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FORREST AND FORREST PTY LTD AND MINISTER FOR ABORIGINAL AFFAIRS [2023] WASAT 28

August 16, 2023 By ER Law Admin ARELJ, General 0

Western Australia’s State Administrative Tribunal (SAT) has rejected a review, by Forrest & Forrest Pty Ltd, against the refusal of consent to impact an Aboriginal site in constructing weirs across the Ashburton River. A unanimous three-member panel published its decision in April 2023. SAT’s decision and reasoning has direct significance and use for anyone involved in processes for a s 18 consent under the Aboriginal Heritage Act 1972 and broader relevance for the law around protection of Aboriginal heritage in Western Australia. With the WA Government announcing the reversal of recent statutory changes and a return to the 1972 legislation, SAT’s decision has increased relevance.

Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs [2023] WASAT 28

John Southalan

Barrister (WA Bar Association), Mediator (NMAS), Adjunct Professor (UWA & Murdoch)

john@southalan.net This article is written in personal capacity and does not represent the views of any organisation with which the author is associated. Grateful thanks for comments and feedback on earlier drafts from Matt Hansen, Prof Richard Bartlett, Jeremy Brown, Melanie Noid and others who are not identified. Any errors remain the author’s responsibility.

Overview of WA’s Heritage Law

The law protecting Aboriginal heritage in Western Australia is in transition. For the last half century the Aboriginal Heritage Act 1972 [1] (the Act) has criminalised damage to Aboriginal heritage (s 17), while also enabling Ministerial consent for activities to occur regardless of the damage they cause (s 18).[2] In December 2021, the WA Parliament passed the Aboriginal Cultural Heritage Act 2021 to provide more protection for Aboriginal heritage, with greater involvement and engagement of traditional custodians.[3] This included a long transition period and the existing s 18 consent process under the Act was to continue for many years.[4] On 8 August 2023, the WA Government announced the repeal of the 2021 legislation and a return to the Act (with some changes).[5] SAT’s decision [6] has increasing relevance to actions involving Aboriginal heritage in Western Australia.

Facts and Summary of the SAT Decision

The pastoral station, Minderoo, in Australia’s north-west near the coastal town of Onslow, is owned by Forrest & Forrest Pty Ltd (Forrest & Forrest).[7] This is in the traditional country of the Thalanyji people, whose native title rights were recognised in a Federal Court determination in 2008.[8] Minderoo and Thalanyji traditional country are crossed by the Ashburton, a major river known as Mindurru in local Aboriginal language. The river is about 700km long, with a catchment area around 20,000km², and flows seasonally after rains.[9]

Forrest & Forrest proposed to build ten weirs across the river to increase water use for its horticulture and beef production. The weirs would not prevent water flow, particularly during wetter periods when most water would flow uninterrupted, but would create larger and longer pools to replenish groundwater aquifers. In 2017, Forrest & Forrest applied for a s 18 consent under the Act, to approve that proposed use (regardless of potential breach of s 17 from impacting heritage) to enable building the weirs.[10] The company’s application identified the river as an Aboriginal site that would be partially impacted if their proposal went ahead.

The Act requires that applications for a s 18 consent are first considered by the Aboriginal Cultural Material Committee (the ACMC, as SAT referred to it in their reasons), a specialist committee established under the Act and comprising persons experienced in Aboriginal cultural significance and archaeology.[11] The ACMC makes a recommendation to the Aboriginal Affairs Minister, who decides whether to issue a consent and any conditions.

In this case, the ACMC initially decided to recommend the Minister grant consent subject to conditions that the work must avoid any impact on the river’s permanent pools.[12] After receipt of further information showing that impact could not be avoided, in 2018 the Committee recommended the Minister refuse consent.[13] In 2019, the Minister refused to issue a s 18 consent based on the importance and significance of the river to the Thalanyji.[14] Forrest & Forrest applied to SAT to review the Minister’s decision,[15] which is a procedural right the landowner (but not the impacted Aboriginal group) has under the Act.[16] The Thalanyji people were granted intervener status.[17] SAT heard the case in 2021 and, in April 2023, effectively rejected the application for review and affirmed the Minister’s decision.[18]

Aspects from SAT’s Reasoning

SAT, when it receives a review application under the Act, is essentially exercising the same functions and discretions as those of the Minister under s 18, in deciding whether to grant consent.[19] SAT effectively stands in the shoes of the Minister, having to re-make the decision on the s 18 application, but can receive further evidence and material (which it did in this case).[20] So SAT’s reasoning informs how any future Ministerial decisions ought be made regarding consents and the Act.

Future Ministerial decisions about s 18 consent applications under the Act should be expected. SAT explained that, when a party had applied for a s 18 consent, the Act requires that application be decided by the Minister. This is significant, because WA Government practice for many years has involved Departmental or ACMC decisions that there is no site and therefore not progressing the matter for Ministerial decision.[21] SAT considered that an inappropriate way of proceeding.^{^[22]} This leaves an interesting question regarding many previous applications, which have received no Ministerial decision, and any activities which have since occurred regarding the areas subject to those applications.

3.1 Role of the ACMC

SAT made some observations on the ACMC’s role, emphasising its importance in the process.

The ACMC must do three things when a s 18 application has been made: “(a) form a view as to whether there is any Aboriginal site on the land; (b) evaluate the importance and significance of any such site; and (c) make a recommendation to the Minister as to whether the Minister should consent to the use of the land for the purpose set out in the owner's notice, and (if applicable) as to the extent to which, and the conditions upon which, that consent should be given”.[23]
The ACMC’s evaluation of a site’s importance and significance has “two dimensions: the importance and significance of each Aboriginal site to people of Aboriginal descent, and the importance and significance of each Aboriginal site to the community more broadly, as part of the cultural heritage of the State”.[24]
The ACMC’s consideration whether consent should be given is “on behalf of the community”, involving assessment of “the importance of places and objects alleged to be associated with Aboriginal persons”,[25] and it can include partial or conditional consent (e.g., areas/time periods).[26]

SAT considered the ACMC’s function and expertise meant that its views on the cultural significance of a place should have considerable weight with the Minister (and SAT, where the Minister’s decision is on review).

[I]n the absence of any further information or evidence which cast doubt on the ACMC's opinion, the Minister would be expected to rely on the ACMC's opinion as to whether there is an Aboriginal site on any land, and the importance and significance of any such site, and to give it significant weight in the Minister's consideration as to whether consent should be given to proposed works. That is to be expected in light of the fact that it is not part of the Minister's functions under the AH Act to evaluate the importance and significance of places to ascertain whether they constitute Aboriginal sites.[27]

This is a different characterisation of ACMC’s role than that expressed by the WA Supreme Court in 2019 in Wintawari Guruma Corp v Aboriginal Affairs Minister,[28] where Justice K Martin stated, “The role of the ACMC in recommending to the Minister under s 18(2) is plainly one of the incidental ‘other purposes’ [of the Act]”.[29] That case involved the Government conceding that the ACMC had not evaluated the importance and significance of relevant sites before making its decision and that therefore the Minister’s decision was made beyond the terms of the power prescribed by the Act.[30] The Court also heard evidence, from the relevant Government official, that “the briefing note which was provided to the Minister included conditions said to have been recommended by the Committee that had not, in fact, been considered or recommended by the Committee”.[31] The Court dismissed a challenge against the Minister’s consent, reasoning that the content or even the legality, of the ACMC’s recommendation is irrelevant to the validity of Minister’s decision [32] because the Minister need only receive and consider the recommendation.

[T]he Minister merely receives and considers the written ACMC recommendation before issuing any s 18(3) decision by way of consent or otherwise. Under s 18 the Minister is not constrained or fettered by a recommendation of the ACMC – other than by a mandatory need to consider it. Once that is done, it is clear that the Minister is left at large to reach a decision upon the issue of a s 18(3) consent or otherwise as the Minister sees fit.^{^[33]}

3.2 ACMC Determining Whether There Is a Site

In relation to the ACMC’s consideration, SAT made the following observations.

A broad area, rather than a specific location/archaeological site, can have cultural significance and protection under the Act. SAT considered the Thalanyji material showed the entire river was sacred and merited protection under the Act.[34] SAT did not explicitly decide the entire river was a site, considering that unnecessary for the current matter, but considered that a credible understanding of the ACMC’s conclusion.[35]
SAT explained that one of the reasons a place may qualify for protection under the Act is that it is a “sacred site”. SAT noted previous jurisprudence that the Act’s understanding of “sacred” encompasses places devoted to religious use but also includes places “subject to mythological story, song or belief”.[36] SAT ruled this does not need to accord with western understanding or practice of “sacred” but is better understood “to contemplate spiritual and mythological purposes consistent with that culture”.[37]
SAT flagged that cumulative impacts cannot be ignored, indicating one relevant factor is “the potential for a longer term effect on Aboriginal culture of the incremental erosion of the foundations of ... cultural practices and spiritual beliefs”.[38] This is not something apparent from previous jurisprudence.[39]
There must be consideration of whether the proposed activity/use (for which s 18 consent is sought) can proceed in another way without causing the problematic impact. In this case, SAT determined that was not possible.[40]

SAT considered the natural flow of the river not being interrupted was significant for the Thalanyji and something which would constitute an impact prohibited by s 17 unless consent were granted. SAT’s reasoning here is important to appreciate and so key paragraphs are extracted below.

606 [B]ecause the natural flow of the River, and the role of the water snake in determining that natural flow, is of such central importance in the Thalanyji people’s spiritual beliefs about the River, we have found that to interfere with the natural flow of the River (as will be the inevitable effect of the [proposed weirs]) will interfere in a significant way with a central tenet of the Thalanyji people's spiritual beliefs.

607 We have found that, from the Thalanyji people's perspective, the implementation of the … project, which will affect the natural flow of the River, risks killing or harming the water snake, or causing the water snake to become angry, and that that would have a significant adverse impact on the Thalanyji people. This may occur in the form of fear or concern that the water snake may act in anger and cause harm to them, in the form of emotional harm that they will be held responsible to the water snake, in the form of spiritual harm flowing from action which interferes with one of the central tenets of their spiritual beliefs, and in the form of emotional harm in a sense of shame or failure in their personal responsibility, as custodians of the River, to prevent the … project from proceeding.

608 [I]mplementation of the … project will adversely impact on the Thalanyji people's appreciation of the aesthetics of the River. Given the significance of the River in the Thalanyji people's spiritual beliefs, the significance of that impact cannot be ignored.

609 [T]he consequences of the … project represent potential adverse impacts on the spiritual beliefs and the culture of the Thalanyji people.… [T]hose impacts warrant significant weight in assessing the potential impact of the … project on Thalanyji culture.

Where the ACMC decides an area is a site qualifying for protection under the Act, and its importance and potential impacts, SAT indicated the Minister should give that significant weight in deciding on consent.[41]

[G]iven the expertise of the ACMC's members, its statutory role under the AH Act (as compared with the Minister's role) … we should give considerable weight to the ACMC's conclusions and its recommendation. They weigh strongly against the grant of consent to the use of the Land for the Purpose, namely the [weirs] project.[42]

SAT went on to muse, but indicated they were not deciding, in this case, “whether the Minister, and in turn the Tribunal [if the landowner applies for review of the Minister’s decision – as was the case here], is bound by the ACMC's opinion as to whether there are sites”.[43]

3.3 Minister’s Decision

The Minister’s decision on whether to grant consent having regard to “the general interest of the community” [44] can “take into account considerations additional to those taken into account by the ACMC, or may place different weight or emphasis on considerations taken into account by the ACMC…”.[45] The Minister is not bound by the Committee’s decision (and neither is SAT, when reviewing the Minister’s decision).[46]

SAT acknowledged the Minister can grant consent, allowing interference with an Aboriginal site, if that is in the general interest of the community. As framed by SAT, “Aboriginal cultural considerations may be outweighed by other factors relevant to the general interest of the community”.[47] The Act’s requirement that the Minister have “regard to the general interest of the community” [48] is equivalent to the “public interest” according to SAT.[49] SAT usefully outlined factors relevant to a Minister’s decision whether to grant consent.

147 In undertaking the evaluative and balancing exercise to determine whether consent should be given to the proposed use of the land, having regard to the general interest of the community, a variety of considerations may be of relevance. By way of example, they will include

[a] the degree of significance and importance of the site to people of Aboriginal descent;

[b] the significance and importance of the preservation of the Aboriginal site as part of the cultural heritage of the entire community;

[c] whether the proposed use of the land will involve the destruction of, or permanent damage or alteration to, the Aboriginal site;

[d] the nature of the benefits or advantages of the proposed use of the land for the community;

[e] whether the entire community or merely a small section of it may benefit;

[f] whether the benefit will be direct or merely indirect; and

[g] whether the benefit to the community can be achieved through other means which would not require destroying, damaging or altering an Aboriginal site.

149 Other considerations may include:

[h] whether the proposed use of the land could be achieved by other means, and

[i] whether the damage to the Aboriginal site could be minimised by the imposition of conditions on the grant of consent.

In that sense, the evaluative exercise cannot be viewed in isolation from the Minister's power to determine whether consent should be given to the use of the whole or a specified part of the land, or whether conditions should attach to the consent.

The Minister can “give the various factors relevant to the general interest of the community, such weight as the Minister thinks fit”.[50]

There are, relevantly, two separate points where the Act involves community interest in the s 18 consent process. The ACMC’s decision considers community interest “in the importance of places and objects”,[51] in making a recommendation to the Minister. The Minister’s decision considers community interest in “general” on whether to grant consent,[52] which frequently involves balancing protection as against development.

This balancing faced by SAT (and previously the Minister in this case) is nothing new. It has been evident in many s 18 cases over the decades. What is new, however, is the significance which SAT attributed to Aboriginal cultural interests. This was most clearly expressed in two paragraphs.

148 The general interest of the community in the preservation of an Aboriginal site of very significant historical, archaeological or ethnographical interest (for example, because it constituted unique evidence that Aboriginal people lived in a particular area thousands of years ago where they were previously unknown to have lived, or which site contained unique evidence that Aboriginal people used particular tools, or on which was located a unique example of ancient Aboriginal artwork) would strongly support the preservation of that site, rather than the grant of consent to permit the complete destruction or permanent damage of that site. If consent were to be warranted, a compelling interest of the community would need to be identified to support the use of the land in that way.

613 The preservation of Aboriginal culture, through the preservation of sites of importance and significance to Aboriginal people, is an important aspect of the preservation of the cultural heritage of the State.

These paragraphs appear to be influenced by the events concerning Juukan Gorge in 2020. There, the Minister granted a s 18 consent, in what SAT might now characterise as “the grant of consent to permit the complete destruction or permanent damage of … an Aboriginal site of very significant historical, archaeological or ethnographical interest (… because it constituted unique evidence that Aboriginal people lived in a particular area thousands of years ago where they were previously unknown to have lived, or which site contained unique evidence that [A]boriginal people used particular tools…)”.[53] SAT’s Decision here did not specify those events nor identify Juukan Gorge. But SAT’s reasoning here gives greater emphasis to the protection of Indigenous heritage than had been apparent from previous decisions regarding the Act. This includes previous decisions by SAT [54] but, more significantly, decisions by the courts.[55]

This may simply reflect that decisions about a s 18 consent involve “having regard to the general interest of the community”,[56] and community interest can change over time. It seems evident – and legally uncontroversial – that community interest has changed regarding the protection of Aboriginal heritage in WA from the following three points.

Parliamentary statements from previous decades indicate an understanding of community interest then as involving less importance and Aboriginal agency in the protection of their heritage.[57]
More recent Government and Parliamentary statements indicate that community interest sees greater importance and need for Aboriginal agency in the protection of their heritage.[58]
Courts acknowledge that laws requiring a decision-maker to consider public interest power give a broad discretion (limited only by the statute’s subject or purpose),[59] thus the Act’s “community interest” reference gives the decision-maker a broad discretion.

A developer (applying for s 18 consent) is entitled to choose what/how they want to present in seeking s 18 consent from the Minister (or, on review, from SAT).[60] But, where there is an Aboriginal site, SAT emphasised the developer needs to satisfy the decision-maker of the broader benefits.

[W]hen the Minister (and on a review, the Tribunal) comes to assess the general interest of the community in respect of a project, they need to have some degree of confidence that the claimed benefits to the community which are said to be offered by that project can and will be realised. The absence of a foundation for such confidence will undermine the strength of the general interest of the community considerations said to support consent for the project.[61]

SAT concluded that Forrest & Forrest had not provided evidence which sufficiently demonstrated “that the claimed benefits would in fact follow from the implementation of’ [the project]”.[62] SAT also explained that they took into account that the proposed alteration was permanent and the “permanent effect of the … project weighs strongly against the grant of consent”.[63]

3.4 Relevant Impacts Are Not Only Physical

The assessment of impact is not just about physical impact (and its amelioration) but the spiritual impacts from proposed activities.[64] In this case, SAT found the environmental impacts would not be significant.[65] However, they considered s 18 consent should not be given because of the significant impacts on the Thalanyji people [66] and the limited public benefit.[67] Most of the benefits were private to Forrest & Forrest and there was much less, or not well substantiated, public benefit.[68]

SAT rejected the argument by the company that the activity should receive consent because there was little tangible effect.

257 In assessing the impact of the MARS [the proposed weirs, termed a “Managed Aquifer Recharge Scheme”] on the Aboriginal sites and on the Thalanyji people and their culture, to focus exclusively on the extent of the physical impact of the MARS on the River's flow is to miss the point. The question is how, and to what extent, the MARS will have an impact on Thalanyji cultural and spiritual beliefs associated with the flow of the River.

267 …[I]n assessing the impact of a proposed use of land on an Aboriginal site and on Aboriginal culture, that impact must be evaluated through the prism of the actual beliefs of the Aboriginal people in question, and not by reference to secular analysis. With respect, in the context of the AH Act, it is nonsensical to suggest that the impact of the use of an Aboriginal site should be assessed only by reference to secular analysis. To illustrate the point by reference to Christian religious traditions, the physical desecration of a consecrated church, or other place of worship within a Christian religion, involves only physical damage to a building if assessed from a purely secular perspective. If assessed from the perspective of the members of the religion in question, however, that physical damage may represent an attack on a sacred place and thereby an attack on the central beliefs of their religion.

SAT found the proposal would alter river flow and that, because the river was a site, the proposal fell within the s 17 proscription of in any way altering or damaging a site.[69] In addition to weighing cultural impacts, SAT noted there would also be physical impacts on archaeological artefacts.[70] SAT summarised that “the implementation of the … project cannot be undertaken in any way which will avoid this alteration of the River as a site, or the destruction of the artefacts”.[71]

3.5 Procedural Questions re SAT

Another significance of the Minister’s decision, SAT reasoned, is that it provided an indication of community interest.[72] This seems somewhat circular. SAT acknowledged it was hearing the application “under s 18 afresh, by way of a hearing de novo”,[73] effectively re-making the Minister’s decision. And yet SAT referred to the Minister’s decision as part of the material informing how it would decide the case.

SAT did not directly address this conundrum, other than to state, “[I]n the Review of the Minister's decision, the Tribunal … may consider any new material whether or not that material existed at the time the Minister's decision was made. That new material will include the Minister's decision itself”.[74] “New material” is uncontroversial because SAT does not operate as if it were at the time of the original decision under review.[75] Given there is the scope for further material to inform SAT’s decision, perhaps there is some rationale that a Minister’s decision might be taken into account for its content rather than its outcome. That seems stretched in this instance, however, given:

SAT’s Decision specified “The evidence encompassed all of the material which was before the Minister, together with additional evidence” (suggesting there was no “evidence” within the Minister’s decision); [76] and
SAT’s reasons indicated the Minister’s decision had no additional content, or not that SAT was aware of. The full extent of what is known of the Minister’s decision, from the SAT decision, is that the Minister refused to grant consent “based on the importance and special significance attributed by the Traditional Owners to the Ashburton (Mindurru) River”.[77]

Relevance for the Aboriginal Heritage Act 1972 and Beyond?

The most direct application of the SAT decision is to future decisions about s 18, particularly given SAT’s collating and listing of relevant factors (see 3.3 above).

The relevance of the significance of SAT’s decision will, however, depend on its longevity because there is the potential for appeal. Anyone involved in resources law or administrative procedure in Australia will be familiar with the name “Forrest and Forrest” from the 2017 High Court case Forrest & Forrest P/L -v- Wilson.[78] That concerned the same company and the same pastoral station but, in that case, disputes with other parties about land use. There, sand miners had obtained mining tenure on Minderoo station after filing their relevant paperwork in the common way which had been used for many years in WA (being an application followed with a more detailed proposal). Forrest & Forrest objected, arguing the applications were invalid because the Mining Act 1978 stated the proposal should “accompany” the application and therefore providing it later was an invalid application and could not be granted. The Mining Warden (Wilson) rejected that argument, which Forrest & Forrest appealed to a single Judge of the Supreme Court, who upheld the Warden’s decision. Forrest & Forrest appealed that to the Court of Appeal, which unanimously upheld the Warden’s decision. Forrest & Forrest appealed that to the High Court, which ruled (6-1) in favour of Forrest & Forrest.

Forrest & Forrest has already been refused by the ACMC here, then the Minister and now SAT. It remains to be seen whether that is where the matter rests, or whether this goes higher. And, if it does go higher, to where, and what relevance will SAT’s reasoning have? The legal options for Forrest & Forrest are an appeal to the WA Court of Appeal (only on a question of law, and only if that Court gives leave [79]) and then, potentially, back to the High Court.

SAT’s reasoning that the weirs proposal would not devastate the Aboriginal culture but would still have significant impact, justifying the Minister’s decision, raises an interesting side issue.[80] The context for that reasoning was not obvious from SAT’s reasons. Perhaps it responded to a submission seeking to minimise the significance of the impact. In that context, SAT’s comment may make sense. But it could have some interesting implications in broader human rights contexts. There are international standards for the protection of Indigenous culture, including from the impacts of industrial developments. The international “jurisprudence” on these indicates that impacts which do not threaten cultural existence are less likely to be considered breaches of human rights standards around cultural protection.[81] Thus, SAT’s observations may have broader implications outside the WA legal system.

[1] Aboriginal Heritage Act 1972 (WA).

[2] A summary of the Act’s operation, and particularly the processing and operation of consents is provided in Southalan, J, Sorry, Not Sorry: the Operation of WA’s Aboriginal Heritage Act (AUSPUBLAW, 2020).

[3] Hon. Stephen Dawson, Aboriginal Affairs Minister, Aboriginal Cultural Heritage Bill - Second Reading, Legislative Council Hansard, 30 November 2021, 6006-6009, “Western Australia is establishing a new cultural heritage regime to achieve equity in the protection of Aboriginal cultural heritage by giving Aboriginal people custodianship over their heritage and putting them at the centre of decision-making”.

[4] Broadly, consents obtained under the Act (or applied for prior to mid 2023 and subsequently granted pursuant to that Act) will continue for at least ten years, with the potential to be extended by the Minister: explained in more detail in Bartlett, J, "Transitioning Section 18 Aboriginal Heritage Act 1972 Consents Under the Aboriginal Cultural Heritage Act 2021 of Western Australia" (2022) 41 Transitioning Section 18 Aboriginal Heritage Act 1972 Consents Under the Aboriginal Cultural Heritage Act 2021 of Western Australia 1.

[5] WA Premier, Minister for Aboriginal Affairs, and Attorney General, Laws Overturned: Aboriginal Cultural Heritage Legislation Replaced (Media statement, 8 August 2023, Government of Western Australia).

[6] Forrest & Forrest and Aboriginal Affairs Minister [2023] WASAT 28, President Pritchard J, Senior Member Dr S Willey, Member Ms C Barton.

[7] Shire of Ashburton: Local Government Heritage Inventory, October 2019, 106. “In 1998 after 120 years on the property the [Forrests] … sold Minderoo Station after decreasing returns, drought and the never-ending challenges of station life. Minderoo was offered for auction along with 30,000 sheep and 1,200 cattle. Murion Pastoral Company outbid two other bidders, one including Don’s son Andrew [Forrest], with the sum of $2.45 million. The company ran Minderoo for 11 years during which time the station [transitioned] from running sheep to fully running cattle. In 2009, Andrew Forrest bought back his family home at auction”.

[8] Hayes (Thalanyji People) v WA [2008] FCA 1487. The determination terms were agreed by all parties, including Minderoo, although at that time owned by Murion Pastoral Co (see n 6 above).

[9] Above n 6, SAT Decision, [1], [20]-[21].

[10] Above n 6, SAT Decision, [64].

[11] Above n 1, the Act, s 28.

[12] Above n 6, SAT Decision, [67].

[13] Above n 6, SAT Decision, [71].

[14] Above n 6, SAT Decision, [74]. The Minister stated this as “decline consent to the use of the land”.

[15] Above n 6, SAT Decision, [10].

[16] Traditional Owners (Nyiyaparli) and Indigenous Affairs Minister [2009] WASAT 71; 62 SR (WA) 1183, [34].

[17] Above n 6, SAT Decision, [11] (intervening through the Buurabalayji Thalanyji Aboriginal Corporation RNTBC).

[18] Above n 6, SAT Decision, [635]-[636].

[19] Above n 6, SAT Decision, [77]. SAT summarised their role thus: “Ultimately, the question for the Tribunal is whether the general interest of the community warrants consent being given to a proposed use of land which necessarily will involve the destruction, damage or alteration of an Aboriginal site, with a consequential potential adverse impact on Thalanyji culture.” [588].

[20] Above n 6, SAT Decision, [153].

[21] Above n 2, Southalan, “Many s 18 applications are determined as not having Aboriginal heritage sites and therefore consent for the purpose was not necessary. In 2013 to 2015, this was the case for 65% of s 18 applications considered” (internal quotes omitted – data was drawn from 2018 information from the WA Department for Planning, Lands & Heritage, see Extracts of material relevant to Aboriginal Heritage Act 1972 (WA).

[22] Above n 6, SAT Decision, [131], “[O]nce the s 18 process is engaged by an owner of land, the process must be completed by the making of a decision of the Minister pursuant to s 18(3) .... There is nothing in the language of s 18(2) that would suggest that the process terminates if the ACMC reaches a view that no 'site' will be affected by the owner's proposed use of the land.”

[23] Above n 6, SAT Decision, .

[24] Above n 6, SAT Decision, .

[25] Above n 6, SAT Decision, .

[26] Above n 6, SAT Decision, -[128].

[27] Above n 6, SAT Decision, [141].

[28] Wintawari Guruma Corp v Aboriginal Affairs Minister [2019] WASC 33.

[29] Above n 28, Wintawari Guruma, [328], K Martin J.

[30] Above n 28, Wintawari Guruma, [227], see also [216]-[221].

[31] Above n 28, Wintawari Guruma, [295 (40.4)] (internal quotes omitted).

[32] Above n 28, Wintawari Guruma, [120], “[T]he jurisdictional pre-requisite for the Minister to ... provide a valid consent ... is simply the fact of a written recommendation from the ACMC, not a 'legally valid' ACMC recommendation”. K Martin J acknowledged an ACMC decision could be judicially reviewed and quashed ([27], [126]) provided that were done before the Minister had acted on the recommendation. But there is no requirement in the Act for the affected group to be told of the ACMC’s decision, and Justice Martin explicitly acknowledged there is no requirement the group be notified of the Minister’s decision [284].

[33] Above n 28, Wintawari Guruma, [150], K Martin J (emphasis added). See, to similar effect, [111] & [353].

[34] Above n 6, SAT Decision, -[604].

[35] Above n 6, SAT Decision, [612].

[36] Above n 6, SAT Decision, [84], referencing Robinson v Fielding [2015] WASC 108.

[37] Above n 6, SAT Decision, [86].

[38] Above n 6, SAT Decision, [302] “[T]o approach the matter by reference to a threshold of 'devastation' of Thalanyji culture would be to ignore the potential for a longer term effect on Aboriginal culture of the incremental erosion of the foundations of their cultural practices and spiritual beliefs. It is not necessary to make any such finding about that matter”.

[39] A text search for “cumulative” in every court decision regarding the Act, indicated none considered cumulative impact on Indigenous culture (http://classic.austlii.edu.au/cgi-bin/sinosrch.cgi/au?method=boolean&rank=on&query=%22wa%20consol_act%20aha1972164%22). The National Native Title Tribunal has indicated cumulative impact on Indigenous interests *may* have relevance to considerations under the Native Title Act 1993 (Cth): e.g., Smith (Gnaala Karla Booja People) v Western Australia [2001] FCA 19; 108 FCR 442, [27], French J (which has been approved and applied many times since); see also St Ives Gold v Ngadju People [2017] NNTTA 35, [57]-[64], Member McNamara and Weld Range Metals v Wajarri Yamatji [2011] NNTTA 172, [267], Sumner DP; Yinhawangka Aboriginal Corp v Korab Resources [2022] NNTTA 69 (16 November 2022), [175], Member Kelly.

[40] Above n 6, SAT Decision, “[W]e have found that it would not be possible to construct the [weirs project] in a way which minimised the impact on the River as a site of importance and special significance to the Thalanyji people or which would avoid damage to other sites of archaeological significance in or along the River.” See also [314].

[41] Above n 6, SAT Decision, [141].

[42] Above n 6, SAT Decision, [613].

[43] Above n 6, SAT Decision, [141].

[44] Above n 6, SAT Decision, [150], see also [142].

[45] Above n 6, SAT Decision, [150].

[46] Above n 6, SAT Decision, [613].

[47] Above n 6, SAT Decision, [103].

[48] Above n 1, the Act, s 18(3).

[49] Above n 6, SAT Decision, [142].

[50] Above n 6, SAT Decision, [151].

[51] Above n 1, the Act, s 39(1)(a), e.g.; see above n 6, SAT Decision, [121].

[52] Above n 1, the Act, s 18(3); see above n 6, SAT Decision, [142], [150].

[53] Australian Parliament, Joint Standing Committee on Northern Australia, Final Report, A Way Forward: Inquiry into the Destruction of Juukan Gorge (October 2021): provides a comprehensive account of the events regarding Juukan Gorge.

[54] A previous SAT statement decision on the Act was above n 16, Traditional Owners (Nyiyaparli) v Indigenous Affairs Minister [2009] WASAT 71. This concerned a s 18 consent obtained by the FMG mining group [6]-[7]. The Aboriginal group who considered their cultural heritage would be impacted by the consent objected. The group brought proceedings to SAT, seeking to review/appeal the Minister’s consent: [1] & [9]. FMG and the State Government raised a preliminary issue that the Aboriginal group could not bring these proceedings because that was a right only for the company seeking the consent: [10]. The Tribunal agreed and dismissed the proceedings: [5] & [35]. As part of his reasons, President Chaney J made the following comments (emphasis added).

[21] Provision for the Minister's consent arises in the context where a particular “owner” wishes to undertake work (on the land which they “own”) which might interfere with places or objects of Aboriginal heritage significance. The scheme of the Act is to vest in the Minister the ultimate control of activities affecting such sites or objects. The interest which the Minister is required to preserve is the general interest of the community. The competing interest is that of the proponent of the particular activities which require consent. I am unable to see any basis upon which some other “owner” of the type described in s 18(1) and s 18(1a) might be extended a right of review in the context of those competing interests. Another owner, who is not the proponent of the proposed activity, has no interest in whether the works are permitted. Nor could such other owner sensibly propound the general interest of the community, protection of which the Act reposes in the Minister.

Chaney J also reasoned that the non-availability of appeal for an Aboriginal group was “very clear[ly] the Parliament's intention” on the examination of Hansard debates of the relevant provisions. Justice Chaney quoted the Minister for Cultural Affairs as saying (emphasis added):

[27] The Act does not contain an avenue of appeal for Aborigines to a court, nor is there any need for such an appeal. The whole Bill is designed to protect the Aboriginal sites of consequence. The Aborigines are protected by the Aboriginal Cultural Material Committee, the Museum trustees, and the government of the day. The government is answerable to Parliament and to the people, it has an obligation to uphold and administer the Aboriginal Heritage Act. So there is no necessity for an appeal by Aborigines under any circumstances. It is not in the Act, and it is not in the Bill. There is no need for it.

[55] Examples of previous court statements include the following (emphasis added):

“[T]he Act should provide the scope for political direction in the national interest when it be thought that the right to preservation should give way to some competing interest”: Noonkanbah Pastoral v Amax Iron [1979] WASC 124, [14], Brinsden J;

“[T]he statutory provisions ... do not confer private rights or purport to directly advantage Aboriginal people or any class of people. ... [I]t is unlikely that Parliament intended that the ... Committee ... should have the de facto responsibility to weigh... the general interests of the community. That task — weighing the public interest — is plainly for the minister, and for good reason. It is a political function. ... The possibility that the minister might, after a proper consideration of the [committee’s] recommendation against the development, decide that the general interests of the community should prevail over cultural considerations, is inherent in the whole process”: State of WA v Bropho [1991] WASC 429; 5 WAR 75, 93-94, Anderson J (agreed by Malcolm CJ & Franklyn J, emphasis added) – approved in above n 28, Wintawari Guruma, [122], K Martin J.

“[A] ministerial consent obtained by the … 'owners' under s 18(3) is likely to be a necessary component of an overall wider expansion in iron ore mining operation plans. The Minister's s 18(3) consent for the owners is likely to be of a wider commercial significance - well beyond being a personal protection against a future prosecution for infringing s 17 of the AH Act. Obtaining of the s 18(3) consent of the Minister would likely be of project due diligence importance in the wider context as a required milestone necessary to be met in a project expansion process. Obtaining the s 18(3) consent is likely to carry affirmative implications for project expansion needed to satisfy persons such as bankers, financiers or the like. The advancing of a massive iron ore expansion project would typically require a satisfaction of a multitude of due diligence steps or enquiries all assembled to be fulfilled towards satisfying pre-requisites such as project funding, venture participation by others and the like.”: above n 28, Wintawari Guruma, [114], K Martin J.

In above n 28, Wintawari Guruma, Justice Martin rejected the notion that a Minister’s decision may be invalidated because of irregularities in how the ACMC earlier dealt with the matter. Such an outcome, His Honour considered was not correct when “seen within the framework of the AH Act as a whole as the antithesis of providing long term commercial certainty for a major expansion of a mining project once the Minister's consent had finally issued ... . An undermining of a s 18(3) consent ... would deliver obvious and unacceptable long-term and destabilising economic uncertainty - in the nature of a concern akin to a sovereign risk. Such commercial uncertainty is discordant with the statutory objectives of the AH Act assessed as being enacted for the benefit of the whole West Australian community”: Wintawari Guruma [2019] WASC 33, [116]-[117].

“Pursuant to s 18(3), the Minister must consider the ACMC's recommendation and, having regard to the general interest of the community, either consent to the use of the land the subject of the notice, or part thereof, for the purpose proposed, with or without conditions, or wholly decline to consent to the use of the land for that purpose, and advise the owner of that decision.”: Abraham v Aboriginal Affairs Minister [2016] WASC 269, [16], Pritchard J.

[56] Above n 1, the Act, s 18(3).

[57] Examples include:

In 1972, the Act’s second reading speech stated: “High among the reasons for protecting Aboriginal sites it is recognised that they are often important records of the history of early settlement of Australia by Aborigines, Asians, and Europeans”: Attorney-General, Aboriginal Heritage Bill - Second Reading, Legislative Assembly Hansard, 11 May 1972, 1550.

In 1981, when amending the Act, the responsible Minister explained to Parliament: “The Act does not contain an avenue of appeal for Aborigines to a court, nor is there any need for such an appeal. The whole Bill is designed to protect the Aboriginal sites of consequence. The Aborigines are protected by the Aboriginal Cultural Material Committee, the Museum Trustees, and the Government of the day. The Government is answerable to Parliament and to the people, and it has an obligation to uphold and administer the Aboriginal Heritage Act. So there is no necessity for an appeal by Aborigines under any circumstances. It is not in the Act, and it is not in the Bill. There is no need for it.”: Western Australian Parliament, Aboriginal Heritage Amendment Bill - Second Reading, debate, Legislative Assembly Hansard, 9 September 1980, 1190.

In 1992, when legislating to excise some land from the Act’s operation (to enable iron ore mining to proceed), the relevant second reading speech stated: “This Bill is designed to enshrine consent and prevent any unwarranted legal challenge by any party to the finality of the section 18 consent. ... This will be done by removing much of the land that was the subject of the application from the operation of the Aboriginal Heritage Act”: Minister for Aboriginal Affairs, Aboriginal Heritage (Marandoo) Bill 1992 – Second Reading (Legislative Assembly Hansard, 5 February 1992), 7915.

[58] Examples include:

WA Government Submissions to the Joint Standing Committee on Northern Australia Inquiry into the Destruction of 56,000 Year Old Caves at the Juukan Gorge in the Pilbara Region of Western Australia, which stated:

“The Act is now almost 50 years old. ... The Act does not reflect Aboriginal community aspirations regarding management of their heritage or support an efficient and culturally appropriate land use decision-making process…. One of the Act’s greatest weaknesses is that it does not expressly provide for consultation with Aboriginal people in the identification, management and protection of their heritage. ... The current Act’s Section 18 Notice and Consent process ... does not provide for any right of appeal by Aboriginal people in relation to decisions about their cultural heritage. There is also a lack of transparency required by the Act about decisions made. ... [T]he current legislation is well past its use by date”: Submission 24, 1-2, 8.

“[T]he Act does little to prevent the destruction of valuable Aboriginal cultural heritage. ... [T]he Act is outdated and cannot protect Aboriginal cultural heritage in Western Australia as expected by both the Aboriginal and broader community.”: Minister for Aboriginal Affairs, additional questions on notice, Letter to Inquiry Secretary, supplementary submission 24.2, 15 September 2020, 1, 6.

Above n 3, Aboriginal Cultural Heritage Bill – Second Reading, Hansard, 6006. In 2021, the second reading speech introducing the new cultural heritage law to replace the Act, stated: “Western Australia is establishing a new cultural heritage regime to achieve equity in the protection of Aboriginal cultural heritage by giving Aboriginal people custodianship over their heritage and putting them at the centre of decision-making. ... [T]he Aboriginal Heritage Act 1972 ... is now outdated and does not meet the expectations of Aboriginal people and the broader community. ... [The bill’s] premise is that Aboriginal cultural heritage is a traditional and living culture that remains fundamental to the lives of Aboriginal people and that Aboriginal people should determine what constitutes their heritage and have an active role in its protection and management, including consultation, negotiation and agreement-making. Its underlying philosophy is avoiding and minimising harm whenever possible.”

[59] See, e.g., O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210, [13], Mason CJ, Brennan, Dawson and Gaudron JJ (internal quotes omitted): “[T]he expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable”. Approved and applied in WA in Australian Leisure Group v Police Commissioner [2020] WASCA 157; 56 WAR 102, [165], Buss P (agreed by Quinlan CJ & Vaughan JA at [3]).

[60] Above n 6, SAT Decision, [590].

[61] Above n 6, SAT Decision, [590].

[62] Above n 6, SAT Decision, [589].

[63] Above n 6, SAT Decision, [616].

[64] Above n 6, SAT Decision, [257] & [267].

[65] Above n 6, SAT Decision, [499] & [621].

[66] Above n 6, SAT Decision, [603]-[607]

[67] Above n 6, SAT Decision, [631].

[68] Above n 6, SAT Decision, [590] & [623]-[630].

[69] The prohibition in s 17 is that “A person who … damages, conceals or in any way alters any Aboriginal site … commits an offence unless … acting with the … consent of the Minister under section 18”. SAT’s finding (above n 6, SAT Decision) was [614].

[70] Above n 6, SAT Decision, [605], including “damage the … Grinding Patches found in the River” [614].

[71] Above n 6, SAT Decision, [615].

[72] Above n 6, SAT Decision, [152], [632]. SAT expanded at [619]: “We take into account the Minister's decision, which was to refuse consent.… [W]e consider that it warrants some weight in our evaluation of the general interest of the community, because it constitutes the opinion, formed by the Minister, as an elected Member of Parliament and as the Minister with responsibility for the operation of the AH Act, that the general interest of the community did not warrant consent being given”.

[73] Above n 6, SAT Decision, [77].

[74] Above n 6, SAT Decision, [153(d)] (internal quotes omitted). The SAT Decision [153(b)], [619], also stated it is not bound by the Minister’s decision.

[75] See e.g., Health Resorts P/L v WA Planning Commission [2007] WASAT 60, [24] approved in LS v Mental Health Board [2013] WASCA 128, [93], Murphy JA (Newnes JA agreeing), who explained SAT should “give attention to the state of affairs existing at the date of its decision, and was not confined to the circumstances existing at the date of the decision under review”.

[76] Above n 6, SAT Decision, [13].

[77] Above n 6, SAT Decision, [9], [74] indicating this was in a letter to Forrest & Forrest.

[78] Forrest & Forrest v Wilson [2017] HCA 30; 262 CLR 510.

[79] State Administrative Tribunal Act 2004 (WA), s105.

[80] Above n 6, SAT Decision, [302].

[81] Examples include developments which:

threaten the way of life and culture of an Indigenous group: [33] of Ominayak v CAN (Human Rights Committee, UN doc CCPR/C/38/D/167/1984, 26 March 1990);

amount to a denial of the right to enjoy cultural rights in that region: [9.5] of Länsman v FIN (Human Rights Committee, UN doc CCPR/C/52/D/511/1992, 8 Nov 1994), [10.3] of Länsman v FIN (Human Rights Committee, UN doc CCPR/C/58/D/671/1995, 22 Nov 1996), and [10.2] of Länsman v FIN (Human Rights Committee, UN doc CCPR/C/83/D/1023/2001, 17 Mar 2005);

endanger the very survival of the community and its members: [7.6] of Poma Poma v PER (Human Rights Committee, UN doc CCPR/C/95/D/1457/2006, 24 April 2009);

substantially compromise or interfere with culturally significant activities: [7.6] of Poma Poma v PER (above), particularly where the group has not had opportunity to participate in the decision-making process in relation to these measures: [9.5] of Mahuika v NZL (Human Rights Committee, Communication No. 547/1993, 16 Nov 2000).