FEDERAL COURT OF AUSTRALIA

Kelly v Minister for the Environment and Water

[2025] FCA 264

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website together with this summary.

This application concerns the reburial of 108 Aboriginal Ancestral Remains, including Mungo Man and Mungo Lady. The remains of Mungo Man and Mungo Lady are dated at 40,000 to 42,000 years old. They are the oldest human remains found in Australia and the earliest evidence of Homo sapiens outside Africa. Recognition of the great age of Mungo Man and Mungo Lady formed part of the basis on which the Australian Heritage Commission nominated the Willandra Lakes Region for inclusion on the World Heritage List in 1980. The return of the Ancestral Remains to the Willandra Lakes Region is the culmination of cross-generational efforts by Traditional Owners at great personal cost to repatriate the Ancestral Remains to Country.

The Ancestral Remains demonstrate culturally significant burial rituals. Protecting burial sites and remains is important in accordance with Aboriginal tradition, particularly for the Mutthi Mutthi, Ngayampaa, and Barkandji Peoples (the three Traditional Owner Groups) for whom the Ancestral Remains are sacred. In broad terms, this application arises from the existence of different views among members of these Groups as to the appropriate way in which the Ancestral Remains should be reburied in the Willandra Lakes Region.

By this proceeding, the applicant, Mr Jason Kelly, sought judicial review of the decision made by the respondent, the Minister for the Environment and Water, on 22 December 2023 under s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) with respect to the Ancestral Remains. By that decision, the Minister rejected the application by a Mutthi Mutthi Elder, a Ngayampaa Elder and a Barkandji Elder (the original applicants) to make a declaration under s 12, with respect to reburial of the Ancestral Remains, for the protection and preservation of the Ancestral Remains from injury and desecration.

Section 12 of the Act provides that the power to make a declaration to protect or preserve a specified object is enlivened only where the Minister is satisfied that the object is under threat of injury or desecration. It suffices, by reason of s 3(3), if the object is “likely to be” injured or desecrated. Under s 3(2) of the Act, an object is “taken to be injured or desecrated” for the purposes of the Act if “it is used or treated in a manner inconsistent with Aboriginal tradition”.

The application under s 12 was made in response to the proposal to undertake each reburial of the Ancestral Remains close to their point source of origin with a small private cultural ceremony, after which the sites will be returned to their existing conditions without markers to indicate the grave locations (the Reburial Proposal). The reburials of the Ancestral Remains in accordance with the Reburial Proposal is facilitated by Heritage NSW and the NSW National Parks and Wildlife Service on behalf of the three Traditional Owner Groups and commenced on 3 March 2025. The Reburial Proposal was approved under State and Commonwealth law following extensive consultation over many years. The proposal was intended to implement unanimous resolutions to rebury the Ancestral Remains by the Willandra Aboriginal Advisory Group (AAG) and the Willandra Lakes Region World Heritage Advisory Committee, which includes the nine members of the AAG. The AAG was formed in 2015 and is comprised of elected members from the three Traditional Owner Groups. It is also the peak Aboriginal advisory body for the Willandra Lakes Region World Heritage Area.

The applicant, Mr Jason Kelly, is a Traditional Owner and the son of one of the Elders who applied for the s 12 declaration. While Mr Kelly brings these proceedings in his own right as a senior Mutthi Mutthi man, he also represented the original applicants in oral representations to the Department. Mr Kelly believes that he and his family are descended from some, if not all, of the Ancestral Remains.

OVERVIEW OF THE DECISION

It is not open to the Court to revisit the factual findings made by the Minister in her decision; nor to decide whether a declaration should be made under the Act. These are questions as to the merits of the s 12 application which are reserved for the Minister alone under the Act. Rather, in order to succeed on the application for judicial review, it was necessary for Mr Kelly to establish an error of law.

The Court held that no error of law had been established and the application by Mr Kelly should therefore be dismissed.

First, the Court held that the Minister did not misunderstand the statutory test as requiring her to be satisfied that the Ancestral Remains will, and are not merely likely to, be used or treated in a manner inconsistent with Aboriginal tradition before her discretion to make a declaration under s 12 of the Act is enlivened. The Court also held that the Minister did not wrongly limit herself to considering whether the Ancestral Remains were at risk of being physically harmed.

Secondly, the Court held that a number of the grounds of judicial review were premised on the assumption that the original applicants had submitted to the Minister that, without the free, prior and informed consent of the Traditional Owner Groups, the Ancestral Remains were under threat of being treated inconsistently with the Aboriginal tradition of Aboriginal people visiting and maintaining the burial sites of their ancestors in order to honour them, pay respects to them, maintain a spiritual connection to them, and pass those practices on to future generations (the Burial Tradition). The Court held that the original applicants had neither made a submission to the Minister that the Reburial Proposal was inconsistent with the Burial Tradition, nor did they make submissions as to what Aboriginal tradition required. Rather, the original applicants sought a declaration that the question of whether the proposed means of reburial were inconsistent with Aboriginal tradition should be determined by a process of consultation with the three Traditional Owner Groups to ascertain the correct reburial methodology.

Thirdly, the Court held there is no power under the Act to make a declaration of the kind sought by the original applicants to provide for a consultation process to take place in order to determine whether an action is likely to be inconsistent with Aboriginal tradition. In any event, the Court found that the Minister had considered whether the proposed means of reburial were inconsistent with Aboriginal tradition but found that no such inconsistency was established on the evidence.

Finally, the Court held that, absent a finding that free, prior and informed consent is an Aboriginal tradition and that the failure to obtain such consent would result in injury or desecration of the Ancestral Remains, alleged inadequacies in the processes leading to the Reburial Proposal could not enliven the Minister’s power to make a declaration under s 12 of the Act. As such, it was unnecessary for the Minister to consider the original applicants’ allegation that the AAG did not represent the views of the three Traditional Owner Groups and that free, prior and informed consent had not been obtained for the Reburial Proposal. In any event, the Court found that the Minister had reached the view that the establishment of the AAG and the public processes for the relevant state and Commonwealth approvals for the reburials project demonstrated significant, open and transparent engagement with Traditional Owners in accordance with the principles of free, prior and informed consent.

JUSTICE MELISSA PERRY

28 March 2025