition (being the language used in s.9 of the Commonwealth Act) and other areas used by and useful to Aboriginal people.  Counsel conceded that the materials before the Commonwealth Minister "would certainly justify a finding that this was an area which was on occasion used by Aboriginal people for a variety of purposes", but that the evidence was not such as to justify a finding of particular significance.  This was a reference to the materials which indicated that part of the Land was used on occasion by Aboriginal people for a variety of purposes such as a thoroughfare, the taking of bait and temporary camping.

 

          The State contended that the only evidence that part of the Land had particular significance was that relating to the Initiates' Track.  The Initiates' Track had been excised (by the condition imposed by the State Minister and, further, as a result of Owen J's decisions) and, it was submitted that there thus was no evidence of immediate threat of injury or desecration to the Initiates' Track. 

 

 

          The submission was put on two alternative bases.  First, that there was a common law error of fact, namely, that in respect of the only part of the Land (prior to excision) which might have been of particular significance there was simply no room for the inference that there was a serious and immediate threat of injury or desecration. 

 

          Alternatively, relying on Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at p.358 it was submitted that s.5(1)(h) when read with s.5(3) of the ADJR Act expanded the ground of review provided by s.5(1)(f).  There was an absence of evidence or material from which the Commonwealth Minister could reasonably be satisfied of the matters recited in the First Declaration and thus, so it was put, the decision involved an error of law.  So far as s.5(1)(h) of the ADJR Act was concerned, reliance was placed on s.5(3)(a).  The Commonwealth Act, it was submitted, only permitted the Commonwealth Minister to make a decision under s.9 of that Act if both the particular significance of the Land and the serious and immediate threat of injury or desecration were established.  The submission was that there was no evidence or other material from which the Commonwealth Minister could reasonably be satisfied that those matters were established.

 

          It was also submitted that in those circumstances the Commonwealth Minister's decision was sufficiently unreasonable in the Wednesbury sense to come within s.5(1)(e) of the ADJR Act.  The material before the Minister was not explicit as to which particular piece of land was being referred to, the material was of an apparently contradictory nature and there was expert advice in the ATSIC brief to the contrary of the conclusion arrived at by the Commonwealth Minister.

2.       Failure to consult the State, denial of natural justice

          Ms Wheeler submitted that the lack of evidence was "perhaps the least of the complaints" that the State had to make about the First Declaration.  Of greater importance was the failure to consult as required both by s.13(2) of the Commonwealth Act and by the rules of natural justice, or procedural fairness as it is now more commonly described.

 

          On the latter aspect, it was pointed out that the First Declaration prohibited, without the consent of the Commonwealth Minister, basically any ground-disturbing activity.  That effectively sterilised an area of State Crown property for any purpose or use.  Even allowing for ambiguity said to be now inherent in the word "property", whether the word was used in the sense of full beneficial ownership (where there is no native title) or simply radical title and the ability to dispose of the Land subject to the requirements of the Racial Discrimination Act 1975 (Cth), the State still had property in the Land.  Whatever native title might exist, there was a diminution in the value of the State Crown's property which fell squarely within the sort of interest which attracts the rules of natural justice.  That interest, so it was put, was at the heart of the rules of natural justice which nowadays extended to what were described as "other less tangible aspects".

 

          It was conceded on behalf of the State that there had been some correspondence up to September 1993 between the Commonwealth Minister and the State Minister in which the Commonwealth Minister enquired what was happening in relation to the Land and in which the State Minister advised the Commonwealth Minister that consent to its use as a crocodile farm had been given subject to certain conditions.  However, it was submitted that natural justice and s.13 of the Commonwealth Act required effective consultation to take place which would require that the State be told precisely which land was involved, in what respect it was said to be significant, how it was said to be threatened and furthermore that the Commonwealth Minister was considering an application under s.9 of the Commonwealth Act.  Only when in possession of that information could the State Minister provide sensible advice for the purposes of s.13 of the Commonwealth Act as to what effective protection was provided.  For natural justice purposes, the State Minister would also require such information in order to be in a position sensibly to dispute any view that the area was of significance or threatened.  The State Minister was entitled, so it was submitted, to know what was being said at that stage (i.e. in early February 1994) about the Land.  The Kimberley Land Council was at that time suggesting new factual matters to the Minister which were contrary to the findings made by Owen J. and the State Minister was entitled to be told of that interpretation so that he could have an opportunity of countering it or submitting that Owen J's views should be given weight and why that should be done.  This, so it was put, was no failure in respect of a mere formality but one which could well have affected the result had the State Minister been in a position to explain more fully what matters he had weighed when making his decision under the State Act.

 

          It was said that too much had happened between September 1993 and February 1994 in relation to the Land for the consultations which had taken place prior to September 1993 to amount to the consultation required by s.13 of the Commonwealth Act.  The Commonwealth Minister seemed, so it was put, to have taken the view that the reference in s.13 to effective protection under State law required that such law ensured that the Land would be protected. 

 

          The earlier correspondence between the Commonwealth Minister and the State Minister, so it was submitted, was in quite general terms.  There was a very large body of material upon which the State could have drawn to demonstrate the extent of protection, the extent of consideration that had been given to the Land, the various meetings, the various excisions and the way in which those discussions had been developed.  Events had moved on since the earlier consultation to the extent that that consultation was not, for the purposes of s.13 a consultation in relation to the declaration which the Commonwealth Minister was proposing to make.  Furthermore, the State Minister should have been invited to respond to the correspondence from the Kimberley Land Council and the matters contained in the Mardiros Report and Dr. Sullivan's affidavits (being affidavits which had come into existence after the earlier exchange of correspondence between the Commonwealth Minister and the State Minister).

 

3.       Other error of law and Wednesbury unreasonableness

          It was submitted on behalf of the State that the Commonwealth Minister's failure to find that the law of Western Australia provided effective protection for the Land was an error of law and was perverse in that he appeared to have drawn a conclusion which was precisely the opposite of that open to him on the materials.  In support of this submission reliance was placed upon:

 

   .        Certain paragraphs in the first of two ATSIC briefs submitted to the Commonwealth Minister on 3 February 1994 which read:

 

 

                        "We understand that the proponent and the W.A. Government have attempted to consult with the community over this matter, and indeed the decision of the Minister to grant a lease over the area only followed the Minister giving the parties notice that he would prefer them to resolve the issues between themselves rather than force him to impose an outcome."

 

                        . . . .

 

                        "There is no convincing evidence presented that beyond the area proposed to be excised, the area is of high significance.  There is also no evidence of impropriety on the part of the State Government, or of a failure to follow proper procedures and, as previously argued, the case for a declaration under s.9 is in our view not compelling."

         

   .        The State Minister's letter of 7 September 1993 which referred expressly to two areas of concern (the camping and the initiation), the conditions which he had imposed when granting consent under the State Act to the development and use of the Land as a crocodile farm, the difficulty in making that decision and the interests which the State Minister had weighed up.

 

 

         This was to be contrasted, so it was said, with a media release issued on behalf of the Commonwealth Minister on 4 February 1994 (there was evidence confirming that the Commonwealth Minister had approved its contents) which read:

 

                        "It is most unsatisfactory that the Western Australian Government seeks to steamroll the interests of Aboriginal people in that State by issuing leases to developers in the face of outright opposition by the Aboriginal custodians and before a proper consideration of the rights and interests of those people has been carried out."

 

 

          This was clearly, so it was put, perverse in the light of the material which was before the Commonwealth Minister.  Whatever the ultimate result in relation to the Land, the materials pointed not to a "steamrolling" but a desire to achieve a negotiated settlement, consultation and careful consciousness of the interests of those involved.  The State submitted that the Commonwealth Minister's conclusion was truly unreasonable in the Wednesbury sense. 

 

 

4.       Improper exercise of power by failing to take a relevant consideration into account

 

 

          In the media release dated 4 February 1994 referred to above there was a quotation from an affidavit filed in both the second Federal Court proceedings and the Supreme Court proceedings and which had been referred to in the Kimberley Land Council's application dated 30 January 1994.  It was submitted on behalf of the State that these legal proceedings constituted a relevant consideration to which the Commonwealth Minister was bound to have regard in deciding whether the Land was under serious and immediate threat of injury or desecration and whether the State law provided effective protection.  It was said that the procedures under s.9 were very similar to those where an interlocutory injunction is sought.  The Minister was being requested, in effect, to act as an appellate body to review the decision of the Supreme Court.  He should have been very slow, so it was submitted, to arrive at a finding which was contradictory to that arrived at by a Court in relation to almost identical issues.  The Commonwealth Minister had a statutory duty which might, on occasion, require him to reach a different conclusion to that reached by the Court, but because questions had been fully ventilated before a body which is designed to resolve disputes and weigh evidence then that was an extremely relevant factor for the Commonwealth Minister to consider when asking himself whether he was satisfied that certain things had been established.  This submission was also extended to the question whether the law of the State provided effective protection.  It would be rare, where a Court had before it an application for relief of such similar kind and had refused it, that the Commonwealth Minister on the same materials could come to the view that the State law did not provide effective protection simply because the relief had been refused.  It was important for the Minister, in exercising his administrative functions not just to give lip service to but to maintain respect for the decisions of the Courts by being very slow to overturn them in the practical result.  The Minister, it was submitted, should ensure that the function which he was being asked to perform was truly administrative and that he was not acting simply as a de facto Court of Appeal.

 

          Even where the Commonwealth Minister was satisfied about the matters which conditioned the power to make a declaration, he retained a discretion whether to make the declaration.  The conclusions reached by a Court on very similar issues should, so it was submitted, have been at least considered by the Commonwealth Minister.  It was said that these conclusions did not seem to have been taken into consideration by the Minister and were certainly not mentioned in the briefs then before him.

 

The submissions made on behalf of Mr and Mrs Douglas in relation to the First Declaration

 

          Mr C Stevenson, counsel for Mr and Mrs Douglas, adopted the submissions made on behalf of the State.  He submitted that his clients had valid legal and proprietary rights arising out of the Special Lease or, in the alternative, legitimate expectations in relation to the Special Lease which were to be protected by extending procedural fairness when the Commonwealth Minister exercised his statutory powers.  The Yawuru People were extended procedural fairness through consultation and being asked to comment and his clients were entitled to the same procedural fairness.

 

          In addition to adopting the State's submissions, the following further complaints were made on behalf of Mr and Mrs Douglas in respect of the First Declaration:

 

          .    The Commonwealth Minister did not inform Mr and Mrs Douglas that he was considering making an emergency declaration under the Commonwealth Act, did not consult them before making the First Declaration and thus made his decision upon material which did not include any material sought or obtained from them;

 

          .    If the Commonwealth Minister had consulted Mr and Mrs Douglas then he would have been informed of their agreement to give 48 hours notice to the Yawuru People's solicitors before undertaking any ground-disturbing activity on the Land.  Quite apart from any submissions that might have been made on the question of whether the Land was a significant Aboriginal area, this matter was relevant to the question whether the Land was under serious and immediate threat of injury or desecration.  The Minister was required to be satisfied about both these matters before he could make an emergency declaration;

 

          .    The Commonwealth Minister decided to make the First Declaration without any consideration of Owen J's reasons for refusing the application for an interlocutory injunction.  This should be assessed in the context of the concerns which had been expressed in the three ATSIC briefs submitted to him on 2 and 3 February 1994; and

 

          .    The Commonwealth Minister had refused to provide a statement of his reasons for making the First Declaration.

 

 

 

The submissions put on behalf of the Commonwealth Minister in relation to the First Declaration

 

          The submissions put on behalf of the Commonwealth Minister in relation to the First Declaration can be summarised as follows:-

1.       Section 9 authorises only an emergency declaration of a very limited duration.  The urgent situation contemplated by s.9 excluded any implication of procedural unfairness;

2.       Accordingly, there was no requirement on the Commonwealth Minister's part to notify any of the applicants prior to making the First Declaration.  This was
apparent from the scheme of the Commonwealth Act and in particular the different procedure under s.10 which provided for the preparation of a report and the publishing of notices inviting representations;

3.       The requirement of s.13(2) that the Commonwealth Minister consult the State Minister before making a declaration did not require a contrary view to the above.  This was because s.13(4) specifically provided that any failure to comply with the procedural requirements of s.13(2) does not invalidate the making of a declaration;

4.       Section 14(1) of the Commonwealth Act provides for notification as soon as practicable after the making of a declaration but there was no comparable provision for notification prior to the making of a declaration;

5.       On the evidence submitted to the Commonwealth Minister, it was open to him to conclude that the Land was of particular significance and that there was a serious and immediate threat requiring the immediate making of an emergency declaration without prior consultation.  That evidence included:

          .    the Kimberley Land Council request dated 30 January 1994;

 

          .    the Mardiros report;

 

          .    Mr Mardiros' affidavit sworn 14 January 1994 and filed in the Supreme Court proceedings;

 

          .    an affidavit of Dr Patrick Sullivan sworn 3 December 1993;

 

          .    the letter dated 2 February 1994 from the Kimberley Land Council advising that work had commenced;

 

          .    the Minutes of the ACMC meetings in late 1992 and early 1993;

 

          .    the letter dated 24 September 1992 from Mr Francis Djaigween to the then State Minister;

 

          .    the letter dated 4 February 1993 from the then State Minister to DOLA;

 

          .    the ATSIC brief dated 7 December 1993 and in particular the passage under the heading "Significance to Aboriginals".

 

 

6.       No criticism should be made of the Commonwealth Minister "standing by" in relation to the Federal Court and Supreme Court proceedings because it had not been shown that the Commonwealth Minister had any legal duty or interest to intervene in those proceedings.

 

                                  Conclusions - the First Declaration

 

 

Natural Justice or Procedural Fairness

          In my view, the State and Mr and Mrs Douglas were entitled to be accorded procedural fairness before each of the administrative decisions under challenge was made.  I refer to each of the three declarations and the decisions made by the Commonwealth Minister not to revoke the First Declaration or the Third Declaration.  My starting point for this conclusion is the following observation of Mason J. (as his Honour then was) in Kioa v. West (1985) 159 CLR 550 at p.584:

 

                        "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."

 

 

          The question is whether there is a clear manifestation of a contrary statutory intention in the Commonwealth Act?  Mr Willheim, for the Commonwealth Minister, submitted in essence, that the Commonwealth Act contains a code setting out the procedures to be followed to protect interested parties and that no other procedural requirement should be implied.  I do not accept that submission.  It requires an assumption that by providing some procedures, parliament intended to exclude whatever other requirements of procedural fairness might be implied.  I regard this as an uncertain inference or at best an equivocal matter.  Even a partial limitation of procedural fairness should not, in my opinion, be found unless clearly and plainly expressed by parliament: Commissioner of Police v. Tanos (1958) 98 CLR 383 at p.396; Twist v. Randwick Municipal Council (1976) 136 CLR 106 at pp.109-110; Marine Hull and Liability Insurance Co Ltd v. Hurford (1985) 10 FCR 234 at pp.239-240. 

 

          Secondly, I consider that each of the abovementioned decisions affects the rights, interests and legitimate expectations of the State and Mr and Mrs Douglas respectively.  The State of Western Australia owns the Land and the Lands Minister was empowered to grant and did in fact grant the Special Lease.  The State Minister was responsible for administering the State Act and is expressly referred to in the Commonwealth Act.  Section 13(2) directed the Commonwealth Minister not to make a declaration unless he had consulted, in this case, with the State Minister.  Furthermore s.13(5) provides that where the Commonwealth Minister is satisfied that the law of a State makes effective provision for the protection of an area to which a declaration applies he shall revoke the declaration to the extent that it relates to the area.  In those circumstances, I consider that the State Minister had interests and legitimate expectations sufficient to base a right to be accorded procedural fairness.

 

          As to the State and the Lands Minister, I have examined the Special Lease.  It is apparent from that lease that the State and the Lands Minister are interested in having the Land developed for the purposes of and used as a crocodile park.  The schedule of conditions to the Special Lease makes that abundantly clear, particularly in conditions 1, 5, 6 and 8.  The effect of the three declarations is to prevent that development and use.  I think it is reasonable to infer that without ground-disturbing work such as the construction of ponds, fences and the like, the crocodiles could not be confined to the Land and thus a crocodile park could not be conducted.  In my opinion the State and the Lands Minister have a proprietorial interest in the Land which was directly affected by the first two declarations and remains directly affected by the Third Declaration. 

 

          The Commonwealth Minister submitted that if the Yawuru were successful in their native title determination application or in the High Court proceedings referred to earlier, then the likely outcome would be the invalidity of the Special Lease. 

 

          At the time when the Commonwealth Minister made the three declarations it had not been established that the Land was the subject of native title or that the Special Lease "affected" such native title within the meaning of the Native Title Act.  Accordingly, in my opinion the State and the Lands Minister had property interests which gave them the right to be accorded procedural fairness.  Alternatively, at the very least the State had radical title to the Land which would, in my opinion, be an adequate property interest to support an entitlement to be accorded procedural fairness.

 

          As to Mr and Mrs Douglas, they were named as lessees in the Special Lease and, subject to the above observations concerning the native title claim, they held a leasehold estate in the Land.  Until such time as that leasehold interest is declared to be invalid (if that ever occurs), it should in my view be accepted as a proprietary interest sufficient to confer the right to be accorded procedural fairness before Mr and Mrs Douglas are precluded from developing and using it as a crocodile park.  Alternatively, I consider that Mr and Mrs Douglas had a legitimate expectation sufficient to require that procedural fairness be accorded to them.  Subject to the outcome of the native title application and the High Court proceedings, Mr and Mrs Douglas had a substantial pecuniary interest in the development of the Land.  They had expended a considerable amount of time and effort from 1987 onwards in securing the necessary approvals to the development of the Land as a crocodile park. 

 

          By the time the Second Declaration was made Mr and Mrs Douglas had, in my view, an additional basis for being entitled to procedural fairness.  By then the Commonwealth Minister had appointed the Hon. Mr Frederick Chaney to prepare a report of the type referred to in s.10 of the Commonwealth Act and to carry out the mediation referred to in s.13(3) of that Act.  Mr and Mrs Douglas had, at the invitation of Mr Chaney, participated in the consultation process initiated pursuant to s.13(3) of the Commonwealth Act and had made representations in accordance with the procedure referred to in s.10(3) of that Act.  Section 10(4)(e) of the Commonwealth Act required Mr Chaney's report to deal, amongst other matters, with:

                        "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 paragraphs (1)(a)."

 

          In my view, even allowing for the possible invalidity of the Lease, Mr and Mrs Douglas had a pecuniary interest in whether declarations would be made which would prevent their developing the Land.  Even if the worst came to the worst from their point of view, their negotiating position viz-a-viz interested Aboriginal persons might well have been stronger if a declaration had not been made under the Commonwealth Act in respect of the Land.  As Mason J. stated in Kioa at p.583:

 

                    "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: (authorities cited).  The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. ... Alternatively, the expectation may arise from the very nature of the application, ... or from the existence of a regular practice which the person affected can reasonably expect to continue. ...  The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

 

 

 

          For the above reasons, I have come to the conclusion that the State and Mr and Mrs Douglas were entitled to be accorded procedural fairness before each of the above-mentioned administrative decisions was made.

 

What did procedural fairness require?

          Procedural fairness is not a body of inflexible rules to be applied rigidly, regardless of the particular circumstances.  It is clear that what is required by procedural fairness may vary according to the circumstances of a particular case.  It may vary for other reasons also.  This is so well accepted that I need only refer to two short passages in two of the leading High Court decisions in this area.  The first is Mason J. in Kioa at p.585:

 

                    "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 concerned 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 v. MacKellar [No. 2] (1977) 137 CLR 396 at p.451, per Jacobs J."

 

The second is Deane J's statement in Haoucher v. Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at p.652:

 

                    "... It is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances.  Where the obligation exists, its precise content varies to reflect the common law perception of what is necessary for procedural fairness in the circumstances of the particular case."

 

 

 

          It is common ground that the Commonwealth Minister did not inform Mr and Mrs Douglas that he had received an application for an emergency declaration to be made under s.9 of the Commonwealth Act.  As to the State, it is true that there had been some communication during 1993 between the Commonwealth Minister and the State Minister in relation to the application initiated by the Yawuru Aboriginal Corporation on 7 October 1992.  However, the exchanges between the Commonwealth Minister and the State Minister ended on 7 September 1993 and even Mr Willheim's submissions included the observation that the earlier application had been overtaken by a series of subsequent events.  The State Minister was, in my opinion, entitled to infer (since the Commonwealth Minister had done nothing further) that the Commonwealth Minister had decided not to grant a declaration pursuant to the Yawuru Aboriginal Corporation's application of 7 October 1992.  It was common ground as between the State and the Commonwealth Minister in these proceedings that that application of 7 October 1992 was for an emergency declaration under s.9 of the Commonwealth Act.

 

          Nevertheless, I do not think that, in assessing the content of procedural
fairness in these matters, I should ignore all that took place prior to 31 January 1994 and I do not propose to do so.  In particular, the evidence is that ATSIC kept the Commonwealth Minister informed about the matter of the proposed crocodile park - see their briefs of 27 September 1993 and 7 December 1993. 

 

          The Commonwealth Minister points to the description of a s.9 declaration as being an emergency declaration and relies on the urgency of the matter as excusing him from being required to notify any of the applicants prior to the making of the First Declaration.  I do not accept that submission.  The factual context of this particular matter is important. 

 

          The Commonwealth Minister had been considering the making of an emergency declaration, on and off, from 7 October 1992 onwards.  His last communication to the State Minister was on 16 July 1993 and in late September 1993 he knew that the Yawuru had turned to the Courts.  On 7 December 1993 ATSIC briefed him in relation both to the 7 October 1992 application for an emergency declaration and the possibility that the Kimberley Land Council would be making a similar application. 

 

          Taking that factual background into account, when on 31 January 1994 the Commonwealth Minister received the Kimberley Land Council's application for an emergency declaration he should, in my view, have immediately informed the State and Mr and Mrs Douglas of that application and given them an opportunity to make submissions about whether or not an emergency declaration should be made.  I do not come to that conclusion purely on the basis that to do so would be fair to the
State and Mr and Mrs Douglas as individuals concerned.  It is also necessary to take into account the statutory requirements and the interests and purposes whether public or private which the Commonwealth Act seeks to advance or protect.  The Full Court in Tickner v. Bropho fully canvassed those matters in each of the three judgments.  Both Black CJ and Lockhart J. (at pp.191-192 and p.208 respectively) referred to the long title and s.4 of the Act.  See also French J. at pp.221-225.  Nevertheless I do not consider that it would be inconsistent with the purposes of the Commonwealth Act to have required the Commonwealth Minister in the present matter to have given the State and Mr and Mrs Douglas a reasonable opportunity of presenting their case against the making of the First Declaration.  The question of urgency was considered by Wilcox J. in Marine Hull and Liability Insurance Co Ltd v. Hurford (1985) 10 FCR 234.  His Honour at p.241 referred to the necessity for prompt action as being a widely recognised exception to the application to administrative decisions of the duty to afford a hearing.  Wilcox J. also noted that the nature and extent of that exception was not well defined and then observed:

 

                    "There may exist statutory powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard: for example a power to destroy dangerous animals or forcibly to enter premises at a time of fire or natural disaster. ...

 

                    More commonly there exist powers which may have to be exercised under circumstances of emergency but which will be often exercised in situations which would provide an opportunity to be heard.  In respect of such cases there is, in the authorities, a three-way division of opinion."

 

 

 

          After exploring those three divisions of opinion, Wilcox J. followed the Judicial Committee's view in Durayappah v. Fernando [1967] 2 AC 337 on the matter of an opportunity for a hearing and in particular the observation at p.346

 

                    "... while great urgency may rightly limit such opportunity timeously, perhaps severely, there can never be a denial of that opportunity if the principles of natural justice are applicable."

 

 

 

          In Hodgens v. Gunn [1988] 1 Qd. R 1 the Full Court of the Supreme Court of Queensland was asked to make absolute a writ of certiorari to quash an order forfeiting 52 dogs to the Crown.  The leading judgment was that of Thomas J. with whom Shepherdson and Williams JJ concurred.  At p.5 Thomas J. appeared to express a preference for the earlier Judicial Committee decision of de Verteuil v. Knaggs [1918] AC 557 over what was described as the "all or nothing" position adopted by the Judicial Committee in Durayappah.  Thomas J. observed:

 

                    "... in cases where it is possible to do so, the Minister should provide an opportunity for the owner to be heard...  There was no suggestion that there was any particular difficulty in locating the applicant at the time of forfeiture, or that there were circumstances of such emergency that it was impracticable to give him the right to be heard."

 

 

 

          In my view, the circumstances of the present matter were not of such great urgency that it was impracticable for the Commonwealth Minister to inform the State and Mr and Mrs Douglas that he had been asked to make an emergency declaration and to give them an opportunity to make submissions on that matter.

 

          It is also worth noting that the Commonwealth Act contains a procedure for circumstances which are likely to be even more urgent than those in which a s.9 declaration is sought - see the provision in s.18 for an authorised officer to make an emergency declaration for a period not exceeding 48 hours.

 

          Section 13(2) which contains a direction that the Commonwealth Minister shall
not make a declaration unless he has consulted with the appropriate State Minister as to whether there is under a law of that State effective protection of the area, to some extent supports the proposition that notice of an application for a declaration should have been given to the State at least.  That section does not differentiate between emergency declarations under s.9 and more permanent declarations under s.10.  Mr Willheim, in his submissions, relied on s.13(4) which provides that any failure to comply with s.13(2) does not invalidate the making of a declaration.  In my view, an appropriate way of reconciling s.13(2) on the one hand which is expressed in mandatory terms and s.13(4) which makes it clear that the former subsection is only directory, is to construe parliament's intention as being to lay down a general directory rule which may on occasion be subject to exceptions.  The following passage appears in the second reading speech at p.14:

 

                    "Although the Minister will be obliged to consult in this way, the mere failure to consult will not invalidate any declaration he may make.  Let me assure the House that all reasonable attempts will be made to consult with State and Territory colleagues.  On occasions the relevant Minister may be unavailable to discuss the matter, and the urgency of the threat to the area or object may be such that the Minister for Aboriginal Affairs must take a decision without the benefit of such consultation.  There may be occasions when a State or Territory Minister will refuse to consult.  This Bill is framed to ensure that such refusal will not frustrate its proper operation."

 

 

          The circumstances posited in the above extract are not the circumstances of this matter.  There was no suggestion in the evidence of any difficulty in locating and communicating with either the State Minister or Mr and Mrs Douglas, for example, when the time came for the Commonwealth Minister to send letters to them advising that he had made the First Declaration.  Nor was there any suggestion that the State Minister was refusing to consult.

 

          I accept the submissions put forward on behalf of the State that natural justice or procedural fairness in the particular circumstances of this matter required the State to be consulted before the First Declaration was made. In my opinion the State should have been told precisely the area of land involved, in what respect it was said to be significant and how it was said to be threatened and in particular that the Commonwealth Minister was considering an application under s.9 of the Commonwealth Act.   Mr S. McLaughlin was the Commonwealth Minister's senior adviser.  Mr McLaughlin's diary for the three days 31 January, 1 February and 2 February 1994 shows numerous attendances on various parties including ATSIC, several telephone attendances on the Kimberley Land Council and a telephone attendance on the Prime Minister's office.  In my view procedural fairness required similar contact to be made with the State and Mr and Mrs Douglas.  Nothing emerged in the evidence to suggest that it would have been impracticable to have established telephone contact with the State and with Mr and Mrs Douglas respectively to make arrangements either to fax to them copies of the documents received as part of the Kimberley Land Council application and to require submissions to be faxed back within 48 hours or even 24 hours.

 

          The procedural fairness which is required for good administrative decision-making does not demand the impossible.  It is necessary to be realistic and to take into account the particular circumstances in a practical manner.  However, in my view, in the circumstances of this matter that much was required of the Commonwealth Minister.

 

          It is not necessary to deal separately with the submissions made on behalf of Mr and Mrs Douglas in relation to the First Declaration.  However, their submission that had the Minister consulted them before making that declaration he would have been informed of the 48 hours notice arrangement has no basis in fact.  That arrangement was made a few hours after the First Declaration had been made.

 

          For the above reasons I consider that, in the particular factual context of this matter, by failing to consult the State and by failing to give the State and Mr and Mrs Douglas reasonable notice of the application for what became the First Declaration and even a very limited opportunity to make submissions before he made the First Declaration, the Commonwealth Minister denied them procedural fairness.

 

The "no evidence" and related submissions

          It is convenient to deal simultaneously with the submissions of:

 

          .     common law error of fact;

 

          .     no evidence or other material in the sense used in s.5(1)(h) of the ADJR Act, when read with s.5(3)(a) [and when read in conjunction with s.5(1)(f)] of that Act; and

 

          .     Wednesbury unreasonableness. 

 

 

 

          The Commonwealth Minister submitted that the challenge under s.5(1)(h) of the ADJR Act must fail as a matter of law.  This was because the requirement that the Commonwealth Minister be satisfied that the Land is a significant Aboriginal area and under serious and immediate threat of injury or desecration [s.9(1)(b)] and indeed the requirement that he be satisfied that the area is a significant Aboriginal area and under threat of injury or desecration [s.10(1)(b)] were not requirements that
"a particular matter was established" within the meaning of that expression in s.5(3)(a) of the ADJR Act.  I was not taken to any authority for that proposition and it seems to me to be wrong.  In my view, it was necessary for the matters referred to above to be established before the Minister was entitled to make a declaration.  The distinction which Mr Willheim sought to make was that the requirement that the Minister be satisfied as to these certain matters was not a requirement that "a particular matter was established".  I do not think that the distinction is a valid one, particularly when one takes into account the last two lines of s.5(3)(a) of the ADJR Act:

 

                    "(3)   The grounds specified in paragraph (1)(h) shall not be taken to be made out unless:

                    (a)     the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material (including facts of which he was required to take notice) from which he could reasonably be satisfied that the matter was established; ..."

 

In my opinion, that subsection equates establishment of a particular matter with satisfaction that the matter was established.

 

          Nevertheless the test applicable to a challenge on any of the four bases referred to above is, of course, a stringent one.  Mr Willheim pointed to nine documents (which I have described briefly at page 33 of these reasons) as showing that there was evidence upon which the Minister was justified in making the First Declaration and that accordingly the applicants' contentions should be rejected. 

 

          The issue between the parties was not, as I understood it, so much related to the question of serious and immediate threat of injury or desecration but whether there was any evidence that any part of the Land had particular significance and had not already been excised or otherwise protected.

          I have read and re-read those documents.  In my view, the outcome of the applicants' submissions turns on the proposition that the Initiates' Track was not a fixed area which could be excised but was (and presumably still is) a series of paths ranging from the edge of the mangroves on the east bank of Dampier Creek at low tides to the west of Crab Creek Road at certain high tides.  Accordingly, depending upon the tide at the time when initiation ceremonies were taking place (and initiates were being transferred between the two sites), potentially the whole of the Land was required for the purposes of passage by the initiates and the free movement of sensitive material associated with initiation.  It is not the Court's function to make any assessment of the credibility of this proposition.  It was for the Minister to make that assessment.  It is sufficient for me to point to the evidence contained in Mr Mardiros's affidavit of 14 January 1994 and his prior report of October 1992 which is referred to in that affidavit together with Dr Sullivan's affidavit sworn 3 December 1993 as containing some evidence that the Initiates' Track was of particular significance and that, depending on the tides it could traverse any part of the Land.  The stipulated and agreed excisions were of the areas which were likely to be so used other than on the occasion of very high tides. 

 

          In those circumstances I consider that there was evidence and material from which the Commonwealth Minister could reasonably be satisfied that the whole of the Land was of the requisite particular significance in accordance with Aboriginal tradition.  The Commonwealth Minister also had before him a letter dated 2 February 1994 from the Kimberley Land Council advising that work had commenced on the Land.

 

          Accordingly, I reject the submissions based on there being no evidence and the related submissions referred to above (including Wednesbury unreasonableness - save, for the time being, as to the effective protection point to which I shall refer below).

 

          In doing this I should note that if the Commonwealth Minister had accorded procedural fairness to the State and to Mr and Mrs Douglas by giving them an opportunity to make submissions, it may well have been that he could have come to a different conclusion on the merits. 

 

          I now turn to the submissions that the Commonwealth Minister's failure to find that the law of Western Australia provided effective protection involved error of law, Wednesbury unreasonableness or was otherwise perverse. 

 

          In Bropho v. Tickner (1993) 40 FCR 165 at pp.177-178 Wilcox J. held first that the Commonwealth Minister was bound to consider the content of the State Act and whether that provided effective protection of the relevant area before he made a declaration under the Commonwealth Act.  Secondly, his Honour rejected a submission that a State law may be effective even though it fails to ensure that a particular site will not be injured or desecrated where the legislation deals with the general subject matter and may be expected to cover the problem in the generality of cases.  His Honour observed:

 

                   "The adjective `effective' requires that the protection offered by the State or Territory legislation be more than nominal or theoretical; it must be such as to ensure that the area will be protected under State or Territory law.  This is consonant both with the usual meaning of the word `effective' and the scheme of the Act that, in such a case, a declaration is not to be made under the Commonwealth Act (s.13(2)) or, if made, revoked (s.13(5)).  It is not to be supposed that parliament intended that the protection of the Commonwealth
Act should be denied by a statutory mirage.  If, in the present case, Mr Tickner concluded that the Western Australian Act offered `effective protection of the area' he erred in law."

 

 

 

          Mr Willheim submitted that on appeal the above passage was approved by Black CJ at pp.196-197 and Lockhart J. at p.211.  I read the passage in the Chief Justice's reasons as simply confirming that the consent given under s.18 of the State Act had removed the very foundation of the Minister's decision i.e. that there was no serious and immediate threat of injury or desecration.  However, the passage in the reasons for judgment of Lockhart J. at p.211 may well constitute the endorsement claimed by Mr Willheim.   That passage reads:

 

                   "The primary Judge found that it was unreasonable for the Minister to rely upon the Western Australian Act to ensure the protection and preservation of the Land in circumstances where, by the time the Minister had made his decision, the Western Australian Minister had already consented under s.18 of the Aboriginal Heritage Act to the development proceeding, a conclusion which has not been shown to be wrong and with which I agree.  In my opinion the primary Judge's finding that the s.9 decision was flawed and should be set aside is correct."

 

 

          French J. at p.224 raised the possibility that there may be effective protection under State or Territory law even where that law does not ensure that the area will be protected.  His Honour said:

 

                   "Although it is not necessary for this case to decide the point, it may be open to the Minister to be satisfied that there are effective provisions for protection of an area where there is a statutory process of assessment and proper recognition of the value of the area under State law even if in the end legitimate and competing public interests might outweigh that value."

 

 

His Honour had observed earlier at p.224:

 

                   "The reality is, I think, that it was intended by the legislation to allow the Commonwealth Minister to intervene to protect a site in a case in which he or she took a view of the relevant public and private interests different from that taken by the State or Territory Minister. ... The decision of the Commonwealth Minister in
such a case, while made within a statutory framework, is of a political character and, subject to compliance with the requirements of lawfulness, fairness and rationality, is not amenable to judicial intervention. The duty imposed by s.13(5) to revoke a declaration `where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area' depends upon whether the Minister is `satisfied'.  That involves an evaluative judgment of the content and operation of the State or Territory law."

 

 

 

          The matter of protection of an area under State law is referred to, in slightly different terms, three times in the relevant Division of the Commonwealth Act.  The direction in s.13(2) to the Commonwealth Minister to consult with the appropriate State Minister is "... as to whether there is, under a law of that State or Territory, effective protection of the area ...".  Section 13(5) provides that the Commonwealth Minister shall revoke a declaration where he is satisfied that the State law "... makes effective provision for the protection of an area".  Among the matters which must be dealt with by a report under s.10 are "... 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."  It is possible that the draftsperson was seeking to distinguish, for slightly different purposes, between a State having effective legislation on its statute books and the extent to which that legislation might not, in particular circumstances, be availed of or applied to bring about effective protection.

 

          However, there does not seem to be a rational basis for drawing such a distinction which might have the result that in some circumstances it might be regarded as enough that there be effective provision for protection of an area and in other circumstances that there had also to be effective protection under the law of a State or Territory for that area.  In my view, as a matter of construction, the test is the more stringent one of effective protection.  By that I mean effective protection of (in this case) the specific area not of areas generally, because that is what the above provisions speak of, namely "the area" [s.10(1)(b)(i)], "the area, object or objects" [s.13(2) and (5)].  That may not require absolute protection for an area, as might be demonstrated by reference to the present matter.  In my opinion, it would have been open to the Commonwealth Minister to have found that the law of Western Australia had provided effective protection of the area by excisions which meant that the Initiates' Track could be used on all but four or five occasions each year.  However, I do not think it could be said that it was manifestly unreasonable or perverse for the Commonwealth Minister to come to a different opinion.  Nor, in my view, did he err in law in doing so.

 

          As French J. noted, both the Commonwealth Act and the State Act provide discretionary protection.  I respectfully agree with his Honour's observation that the intent of the Commonwealth Act is to allow the Commonwealth Minister to intervene to protect a site in a case in which he or she takes a view of the relevant public and private interests different from that taken by the State Minister.

 

The Alleged Improper Exercise of Power

          It will be recalled that the basis for this submission was that the Commonwealth Minister, when considering whether to make the First Declaration, was bound to take into account the existence of the proceedings which had taken place in the Supreme Court of Western Australia and in this Court and the findings which had been made in those proceedings.

 

 

          The Commonwealth Act does not, of course, expressly state that the Commonwealth Minister is bound to take these matters into account.  The question is whether the subject-matter, scope and purpose of the Act give rise to a necessary implication in that Act that the Commonwealth Minister is so bound?  Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24 at p.44.

 

          In my view, in the context of the making of an emergency and temporary declaration a Court should be slow to find such an implication.  The two essential matters referred to in s.9(1)(b) of the Commonwealth Act are whether the area is a significant Aboriginal area and, if so, whether it is under serious and immediate threat of injury or desecration.  I do not find it possible to reason by way of reference to these specific express requirements (as was possible, for example in Peko Wallsend) to the necessary implication which the State sought to establish.  Nor was I given, in the course of argument, any other persuasive reason for such necessary implication.  The argument that the Commonwealth Minister was being requested to act as an appellate body to review the Supreme Court's decision and that in those circumstances important considerations of comity and respect as between the separate executive and judicial branches of Government give rise to such a necessary implication is not one which I find persuasive.  In my view, that argument supportsthe proposition that the Commonwealth Minister would be entitled to take into account the existence of the court proceedings and the views expressed by the judges when refusing interlocutory relief but not that he was, by necessary implication in the Commonwealth Act, bound to take such matters into consideration before making an emergency declaration.  My basic reason for that view is that to bind the Commonwealth Minister in the manner sought does not seem to advance the purpose of the Act and, if anything, might well
on occasion be inconsistent with that purpose.  To require the Commonwealth Minister to analyse the issues and reasons for decision in what might well be complex legal proceedings before making an emergency declaration would need, in my opinion, an express statutory provision to that effect.  It is not something which, in my opinion, arises by necessary implication.

 

                       The Decision not to Revoke the First Declaration

 

          On 21 February 1994 the State Minister wrote to the Commonwealth Minister requesting him to revoke the First Declaration.  That letter recited the history of the matter and in particular the fact that the Commonwealth Minister had not responded to the State Minister's letter of 7 September 1993.  The State Minister said that by virtue of such lack of response he had assumed that the Commonwealth Minister was satisfied with the adequacy of the processes and protection under the State Act.  The letter also referred to Mr and Mrs Douglas's agreement with the solicitor representing the Kimberley Land Council and the Yawuru People that 48 hours notice in writing would be given before any ground-disturbing work was carried out.  (As mentioned above, that agreement was made on the same date as the First Declaration.)  The Commonwealth Minister did not revoke the First Declaration.

 

                             The State's Contentions in respect of the

                      Commonwealth Minister's Decision not to Revoke

                                            the First Declaration

 

          All of the above grounds relied upon by the State in respect of the First Declaration were also relied upon by the State in relation to the decision made by the Commonwealth Minister not to accede to the State Minister's request made on 21 February 1994 to revoke the First Declaration.  In addition, the State submitted that the Commonwealth Minister erred in law in failing to find that the law of the State made effective provision for the protection of the Land.  It was put that such failure was so factually unreasonable and perverse as to amount to an error of law.

 

          The State relied upon additional materials which were before the Minister, namely, two ATSIC briefs dated 22 February 1994 and 23 February 1994 respectively and the Commonwealth Minister's letter dated 5 April 1994.  In the first of those briefs there appears a paragraph which reads:

 

                    "Under the Act there is no requirement to consult with affected parties other than the State/Territory Government.  Such consultations with the State took place in mid 1993 following the initial approach to you by the Kimberley Land Council."

 

 

          It was submitted that that was a positively misleading statement in the context of the rules of natural justice.

 

          Furthermore, the State submitted that the ATSIC brief dated 23 February 1994 squarely raised before the Commonwealth Minister the question of the significance of the proceedings in both the Supreme Court and the Federal Court.  That brief contained the following advice:

 

                    "Issue of Revocation

 

                    Section 13(5) states:

 

                        "Where the Minister is satisfied that the law of a State ... makes effective provision for the protection of an area ... to which a declaration applies, he shall revoke the declaration..."

 

                    The issue in our view relates to the efficacy of State laws and processes.  Those processes had been used and an area of particular significance excised from the lease.  Court processes have also been used (and continue
to be in operation in the Federal Court) to re-examine the disputed issue of Aboriginal significance.  It is doubtful however, that despite these processes, whether you could be satisfied from the point of view of the Aboriginal applicant that effective protection has been made.  Thus revocation may not in our view be an option at this time.

 

                    Recommendation

 

                        That you note this brief and sign the attached letters to Mr Chaney and to the State Minister, Hon Kevin Prince MLA and send by fax."

 

[The Commonwealth Minister followed this recommendation]

 

 

          This brief, so the State submitted, appeared to be based on the view that a State law did not provide effective protection if in fact an area which is claimed to be significant is not protected.  The evaluation on that aspect was expressly stated as being from the point of view of an Aboriginal applicant.  It was pointed out that the Commonwealth Act itself (s.30) contemplates other interests which were likely to be adversely affected and which were to be recognised, quite apart from the recognition of those other interests which was required by the rules of natural justice.

 

          It was submitted on behalf of the State that, once again, it was not enough to base a finding that a State law does not provide effective protection on the mere fact that an area which is claimed to be significant is not protected.  Furthermore, there was here an additional error.  It was not open to the Commonwealth Minister simply to take the view that, if, from the point of view of the Aboriginal applicant, effective protection does not exist under the State law then that concludes the issue.  The Commonwealth Minister's discretion, so it was put, is much wider than that.

 

          Counsel for the State submitted that the existence of Mr and Mrs Douglas' agreement to give 48 hours notice was relevant to the question of whether there still
existed a serious and immediate threat to the Land.  Attention was drawn to the fact that the Commonwealth Minister's reply dated 2 March 1994 referred neither to the 48 hour agreement or the significance of the Court proceedings.

 

          In view of my conclusion that there was a denial of procedural fairness in the making of the First Declaration and in view of the other findings which I have made in relation to that declaration there does not, in my opinion, seem to be any useful purpose to be served in dealing separately with the decision not to revoke the First Declaration.

 

                         The Second Declaration (made 4 March 1994)

 

          The declaration made by the Commonwealth Minister on 4 March 1994 was in the following terms:

 

                                             "COMMONWEALTH OF AUSTRALIA

 

                          ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE

                                                       PROTECTION ACT 1984

 

                                         DECLARATION UNDER SUBSECTION 9(3)

 

                                  Further period for protection and preservation of a

                                                     significant Aboriginal area

 

            I, ROBERT EDWARD TICKNER, Minister for Aboriginal and Torres Strait Islander Affairs, being satisfied that it is necessary to do so, declare under sub-section 9(3) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 that the declaration I made on 3 February 1994 under subsection 9(1) of the Act, which came into effect on 4 February 1994, shall remain in effect for the further period of 30 days commencing on 6 March 1994.

 

 

            Dated this   4th   day of    March      1994.

 

                                    [signature]

 

 

                                                       ROBERT TICKNER

                                    Minister for Aboriginal and Torres Strait

                                                       Islander Affairs"

 

 

The State's Contentions in relation to the Second Declaration

          In its submissions challenging the Second Declaration, the State relied on what were described as the errors which infected the First Declaration and the considerations drawn to the Commonwealth Minister's attention by the State Minister when the latter sought revocation of the First Declaration.  Some further short submissions were made on behalf of the State in relation to the Second Declaration.

 

          Counsel for the State submitted that a natural reading of s.9(3) of the Commonwealth Act required the Commonwealth Minister to apply his mind to the circumstances as they exist at the time when the possibility of extending the initial emergency period was being considered.  The Commonwealth Minister, so it was put, was required to determine whether there was at that time an area as to which he was still satisfied that it was significant and which was still under serious and immediate threat of injury.  He was also required to consider the question of the protection afforded by the law of the State if there seemed to be any possibility that that may have changed. 

 

          Before making the Second Declaration, the Commonwealth Minister received a further ATSIC brief dated 1 March 1994 (Document 88).  That was a very short document which simply recited the background of the matter, the appointment of Mr Chaney to mediate and possibly report and then stated:

 

                    "Your declaration of 3 February ceases to have effect on 5 March and now must be extended in order to allow time for Mr Chaney to both continue meetings with the parties, and as necessary, to possibly pursue the preparation of a report under s.10(4) of the Act."

 

 

 

          On behalf of the State, it was submitted that this paragraph assumed that nothing had changed since the time when the First Declaration was made and that the only consideration was to give Mr Chaney time to continue meeting with parties and prepare his report.  The brief did not address the question of ministerial satisfaction with the matters referred to immediately above.  It was not correct, as a matter of law, to state that the declaration of 3 February 1994 had to be extended in order to allow Mr Chaney to continue meetings and report.  There was no consideration of whether there was a need for emergency protection.  In particular the agreement by Mr and Mrs Douglas to give 48 hours notice before carrying out any ground-disturbing work, so it was submitted, changed matters. 

 

          Furthermore, there was the matter of the State Minister not being given any reasonable opportunity to make submissions to the Commonwealth Minister as to why the First Declaration should not remain in effect for any further period.  In that regard, on 3 March 1994 the State Minister wrote to the Commonwealth Minister stating that he understood that an application for an extension of the period of the First Declaration had been made, that he was opposed to it and that he wished to make submissions.

 

          The Commonwealth Minister's response, so Ms Wheeler submitted, was to impose an entirely unrealistic timetable giving the State Minister approximately four hours in which to make submissions.  Those submissions were sent at 4.30 pm Western Standard Time on 4 March 1994.  However, by about 7.50 pm Western Standard Time on the same date the State Minister received not only a letter but a copy of a special gazette dated 4 March 1994 containing the Second Declaration.

Contentions on behalf of Mr and Mrs Douglas in relation to the Second Declaration

 

          Mr and Mrs Douglas complained that, in the circumstances referred to below, they had been denied natural justice in that:-

          .    the Commonwealth Minister had failed to give them (as persons whose interests would obviously be affected by the Second Declaration) any or any proper notice of relevant matters and any or any reasonable opportunity to respond to such matters; and

 

          .    the Commonwealth Minister had failed to consider properly or at all the matters set out in a letter dated 4 March 1994 from their solicitors to him.

 

 

Mr Stevenson referred me to evidence, which was not contested, which showed the following:-

 

          .    From the time when they were first made aware of the First Declaration, Mr and Mrs Douglas, through their solicitors, wrote on several occasions to the Commonwealth Minister asking that the matter of the claim that the Land had Aboriginal significance be dealt with urgently (explaining why they asked this) and drawing attention to the apparent slowness of the procedure.

 

          .    Although Mr and Mrs Douglas were not told that the Commonwealth Minister was planning to extend the First Declaration, their solicitors sent a letter by facsimile on 3 March 1994 to him requesting an opportunity to make submissions in opposition to any proposed extension. 

 

          .    The Commonwealth Minister's response was a facsimile which reached the solicitors on the evening prior to the date upon which the Commonwealth Minister made the Second Declaration.  Effectively, the Commonwealth Minister gave Mr and Mrs Douglas only a matter of hours to respond. 

 

          .    Nevertheless, their solicitors responded, by a facsimile letter, on 4 March 1994.  That response contained, amongst other things, reference to a press release dated 9 October 1992 issued by Mr Djaigween as Chairman of the Yawuru Aboriginal Corporation. 

 

          .    In that press release, which outlined objections to the crocodile farm proposal, Mr Djaigween had referred to the Land having been used for many years as a camping ground and also for
recreational reasons, fishing and getting shell.  (At this stage, so Mr Stevenson pointed out in the course of his submissions, Mr Djaigween had not said that the Land was so significant that he could not explain why it was so significant, rather the above reasons were given for the Land being regarded as important.) 

 

          .    In their solicitors' facsimile, Mr and Mrs Douglas submitted to the Commonwealth Minister that Mr Djaigween's reasons, on their own, would not be sufficient to give the area the particular significance required by the Commonwealth Act for the purposes of protection. 

 

          .    Although the facsimile from Mr and Mrs Douglas's solicitors was sent within a matter of hours of the Commonwealth Minister's fax inviting submissions, it was not received until after the decision was made.  The Commonwealth Minister in fact made his decision on 4 March 1994 without waiting for the submission from Mr and Mrs Douglas's solicitors.  There was no attempt by the Commonwealth Minister's office to check with Mr and Mrs Douglas's solicitors as to whether they proposed to take advantage of the invitation to provide submissions before the decision was taken to make the Second Declaration.

 

          Mr and Mrs Douglas also relied upon the same matters which they said rendered the First Declaration invalid, as having the same effect on the Second Declaration.

 

                          The Commonwealth Minister's Contentions in

                                  Relation to the Second Declaration

                                                           

 

          These contentions can be summarised as follows:

1.       For the reasons set out above in relation to the First Declaration, the Act did not incorporate any requirements of natural justice in respect of any extension of the First Declaration;

2.       Alternatively there was full compliance with any natural justice requirements in that:

 

          .    the applicants were notified of the making of the First Declaration and were fully aware of its duration;

 

          .    the applicants were aware that Mr Chaney had been appointed and of the date he had set for the making of written representations under s.11(3)(a)(iii), namely 18 March 1994;

 

          .    the applicants would expect that the Commonwealth Minister would wish to retain the status quo until Mr Chaney's report was received;

 

          .    the deadline set for submissions was reasonable because all that was in issue was whether there were any new factors bearing on whether the status quo should or should not be maintained;

 

          .    Mr McLaughlin, as the senior adviser to the Commonwealth Minister, had been informed by counsel for the Yawuru that he had sought undertakings before the Court and no formal undertaking was given.

 

                                Conclusions - the Second Declaration

 

          For the same reasons as I have set out above in relation to the First Declaration, I consider that the Commonwealth Minister was obliged to afford procedural fairness to the State and to Mr and Mrs Douglas before he made the Second Declaration.  In my opinion the content of that procedural fairness was the same, namely to be informed that the Commonwealth Minister proposed to cause the First Declaration to remain in effect for a further 30 days and to be given a reasonable opportunity to make submissions about whether that should be done.

 

          I do not accept the Commonwealth Minister's submission that the State and Mr and Mrs Douglas should have known that he was likely to extend the First Declaration.  First, it assumes an insight into the Commonwealth Minister's thought processes and a degree of predictability of his decision-making which, in my view, is not supported by the evidence.  Secondly, there had been developments which might have given rise to a reasonable assumption that such further executive action might
not be taken.  I refer to the appointment of Mr Chaney as mediator and reporter, the fact that Mr Chaney's work was still in progress and also the undertaking given by Mr and Mrs Douglas to give 48 hours notice before re-commencing development work on site.  Mr McLaughlin in his evidence suggested that such an undertaking was not really satisfactory in view of an unhappy previous experience with an inter-governmental agreement breaking down and that an undertaking to a Court was preferable.  It is quite true that the Commonwealth Minister was in no way constrained to accept that undertaking as necessarily removing what he had previously perceived as a serious and immediate threat of injury or desecration.  However, in my view this did not entitle him to keep his views on that matter to himself and to decline to extend the limited degree of procedural fairness to which I have referred above, before he made the Second Declaration.

 

          The Commonwealth Minister says that the applicants were given a reasonable deadline by which to make their submissions.  I reject that submission.  Unlike the decision to make the First Declaration, the decision to make the Second Declaration was not one which necessarily had to be made urgently.  There was a period of some 30 days in which to consider whether the term of the First Declaration should be extended.

 

          In my opinion to give the State only four hours and Mr and Mrs Douglas a similarly short period in which to make submissions was merely to pay lip service to the matter of procedural fairness.  Although both sets of submissions were faxed very promptly to the Commonwealth Minister, he had made his decision before they arrived.

          The applicants relied on the same grounds for review of the Second Declaration as those advanced in respect of the First Declaration, save for the submission by the State that the Commonwealth Minister apparently failed to apply his mind to the question of whether it was necessary to extend the original declaration.  That submission was based upon the contents of the fairly short ATSIC brief dated 1 March 1994 (Document 88).  In view of my finding on the procedural fairness point it is not strictly necessary to consider this submission.  However, the State bore the onus of proving that the Commonwealth Minister had failed to apply his mind to the above question and I do not consider that the State adduced sufficient evidence to establish that matter on a balance of probabilities.  In particular I do not consider that the contents of that ATSIC brief on their own justify such an inference. 

                          The Third Declaration (made on 6 April 1994)

 

          On the Wednesday following Easter, 6 April 1994, the Commonwealth Minister caused the following declaration ("the Third Declaration") to be published in a special issue of the Commonwealth of Australia Gazette:

 

                                             "COMMONWEALTH OF AUSTRALIA

 

                                      Aboriginal and Torres Strait Islander Heritage

                                                           Protection Act 1984

 

                      DECLARATION UNDER SECTION 10: BROOME CROCODILE FARM

 

            I, ROBERT EDWARD TICKNER, Minister for Aboriginal and Torres Strait Islander Affairs, being satisfied that:

            (a)  the area in Western Australia described in Schedule 1 is a significant Aboriginal area; and

 

            (b)  the area is under threat of injury or desecration;

            declare under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 that, for the preservation and protection of the area from injury or desecration, acts of the kind specified in Schedule 2 must not be carried out without my consent during the period of five years beginning on the day on which this declaration is published in the Gazette.

 

 

                                                                 SCHEDULE 1

 

                                                        DESCRIPTION OF AREA

 

            1.    The area of land known as Broome Lot 2826.

 

 

                                                                 SCHEDULE 2

 

                                                            PROHIBITED ACTS

 

            1.    Bulldozing, grading, drilling or excavating, or any other act that will, or is likely to, injure or desecrate, the area or part of the area described in Schedule 1.

 

            2.    Deliberately killing, cutting down, damaging or removing any vegetation within the area described in Schedule 1.

 

            Dated  6th April 1994

                                                                        [signature]

 

                                              Minister for Aboriginal and Torres Strait                                                                                                                             

                                                       Islander Affairs"

 

 

Contentions on behalf of the State in respect of the Third Declaration         

 

 

          The State submitted that the previous errors on the Commonwealth Minister's part as to the finding of particular significance, the finding in relation to the effectiveness of the law of the State and the failure to take appropriate account of the Court proceedings infected and continued to infect the Third Declaration.

 

          There was also what was described as a particular natural justice concern in relation to the Third Declaration. Reliance was placed on Bropho v. Tickner as authority for the proposition that the procedure prescribed by the Commonwealth Act was intended to ensure that the Commonwealth Minister was provided with comprehensive information on both sides of the issue.  It was a condition of making a declaration under s.10 of that Act [see s.10(1)] that the Commonwealth Minister has
received a report under s.10(4) and has considered that report and any representations attached to the report.  Furthermore s.10(4)(e) required the report to deal with:

 

                   "The effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals [to whom the area was of particular significance]."

 

 

And under s.10(4)(g) the report was required to deal with:

 

 

                   "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."

 

 

 

          It was submitted that the intention that comprehensive information be provided to the Commonwealth Minister on both sides of the issue could be fulfilled only if the material on each side was, under normal natural justice principles, disclosed to the other side.

 

          In the alternative, the State submitted that quite apart from the statutory provisions, natural justice required the Commonwealth Minister or the person who prepared the report to ensure that the applicants were aware of all relevant materials adverse to them which were before or considered by the Commonwealth Minister.  Procedural fairness, so it was put, had to be provided at some stage whether at the inquiry/report stage or when the discretion was being exercised.  Furthermore, if the decision-maker was going to consider new material, then he must provide procedural fairness in relation to that new material: South Australia v. O'Shea (1987) 163 CLR 378. 

 

          Mr Chaney's first contact with the State was on 21 February 1994 and it was not until 3 March 1994 that a newspaper advertisement was published by Mr Chaney seeking submissions.  It was submitted on behalf of the State that in considering any justification for procedural and other deficiencies based on matters of urgency it should be noted that any urgency was in large part self-imposed.

 

          On 22 February 1994 Mr Chaney had a meeting with solicitors for both the State applicants and Mr and Mrs Douglas.  The meeting dealt with matters of procedure in respect of Mr Chaney's mediation and reporting duties.  There is evidence that at that meeting those representatives told Mr Chaney that they had no objection to information being provided to him in confidence in the course of the mediation proceedings.   However, the evidence of those solicitors was that they told Mr Chaney that if a mediated result could not be achieved their clients would wish to know the information provided to him by the Yawuru People which Mr Chaney considered to be relevant to his report to the Minister, in order that they could respond to and comment on that information.  A modus operandi was agreed whereupon Mr Chaney would first attempt mediation.  If mediation was not successful he would proceed to the report stage at which time the parties should make submissions and provide information which they wanted him to take into account for the purposes of his s.10 report.  That material would be made available to the other parties for comment.  A party might request Mr Chaney to take into account information previously provided on a confidential basis during the mediation process but that information would also be made available to the other parties for comment.  The evidence of this agreement was contained in an affidavit from Mr C R Humphry, the solicitor acting for the State and in a memorandum prepared by Mr C. Stevenson in his capacity as solicitor for Mr and Mrs Douglas.  Neither Mr Humphry or Mr Stevenson was called for cross-examination.  Mr Chaney, in his affidavit, simply stated that he did not recall saying anything about disclosure to other parties who would have the opportunity to comment and respond.  Mr Chaney's affidavit does not state what his recollection of the relevant conversation precisely was and I accept that the position was as set out in Mr Humphry's affidavit and Mr Stevenson's memorandum.

 

          In any event, the State submitted that regardless of an agreement along those lines between the parties, what was stated to have been agreed was the very minimum which the rules of natural justice would require.

 

            On 30 March 1994 (the day before he submitted his report to the Commonwealth Minister) Mr Chaney told Mr Humphry, during the course of a telephone conversation initiated by Mr Humphry, that he had received a written statement relating to the Land as well as the mangrove/Dampier Creek area from a Mr Paddy Roe and others associated with the Goolarabooloo Aboriginal Corporation.  Mr Humphry asked for a copy of Mr Roe's submission and said that if Mr Chaney had information which had influenced him against one side of the issue he should let that side see the information.  Mr Chaney told Mr Humphry that he proposed to report to the Commonwealth Minister the next day (Easter Thursday).  On 31 March 1994 Mr Humphry wrote on behalf of the State to Mr Chaney reiterating those concerns and requesting access to any such information and an opportunity to respond (Document 103).  In particular Mr Humphry requested a copy of the submission from the Goolarabooloo Aboriginal Corporation, from which Mr Chaney had read extracts very quickly to him over the telephone.  There was also reference in
Mr Humphry's letter to an allegation made by Mr Chaney during the course of that telephone conversation that the State had been negligent in the way it had handled the question of the significance of the Land under the State Act.  In his letter, Mr Humphry observed that this was the first occasion on which any such allegation had been made and that the State wanted an opportunity to be heard on the matter.  [It will be recalled that s.10(4)(g) of the Commonwealth Act required Mr Chaney's report to deal with the extent to which the Land was or might be protected by or under State law and the effectiveness of any remedies available under any such law.]

 

          Ms Wheeler referred to the Chaney Report and the attachments to that report as containing three very substantial matters which were not put to the State and upon which the State had not had any opportunity to comment, namely:

 

            .       the submission from the Goolarabooloo Aboriginal Corporation

 

            .       Dr Sullivan's report of March 1994

 

            .       two letters from the solicitor for the Kimberley Land Council (Mr Irving) dated 17 and 22 March 1994 which made submissions, among other things, about the adequacy of the initial investigations by the ACMC and the general propriety of the way in which matters had been dealt with under the State Act.  Mr Irving's second letter attached a copy of Dr Sullivan's report. 

 

          It was submitted that although it was not necessary for the success of the natural justice point to show that Mr Chaney had in fact relied upon the above submissions, it was clear from Mr Chaney's report that he had done so.  The denial of natural justice was put on two bases.  First, that Mr Chaney had not given the State any or any adequate notice of these "new and significant materials" nor any or any adequate opportunity to respond to those materials.  Secondly, the complaint was that the Commonwealth Minister had in the same manner denied them natural justice. 

 

          Several examples were given of submissions which the State, if given the opportunity, would have made to Mr Chaney to counter the allegations made in Mr Irving's letters.

 

          Further, it was submitted on behalf of the State that Mr Irving's letter of 22 March 1994 misstated the impact of the Native Title Act 1993 (Cth) upon Mr Douglas's interest in the Land.  That, so it was said, infected the Chaney Report, the ATSIC brief and the decision to make the Third Declaration.

 

          Ms Wheeler pointed out that it was apparent from Mr Chaney's report that upon receipt of the submission from the Goolarabooloo group, he arranged a meeting with that group.  This was because (as Mr Chaney stated in paragraph 11.2 of his report) Mr Chaney thought that the submission did not appear to be consistent with the facts put forward by Mr Douglas about a meeting which Mr Douglas had with Mr Paddy Roe of that group.  The Goolarabooloo submission suggested that Mr Douglas's information to the Department of Aboriginal Sites about what he had been told about the significance of the area was not accurate.  It also contained assertions about the significance of the area.  Ms Wheeler submitted that there was a failure of natural justice in not affording the State an opportunity to look at the submission and to reply with its own comments. 

 

          A similar submission was made in relation to the Sullivan Report.  The Sullivan Report was referred to in paragraph 15.3 of Mr Chaney's Report.  Ms Wheeler referred me to what was described as a completely new allegation in Dr Sullivan's Report which (in deference to Aboriginal tradition) I shall not describe in detail.  It is sufficient to refer to it as a track involving an Aboriginal myth.  The track may or may not be the Initiates' Track but was said to have significance of a type other than as an initiates' track.  The Sullivan Report was put forward by the Kimberley Land Council as a most comprehensive and up-to-date report dealing with the whole of the claims of significance for the area and, so the State argued, it should have been disclosed, subject if necessary, to some constraints of confidentiality, to the State for comment.  This was particularly so in view of the additional claim made in the Sullivan Report.  These three very major and important sets of documents, so it was put, had not been disclosed.  Although the Goolarabooloo submission had been read briefly to Mr Humphry over the telephone, this disclosure was not in a way which would enable proper advice to be taken and proper comment and submission to be made and evidence to be adduced.

 

          Further particulars of denial of natural justice were given by both sets of applicants by way of amendments at the trial following late disclosure of Mr McLaughlin's diaries.  The amendments were relevantly identical and were substantially in the following terms:

 

            .       On a number of occasions before completion of his report Mr Chaney communicated to the Commonwealth Minister's offices his views

 

                   (i)         as to the progress and content of mediation/settlement negotiations between the Yawuru, the State and Mr and Mrs Douglas; and

 

                   (ii)       as to the significance of the area, the nature of the alleged threat to the area and the attitudes of the Yawuru, the State and Mr and Mrs Douglas in relation to the area and the mediation/settlement negotiations.

 

            ·     Neither Mr Chaney nor the Commonwealth Minister disclosed to the applicants Mr Chaney's ex parte communications to the Commonwealth Minister's office, and neither Mr Chaney nor the Commonwealth Minister gave the applicants an opportunity to be heard in response to the views communicated by Mr Chaney.

 

Error of Law

          Next, it was submitted by the State that the Commonwealth Minister erred in law in considering the extent to which the interests of Mr Douglas and the State were affected by his decision.  S.10(4)(e) required Mr Chaney's report to deal with this matter and s.10(1)(c) required the Commonwealth Minister to consider the report and thus at least consider the matters referred to in s.10(4)(e).  The error of law was first to question whether Mr and Mrs Douglas had any proprietary interest in the Special Lease because of the doubts said to exist about the status of the Land and the status of the Commonwealth and State legislation relating to native title and also because Mr and Mrs Douglas had entered into their commitments knowing that they had no final approval for obtaining and using the Land.

 

No Evidence that the Land was a Significant Area

          Next, it was submitted on behalf of the State (and on behalf of Mr and Mrs Douglas) that there was before the Minister no probative evidence capable of supporting a decision that the Land was a significant Aboriginal area.  This was again put on the basis both of the common law no evidence rule and the no probative evidence principle referred to in Bond.  Mr Chaney's report, it was submitted, not only failed to accept or reject any or all of the particular claims about the significance of the land, but raised questions of credibility without deciding them and then, so it was put, "leapt" to a conclusion concerning the existence of a particular dreaming in the area of Dampier Creek "... and perhaps the Land" (this being a quotation from paragraph 16.6 of Mr Chaney's report).  The State complained that there was no positive determination of the issue of particular significance.  There was no finding that the whole of the Land was for any particular reason essential to the maintenance of Yawuru culture.  There was, so it was said, no particular finding as to what it was that confidentiality required or where the Initiates' Track was required to be or the circumstances in which passage would be impeded relevantly by the proposed development of the Land.  There was reference to the Land being used for camping but, so it was submitted, unless there was something particularly important about the camping or the reasons for it or the way in which the camping took place on the particular land, mere use of land for a camping site would not come within the definition of particular significance in accordance with Aboriginal tradition.  It was submitted that although the camping might be dignified by the term "local Aboriginal social tradition" that did not, without more, fall within the expression "the body of traditions, observances, customs and beliefs" referred to in the Commonwealth Act.  That expression was to be read as a whole and it suggested a degree of continuity or importance.  In any event, only a small strip of the Land was used for that camping.  Mr Chaney was entitled to state bare assertions but they could not provide a basis for the Commonwealth Minister to be satisfied that the Land was significant.  The Commonwealth Minister was not entitled, so it was submitted, simply to adopt Mr Chaney's findings but had himself to be satisfied.

 

          As to the materials referred to in the Commonwealth Minister's statement of reasons I was referred to part of Mr McLaughlin's evidence to the effect that not all of those materials were actually physically before the Commonwealth Minister at the time at which he made his decision and that Mr McLaughlin was unable to say whether the Commonwealth Minister had read the representations attached to the Chaney Report.  I was invited to find and take note that -

 

   .      the statement of reasons did not comply with the requirements of the ADJR Act; and

 

   .      the Commonwealth Minister had failed to provide any material which explained in any intelligible way what it was that he actually decided and the material upon which he actually based his decision, as opposed to what seems to be the material available to him on which he could have based his decision. 

 

 

Accordingly, so it was submitted, the Commonwealth Minister's decision was relevantly unreasonable.  If, effectively, no reason had been given, the Court was entitled to draw an inference, in some circumstances, that the Minister had no good reasons to give: Public Service Board of New South Wales v. Osmond (1986) 159 CLR 656 at pp.663-664, 675 and 678.  The submission was that although the applicants were driven to look at secondary and unsatisfactory sources to derive an explanation as to the way in which the Commonwealth Minister arrived at his decision, they were assisted to some extent by the circumstance that the Commonwealth Minister had ample opportunity to give reasons, was required to do so pursuant to the ADJR Act, and decided not to do so but to seek from this Court a declaration that the State was not entitled to those reasons.  Furthermore, the Commonwealth Minister had chosen not to swear and file an affidavit.  Had he sworn a full and frank affidavit, so it was put, the Court would have great respect for it and cross-examination was most unlikely:  Minister of Energy v. Petrocorp Exploration Ltd [1989] 1 NZLR 348.   When the material listed in the reasons is examined, it was submitted that it either does not relate to the Land (as opposed to the land in the vicinity) or it sets out contentions on which Mr Chaney, for good reason, was unable to arrive at a finding.  This inability arose either because the findings depended upon questions of credibility or the material expresses conclusions as to the effect of the proposed crocodile park, rather than setting out any relevant facts from which the Commonwealth Minister could
himself derive a finding as to the significance of the Land.

 

          In addition to other examples of this, my attention was drawn in particular to an affidavit from Mr Francis Djaigween which was quoted in the Commonwealth Minister's media release on 4 February 1994 but which does not, so it was submitted, in any intelligible way set out what it is about the Land that is significant.  It was submitted that moving as that affidavit may have been, it did not convey anything clearly about the factual matters so as to provide the Commonwealth Minister with a basis of material fact upon which he could arrive at a conclusion about the Land.

 

 

          The State's submissions, in relation to what was described as the Aboriginal source materials were that those materials fell into three categories.  Either they did not clearly relate to the Land, or they related to the Initiates' Track which had been excised, or they comprise general assertions of unspecified harm without setting out the factual assumptions upon which those assertions are based in a manner which would enable those assumptions to be tested as being factually accurate or not.  Where factual explanation existed, it was apparent that the concerns related to Dampier Creek and not to the Land.  In support of this submission, I was referred to passages in the Chaney Report and the ATSIC brief dated 5 April 1994. 

 

Further Error of Law - Using s.10 as a de facto extension of the Emergency Declaration

 

          The State argued that it was apparent from the Chaney Report that it had been submitted urgently because the Second Declaration under s.9 was about to expire.  This was also apparent from paragraph 11 of Mr Chaney's affidavit sworn 25
July 1994.  From that affidavit it could be seen that Mr Chaney was aware that the Commonwealth Minister would be unable under s.9(3) of the Commonwealth Act (which imposes a time limit on extending emergency declarations) to prevent any development on the Land after 5 April 1994 should he wish to do so and that he could not make a s.10 declaration until he had received a report.  The State submitted that it was clear from Mr Chaney's report and from the ATSIC brief of 5 April 1994 that full and proper evaluation of the type which s.10 contemplated had not been possible.  In those circumstances s.10 of the Commonwealth Act was being used not in the considered way in which, having regard to the difference between the two sections, parliament intended it to be used but it was being used in effect to extend the s.9 declarations until there was a chance to have a proper look at the matter in which case the declaration might be revoked. 

 

          This was said to be evidenced by the fact that the State and Mr and Mrs Douglas were given a very tight deadline, a matter of a few hours, to respond and the declaration was made the following day.  It was put that the Commonwealth Minister's deadlines were self-imposed.  They were self-imposed because he did not undertake any investigations at the time of the 1992 request and only appointed Mr Chaney some eleven days after having made the First Declaration.  Mr Chaney then did not advertise for submissions until 3 March 1994, being about a month after the first declaration.  It was those factors, so it was submitted, not other surrounding circumstances which dictated the urgency. 

 

          It was submitted that Mr Chaney had made his recommendation and the Minister had made the Third Declaration respectively on an assumption that subject
to the constitutional validity of the Native Title Act, the grant of the Special Lease of the Land was an "impermissible future act" (an expression defined in that Act) and therefore invalid.  The State submitted that the Native Title Act would only invalidate the grant of a lease in relation to the Land if native title existed and the lease "affected" the native title.  Ms Wheeler submitted that "this factually and legally complex issue" was not dealt with and could not sensibly be dealt with within the context of a decision under s.10 of the Commonwealth Act.  She submitted that it would be contrary to the intention of the parliament to do so because the Commonwealth Act was never intended to be de facto land rights legislation.

 

 

Contentions on behalf of Mr and Mrs Douglas in respect of the Third Declaration

 

 

          In respect of the Third Declaration, once again Mr and Mrs Douglas adopted the submissions made on behalf of the State.  They also complained that they had been denied natural justice or procedural fairness.  My attention was drawn to a letter dated 15 March 1994 from their solicitors to Mr Chaney specifically asking that if he or the Commonwealth Minister were provided with any other material or information intended to prove the significance of the Land in accordance with Aboriginal tradition, then such information be provided to Mr and Mrs Douglas for their consideration and response as a matter of procedural fairness.

 

          In summary there were the following complaints of procedural unfairness:

 

1.       Reliance upon certain documents without making copies available to Mr and Mrs Douglas for comment and response, namely:

 

          (a)  the Goolarabooloo Aboriginal Corporation submission to Mr Chaney;

 

          (b)  Dr Sullivan's report dated March 1994 which set out reasons why the Land was said to be significant, in accordance with Aboriginal tradition.  I was taken to the responses which Mr and Mrs Douglas would have made to these assertions if they had been given the opportunity;

 

          (c)  Mr Chaney's report itself;

 

          (d)  two letters from the Kimberley Land Council dated 17 March 1994 and 22 March 1994 respectively;

 

          (e)  Ms Jackson's submission (on behalf of the Kimberley Conservation Group) dated 21 March 1994 concerning the suitability of alternative sites. This document, so it was submitted, asserted that Mr Douglas' objections to certain proposed alternative sites for the crocodile park were not credible.  As it would appear that Mr Chaney was influenced in preparing his report on the aspect of alternative sites as was also the Commonwealth Minister and bearing in mind the highly qualified nature (in the sense of being provisional and containing reservations) of the Evangelisti Report which reported on these proposed alternative sites, it was submitted that a procedural unfairness had occurred.

 

2.       Mr Chaney having interviewed Ms Elsta Foy concerning the consent to the development of the crocodile park on the Land given by Mr Charlie, former Chairman of the Yawuru Aboriginal Corporation without putting to Mr and Mrs Douglas what Ms Foy told him, for their comment and response.

 

 

 

          Mr Stevenson submitted that if procedural fairness had not been accorded to Mr and Mrs Douglas in the course of Mr Chaney's enquiries then procedural fairness should have been accorded to them by the Commonwealth Minister before he decided to make the Third Declaration.

 

          The evidence showed that Mr and Mrs Douglas were invited by the Commonwealth Minister to make further submissions in respect of issues raised by the Goolarabooloo group in that group's correspondence with Mr Chaney (although no copy of that correspondence was provided).  However, the Commonwealth Minister's invitation once again did not, so it was submitted, give Mr and Mrs Douglas's solicitors much time.  The Commonwealth Minister sent a facsimile to them at about 4.00 pm (Western Standard Time) on 5 April 1994 which set a deadline for a response by 10.00 am (Western Standard Time) the next morning.  The Commonwealth Minister in fact made his decision at approximately 11.00 am (Western Standard Time) on 6 April 1994 once again before receiving the submissions from Mr and Mrs Douglas's solicitors and again without having contacted them to enquire whether a submission was going to be forwarded.  The evidence is that the faxed response from Mr and Mrs Douglas was not received until after the Commonwealth Minister had made his decision. 

 

          The Commonwealth Minister's press release dated 6 April 1994 did not, so it was submitted, give any indication of any reasons of the Commonwealth Minister himself (as contrasted with what Mr Chaney said in his report) why the Commonwealth Minister concluded that the Land was of particular significance.  That press release was expressed in terms of "Mr Chaney has concluded".  The press release and the ATSIC brief of 5 April 1994, so it was put, appeared to confirm that the Third Declaration was really a temporary declaration made for a number of reasons including the native title issues, uncertainty regarding who actually spoke for the area and to cause Mr Douglas to examine seriously the proposed alternative locations for the crocodile park.

 

          Mr Stevenson submitted that the evidence, and in particular the evidence of Mr McLaughlin, showed that there was a real doubt whether the Commonwealth Minister had in fact considered the representations to Mr Chaney which accompanied Mr Chaney's report.  He pointed to the difference in wording between paragraphs 10 and 18 of Mr McLaughlin's affidavit, Mr McLaughlin's oral evidence that he could not
say whether the Commonwealth Minister in fact considered those representations and the deficiencies in the Minister's statement of reasons under s.13 of the ADJR Act.  I was asked to infer from what were described as the "totally defective reasons" and the fact that the Commonwealth Minister had chosen not to inform the Court or the parties of any process of reasoning upon which he purported to make his decision that there was no proper consideration by the Commonwealth Minister of the Chaney Report or of the representations which accompanied that report when he made his decision.  

 

          Mr Stevenson stressed that despite the opportunity which the Commonwealth Minister had to file affidavits setting out the reasons which led him to the conclusion that the Land was of particular significance, he had not chosen to do so.  It was no answer to say that his clients could have sought further and better particulars in relation to the statement of reasons provided pursuant to the ADJR Act.  In those circumstances, an inference could be drawn that there was no reasoning at all or no proper reasoning which was engaged in by the Commonwealth Minister to arrive at the decision which he made.  It was not sufficient simply to point to materials purportedly relied upon.  Those concerned by the decisions were entitled to know how the decision maker arrived at his decision and on what basis. 

 

          Mr Stevenson also relied heavily on the fact that the ATSIC briefing of 5 April 1994 was made at a time when ATSIC had only a copy of Mr Chaney's Report without the representations.  Mr Stevenson submitted that nowhere in that brief was there an attempt to analyse or state the basis upon which a finding of significance could be made, having regard to Mr Chaney's Report.  The ATSIC brief of 5 April 1994 contained a statement that the Chaney Report itself provided a basis but, so it was submitted, the Chaney Report did not provide any reasoning or basis upon which the Commonwealth Minister might himself be satisfied that the whole of the Land was a significant Aboriginal area.  The Commonwealth Minister had adopted what was described in that briefing as "Option A". In respect of Option A, ATSIC suggested in its brief that the making of a permanent declaration should occur because it would result in Mr Douglas giving serious examination to alternative locations either at Broome or elsewhere.  That was a matter referred to by the Commonwealth Minister in his press release of 6 April 1994.  The brief also dealt with questions of native title.  Mr Stevenson submitted that the material in the brief did not go to the threshold issue of whether or not the Land was of particular Aboriginal significance as defined in the Commonwealth Act.  He further submitted that the inference was open that the Commonwealth Minister had erred in making the Third Declaration for the purpose of providing security over the Land while issues such as who were entitled to speak for the Land and the validity of the Special Lease were determined in the Court proceedings.  Reliance was placed, for a similar inference, on the introductory passages to Mr Chaney's Report. 

 

          The ATSIC brief of 5 April 1994 was also relied upon in the submission put on behalf of Mr and Mrs Douglas that the Third Declaration had been made for a purpose other than the purpose for which the power was conferred, and that accordingly there had been an improper exercise of power.  From the fact that the Commonwealth Minister's decision accorded with the recommendation made in that brief it was submitted that it was reasonable to assume that the Commonwealth Minister relied upon its contents.  An examination of that ATSIC brief disclosed the suggestion that the permanent declaration be made to cause Mr Douglas to give "serious examination of alternative locations".  The brief also contained references to the alleged illegality of the Special Lease and the claim to native title.  Mr Stevenson submitted that the effect of the Third Declaration was to grant to the Yawuru an interim injunction pending the determination of the legal issues surrounding the validity of the Special Lease and their claim for native title.

 

          As to the Chaney Report, Mr Stevenson submitted that Mr Chaney's conclusion as to particular significance appeared to have been based on the proposition put forward in Mr Brian Saaban's affidavit filed in the Federal Court proceedings and picked up and repeated in Dr Sullivan's Report of March 1994 that if the crocodile farm were built then the Yawuru could not control people going near the ceremony ground at Fisherman's Bend.  Fisherman's Bend is 3 kilometres from the Land.  Mr Stevenson pointed to the evidence which showed that on the occasion, in 1990, of the only initiation ceremonies in the past 20 years, arrangements were made to close Crab Creek Road to enable that activity to occur.  It was submitted that the mere presence of the crocodile farm would not have the degree of influence which was urged upon Mr Chaney. 

 

          Mr Stevenson put this submission as being in respect of the denial of procedural fairness.  He contended that the four grounds of significance relied upon by Mr Chaney could not be relied upon without making a finding of credibility in favour of one side of the debate.  It was said that because Mr Chaney confirmed that he had not made any findings based on credibility, he could not have accepted the four disputed matters referred to in paragraph 16.17 of his Report.

          I think it is appropriate to deal here with that submission.  In my opinion the submission attempts to clothe an argument on the merits with the language of judicial review of administrative action.  It was up to Mr Chaney to decide whether he could accept the four matters of alleged significance without resolving matters of credibility.  Similarly the extent of any likely influence on the Yawuru's ability to control access of others to their ceremony grounds which might arise from the conduct of the crocodile farm was a matter for Mr Chaney and in turn the Commonwealth Minister to weigh up.

 

          On behalf of Mr and Mrs Douglas my attention was drawn to the fact that the Commonwealth Minister was responsible for protecting the interests of Aboriginal people.  In those circumstances, so it was submitted, the ordinary person would justifiably have some apprehension about the Commonwealth Minister's ability to consider issues of alleged Aboriginal significance in an unbiased way.  This would, it was said, affect the content of procedural fairness to be extended to Mr and Mrs Douglas.  Reference was made to the briefings provided by ATSIC and the direct contact between Mr Chaney and the Commonwealth Minister's office.  In those circumstances, it was submitted that the Commonwealth Minister had the highest possible duty to ensure by way of procedural fairness, that Mr and Mrs Douglas were given an opportunity to comment on any material to which they had not been privy and to have that response considered by the Commonwealth Minister before he made his decision.  Mr Stevenson submitted that the evidence showed that the Commonwealth Minister had failed to commission the s.10(4) report at an early stage or even to inform Mr and Mrs Douglas whom he knew to be involved in litigation on the same issue, that some of the parties to that litigation had applied to him to exercise his powers under sections 9 and 10 of the Commonwealth Act.  If the Commonwealth Minister had informed Mr and Mrs Douglas of the application and the submissions being made to him, it might well have been the case that Mr and Mrs Douglas could have persuaded the Commonwealth Minister to commission the s.10(4) report much earlier.  This submission was put in order to counter the argument that Mr and Mrs Douglas had failed to give an undertaking not to proceed with the development of the crocodile farm in circumstances where time was fast running out.  It was submitted that there had been plenty of time for the Commonwealth Minister to appoint Mr Chaney and for Mr Chaney to report within the 60 day period following the First Declaration but the Commonwealth Minister had not appointed Mr Chaney until 14 February 1994, Mr Chaney had not published notices calling for representations until 3 March 1994 and 10 March 1994 and even then Mr Chaney was not able to give the matter his complete attention due to other commitments.  In those circumstances the alleged urgency of the situation could not, so it was put, be relied upon to deny Mr and Mrs Douglas procedural fairness.  The Minister had "stood by" since 7 October 1992 or at the very latest 7 December 1993. 

 

          Mr Stevenson submitted that it was not necessary for his clients to show that the Commonwealth Minister was influenced by any adverse material to which his clients were not given an opportunity to respond.  For this submission he relied upon Taveli v. M.I.L.G.E.A. (1989) 86 ALR 435 at p.446.

 

          Next it was submitted on behalf of Mr and Mrs Douglas that Mr Chaney had [in terms of s.5(1)(b) of the ADJR Act] not observed procedures that were required by law to be observed.  This was put on the basis that in preparing his report Mr Chaney was limited to taking the steps referred to in s.10(3), namely to publish a notice inviting representations and consider those representations.  The submission was that Mr Chaney was not entitled to embark on enquiries of his own.  The State expressly declined to adopt that submission.

 

          Again, I think it is convenient to deal now with that submission.  I reject it for the following reasons.  First, there is no express prohibition in the Commonwealth Act against the reporter embarking on his or her own enquiries.  I can see no basis whereby from the express requirements of s.10(3) it can be implied that the information to be contained in the report should be confined to the information gained by carrying out those requirements.  I read s.10(3) as providing a minimum requirement for publicising the application for a declaration under s.10 and inviting interested persons to furnish representations.  What is the reporter to do if there is no response?  Section 10(4) stipulates that the report must deal with the matters listed.  It might be very difficult to do this without making enquiries if there were no response or very little response to the reporter's notices.  Even if there were many responses, this would not seem to me to be a logical basis for denying the reporter the advantage of seeking out further and possibly better information on the matters with which he or she must deal in the report.

 

          Finally, there was a submission that the decision to make the Third Declaration was unreasonable in the Wednesbury sense.

 

 

 

Submissions on behalf of the Commonwealth Minister in relation to the Third Declaration

 

It was submitted on behalf of the Commonwealth Minister that the Chaney Report was a separate decision and that as Mr Chaney was not a respondent there was thus no challenge to his report but only to the Minister's decision.  Alternatively, Mr Willheim submitted that in view of the statutory procedure required by s.10 of the Commonwealth Act the content of any requirement for Mr Chaney to accord natural justice or procedural fairness was to be found within s.10.  Mr Chaney, so it was put, was not obliged  to comply with any requirements additional to the statutory scheme.  The specific provisions of s.10(3)(a) and (b) constituted a legislative prescription of the manner in which the report was to be prepared, including the manner in which natural justice was to be afforded.  It was submitted that the Court should not construe the Commonwealth Act in a way which would require Mr Chaney to have made available to each interested person making representations, copies of all representations expressing a contrary view.  Nor, so Mr Willheim submitted, should the Commonwealth Act be interpreted as requiring disclosure or full and complete disclosure of representations to Mr Chaney as if they were evidence.  It was sufficient that a party be apprised of the general character of adverse evidence and this should not be extended to require disclosure of culturally sensitive Aboriginal material to those opposing the making of a declaration.  Disclosure of the general nature of relevant evidence was, so it was put, enough and there was no requirement to disclose the detailed content of specific myths, stories or spiritual beliefs.  In any event, it was submitted that some of the material not disclosed did not include any fresh evidence.  Mr Willheim, on several occasions, pointed to the stated purpose of the Act (which was specifically referred to by all the members of the Full Court in Tickner v. Bropho) as being the preservation and protection of Aboriginal traditions customs and beliefs.  He submitted that it would be contrary to the purposes of the Commonwealth Act to require Aboriginal people to disclose their material to hostile interests.  This might well discourage the making of applications for declarations under the Commonwealth Act.  Thus, it was said that full access to culturally sensitive Aboriginal material for the purposes of opposing an application should be given only in extraordinary and exceptional circumstances, for example, where there was a real and not merely fanciful risk that the evidence may have been fabricated.  Alternatively, it was submitted that the confidential nature of this type of material narrows the field of operation of the principles of natural justice or procedural fairness to the extent that it was sufficient that the applicants were informed of the general tenor of the submissions in support of the application for a declaration.  No adverse implication should be drawn, so it was submitted, merely because Aboriginal elders disclosed detailed evidence in relation to a site only at a late stage or because, for another group of Aboriginal people, the site did not have the same significance. 

 

          Alternatively, even if there had been a technical breach of procedural fairness, it was submitted that, as a matter of discretion, the Court should refuse relief because the applicants had failed to demonstrate a reasonable likelihood that disclosure by Mr Chaney would have led to a different outcome.

 

          As to the challenge to the mediation process Mr Willheim submitted that the claim that Mr Chaney had communicated the content of the mediation and settlement negotiations was not supported by the evidence.

 

          Mr Willheim put similar submissions to those summarised above on the matter of procedural fairness in relation to the reporting stage, in relation to the complaint that the Commonwealth Minister had not extended procedural fairness to the applicants.  The content of procedural fairness at this level was, so it was submitted, to be found within ss.10 and 14 of the Commonwealth Act and those provisions had been complied with.  Mr Willheim submitted that no other procedural requirements should be implied.  Alternatively, the requirements of natural justice were satisfied because the decision making process, viewed in its entirety, had entailed procedural fairness.  It was said that the requirements of procedural fairness in this matter were satisfied by the statutory procedures which Mr Chaney was required to follow.  On the question of fairness, in summary, the Commonwealth Minister relied upon the following:

 

  .       the applicants were aware of the procedure for inviting representations;

 

  .       no request was made for access to representations (for example to the Kimberley Land Council submissions) other than the State request for access to the Goolarabooloo submission after Mr Chaney had read it to Mr Humphry;

 

  .       the Goolarabooloo submission did not form a component of the basis of Mr Chaney's findings of particular significance;

 

  .       the State submissions had already dealt with the State's position about the area being a mythological site;

 

  .       the submissions made by the State and Mr and Mrs Douglas to Mr Chaney were comprehensive and covered all relevant matters;

 

  .       Mr and Mrs Douglas did not seek the opportunity to make representations to the Commonwealth Minister;

 

  .       the Commonwealth Minister's willingness to make material available and to consider representations from the State and Mr and Mrs Douglas as set out in his letters dated 5 April 1994 to those parties satisfied any procedural fairness requirement;

 

  .       in those letters the Commonwealth Minister made clear that his willingness to defer making a s.10 declaration depended upon receipt of an undertaking from Mr Douglas that no work would take place with-out the Minister's consent while the process was in train;

 

  .       the subsequent timetable was necessary to meet the unwillingness of Mr and Mrs Douglas to maintain the status quo [that unwillingness was demonstrated by a letter dated 31 March 1994 whereby Mr and Mrs Douglas notified their intention to commence ground- disturbing works at the expiration of 48 hours and the evidence of Mr Douglas that he had purchased machinery and carried out certain site works];

 

  .       the Commonwealth Minister was faced with a situation where he had received a report from Mr Chaney advising him that the requirements of s.10 were satisfied and that work would commence immediately;

 

  .       no responses were received prior to the deadline nominated in the Commonwealth Minister's letters of 5 April 1994 and no requests for any extension of time had been made before that deadline expired.

 

 

          As to the applicants' submissions that there had been a failure on the Commonwealth Minister's part to take relevant considerations into account, Mr Willheim submitted that the applicants had not demonstrated that the Commonwealth Minister failed to take into account any matter which he was bound to take into account.

 

          In particular, it was submitted that the claim that the Commonwealth Minister had failed to take into account the prior Court proceedings should be dismissed.  The evidence was, so it was submitted, that the Commonwealth Minister was aware of the Court proceedings and none of those decisions related to the exercise of the statutory powers conferred on him by the Commonwealth Act.  The Commonwealth Minister was obliged to exercise his discretion having regard to the objects of the Commonwealth Act - a discretion wider than that of the Court since he may take into account broad considerations of national interest.

          Similarly in respect of the complaint that the Commonwealth Minister had taken irrelevant considerations into account, Mr Willheim pointed to s.10(1)(d) as showing that the Minister was intended to have a very wide discretion and he submitted that it would only be in the most exceptional circumstances that it would be appropriate for a Court to intervene on the ground that the Commonwealth Minister took irrelevant considerations into account.  In any event no irrelevant consideration had been established.

 

          On the question of improper purpose i.e. that the Commonwealth Minister had exercised his power to protect the Land pending a native title determination, it was submitted on the Commonwealth Minister's behalf that this claim was not established on the evidence.  Alternatively, there was nothing improper in having regard to the possible native title determination because that might be relevant to the period of the declaration.

 

          As to the complaint of Wednesbury unreasonableness it was submitted on behalf of the Commonwealth Minister that there was very substantial material before him including in particular the application by the Kimberley Land Council dated 31 January 1994 and accompanying material (which included the ACMC advice) the Chaney Report itself and the reasons of Owen J. including his Honour's conclusion that there were serious questions to be tried.  In those circumstances a finding of Wednesbury unreasonableness, so it was submitted, was not open.

 

          In relation to the complaints made in respect of the ATSIC briefs it was submitted on behalf of the Commonwealth Minister that briefs prior to the
application of 31 January 1994 were not relevant.  This was because the earlier application on 7 October 1992 was, so it was argued, clearly overtaken by a series of subsequent events.  In any event the evidence was that the Commonwealth Minister had not as a matter of course adopted ATSIC advice and had access to other advice.  The applicants were required to find fault with the reasons of the Commonwealth Minister as the decision-maker.  Small defects, so it was put, in one of several sources of advice do not establish a defective decision.

 

                                 Conclusions - the Third Declaration

 

          Insofar as the applicants' complaints about the Third Declaration are based on what were said to be the Commonwealth Minister's errors as to the finding in relation to the effectiveness of the law of the State and his failure to take into account the Court proceedings, I have dealt with and rejected those submissions in the context of the First Declaration.  I do the same in relation to the Third Declaration and for the same reasons as set out above.  However, several other issues have to be decided.

 

Natural Justice or Procedural Fairness

          I accept the State's submissions that the procedure prescribed by the Commonwealth Act is intended to ensure, as far as reasonably possible in a matter of this type, that the Commonwealth Minister is provided with comprehensive information on both sides of the issue before a declaration is made under s.10 of the Commonwealth Act.  With one reservation, I accept also the submission that for that intention to be fulfilled the material on each side should be disclosed to the other side.  The reservation is that while in this particular matter that proposition can apply
fairly, conveniently and appropriately to the Yawuru (represented by the Kimberley Land Council) as being on one side and the State and Mr and Mrs Douglas together being on the other side, it may not always apply to all persons interested in whether a declaration is made under s.10.  It is not necessary for the disposal of this case to decide the point, but there may be two different categories of persons to be considered.  The first category might well be a potentially wide category of the "interested persons" referred to in s.10(3)(a)(ii) who are invited to furnish representations to the reporter and to which representations the Commonwealth Minister is obliged to give due consideration.  The second category could well be those having particular proprietorial interests or other legitimate expectations upon which would be based an entitlement to procedural fairness.

 

          I accept also the State's further submissions that quite apart from the statutory provisions:

 

          .     natural justice or procedural fairness required the Commonwealth Minister or the reporter to ensure that the applicants were made aware of all relevant materials which were before or considered by the Commonwealth Minister;

 

          .     procedural fairness had to be extended at some stage of the decision-making process either at the inquiry/report stage or when the discretion was being exercised; and

 

          .     if the decision-maker was going to consider new material, then procedural fairness required disclosure of that new material to the other party.

 

 

          It seems to me that those submissions find a firm basis in Peko-Wallsend, South Australia v. O'Shea (1987) 163 CLR 378 and Kioa v. West.  In my view, they are also firmly based on the arrangements made with Mr Chaney on 22 February 1994 to
which I have referred earlier in these reasons.

 

          In my view, the State was denied procedural fairness when, on the eve of submitting his report to the Commonwealth Minister, Mr Chaney, instead of providing Mr Humphry with a copy of the submission from the Goolarabooloo Aboriginal Corporation and giving the State an opportunity to comment on the matters contained in that submission, merely read extracts from that document very quickly over the telephone.  Similarly, no reasonable opportunity was given to deal with the allegation made by Mr Chaney during the course of that telephone conversation, for the first time, that the State had been negligent in the way in which it handled the question of the significance of the Land under the State Act.  The Goolarabooloo submissions related not only to the alleged significance of the Land but also to Mr Douglas' credibility on the subject of what he had previously been told by the Goolarabooloo group about the significance of the Land.

 

          Similarly, in my opinion, procedural fairness was not extended to the State or Mr and Mrs Douglas either at the report or the final decision-making stage when Dr Sullivan's further report of March 1994 and the two letters dated 17 and 22 March 1994 were not put to the applicants so that they could have an opportunity to comment on the matters raised therein.

 

          Mr Willheim for the Commonwealth Minister and Mr Irving who appeared for the intervenors submitted that there was nothing new in these documents.

 

 

          I do not accept that submission.  In relation to the Kimberley Land Council letters there are fairly extensive criticisms of the procedures adopted by the State in relation to the protection of the Land.  I was not taken to any earlier such criticisms.  They included criticism about the sending of a woman to make the initial investigations of Aboriginal heritage significance.  As has been noted earlier, s.10(4)(g) of the Commonwealth Act required Mr Chaney to deal in his report with the extent to which the Land is or may be protected by or under State law and the effectiveness of any remedies available under any such law.  Mr Chaney dealt with this matter at some length at pages 58 to 61 of his report.

 

          Again, in the Goolarabooloo submission, apart from calling into question Mr Douglas' credibility on the matter referred to above there is the assertion that the Land is a foundation site which comes from the dreamtime.  The story set out on the second page of the submission is related not to the general area but to this particular site (the Land) where it is proposed to develop the crocodile park.

 

          In the March 1994 Sullivan report, which Ms Wheeler in my view fairly described as one which purported to be a most comprehensive and up-to-date report dealing with the whole of the claims for significance of the Land, there is (summarised in paragraph 7 on page 13 but expanded upon in more detail on pages 39-42) the completely new claim.  The claim is that the Land is traversed by the track involving the Aboriginal myth, which may or may not be the Initiates' Track to which I have referred earlier.  The seven claims for the Land's significance are listed in numbered paragraphs by Dr Sullivan on page 13.  These seven claims are each set out verbatim at pages 52-53 of Mr Chaney's report.  It seems clear that Mr Chaney at page 52 accepts the first four numbered claims in Dr Sullivan's report as establishing the particular significance of the Land.  [There was a strong suggestion from the applicants that the references in those paragraphs to "the area" could not be equated with the Land and that this constituted a defect in the Chaney report. I reject that.  It is quite clear, in my view, from the reference to "the lease area" in the first line on page 13 of Dr Sullivan's report that "the lease area" and "the area" are one and the same].  In summary, those claims were:

 

          .     the area is required so that control can be exerted over behaviour in the vicinity of certain (specified) rituals;

 

          .     the area is required for passage (of specified types) between one site of ritual and another;

 

          .     development of the area will prevent first-stage initiates completing their initiation;

 

          .     the area is a traditional camping ground.

 

 

 

          It is not so clear what impact the other three claims (which include the Aboriginal myth referred to above) may have had on the decision to make the Third Declaration.  At paragraph 16.18 of his report Mr Chaney states that he did not have a concluded view on these further three matters.  However, he proceeds to set them out in full and in relation to this new matter (and one other) says, at paragraph 16.19, that he is satisfied that it is a serious claim for examination but that he would require further time and consultation to report adequately on the degree of significance to be accorded to it.  Mr Chaney also refers to this particular Aboriginal myth at paragraph 15.1 to 15.3 and 16.6 to 16.8.  It appears from paragraphs 4.27 and 10.7 of his report that Mr Chaney was influenced by and gave considerable weight to the views of the Goolarabooloo group.  In the Commonwealth Minister's statement of reasons (Document 118) there is reference to the particular significance of the Land to the Yawuru and "to other Aboriginal people, in the vicinity of Broome".  It is possible that this may be a reference to the wider significance of this Aboriginal myth or to the particular interests set out in the Goolarabooloo submission.

 

          In any event it is not necessary to show that these matters which were not put to the applicants and which they were denied an opportunity to contradict did work to their prejudice.  As Wilson J. observed in Kioa (at p.603):

 

                    "It is enough to show that the way was open for it to do so ...".

 

 

Brennan J. dealt with the same point at p.629:-

 

 

                    "Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account."

 

 

 

          In my view, problems of confidentiality in the present matter could have been readily resolved in much the same way as they were resolved in the course of these proceedings.  I have referred in one of my interlocutory judgments to the sensible degree of co-operation exhibited as between the responsible officers of the Commonwealth and State on the matter of confidentiality.

 

          Mr Irving, on behalf of the intervenors, submitted amongst other matters, that what was contained in these three sets of documents was not new.  I have considered the detail of that submission in the light of the three sets of documents.  I would reject the submission, in summary for the following reasons:

 

          .     The Goolarabooloo submission included an affirmative case that went beyond simply denying Mr Douglas' account of what Mr Roe had said about lack of significance.  The State's Aboriginal site officer's report of what Mr Roe had said to her on the matter could have been put to Mr Chaney.  Questions of credibility which Mr Chaney left unresolved may well have been resolved in the applicants' favour.  As an indication that the Commonwealth Minister knew that there was new material in the Goolarabooloo submission, I was referred to the offer (which he faxed on 5 April 1994 to the State Minister) to make that submission available subject to various conditions.

 

 

          .     Mr Irving's chronology attached to his affidavit of 25 February 1994 was not, in my view, sufficient notice either of what was later contained in the Goolarabooloo submission or the Kimberley Land Council's criticisms of the processes which took place under the State Act;

 

          .     As the State applicants conceded, there may have been little that was new in the Sullivan Report of March 1994 but I accept the submission that what was new was very significant.

 

 

 

          The Commonwealth Minister relied upon the decision of the Full Court of this Court in Minister for Immigration v. Pashmforoosh (1989) 18 ALD 77 for the propositions that procedural fairness does not require that every representation or argument that may be regarded as adverse to the applicants must be disclosed and that what is necessary to provide procedural fairness must be judged according to the circumstances of the case.  Pashmforoosh was, in my view, a very different case to the present case.  Pashmforoosh involved cablegrams (on a departmental file) which related primarily to a person other than the respondents and had been regarded as irrelevant by all concerned.  In my opinion the three categories of documents here are in a different class.

          In circumstances where new claims were surfacing piece by piece concerning the alleged significance of the Land, about what had or had not been said on that subject in the past and on what procedures had taken place to protect the Land under or purportedly under the State Act, I do not consider that the applicants were accorded procedural fairness.  In my view it was not fair quickly to read out extracts from the Goolarabooloo submission over the telephone on the eve of the submission of the Chaney report.  Nor was it fair for new matter in the Sullivan report to find its way into the Chaney report and then to be before the Commonwealth Minister without the applicants having any reasonable opportunity to challenge it.  Furthermore, there was in my opinion procedural unfairness in not giving the State and Mr and Mrs Douglas copies of the two submissions dated 17 and 22 March 1994 and an opportunity to comment on them.  The latter submission itself referred expressly to Dr Sullivan's report, contained trenchant criticism of the manner in which the matter had been handled by the State and dealt with each of the matters referred to in s.10(4)(a) to (g) of the Commonwealth Act.

 

          In addition, so far as Mr and Mrs Douglas were concerned I accept the submissions made on their behalf that they were denied procedural fairness by not being given an opportunity to respond to the written submissions made on 21 March 1994 by Ms Jackson on behalf of the Kimberley Conservation Group and Ms Elsta Foy's assertions in relation to the circumstances of the consent given by the Yawuru Aboriginal Corporation to the development of the crocodile park.  In my view, these matters should not have gone forward to the Commonwealth Minister without Mr and Mrs Douglas having an opportunity to challenge them.  In the ministerial assessment of the respective credibility of the Yawuru on the one hand and Mr Douglas on the other, these two submissions had at least the very real potential of being material.

 

          The Commonwealth Minister submitted that his willingness to make material available and to consider representations (as expressed in his letters dated 5 April 1994 to the State applicants and Mr and Mrs Douglas' solicitors) satisfied any procedural fairness requirement particularly in the context of notice having been given by those solicitors that their clients intended to commence work.

 

          In my opinion, to accede to this submission would be to give tacit support to the establishment of inefficient and unfair administrative decision-making processes.  The basis of the submission is that the Commonwealth Minister had run out of time.  This does not seem in the particular circumstances of this matter, a very persuasive excuse for denying procedural fairness where, had time not been of concern, procedural fairness in that form would otherwise have been extended to the parties concerned.

 

          I have set out earlier the chronology of the appointment of Mr Chaney in a dual capacity as a mediator under s.13(3) and a reporter for the purposes referred to in s.10 of the Commonwealth Act.  There is something artificial, in my view, in what is said to be the urgency of the situation.  The urgency arose towards the end of the process and the Commonwealth Minister relies upon that urgency for denying the State and Mr and Mrs Douglas a reasonable opportunity to be heard in opposition to the matters put so late in the piece before Mr Chaney and himself.  The matter had been before the Commonwealth Minister on and off since October 1992.  The judgment in Tickner v. Bropho was handed down on 30 April 1993.  From then onwards the Commonwealth Minister knew that if a declaration were sought in respect of the Land under s.10 of the Commonwealth Act he was required to obtain a report. In those circumstances, as soon as the Kimberley Land Council made the request on behalf of the Yawuru People for such a declaration on 31 January 1994, immediate steps should have been taken to appoint a reporter and to make arrangements to enable the reporting process to move along expeditiously.  For example, this might well have included the separation of the mediating and reporting functions.  In my view, it would be unfair to the extent of amounting to procedural unfairness, to use the expiry of the 60 day period in this matter as an excuse for denying the applicants in these matters a proper opportunity to put their case.  In my opinion, given the known 60 day potential time limit, procedural fairness required arrangements to be made for the reporting procedure to be put in place urgently and to move along expeditiously.

 

          The Commonwealth Minister was obviously in a difficult situation when, on 31 March 1994, Mr and Mrs Douglas' solicitors gave 48 hours notice of their clients' intention to commence ground disturbing works.  I have felt obliged to keep that fact very much in mind when assessing whether and to what extent there was procedural unfairness in the manner in which this administrative decision was made.  On the other hand, it must also be remembered, however, that from the very start of the 60 day period, those solicitors had been urging the Commonwealth Minister's office to move matters along expeditiously.

 

          In view of the above conclusions, I do not consider that it is necessary to deal with the complaints based upon the communications between Mr Chaney and the Commonwealth Minister's office.

 

Error of Law Said to Arise in Relation to the Assessment of Mr and Mrs Douglas' interests

 

          I do not accept this submission.  In my opinion Mr Chaney was entitled to refer to the uncertainty arising out of the legal status of the Land at common law and in the legislative framework.  I agree that it may not necessarily be the case that if the State Lands (Titles and Traditional Usage) Act 1993 (W.A.) is invalid, the granting of the lease would be of no effect, but it was accepted that this was a minor confusion.  The ATSIC brief, which picked up this point, simply stated that there remained some question as to the legality of the Special Lease and that it was not possible to be certain about the pecuniary and proprietary interests which might be affected by the making of a longer term declaration.

 

          Even accepting the State's submissions as to the operation of the Native Title Act, in my view neither the content of the Chaney Report nor the ATSIC brief of 5 April 1994 in describing Mr and Mrs Douglas's position discloses error of law.  In essence they reflect uncertainty where there was uncertainty. 

 

          I note that in the ATSIC brief there is reference to the expectation that Mr Douglas would seek compensation for the loss of the Land.  The whole tenor of Mr Chaney's report and the series of ATSIC briefs in my view dealt adequately with the likely effects of a declaration upon the proprietary or pecuniary interests of Mr and Mrs Douglas.  It was obvious that they were likely to be affected adversely to a substantial extent.

 

The allegation that the Third Declaration was made improperly as a de facto extension of the Emergency Declaration

 

          This argument was put forward by the State and by Mr and Mrs Douglas.  In my view it must fail because those applicants have not established a factual foundation for the submission.  A major part of the argument was based upon the circumstances of urgency which existed at the time when the Third Declaration was made.  I am not prepared to infer from those circumstances that the power conferred by s.10 of the Commonwealth Act was improperly used.

 

          When one considers the similarity of the matters about which the Minister has to be satisfied before making an emergency declaration or a declaration under s.10 the argument, in my opinion, has even less merit.  Apart from receiving and considering the report and considering any representations attached to the report the only difference between the two sets of requirements is that for an emergency declaration there needs to be a serious and immediate threat of injury or desecration whereas for the more permanent declaration the Minister need only be satisfied that (apart from significance) the area is under threat of injury or desecration.  In my view, subject to those matters, there is a logical consistency in a continuum or progression from an emergency declaration to a more permanent declaration under s.10 of the Commonwealth Act. 

 

          This particular argument has, in my view, a close link with the contentions of there being no evidence and Wednesbury unreasonableness respectively, to which I now turn. 

 

No evidence; Wednesbury unreasonableness

          I do not accept the contentions of the State and Mr and Mrs Douglas that there was no evidence that the Land was a significant area or that there was no probative evidence capable of supporting a decision that the Land was a significant Aboriginal area. 

 

          First, I refer to my reasons earlier in respect of the decision to make the First Declaration.  Secondly, I accept the submissions made on behalf of the Commonwealth Minister that there was more than enough material before him to require that the submissions put forward by the State and Mr and Mrs Douglas be rejected.  They included all the earlier materials together with the application by the Kimberley Land Council dated 31 January 1994, the material accompanying that application (which included the ACMC advice), the Chaney Report, the reasons of Owen J. including his Honour's conclusion that there were serious questions to be tried, the Mardiros Report and the Sullivan Report. 

 

          I have read and re-read the Chaney Report in particular, keeping in mind the complaints made by the State and on behalf of Mr and Mrs Douglas which I have endeavoured to summarise above. 

 

          In my view there was sufficient material before Mr Chaney for him to be entitled to report to the Commonwealth Minister his view that at least four of the claims for particular significance in accordance with Aboriginal tradition were sustained. 

 

          I am prepared to infer from the fact that after reading Mr Chaney's report the Commonwealth Minister made the Third Declaration and from the contents of his press release dated 6 April 1994 that he adopted Mr Chaney's conclusions and had thus satisfied himself that the Land was significant.

 

          For the above reasons I reject these submissions of no evidence and Wednesbury unreasonableness.

 

Whether the Commonwealth Minister considered the representations attached to the Chaney Report

 

          In Mr and Mrs Douglas' amended application for an order of review of the decision to make the Third Declaration this matter (whether the Commonwealth Minister had considered the representations attached to Mr Chaney's report) was raised as a particular of the respondent having failed to take all relevant considerations into account.  In the course of argument, this aspect arose as part of the submission that the Commonwealth Minister made the Third Declaration for the improper purpose of providing security over the Land while issues such as the validity or otherwise of the Special Lease were determined in the various Court proceedings.

 

          There was evidence on this matter and accordingly I think it is appropriate for me to make some findings on it. 

 

          The decision to make the Third Declaration was one that had to be made by the Commonwealth Minister personally and could not be delegated - see s.31 of the Commonwealth Act.  Furthermore s.10(1)(c) of that Act requires the Commonwealth
Minister to consider any representations attached to the report.  Those representations fill five lever-arch files.  It might seem unduly onerous for a busy Commonwealth Minister of the Crown to be required to consider such voluminous material.  However, that is what s.10(1)(c) provides.  Furthermore in Tickner v. Bropho at p.194 his Honour the Chief Justice made the following observation:

 

                    "The Minister must himself consider the representations attached to the report as a precondition to the making of any declaration ... Having obtained a report and considered it, and the representations attached to it, the Minister may in the exercise of his discretion decide not to make a declaration ... But the intention of the Act is that the Minister shall make an informed decision on all such questions, with input from interested persons."

 

 

 

          It may well be that the apparently onerous requirement of this subsection is in fact less burdensome due to the extent of the ministerial consideration required, in the circumstances of the particular matter, to be given to the representations.  It is not necessary in this case to express an opinion on that point. 

 

          Although the decision to make the Third Declaration was one which was made by the Commonwealth Minister personally, he did not file an affidavit in these proceedings.  His Senior Adviser, Mr McLaughlin, swore an affidavit which was filed on behalf of the Commonwealth Minister.

 

          There is a significant difference (to which, as I have mentioned at p.84 of these reasons, Mr Stevenson drew my attention) between paragraph 10 of Mr McLaughlin's affidavit and paragraph 18 of that affidavit.  In paragraph 10 Mr McLaughlin, having in the previous paragraph listed the material received by the Commonwealth Minister on 3 February 1994 states:

 

                    "10.   On 3 February 1994, after having received and considered the material described above, the Respondent decided to make an emergency declaration under s.9 of the federal Act ..." (emphasis added)

 

 

Paragraph 18 reads simply:

 

                    "At approximately 1.00 pm EST on 6 April 1994, the Respondent made his decision to make a declaration under section 10 of the federal Act." 

 

 

          In his oral evidence Mr McLaughlin said that he had collected the Chaney Report and the attachments on the morning of Good Friday (1 April 1994) from Canberra Airport and placed

all of those documents in the Commonwealth Minister's office.  Although Mr McLaughlin swore that the Commonwealth Minister read the Chaney Report, he was unable to say whether the Commonwealth Minister had read the representations attached to them.

 

          With a view to resolving this issue, I have examined the Minister's statement of reasons in respect of the Third Declaration.

 

          Authoritative guidance about what should be contained in a statement of reasons furnished under s.13 of the ADJR Act is to be found in Ansett Transport Industries (Operations) Pty Ltd v. Wraith (1983) 48 ALR 500 at p.507 which was cited with approval by Burchett J. in Arm Constructions Pty Ltd v. Commissioner of Taxation (1986) 10 FCR 197 at pp.204-205 and by Wilcox J. in Our Town FM Pty Ltd v. Australian Broadcasting Tribunal (1987) 16 FCR 465 at p.481 which pages also collect conveniently other relevant authorities on that topic.  Measured against the standards outlined in those cases, the Commonwealth Minister's statement of reasons in this
matter is sadly lacking and in my opinion defective.  In Arm Constructions Pty Ltd Burchett J. commented that it would be wrong for Courts to construe such reasons in an overly critical spirit, forgetful that they are the reasons of an administrator.  I have borne that caveat in mind.  As a statement of the essence of what should be contained in such reasons, I set out below a short passage from the judgment of Woodward J. in the Ansett Transport Industries case:

 

                    "... s.13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: 'even though I may not agree with it, I now understand why the decision went against me.  I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging'."

 

 

 

          In my view, the Commonwealth Minister's reasons do not enable the State or Mr and Mrs Douglas to have that degree of satisfaction.  The so-called findings on material questions of fact are carefully drawn to adopt the terms of s.10 of the Commonwealth Act and the definition of "significant Aboriginal area" in s.3 of that Act.  They are really mixed conclusions of fact and law rather than factual findings.  There is no reason of a factual nature given as to why the Land is of particular significance to Aboriginals.  It might be said that confidentiality would preclude the giving of such findings of fact in the statement of reasons.  An answer to that argument, which would have application in the present matter, is that to the extent that particular significance is based on matters which are not confidential then those factual findings can be stated.  Where confidential matters are concerned, then these can be incorporated by reference to the particular documents or paragraphs in documents where the information is contained. 

 

          In the Commonwealth Minister's statement of reasons under the heading "Evidence or other material on which findings were based" there appears a list which contains reference to correspondence, ministerial briefs, the reasons for decision of Owen J. published on 4 February 1994 and item 9 which reads:

 

                    "9.   The report prepared for me by the Hon Fred Chaney pursuant to s.10(4) of the Act, in particular chapter 16 which contains Mr Chaney's conclusions concerning the significance of the area, and the representations accompanying the report."

 

 

          In cross-examination of Mr McLaughlin (transcript p.152) it became clear that one could not rely upon the list contained in the Commonwealth Minister's statement of reasons as evidence that he had considered the representations attached to Mr Chaney's report.  Mr McLaughlin said:

 

                    "I think the section 13 statement was generated on the basis of - this is material that the minister has seen at some stage in his consideration of the decision.  But not all of that material would have been physically in front of him in the period immediately up to 6 April."

 

 

          The evidence is that a copy of Mr Chaney's report was faxed to the Commonwealth Minister's home on the evening of 31 March 1994 and that a hard copy of the Chaney report (without the representations) was sent by courier to him on Good Friday 1 April 1994.  Mr McLaughlin read the representations at different times over the Easter weekend and they were then left in the ministerial office.  No written analysis of the representations was prepared for the Minister's consideration and in circumstances of some urgency the Third Declaration was made on the Wednesday immediately after Easter (6 April 1994).

 

 

          The question is whether there is sufficient material before the Court to enable me to infer that the Minister did not consider the representations?  In my view, the matter is close to the borderline but I think there is just sufficient a basis for that inference.  I refer to the very careful manner in which Mr McLaughlin in his affidavit, distinguishes between what the Commonwealth Minister considered when he made the First Declaration and the omission of any such reference in the description of the making of the Third Declaration.  Then there is the sheer volume of the representations coupled with the onset of Easter and the general urgency of the matter.  Another factor is that the Chaney Report was separated from the representations and forwarded separately both by fax and courier to the Commonwealth Minister during the Easter holiday. 

 

          The hearing of this matter took place in two parts.  During the first part (on 9 August 1994) Mr McLaughlin was cross-examined as to whether the Commonwealth Minister had in fact considered the representations.  The hearing resumed on 29 August 1994 and there was abundant opportunity for this aspect to be cleared up by the Commonwealth Minister, if he wished to do so, by the filing of a short affidavit on the point.

 

          In the context of a statement of reasons under s.13 of the ADJR Act, Burchett J. in the Arm Constructions case held that the omission of matter from such a statement is a circumstance from which inferences relevant to the determination of an application for an order of review may in a particular case be drawn.  That proposition received express approval by the Full Court of this Court in Faulkner v. Conwell (1988) 21 FCR 41 at p.47 in the reasons for judgment of Jenkinson J. with whom Woodward J. and Ryan J. concurred.

 

          For the above reasons I am prepared to infer and do in fact find that the Commonwealth Minister did not consider the representations attached to Mr Chaney's Report as he was required to do by s.10(1)(c) of the Commonwealth Act. 

 

          I would have been prepared to set aside the decision to make the Third Declaration and remit it for further consideration on the grounds of denial of  procedural fairness alone.  This finding of non-compliance with one of the requirements of s.10(1)(c) of the Commonwealth Act seems to me to provide an additional basis for taking that course.  The relevant ground would seem to be at the very least that contained in s.5(1)(b) of the ADJR Act and possibly other grounds would be applicable.  The point was not the subject of extensive submissions so I will not comment further.

 

                       The Decision not to revoke the Third Declaration

 

          In view of the conclusions which I have reached in relation to the Third Declaration, I do not propose to deal with the State's challenge to the Commonwealth Minister's decision not to revoke that declaration.

 

The Commonwealth Minister's Application (No. WAG 55 of 1994) for a declaration that the State, the Lands Minister and the State Minister lacked standing

 

          This application was expressed as being for a declaration that the above parties were not entitled to make a request that the Commonwealth Minister furnish statements pursuant to s.13(1) of the ADJR Act in relation to the three declarations and the decision not to revoke the First Declaration. 

 

          However, entitlement under s.13 depends upon entitlement to make an application under s.5 which in turn requires an applicant to be "a person who is aggrieved by a decision ...".

 

          There is a relevant definition in s.3(4) which is expressed in inclusive terms:

 

                    "4.  In this Act:

                    (a)       a reference to a person aggrieved by a decision includes a reference:

                        (i)    to a person whose interests are adversely affected by the decision; or

                       (ii)    ..."

 

 

 

          The Commonwealth Minister's application challenged the three grounds upon which the State claimed to be aggrieved, namely that the decisions:

 

          .     put into issue the rights of Mr and Mrs Douglas under the Special Lease;

 

          .     put into issue the validity and effect of the Special Lease; and

 

          .     were in conflict with the State Minister's decision under the State Act to approve the development of the crocodile farm subject to excision of the Initiates' Track and protection against disturbance.

 

 

          In relation to the first ground, the Commonwealth Minister relied on Corporate Affairs Commission v. Bradley [1974] 1 NSWLR 391 at p.400; Amid v. Beck & Jonas Pty Ltd (1974) 11 SASR 16 at pp.27-28 and The Commonwealth v. Cigamatic Pty Ltd (1962) 108 CLR 372 at pp.377-378.

 

          In my view, those cases are of limited assistance in the present context which is a very different one to the circumstances which arose in those matters.

 

          As to the second claim, Mr Willheim submitted that the Third Declaration did not in any way put in issue the validity of the Special Lease itself but merely prevented Mr and Mrs Douglas from using the Land for purposes which might be permitted by the State as lessor.  This, so it was put, did not affect any right, power or obligation of the State.  Reliance was placed on Kangaroo Point East Association Inc v. Balkin (1993) 119 ALR 305 at p.310.  The point in issue in that case was different to the present matter.  In any event that case is clearly distinguishable on the basis that in Kangaroo East the Commonwealth had simply consented to the use of the building as a restaurant whereas in the present matter the State is entitled to the benefit of covenants requiring Mr and Mrs Douglas to develop and use the Land as a crocodile park.

 

          The Commonwealth Minister then submitted that it would be inappropriate to give standing to the State on the basis of the Special Lease when the validity of that Lease is subject to challenge in three sets of proceedings, namely in the Supreme Court proceedings, in the application for a determination of native title and in High Court proceeding number M147 of 1993 between the Wororra and the Yawuru Peoples and the State.  In my view, the answer to that submission is that at the very least the State has radical title and at best freehold title in respect of which it has granted a lease.

 

 

          As to the third ground, Mr Willheim submitted that it was based upon a misconception of the relationship between the Commonwealth Act and the State Act.  In the absence of any challenge to the constitutional validity of the Commonwealth Act, the State, so it was submitted, simply had no interest entitling it to challenge the decisions.

 

                                                    Conclusion

 

          The authorities relating to standing both at common law and under the ADJR Act have recently been comprehensively reviewed by Sackville J. in North Coast Environment Council Incorporated v. Minister for Resources (as yet unreported Judgment No. 989 of 1994, 16 December 1994).  I do not propose to rehearse the authorities here.  For the purposes of the present case it is a sufficient distillation of the authorities to make two short points.  The first is that the term "person aggrieved" is not to be given a narrow meaning.  The starting point for that proposition is the inclusive, non-exhaustive nature of the definition in s.3(4) itself and several of the abovementioned authorities.  Secondly, if a party demonstrates a "special interest" in the subject matter of an action going beyond that of members of the public in upholding the law then that party is likely to be a person aggrieved.  On the question of "special interest", I refer to a short passage in the judgment of Stephen J. in Onus v. Alcoa (1981) 149 CLR 27 at p.42:

 

                    "As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter."

 

 

 

          In my opinion, the State respondents to the Commonwealth Minister's application are persons aggrieved because in relation to this matter they do have a special interest over and above members of the public, their concern with this particular matter is important and they have a very close relationship to it.

 

          The State of Western Australia owns the Land and the Lands Minister as lessor has granted the Special Lease to Mr and Mrs Douglas.  This has been done specifically for the development on the Land of a crocodile farm.  By reason of the three declarations, the lessees are prohibited from carrying out the covenants in the Special Lease to develop and use the crocodile farm.  They were prohibited for two 30 day periods and there remains in excess of four years to run in respect of the term of the Third Declaration.  The State (and the Lands Minister as lessor) have had postponed by those periods any benefits which would have been derived from the expeditious development of the Land.  I am prepared to infer (and I do infer) that the State regards the development as being in the public interest of the State.

 

          As to the State Minister, he is specifically referred to in the Commonwealth Act as a person who must be consulted before any declaration is made.  Secondly the State Minister has, under the State Act, made a decision which, subject to the conditions referred to above, permits the development of the crocodile farm to take place.  In my view, that constitutes sufficient special interest to entitle the State Minister to question whether the Commonwealth Minister in exercising his undoubted power to override the State Minister's decision, has observed the requirements of procedural fairness.  It is his decision which has been effectively negated and he is entitled, in my opinion, to ask the Court for a judicial review in those circumstances.

          For the above reasons Application No. WAG 55 of 1994 will be dismissed.

 

Whether relief should be granted in relation to the Emergency Declarations

 

          The Commonwealth Minister submitted that no relief should be granted in respect of the decisions to make emergency declarations under s.9 because those declarations were no longer operative, their respective periods having expired.  The operative decision, so it was submitted, was the decision to make the declaration under s.10 of the Commonwealth Act.  The Commonwealth Minister relied upon Perry v. Director of Public Prosecutions (1985) 6 FCR 578; La Roche v. Cormack (1991) 33 FCR 414 and Beitseen v. Johnson (1989) 29 IR 336.  I referred to those decisions in the interlocutory judgment which I gave in this matter on 5 May 1994 (unreported Judgment No. 252 of 1994).  Perry was in my opinion a very different case to the present matter as I endeavoured to explain in that judgment.  There are similarities between the present matter and the cases of La Roche and Beitseen in that they involve temporary appointments which were very close to expiry.  However, in my opinion, it would be appropriate to grant declaratory relief to the applicants in respect of the two declarations made under s.9 of the Commonwealth Act.

 

          The mere fact that the applicants have not demonstrated any entitlement to consequential relief in respect of the First or Second Declaration does not in my opinion render it futile for this Court to make a declaration of right in respect of each of those decisions.

 

          I have formed the view that those two decisions were tainted by denial of procedural fairness.  I am influenced to some extent by the fact that the First and Second Declarations had a degree of relationship to the making of the Third Declaration although I appreciate that the two statutory procedures and requirements were different.  I cannot rule out the possibility that at some future time during the currency of the Special Lease there may be a renewed application for an emergency declaration and in those circumstances the declarations which I propose to make may have some utility.  Finally, in the circumstances of such intertwined matters there seems to me to be something distasteful in coming to the conclusion that the rights of parties have not been properly observed and then denying those parties a declaration to that effect.  For those reasons I propose to make declarations in relation to the First Declaration and the Second Declaration.

 

          As to the Third Declaration I propose to make an order setting it aside with effect from a date six weeks hence and to refer the subject matter of that decision to the Commonwealth Minister for further consideration.  The main purpose in making orders in those terms is to enable procedural fairness to be extended to the State and to Mr and Mrs Douglas respectively.  The purpose in postponing the date upon which the first part of the order is to take effect is that if the Commonwealth Minister should properly decide again to make a declaration under s.10 of the Commonwealth Act then the Land will not have been disturbed in the meantime.

 

          In my view the Commonwealth Minister should pay the costs of the State and Mr and Mrs Douglas in respect of each of the seven applications.  I do not propose to make an order in respect of costs against the intervenors since I do not consider that the costs of the matter were substantially increased by such intervention.  The extent of that intervention was limited to making an address at the conclusion of the
hearing.  I will defer making an order in relation to costs for a period of ten days to enable any party to file written submissions on that question, should they so wish.

 

 

                   I certify that this and the preceding one hundred and thirteen (113) pages are a true copy of the Reasons for Judgment of Justice Carr.

 

 

                   Associate:

 

                   Date:   7 February 1995

 

 

 

Counsel for the State of Western

Australia, the Minister for Land

for the State of Western Australia

and the Minister for Aboriginal

Affairs for the State of Western

Australia:                                             Ms C.A. Wheeler, Q.C.

 

 

Solicitors for the State of

Western Australia, the Minister

for Land for the State of Western

Australia and the Minister for                 The Crown Solicitor for

Aboriginal Affairs for the                       the State of Western

State of Western Australia:                    Australia

 

 

Counsel for Mr and Mrs Douglas:           Mr C.P. Stevenson

Solicitors for Mr and Mrs Douglas:         Mallesons Stephen Jaques

 

 

Counsel for the Commonwealth

Minister for Aboriginal and Torres          Mr E.W. Willheim and

Strait Islander Affairs:                           with him Mr K.J. Martin

                                                                    

 

Solicitors for the Commonwealth

Minister for Aboriginal and Torres          Australian Government

Strait Islander Affairs:                           Solicitor

 

 

 

 

 

 

Counsel and solicitor for the                  Mr G.M. Irving

Intervenors:                                         Kimberley Land Council

                                                         

 

 

Date of Hearing:   8, 9, 10, 11, 12, 29 and 30 August 1994

Date of Judgment:  7 February 1995