FEDERAL COURT OF AUSTRALIA

 

Dates v Minister for Environment, Heritage and the Arts (No 2) [2010] FCA 256

Citation:		Dates v Minister for Environment, Heritage and the Arts (No 2) [2010] FCA 256
Parties:		WORIMI DATES v MINISTER FOR ENVIRONMENT, HERITAGE AND THE ARTS
File number:		NSD 635 of 2009
Judge:		BENNETT J
Date of judgment:		24 March 2010
Catchwords:		ADMINISTRATIVE LAW – review of Minister’s decision not to make declarations under ss 9,10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act – Minister only satisfied that part of the specified area is a significant Aboriginal area – not satisfied that the part of the area affected by roadworks is significant – utility of challenging s 9 decision when s 10 decision made – error of law – whether the Minister asked the correct question – whether conclusions supported by any probative material or made on logical grounds – relevant  considerations – irrelevant considerations – procedural fairness
Words and phrases:		“Aboriginal tradition”
Legislation:		Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 9, 10, 12
Cases cited:		Anderson v Minister for Environment, Heritage and the Arts [2010] FCA 57 followed/applied Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Williams v Minister for Environment and Heritage (2003) 74 ALD 124 distinguished
Date of hearing:	2 and 3 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	80
	Mr A Oshlack of Indigenous Justice Advocacy Network appeared on behalf of the Applicant by leave
Counsel for the Respondent:	Mr S Free
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 635 of 2009

 

BETWEEN:	WORIMI DATES Applicant
AND:	MINISTER FOR ENVIRONMENT, HERITAGE AND THE ARTS Respondent

 

JUDGE:	BENNETT J
DATE OF ORDER:	24 MARCH 2010
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.                  The application be dismissed.

2.                  Costs be reserved.

3.                  The parties file and serve any submissions on costs within 7 days.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 635 of 2009

 

BETWEEN:	WORIMI DATES Applicant
AND:	MINISTER FOR ENVIRONMENT, HERITAGE AND THE ARTS Respondent

 

JUDGE:	BENNETT J
DATE:	24 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1                     On 10 December 2008, Mr Malcolm Carrall on behalf of Mr Worimi Dates, applied pursuant to ss 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act) for emergency and longer term protection of Alum Mountain at Bulahdelah, New South Wales (also referred to as Bulahdelah Mountain) (the specified area).  On 21 January 2009, Mr Carrall, on behalf of Mr Dates, sought protection under s 12 of the Act for protection of “objects” within the specified area.  Mr Dates’ concern was in respect of roadworks (the Bulahdelah Bypass) being carried out by the Roads and Traffic Authority of New South Wales (the RTA).  The Minister for Environment, Heritage and the Arts declined to make a declaration under ss 9, 10 or 12 of the Act.  Mr Dates seeks to review the Minister’s decisions.

2                     In reaching his decisions the Minister was satisfied that the upper slopes and ridge crest outcrops of Alum Mountain were a “significant Aboriginal area” within the meaning of the Act.  He was not satisfied that the lower slopes of the mountain constitute a “significant Aboriginal area”.  It is not in dispute that the Bulahdelah Bypass does not injure or desecrate the upper areas of Alum Mountain but does affect the lower slopes.  As the Minister was not satisfied that the lower slopes constitute a significant Aboriginal area, there was no such area under threat of injury or desecration as required for a s 9 or s 10 declaration.  The Minister was also not satisfied that the s 12 application identified a specific object or class of objects that were “significant Aboriginal objects” as defined under the Act.

3                     Mr Dates seeks judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)(the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).  The three decisions of the Minister under challenge are:

1.                  a decision made on 16 April 2009 declining to make an emergency declaration under s 9 of the Act in relation to Alum Mountain (the s 9 decision);

2.                  a decision made on 31 August 2009 declining to make a declaration under s 10 of the Act in relation to Alum Mountain (the s 10 decision);

3.                  a decision made on 31 August 2009 declining to make a declaration under s 12 of the Act for the protection of objects on Alum Mountain (the s 12 decision).

4                     In each case the Minister provided a statement of reasons for the decision.

5                     The issues raised by Mr Oshlack, who appears for Mr Dates by leave, are as follows:

1.                  Did the decision involve an error of law?

2.                  In reaching the s 10 decision, did the Minister fail to take into account relevant considerations?

3.                  In reaching the s 10 decision, did the Minister take into account irrelevant considerations?

4.                  Was there a denial of procedural fairness?

The Act

6                     Section 9 of the Act provides that where the Minister receives an application by or on behalf of an Aboriginal or group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration and is satisfied that the area is a “significant Aboriginal area” and that it is under serious and immediate threat of injury or desecration, the Minister may make a declaration in relation to the area which has effect for a period not exceeding thirty days.  There is no dispute that the applications were properly made under ss 9, 10 and 12 or that Mr Dates is an Aboriginal.

7                     Under s 10, where the Minister receives an application, and:

(1)       Where the Minister:

 

…

 

(b)   is satisfied:

 

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

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

 

(c)    has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and

 

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

 

he or she may, by legislative instrument, make a declaration in relation to the area. (emphasis added)

 

8                     On 3 June 2008, Ms Oxley also lodged an application seeking protection of Alum Mountain under s 10 of the Act.  On 10 December 2008, Mr Carrall on behalf of Mr Dates applied for protection under the Act.  A report was obtained under subsection 10(4) from a barrister, Ms Brennan (the Brennan Report).  The subsection sets out the subject matter with which the report shall deal.  Ms Brennan was appointed a reporter for the purposes of Ms Oxley’s application on 11 September 2008 and in respect of the Dates’ application on 7 January 2009.  It is not suggested that the Brennan Report did not comply with the requirements of subsection 10(4).

9                     Significant Aboriginal area is defined in the Act to mean:

 

(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.

 

10                  Aboriginal tradition is defined in the Act to mean:

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.

 

11                  Section 12 of the Act provides for the protection of significant Aboriginal objects.  Significant Aboriginal object is defined in the Act to mean:

an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.

 

The utility of considering both the s 9 decision and the s 10 decision

12                  In the s 9 decision the Minister expressed himself satisfied that the top of Alum Mountain (the upper slopes and ridge crest outcrops) is significant as part of Aboriginal tradition but said that he could not be satisfied that the Bulahdelah Bypass was a threat of serious or immediate injury or desecration to this area.  In the s 10 decision, the Minister similarly stated that, based on the application and the Brennan Report, he was satisfied that the top of Alum Mountain (the upper slopes and ridge crest outcrops) is significant as part of Aboriginal tradition but was not satisfied that the Bulahdelah Bypass was a threat of injury or desecration to this area.

13                  The conclusions reached by the Minister for the purposes of the s 9 and s 10 decisions were basically the same.  The Minister submits that there is no utility in challenging the s 9 decision and that it has been effectively overtaken or subsumed by the s 10 decision.

14                  In Anderson v Minister for Environment, Heritage and the Arts [2010] FCA 57, Foster J considered the utility of a challenge to a s 9 decision where a s 10 decision was subsequently made.  His Honour observed at [88] that the applicants in that case, represented by Mr Oshlack, were unable to provide a cogent or satisfactory answer to the Minister’s submission that there was no such utility.  His Honour accepted that there was no utility in the challenge to the s 9 decision and observed that if a s 10 decision was set aside as sought, it would be open to the applicants to make a fresh s 9 application, which would then fall for consideration in light of the reasons for judgment as to the s 10 decision.

15                  I agree, with respect, with his Honour’s reasoning.  Nothing has been put in these proceedings as to why that reasoning does not apply in the present case.  Mr Oshlack states that a further s 9 application has already been made, apparently awaiting the outcome of these proceedings.  He submits that that distinguishes Anderson.  However, he did not explain how that was so and I do not see how the fact that there has been a new s 9 application does anything but reinforce the lack of utility as pointed out by Foster J.  I do not propose separately to consider the s 9 decision further. 

The material before the Minister

16                  In the letter from Mr Carrall on behalf of Mr Dates, Mr Dates stated that ‘the Alum Mountain’s entire area is very significant to my Culture and Heritage as it is the most outstanding Aboriginal Cultural Landscape of the area, and also contains many sites and artefacts that are relevant to my own and my family’s history’.  The application made specific reference to the Healing Stream, Ochre Ground, Bora (ceremonial ring), B8 Artefact Scatter, the Guardian-Healing-tree and numerous other Aboriginal scarred trees, all of which, the letter said, are within the alignment of the Bulahdelah Bypass and all of which would be destroyed by the construction.

17                  Mr Dates provided extensive submissions to the Minister in support of his application, including copies of a report prepared for the NSW National Park and Wildlife Service (NPWS) by Umwelt Environmental Consultants titled ‘Bulahdelah Mountain, Aboriginal Place Nomination Assessment, June 2003’ (the Umwelt Report) and a report titled ‘Bulahdelah Mountain – Heritage Significance, Great Lakes Council Heritage Study 2007’ (the Great Lakes Study).

18                  The Minister had before him other material, including submissions from the RTA.  These included a report from Navin Officer Heritage Consultants Pty Ltd on the Indigenous cultural heritage sensitivity of the area which may be impacted by the Bulahdelah Bypass project undertaken for the purposes of the environmental impact statement for the project (the Navin Report), and the NSW Department of Planning, Director-General’s Environmental Assessment Report under s 75I of the Environmental Planning and Assessment Act 1979 (NSW), as well as correspondence from the NSW Department of Environment and Climate Change (DECC).

The Umwelt Report

19                  Relevantly the Umwelt Report stated:

·                    There would have been a rich supply of resources available to Aboriginal people living in the area of Bulahdelah Mountain in the past.

·                    There are suitable areas for Aboriginal campsites on crests and saddles of spurs and other level elevated areas.

·                    There are several rock shelters visible on the upper slopes.  No evidence of Aboriginal occupation was apparent, no artefacts were visible on the ground surface and there was a very shallow depth of deposit on the rock shelter floor.  No art was evident on the walls but the fragile nature of the rock would not provide good preservation of art had it existed in the past.

·                    One artefact was located on a saddle between two low crests of a spur line. 

·                    A series of interviews had been conducted with Aboriginal people.  Those people were identified variously as Biripi Elders, members of the Karuah Land Council, NPWS officers, a Dunggaiti Aboriginal Elder as well as a Worimi man.

20                  As part of the conclusions and recommendations, the Umwelt Report stated as follows:

6.5       BOUNDARY OF ABORIGINAL PLACE AT BULAHDELAH MOUNTAIN

 

Figure 2.1 indicates the area proposed as the Aboriginal Place at Bulahdelah Mountain.  This area has been chosen as it incorporates those sections of the mountain of most importance to the Aboriginal community and provides an additional area of land to act as a buffer zone to protect the cultural heritage values of the mountain.

 

6.6              CONCLUDING RECOMMENDATIONS

 

This assessment confirms that there is sufficient evidence from historical sources, archaeological evidence, and the interviews conducted with the Aboriginal community that Bulahdelah Mountain is highly significant.  There is a strong connection between the mountain and Aborigines, both now and in the past.  The mountain is important in both a spiritual and economic sense.

 

It is recommended that the area shown in Figure 2.1 (to be discussed with Warren Mayers) should be set aside as an Aboriginal Place and that the Aboriginal communities with interests in the mountain should consult with NSW NPWS, Forestry and the private owners to design a cultural heritage management plan for future management of Bulahdelah Mountain.

 

It should be noted that figure 2.1 was not included in the material attached to the Umwelt Report that was placed before the Minister.  However, it was included in a letter to the Minister from Mr Carrall on behalf of Mr Dates. 

21                  The Umwelt Report also stated, as to the Aboriginal cultural significance of Bulahdelah Mountain, that undoubtedly the Mountain is of cultural significance to Aboriginal people both now and in the past.  However, it went on to state that many feel that only the top is significant while others consider the whole mountain to be significant.

The Great Lakes Study

22                  The Great Lakes Study referred to three additional potential Aboriginal sites identified by local Bulahdelah residents: a “Guardian Tree”, a scarred and hollowed out tree on the lower western slope and a rock shelter near the summit of Bulahdelah Mountain.  The Great Lakes Study described the Guardian Tree and observed that it was investigated in the Umwelt Report, which noted that some Aboriginal members believed the tree to be a Guardian Tree, while others were not aware of its existence.  Two signed statements from site workers, Worimi Elders and Biripi Elders, containing a total of eighty signatures, stated that the tree is ‘a sacred Aboriginal site and that the area around it is sacred’.  The Study then referred to the Umwelt Report’s description of the shelter but noted that there was consistent oral evidence noted in the Umwelt Report regarding the significance of the higher parts of the mountain as a men’s site. 

23                  The Study also referred to another recently discovered scarred tree and stated that, on assessment by size only, it is not of sufficient age to relate to Aboriginal occupation.  However, the Study also noted that the low fertility of the soil and other factors may have restricted its size so that the tree may be of sufficient age.

Other material before the Minister

24                  The Minister had before him a transcript of Mr Dates’ description of the areas that he claimed had Aboriginal significance and correspondence from Mr Carrall on his behalf.  In a letter written in response to a letter from the RTA of 21 January 2009, Mr Carrall alleged that the DECC’s description of the proposed Aboriginal Place at Alum Mountain was “fraudulent”.  Mr Carrall reiterated that the whole mountain itself is a sacred site, not sections of it.

The RTA’s response to Mr Dates’ application under s 9 of the Act

25                  By letter dated 10 December 2008 the RTA responded to Mr Dates’ s 9 application, particularly addressing the Umwelt Report.  It asserted that, as at that date, the NSW Minister would soon consider the proposed declaration of the Aboriginal place in the area.  A statement from the Director-General of Planning was to the effect that the RTA proposal was unlikely to diminish the integrity of the area as a potential Aboriginal place.  The RTA’s letter also referred to the measures taken with respect to the Guardian Tree and the Healing Stream, namely to remove and re-position the former and to effect construction to protect the latter.

The Minister’s reasons for the s 10 Decision

26                  The Minister’s statement of reasons for the s 10 decision (the Minister’s reasons) first set out the relevant legislation, including s 10(1), (2) and (3) of the Act.  The Minister’s reasons acknowledged that s 10 requires him to be satisfied that the area is a “significant Aboriginal area” which is defined in subsection 3(1) of the Act relevantly as being an area of particular significance to Aboriginals in accordance with “Aboriginal tradition”.

27                  The reasons rehearsed the making of the application under s 9 and s 10 of the Act by Mr Carrall on behalf of Mr Dates and the fact that the Minister declined to make a declaration in relation to the s 9 application.  The reason in respect of the s 9 decision was that the Minister was satisfied that the top of Alum Mountain (the upper slopes and ridge crest outcrops) is significant as part of Aboriginal tradition but could not be satisfied that the Bulahdelah Bypass is a serious and immediate threat of injury or desecration to this area.  The Minister noted that Mr Carrall on behalf of Mr Dates sought protection under s 12 of the Act for the protection of objects within the specified area. 

28                  The Minister’s reasons referred to the different evidence and material before him, being:

·                    the Brennan Report with attachments that included the Umwelt Report, the Navin Report and the Great Lakes Study. The reasons note that the Navin Report was commissioned by the RTA for the purposes of an environmental impact statement and that the Great Lakes Study was an independent study which assessed the significance of both the Indigenous and non-Indigenous heritage of Alum Mountain;

·                    two letters from the Honourable Carmel Tebbutt MP, NSW Minister for Climate Change and the Environment, dated 17 February 2009 and 23 April 2009;

·                    the assessment of the Department for Environment, Heritage and the Arts (the Department) of the s 10 application; and

·                    background information on the Act.

29                  The Minister noted that Mr Dates stated, inter alia, that the whole of the area of Alum Mountain is very significant to his culture and heritage and his specific reference in his statement to the Healing Stream, Ochre Ground, Bora (ceremonial ring), artefact scatters, the Guardian Healing Tree and numerous other Aboriginal scarred trees in the lower part of the Mountain.  The Minister also commented that the Brennan Report had noted, in turn, that Mr Dates acknowledged that he alone holds some of the beliefs to which he referred and that other Worimi traditional owners challenged Mr Dates’ knowledge and authority to speak of Worimi traditions.  Further, the Minister noted that Mr Dates’ claims in relation to the Mountain in its entirety were contrary to what has been the consistent view of the Karuah Land Council, which was that only the top of Alum Mountain may have particular significance because of men’s business.

30                  The Minister considered the review in the Brennan Report of the Umwelt Report which, the Minister noted, recommended that the entire area the subject of the Umwelt Report be set aside as an Aboriginal place and that a cultural heritage management plan be developed in consultation with all the stakeholders.  He concluded that the Umwelt Report implicitly separated the Mountain into core and buffer areas and did not identify the location or extent of each of those areas.  The Minister observed that the Brennan Report concluded that, by definition, the buffer zone is not an area that in its own right is of such significance that it warranted nomination as an Aboriginal place.  The Minister observed that the Department had advised that it was not possible to establish the exact extent of the area that was identified as significant in the Umwelt Report.

31                  The Minister then observed that after considering the evidence which included the Great Lakes Study, the view of the Karuah Land Council and the lack of evidence from other Worimi people supporting Mr Dates’ claims, the Brennan Report concluded that it was unlikely that a tradition by which Alum Mountain is understood to be the home of the ancestors’ spirits who live in the trees on the Mountain is a tradition of the Worimi.  Ms Brennan was not satisfied that there is an Aboriginal tradition, more particularly identified by Mr Dates as a Worimi tradition, that bestows upon Alum Mountain in its entirety the significance of a natural sacred site.  Ms Brennan was not satisfied that any part of Alum Mountain other than the top of the Mountain is of particular significance to Aboriginal persons in accordance with an identifiable body of Aboriginal tradition.

32                  The Minister noted representations submitted in support of Mr Dates’ claims and representations concerning the top of the Mountain.  The Minister accepted that a small number of people or a single person may be the sole source of an Aboriginal tradition but agreed with the Department’s advice that there was insufficient evidence that there was once a more widely held Aboriginal tradition of the lower part of Alum mountain as a natural sacred Aboriginal site associated with ancestral beings and spirits that live in trees.  On the basis of the evidence provided, the Minister was not satisfied that the entire area is significant as part of Aboriginal tradition as a natural sacred Aboriginal site associated with ancestral beings or by reason of its association with spirits in trees.  This was in contrast to the top of the Mountain, which was generally accepted by local Aboriginal people and the DECC, and acknowledged by the RTA, to be of significance to Aboriginal people as part of Aboriginal tradition, being associated with men’s business.

33                  The Minister then turned to consider the specific claims regarding the Guardian Tree and the Healing Stream in some detail, referring to the Brennan Report which, in turn, dealt with the available evidence on these matters.  The Minister considered that Ms Brennan found that Mr Dates’ claims in respect of Alum Mountain in its entirety and the Guardian Tree in particular were contrary to what had been the consistent view of the Karuah Land Council.  That view was that only the top of the Mountain may have a particular significance and that the Guardian Tree has no significance in accordance with the traditions known to members of the Karuah Land Council.  The Minister accepted that the RTA and the Karuah Land Council acknowledged that there were different views as to the significance of the sites, including the Guardian Tree and Healing Stream, amongst the Aboriginal people who expressed association with the Mountain area.  Still, the Minister noted that after considering these claims, Ms Brennan concluded that she could not be satisfied that the Guardian Tree and Healing Stream make the specified area of particular significance to Aboriginal persons in accordance with an identifiable body of Aboriginal tradition.

34                  The Minister considered, inter alia, the Umwelt Report and other statements concerning the Guardian Tree, and additional information submitted by Mr Dates of the testimonies of 100 Aboriginal people, including Worimi Elders, stating that the Guardian Healing Tree is a sacred Aboriginal site and that the area around it is also sacred.  The Minister noted that the Department’s advice referred to the fact that those testimonies did not describe any traditions, observances, customs and beliefs associated with the Guardian Tree.  Accepting that Mr Dates had been consistent in his description of the Guardian Tree as important, the Minister observed that other members of the Worimi Nation either disputed, or had not heard of, the existence of the Guardian Tree.  On the basis of the evidence provided, the Minister was not satisfied that the specified area is significant as part of Aboriginal tradition for its association with a Guardian Tree or a Healing Stream. 

35                  The Minister then turned to consider, in particular, the Ochre site, the Bora site, artefact scatters and scarred trees.  He was not satisfied in any case, on the basis of the evidence provided, that the specified area is significant as part of Aboriginal tradition because of the presence of any of those objects and sites.  In particular in relation to the artefacts and scarred trees, which Mr Dates emphasises in these proceedings, the Minister noted that Mr Dates did not identify the artefact scatters and scarred trees referred to in his applications or provide information on the significance of the artefacts or scarred trees in accordance with Aboriginal tradition. 

36                  The Minister noted that the members of Karuah Land Council had agreed that there were no cultural heritage issues associated with the Bulahdelah Bypass project.  The Minister noted that Ms Brennan concluded, in view of the investigations carried out to date which failed to identify additional sites of Aboriginal cultural significance, including scarred trees, that she was not satisfied that such sites exist within the specified area or the area impacted by the Bulahdelah Bypass.  He also noted the lack of support from other persons interviewed for the purposes of the Umwelt Report that supported, for example, the presence of the scarred trees on the Mountain or their claimed significance.  The Minister was not satisfied on the basis of the evidence provided that the specified area is significant as part of Aboriginal tradition because of the presence of artefact scatters or scarred trees.

37                  As the top of the Mountain was not under threat of injury and desecration because of the road works, the Minister declined to make a declaration under s 10 of the Act.  In that regard the Minister noted that under s 10 of the Act, he is able to make a declaration only if satisfied that the specified area is a significant Aboriginal area and that it is under threat of injury or desecration.

Consideration

Error of law

38                  Mr Oshlack put this issue in a number of different ways.

39                  First, he makes it clear that Mr Dates does not disagree with the Minister’s conclusion as to the upper part of Alum Mountain.  That is, the upper area is a significant Aboriginal area, which is not the subject of likely injury by the proposed roadworks, being unaffected by the roadworks.

40                  Mr Dates challenges the conclusion that the lower part of the Mountain is not of Aboriginal significance and the finding that no areas of Aboriginal significance will be affected by the roadworks.  Mr Dates says that there was no good reason given by the Minister as to how the upper slopes are a significant Aboriginal area and the lower slopes are not.  He refers to evidence of sites on the lower slopes such as the artefacts scatter, the Guardian Tree, the Healing Stream and other scarred trees.  He points to the Umwelt Report which, he says, recommended that the lower parts be recognised under the NSW Act.  He asks rhetorically what differentiated the upper and lower parts of the Mountain?  The evidence, he says, was either that the whole of the Mountain is of significance or was silent as to the lower parts of the Mountain.  Mr Dates says that no Aboriginal witness had said that the lower slopes are not significant.

41                  Mr Dates submits that the Minister’s decision was unreasonable; that it manifested a failure properly to consider the Umwelt Report; and that insufficient reasons were given for the conclusion which, he seems to submit, defied logic.  He submits that the decision was inherently illogical, as was the conclusion of the Brennan Report.  Mr Oshlack repeatedly describes the Minister’s conclusion as a “perversion” and says that there was no probative evidence to support that conclusion.  On the other hand, he says, there was before the Minister probative evidence that the whole of the Mountain, including the lower slopes, is of significance to Aboriginal people.

42                  The error of law identified in Mr Dates’ written submissions is that the Minister erred in reaching the s 10 decision ‘by drawing an inference with evidence to the contrary that the lower mountain slope of the Alum Mountain was not significant to Aboriginal people’.  He says that there was no evidence to support the inference.  To the extent that this aspect of Mr Dates’ case is separately dealt with by him in written and oral submissions, he seems to raise the further matter that the Minister’s conclusion as to the lower slopes was not supported by any probative material or by “logical grounds”.

43                  Mr Dates acknowledges that, as set out by Foster J in Anderson at [105], in order for him to succeed he must demonstrate either that the Minister has acted perversely or that his findings or inferences of fact were not supported by any probative material or made on logical grounds (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] per Gummow J).  Mr Dates’ course of reasoning seems to be as follows:

·                    The evidence demonstrated that there are a number of identified Aboriginal archaeological sites located on the lower slopes.

·                    This established that Aboriginal people had occupied and utilised the area.

·                    There was probative evidence that a number of Worimi traditional owners and other Aboriginal people believe that the whole top, ridges and slopes of the Mountain are significant in accordance with their traditions.

·                    There was evidence from traditional owners that there are a number of cultural places on the lower slopes of the Mountain including scarred trees, healing places, burial and ceremonial areas that are significant to them.

44                  As to the process adopted by the Minister, Mr Dates relies on Williams v Minister for Environment and Heritage (2003) 74 ALD 124per Wilcox J at [44] and [45] to the effect that the Minister’s reasons demonstrate that the conclusion was subject to legal error or manifest unreasonableness and was illogical.  To demonstrate this, Mr Dates contends that:

·                    The Minister failed to give proper regard to the conclusions of the Umwelt Report that the whole of Alum Mountain is of Aboriginal significance and that there is a strong connection between the Mountain and Aboriginals.

·                    The map referred to in the Umwelt Report identified the whole of the specified area as an area that would warrant protection.  It was clear (and is not in dispute) that the lower parts of the Mountain would be injured and negatively affected by the proposed roadworks.

·                    The Minister misconstrued the Umwelt Report as recommending inclusion as an Aboriginal place of “core and buffer areas”.  It was incorrect to describe the recommended area in figure 2.1 of the Umwelt Report as consisting of sections of the mountain of most importance to the Aboriginal community and an additional area of land to act as a buffer zone to protect the cultural heritage values of the Mountain.  This led to an incorrect conclusion by Ms Brennan, which she was not qualified to make, that “buffer zones” were not areas of significance in their own right such as to warrant nomination as an Aboriginal place.

·                    The Umwelt Report was dismissed without evidence to the contrary.

·                    It followed that the Brennan Report was illogical.

·                    Both Ms Brennan and the Minister incorrectly stated that the Umwelt Report did not establish the exact extent of the area of identified significance.

45                  It can be seen from the Minister’s reasons for the s 10 decision, as set out above, that none of these contentions are made out.  The Minister addressed the correct question under the Act.  The weight given by the Minister to the different material was a matter for him.  However, it is apparent that each of the matters was considered and that they formed the basis and the evidence for the conclusions drawn.  The material, in particular the various reports, formed a probative basis for the reasons, which were clearly set out.  The reasoning which supported the conclusions reached by the Minister was logical.

Did the Minister ask the wrong question?

46                  Another way in which the submission is put is that the Minister asked the wrong question.  The correct question is said to have been whether the area in issue, that is the lower part of the Mountain, is sacred to Aboriginals according to their tradition.  Put another way, Mr Dates says that the Minister was obliged to see if the area specified in the application is a significant Aboriginal area according to Aboriginal tradition; that is, according to those who have the native title interest in the land.  His argument seems to be that it follows that the Minister was obliged to determine whether the area was sacred to any Aboriginal, although he seems to resile from the proposition that it would be sufficient if only one Aboriginal person claimed that the land was sacred.

47                  Mr Dates submits that the Minister was obliged to consider whether the lower area of Alum Mountain was of significance to any Aboriginal.  As the Minister noted Aboriginal tradition is defined in terms of a body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals.  While it includes traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships, that refers to the persons, areas, objects or relationships about which the belief is held.  It does not mean that the belief of a single Aboriginal person about a particular area constitutes Aboriginal tradition as defined.  The Minister did not ask himself the wrong question under the Act as submitted by Mr Dates.

Did the Minister make findings as to which there was no evidence?

48                  The Minister’s reasons set out the evidence upon which his conclusions were based.  Mr Dates has not demonstrated that there was any finding or reason that did not have evidentiary support.  Rather, his submission is that the evidence was not probative.

49                  The Minister’s reasons explained the basis for the evidence that he relied upon and the weight he gave that evidence.  The evidence was either from Aboriginal persons or contained in reports that had been commissioned.  Mr Dates has not demonstrated that any of the matters referred to, or the evidence cited in the reasons, was not probative.

Was the Minister’s conclusion that the lower part of the Mountain was not of significance in Aboriginal tradition while the top part of the Mountain was significant, illogical?

50                  Mr Dates submits that it was not possible logically to hold that one part of the Mountain is of significance and another part is not.  I do not accept that submission.  The Minister accepted that the top part of the Mountain was of significance for men’s business.  There is no illogicality in the Minister’s conclusion that there was insufficient evidence to support an assertion that the lower part of the Mountain had significance to Aboriginal persons in accordance with Aboriginal tradition, having found that there was insufficient evidence to support the Aboriginal traditions which Mr Dates relied upon to claim significance of the whole Mountain.  At no time did the Minister accept that the whole of Alum Mountain was of significance.  This is in contrast to Williams.  There the Minister had accepted an assertion that the broader area had particular significance but found that part of an area within that broader area did not.

Conclusion on the issues relating to the asserted error of law

51                  I am not satisfied that the Minister’s reasons indicate that he failed to give proper, genuine and realistic consideration to the significance of the specified area, or that his conclusion was illogical, or that he asked the wrong question.  Mr Dates asserts in the amended application that the Minister made an error of law by drawing an inference with evidence to the contrary.  It does not constitute an error of law for an administrative decision maker to draw an inference or to make a factual finding in circumstances where there is evidence for the contrary.  It was for the Minister to determine, on the basis of the evidence before him, whether he was satisfied of the relevant factual matters going to the proposition that the specified area was significant in the relevant sense.  Mr Dates has not demonstrated that the Minister acted perversely, or that his lack of satisfaction was based on findings or inferences of fact which were not supported by probative material or logical grounds (Eshetuat [145]; Anderson at [105]).  Broad assertions that the Minister acted perversely do not demonstrate error.  References to the evidence and an assertion that the Minister should not have accepted that evidence does not amount to relevant error.

52                  The Minister’s reasons demonstrate that the decision under challenge was based on a careful analysis of the available evidence.  The fact that the Minister did not accept Mr Dates’ evidence but pointed to the evidence of other Aboriginal persons and the various reports, including the Brennan Report, does not support the proposition that the Minister erred in a way amenable to judicial review as being perverse or illogical or otherwise an error or law.  It was a matter for the Minister to determine what weight should be attached to the matters to which consideration should be given under the Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).  The Minister explained the basis for each of the steps in his reasoning that led to the absence of satisfaction in respect of each aspect of Mr Dates’ claims.

53                  Mr Dates places specific reliance on the conclusions of the Umwelt Report.  He has not demonstrated that the Minister’s conclusions with respect to the Umwelt Report were wrong or that the Minister was bound to agree with the facts found and conclusions reached in the Umwelt Report.  The Minister was entitled to treat that Report as a piece of evidence and to accept it, or to reject it wholly or in part.  The Minister had evidence before him in addition to the Umwelt Report and the conclusions of Ms Brennan in relation to it.  In any event, the recommendation in the Umwelt Report refers to ‘those sections of the Mountain of most importance to the Aboriginal Community’ and refers to an additional area of land to act as ‘a buffer zone’ to protect the cultural heritage values of the Mountain.  It was open to the Minister to draw from that Report the conclusion that it was not established that the entirety of Alum Mountain was of significance to the Aboriginal community.

Did the Minister fail to consider relevant matters?

54                  Mr Dates points to a number of “matters” which the Minister is said to have been obliged to consider but which the Minister did not consider, namely:

·                    the Great Lakes Study including ‘the reported testimonies of some 100 people including Worimi Elders’;

·                    the Umwelt Report;

·                    the fact that “only one Worimi person” had actually recorded that the base of the Mountain was not significant; and

·                    the significance of a number of archaeological sites within the specified area.

55                  The Minister was required under s 10(1)(c) of the Act to consider a report under s 10(4), namely the Brennan Report and any representations attached to the Report, and under s 10(1)(d) to consider such other matters as he thought relevant.  To the extent that the matters to which Mr Dates referred were representations furnished to Ms Brennan pursuant to s 10(3)(a)(ii) of the Act, which provides for an invitation by Ms Brennan to interested persons to furnish representations in connection with the report, the Minister was obliged to consider those representations in accordance with the Act.  As Foster J held in Andersonat [40], “representations”, a term not defined for the purposes of the Act, is a word of wide import which should be construed as encompassing all submissions, statements, evidence and material furnished to the reporter pursuant to her request for information made in the publications contemplated by s 10(3) of the Act.

56                  It is plain that the Minister did have regard to the Great Lakes Study and the Umwelt Report, which were cited and discussed in his Reasons.  The Minister clearly referred to the competing evidence from Aboriginal persons, including Worimi persons, concerning the significance of the base of the Mountain.

57                  As to the last two of the four matters relied upon by Mr Dates, these are each conclusions of fact, not matters which the Act either explicitly or implicitly required the Minister to consider.  This is particularly apparent with regard to the evidence about the base of Alum Mountain.  The Umwelt Report set out the evidence of a number of persons who variously spoke about Alum or Bulahdelah Mountain.  Some of those persons described themselves as Biripi and some as Worimi.  Some were members of the Karuah Land Council.  In any event, the Minister was obliged to consider whether he was satisfied that the area is of Aboriginal significance.  After weighing the evidence, he was not so satisfied.

58                  The last of the matters referred to by Mr Dates as not having been considered is the Aboriginal significance of different “archaeological sites”.  The Minister did consider each of the sites referred to, including the artefact scatters, and was not satisfied that they had significance. 

59                  Mr Dates has not demonstrated that the Minister failed to consider any relevant matter that he was obliged to consider as part of the reasons for the decision.  The Minister looked at each area of Alum Mountain for which Aboriginal significance was claimed to determine whether or not that area is of Aboriginal significance within the meaning of the Act.

Did the Minister take into account irrelevant considerations?

60                  Mr Dates points to a number of considerations which he says the Minister took into account but which, he says, the Minister was precluded from considering.  These considerations are:

1.                  The Minister mischaracterised certain of the persons, whose evidence was recorded in the Umwelt Report, as Worimi.

2.                  The Minister referred to the fact that the base of Alum Mountain was not mentioned as an area of significance in a survey undertaken by the NSW National Parks and Wildlife Service without evidence of the material relied upon which was apparently from the ‘hearsay of an unidentified RTA Officer’.

61                  These are not “irrelevant considerations” in the sense of being matters which the Minister was prohibited from taking into account (Peko-Wallsend at [40]–[41]).  The Minister was expressly authorised in s 10 of the Act to consider such other matters as he thought relevant.  Mr Dates does not point to any basis in the Act for the submission that the Minister was precluded from considering these matters.  Rather, Mr Dates asserts that certain of the persons referred to in the Umwelt Report were or were not Worimi and were or were not qualified to provide evidence about the Aboriginal significance of Alum Mountain.

62                  Mr Dates has not established error on the part of the Minister, either in the underlying factual material or in the Minister’s consideration of the evidence.  This is simply an attack on the merits of the evidence and the weight accorded to it by the Minister.  Assertions by way of submission that certain of the evidence was not probative either because the person was said not to be Worimi or because it was contained in a report as second hand evidence, does not assist Mr Dates.  The weight to be given to the evidence, whether that evidence was directly set out or reported in a survey or report provided to Ms Brennan, was a matter for the Minister.

63                  Mr Dates accepts that the Minister was entitled to weigh the evidence but submits that the Minister was obliged to give what he describes as “due regard” to the weight to be afforded and to give “proper regard” to the opposing evidence.  This is simply another way of complaining about the weight that the Minister chose to give competing evidence and is not open to challenge.

64                  In any event, Mr Dates’ submissions as to the evidence that the Minister should have taken into account is not consistent.  On one hand he submits that the evidence of Mr Kelly, who described himself as a Dunggaiti Aboriginal Elder (not Worimi), could be taken into account insofar as it supported the significance of the upper slopes, but his lack of knowledge of any significance of the lower slopes should not have been taken into account .  On the other hand, he says that the evidence of Mr Saunders, who said that only the top of the Mountain is significant, should have been rejected because he is a Biripi Elder (not Worimi).  The evidence of Mr Anderson, who said he is a Worimi man, was that he had heard that the top of Bulahdelah Mountain was a men’s place but he did not give evidence of any Aboriginal significance attaching to the lower parts of the Mountain.  The evidence of Mr Kelly, Mr Saunders and Mr Anderson, as well as other Aboriginal persons, was set out in the Umwelt Report.  Some of the persons spoke of the whole of the Mountain, others specifically supported Aboriginal significance only of the top and positively asserted there is no significance to the lower parts of the Mountain; others spoke only of the top and said nothing about the lower parts of the Mountain.

65                  Clearly the Minister was entitled to weigh the competing evidence.   I am not satisfied that he took into account irrelevant considerations.

Denial of procedural fairness

66                  Mr Dates complains that he did not have the opportunity to reply to a letter dated 3 March 2009 from Mr Davey of DECC to the relevant person of the Department.  Relevant to Mr Dates’ assertion that he was denied procedural fairness are the letter of 3 March 2009 (the 3 March letter) and an earlier letter from Mr Davey to the Department dated 30 January 2009 (the 30 January letter).  The 30 January letter referred to an application received by DECC from the local Aboriginal Community for an Aboriginal Place Nomination for Alum Mountain, lodged under s 84 of the NSW Act.  The letter stated:

The Aboriginal Place nomination lies outside the approved highway route, but encompasses the areas of cultural importance to the local Aboriginal community.  These areas will not be impacted by the highway upgrade.  It is DECC’s view that the sites of cultural significance to the Aboriginal community will not be effected by the highway upgrade and the current Aboriginal Place nomination addresses those areas of Alum Mountain which are culturally significant to the local community.

 

In summary, DECC considers that the sites of cultural heritage significance will be afforded an appropriate level of protection via the Aboriginal Place nomination under the NSW National Parks and Wildlife Act 1974. 

 

67                  The 30 January letter was given to Mr Dates for comment and Mr Carrall, on behalf of Mr Dates, provided extended submissions on 17 February 2009 in response to this letter.  Relevantly, Mr Carrall’s submissions quoted the comment in the 30 January letter that the Aboriginal Place nomination lies outside the approved highway route but encompasses the areas of cultural importance to the local Aboriginal community, which areas will not be impacted by the highway upgrade.  Mr Carrall then submitted, in substance, that this statement was misleading and fraudulent, because the proposed Bulahdelah Bypass cuts across the area shown in figure 2.1 in the Umwelt Report and recommended in the Report to be set aside as an Aboriginal Place.  This submission is reiterated by Mr Dates at the present hearing.

68                  The 3 March letter referred to an email from the Department to the DECC on 24 February 2009, which provided an excerpt of Mr Carrall’s submission to the DECC for comment.  The 3 March letter proceeded to respond as follows:

DECC has and continues to clearly acknowledge the cultural significance of Alum Mountain to the Aboriginal community.  This is evidenced by our commitment to progressing an Aboriginal Place nomination for the area.

 

While it is acknowledged that the Aboriginal Place nomination was submitted by the National Parks and Wildlife Service, which is now part of DECC, this application was lodged on behalf of the local Aboriginal community.  This application is currently being assessed by DECC and will be considered by the Minister for Climate Change and the Environment.  All nominations for an Aboriginal Place are assessed, irrespective of the source of the submission.

 

The Bulahdelah Aboriginal Place nomination encompasses areas of cultural importance to the Aboriginal community and protects Alum Mountain.  The registered sites within the Bulahdelah Aboriginal Place nomination area are presently protected under the National Parks and Wildlife Act 1974(NPW Act) 1974 and, if the Aboriginal Place nomination is approved, the whole area will be protected.

 

I note that the map provided with the comments is an early draft of the area of the proposed Aboriginal Place nomination.  The boundary of the area has since been revised in light of further studies and subsequent planning decisions.  I reiterate that the current boundaries of the proposed Aboriginal Place adequately protect the site’s Aboriginal cultural values. 

 

I also reject the assertion that the DECC has colluded with the RTA.  DECC has always and will continue to work cooperatively with the RTA to minimise the impact of road upgrades on the environment, biodiversity and Aboriginal cultural values.  This will occur in transparent manner in accordance with the prevailing legislation and the processes dictated therein.

 

I note the concerns raised in relation to access to Alum Mountain and the mountain’s tourism value.  I can state categorically that access to the mountain and its values will be maintained for pedestrians and vehicles once the highway bypass has been finalised.

 

Your email also indicates that DECC’s previous correspondence has been provided to the applicant in order to avoid procedural fairness.  In future it would be appreciated if you could consult with the DECC prior to releasing this information.

 

69                  This 3 March letter was not provided to Mr Dates.  Neither of the emails sent by the Department to DECC are in evidence.

70                  Mr Dates asserts that he was denied procedural fairness in being denied the opportunity to reply to the 3 March letter.  No other particulars are provided in the further amended application or in Mr Dates’ written submissions.  At the hearing, Mr Dates says that although DECC said that they had changed the Aboriginal Place nomination area, he was not given any correspondence showing the redrawn area.  He denies that such evidence exists.  It is common ground that the Bulahdelah Bypass roadworks will cut across the nomination area set out in figure 2.1 of the Umwelt Report.

71                  The Minister accepts his obligation to give procedural fairness to an applicant.  He submits, however, that this does not translate into an obligation to provide every piece of paper to an applicant.  He accepts that he had a substantive and practical obligation to provide to an applicant any new information that was credible, relevant and significant.

72                  The Minister submits that the only relevance of the letters between DECC and the Department are reflected in the Minister’s reasons at [20] which stated:

The Aboriginal Place nomination for Alum Mountain has been assessed by the DECC and it is currently being considered by the NSW Minister for Climate Change and the Environment.  The DECC advised that the boundary of the possible “Aboriginal Place” nomination is outside the disturbance footprint for the upgrade of the Pacific Highway at Bulahdelah.

 

This was a recording of what was happening with the State nomination and of the DECC’s advice that the boundary of the nomination being considered lies outside the disturbance footprint of the Bulahdelah Bypass.  Both these matters were conveyed in the 30 January letter.  Mr Dates provided a detailed response to these matters in Mr Carrall’s submissions to the Minister dated 17 February 2009.

73                  The 3 March letter dealt with Mr Carrall’s contention regarding the boundary of the Aboriginal Place nomination and explained that figure 2.1 in the Umwelt Report was an early draft of the area of the proposed Aboriginal Place nomination and that the boundary of the area had since been revised.  It reiterated that the current boundaries of the proposed Aboriginal Place adequately protect the site’s Aboriginal cultural values.  The only relevance of this letter to [20] of the Minister’s reasons was that it confirmed the earlier advice in the 30 January letter that the current boundaries of the proposed Aboriginal Place are outside the footprint of the Bulahdelah Bypass.  Mr Dates had the opportunity to and did comment on this matter in Mr Carrall’s submissions of 17 February 2009.

74                  The additional parts of the 3 March letter responded to other aspects of Mr Carrall’s submissions.  While Mr Dates may have wished to respond further, the contents of the 3 March letter were either not relevant to the Minister’s decision or had been before the Minister in the 30 January letter and Mr Dates’ response to that letter.  Mr Dates did not point to any practical unfairness arising from any additional matter in the 3 March letter relevant to the Minister’s reasons or to the Minister’s decision.

75                  Further, that part of [20] in the Minister’s reasons for the s 10 decision also appeared in [18] of the reasons for the s 9 decision of 21 May 2009.  Mr Dates had an opportunity to raise any additional matters arising from that paragraph with the Minister prior to the s 10 decision.

Bad Faith / Bias

76                  In his amended application, Mr Dates refers to the further ground that the Minister acted in bad faith toward him and displayed a perceived bias in his consideration of the s 10 application.  Mr Dates did not offer any submissions in support of that allegation and this ground is not made out. 

The s 12 decision

77                  The Minister declined to make a s 12 declaration on the basis that the application was generally misconceived, in that it related to areas of land rather than objects.  The Minister considered that the part of the application, concerning the B8 artefact scatter, was potentially concerned with the protection of objects but he could not be satisfied that the particular artefacts within the scatter were significant Aboriginal objects due to the lack of information on the significance of the objects.

78                  None of the grounds of review or the written or oral submissions of Mr Dates provide any specific reference to the Minister’s reasons for the s 12 decision or any other basis for impugning that decision.  To the extent that Mr Dates relies on the same grounds as for the s 10 decision, I have dealt with them above.  The challenge to the s 12 decision is rejected.

Conclusion

79                  It is clear that Mr Dates’ real complaints as to each decision are with the merits of the Minister’s decision and the fact that the Minister did not accept his evidence, but rather accepted evidence contrary to his own which, he repeatedly submits, was not “probative”.  That characterisation seems to apply simply because the evidence was contrary to Mr Dates’ evidence.  It is apparent that there was evidence to support the Minister’s reasons as to why he was not satisfied of the Aboriginal significance of the lower part of Alum Mountain.  Once the Minister failed to reach that state of satisfaction, the Bulahdelah Bypass is not a danger to an area of Aboriginal significance.

80                  None of the grounds of the application for judicial review has been made out.  It follows that the application should be dismissed.  The parties ask that I reserve the question of costs.

 

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:         24 March 2010