Onus v Minister for the Environment
[2020] FCA 1807
Griffiths J
SUMMARY OF REASONS FOR JUDGMENT
1. In matters of public interest before the Court, it is customary to provide an explanatory statement to assist the public in understanding the proceeding to which the judgment relates and the reasons for that judgment. This summary is not intended to take the place of the published reasons for judgment.
2. This proceeding raises important issues concerning the preservation and protection from injury or desecration of a significant Aboriginal area and significant Aboriginal objects under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act).
3. The issues arise from a proposal to upgrade and realign the Western Highway between Ararat and Buangor in Victoria. The Specified Area in question is the maximum construction footprint for the highway upgrade. The objects are six large and ancient trees which are located near the Specified Area. The Minister accepted that five of the six trees are significant Aboriginal objects for the purposes of the Act. Two of those trees are hollow and have been used by local Aboriginals for over fifty generations for multiple purposes, including giving birth and providing shelter. The trees are situated in a significant area near the Hopkins River. They are connected to Aboriginal songlines and stories which extend beyond the Specified Area.
4. The applicants, who are two traditional owners of Djab Wurrung Country, seek judicial review of the Minister’s decision dated 6 August 2020 in which she declined to make declarations under either s 10 or s 12 of the Act as sought in an application dated 17 June 2018.
5. This is the third time proceedings have been brought in this Court challenging Ministerial decisions relating to the Specified Area and the trees. Two previous Ministerial decisions refusing to grant declarations under either ss 10 or 12 were set aside, either by consent, or after a hearing. In both cases, it was found that the Minister had fallen into jurisdictional error. On the second occasion, in Clark v Minister for the Environment [2019] FCA 2027, Robertson J set aside the Minister’s decision and remitted the matter for reconsideration according to law by the same Minister. His Honour held that the Minister had adopted an oversimplified view of the statutory definitions and concepts of “Aboriginal tradition” and “injury or desecration”. This was because the Minister had treated the statutory questions in relation to those definitions and concepts as sufficiently answered by the fact that, following a commitment given by the State agency with overall responsibility for the Western Highway upgrade, five of the six trees would not be destroyed. His Honour held that the Minister had failed to address the relevant statutory questions with reference to all the claimed Aboriginal traditions, observances, customs and beliefs which the Minister had found to exist. The agency’s commitment not to destroy the trees did not answer the broader question as to whether the works and highway alignment posed a threat of injury or desecration to the Specified Area or five of the six trees.
6. Following Robertson J’s decision, the Minister reconsidered the matter and determined again not to make a declaration under either s 10 or s 12. The Minister provided a detailed statement of reasons for her decisions, which purport to address the errors found by Robertson J. With regard to the application under s 12 for a declaration concerning the six trees, the Minister found that one of the trees was not a significant Aboriginal object, but she accepted that the other five trees did fit that statutory description. She concluded, however, that these trees were not at risk of injury or desecration for two primary reasons. First, because of the State agency’s commitment. Secondly, with particular reference to the concept of Aboriginal tradition, the Minister found that she was not satisfied that the five trees were likely to be used or treated in a manner inconsistent with Aboriginal tradition more broadly. This was because she found that the applicants “did not clearly describe any ways in which those functions and attributes of the trees are under threat of injury or desecration apart from their physical removal or harm”.
7. As to the application for a declaration under s 10 concerning the Specified Area, the Minister accepted that the area was a significant Aboriginal area and that it was under threat of injury or desecration. But she declined in her discretion to make the declaration because she considered that these matters were outweighed by other relevant considerations, being the effects on pecuniary interests of third parties, health and safety and the extent to which the area is protected under State legislation.
8. Significantly, the Minister said in her statement of reasons that even if she had found the five trees to be under threat of injury or desecration for the purposes of s 12, those other considerations would have also outweighed that finding.
9. The Court has found that the Minister has again fallen into jurisdictional error and has substantially repeated the error identified by Robertson J regarding the misunderstanding and misapplication by the Minister of the statutory definitions and concepts of “Aboriginal tradition” and “injury or desecration”. In particular, in declining to make a s 12 declaration concerning the five trees the Minister committed the following legal errors:
(a) contrary to the Minister’s finding, there was material before her which clearly described how the five trees were under threat of injury or desecration with reference to “Aboriginal tradition” as defined in the Act;
(b) in attaining the state of satisfaction required under s 12(1)(b)(ii) of the Act, the Minister did not have before her any material or map which precisely identified the physical proximity of the highway alignment to the five trees; and
(c) the Minister failed to appreciate that the cultural significance of the five trees was not confined to their connection with the Specified Area, but extended to the area beyond the Specified Area.
10. The Court has dismissed the applicants’ challenge to the lawfulness of the Minister’s decision regarding the application for a declaration under s 10 in respect of the Specified Area.
11. In the particular circumstances of this case, the Court has taken the somewhat unusual step of remitting the s 12 application to the Minister but with a direction that she refer it for reconsideration by one of four other Ministers or Assistant Ministers with responsibility for administering the Act. This order was made because the Court found that an informed lay observer might apprehend that the Minister may not conduct a reconsideration with an open mind. This was because:
(a) in her second attempt to determine the application according to law the Minister substantially repeated the error identified by Robertson J; and
(b) in her latest statement of reasons the Minister indicated that even if she had found that the five trees were under threat of injury or desecration, she would not have granted a s 12 declaration because of the other considerations identified by her in declining to make a s 10 declaration.
12. The Court found that a hypothetical observer might apprehend that the Minister may have prejudged the matter if she was to redetermine the application for a third time, hence it was necessary that another Minister perform that task in order to do justice between the parties.
13. Finally, it might be noted that in related litigation in the Supreme Court of Victoria, on 3 December 2020 Forbes J granted an interlocutory injunction in relation to the area which is the same as the Specified Area in the present proceeding (see Thorpe v Head, Transport for Victoria [2020] VSC 804).
A full text of the Court’s judgment can be found via the Federal Court’s homepage at www.fedcourt.gov.au.
Griffiths J
17 December 2020
Sydney
