Talbott v Minister for the Environment

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: ABRAHAM J
• Judgment Date: 22 July 2020
• Neutral Citation: [2020] FCA 1042
• Date: 22 July 2020

FEDERAL COURT OF AUSTRALIA

Talbott v Minister for the Environment [2020] FCA 1042

File number:	NSD 1209 of 2019
Judge:	ABRAHAM J
Date of judgment:	22 July 2020
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of the decisions of the Minister for the Environment declining to make a declaration pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – whether the Minister took into account an irrelevant consideration in considering the social and economic impacts to the local community – where applicant argues that s 51(xxvi) of the Constitution constrains administrative action under s 10 – consideration of s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Legislation:	Constitution ss 51(xxvi), 51(xxxi) Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 4, 10, 10(1)(d), 10(1)(c), 10(3), 10(4), 10(4)(e), 28
Cases cited:	Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 Murphyores Incorporated Pty Limited v Commonwealth [1976] HCA 20; (1976) 136 CLR 1 Marcus Clarke and Co Ltd v The Commonwealth [1952] HCA 50; (1952) 87 CLR 177 Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 58; (1947) 75 CLR 495 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 Tickner v Chapman (1995) 57 FCR 451 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 JT International SA v Commonwealth of Australia [2012] HCA 43; (2012) 250 CLR 1 Lacey v Attorney-General for Queensland [2011] HCA 10; (2011) 242 CLR 573 Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168 Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 Spence v Queensland [2019] HCA 15; (2019) 367 ALR 587
Date of hearing:	13 May 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	96
Counsel for the Applicant:	Ms K C Morgan SC with Mr M Seymour
Solicitor for the Applicant:	Ms R Koroglu of the Environmental Defenders Office
Counsel for the Respondent:	Mr S Free SC with Ms K Pham
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1209 of 2019
BETWEEN:	VERONICA JOYCE (DOLLY) TALBOTT Applicant
AND:	MINISTER FOR THE ENVIRONMENT (COMMONWEALTH) Respondent

JUDGE:	ABRAHAM J
DATE OF ORDER:	22 July 2020

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs, limited to $1000.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. The applicant, Veronica (Dolly) Talbott, a Gomeroi woman and member of the Gomeroi Traditional Custodians group (GTC), on behalf of the GTC, seeks judicial review of two decisions made by the Minister for the Environment (the Minister) declining to make a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Heritage Act). The areas over which the declarations were sought lie within or close to the site of the proposed Shenhua Watermark Coal Mine (Shenhua Mine). In making the decisions the Minister took into account, inter alia, the social and economic benefits of the Shenhua Mine to the local community.

2. Section 10 of the Heritage Act confers power on the Minister to make a declaration for the preservation or protection of a specified area from injury or desecration, where the Minister has received an application by or on behalf of an Aboriginal or group of Aboriginals seeking such a declaration and the Minister is satisfied that the area is a significant Aboriginal area and that it is under threat of injury or desecration: s 10(1)(a) and (b). Before deciding whether to make a declaration, the Minister must consider, amongst other things, “such other matters as he or she thinks relevant”: s 10(1)(d). Where the criteria in s 10(1) are satisfied, the Minister has a discretion as to whether to make a declaration in relation to the area.

3. The issue raised by the applicant in this review is a discrete one: that s 10(1)(d) of the Heritage Act, properly construed, did not permit the Minister to consider the social and economic impacts on the local community of the Shenhua Mine in determining whether to make the declaration. The applicant submitted this is because there is a limitation on the matters that may lawfully be taken into account by the Minister under s 10(1)(d), which arises from the Heritage Act’s constitutional source of power in s 51(xxvi). As a consequence, it was submitted that the Minister took into account an irrelevant consideration in making each decision and the decisions are therefore invalid.

4. Although there were additional grounds contained in the originating application for judicial review, those were not pressed by the applicant.

5. For the reasons below the application for judicial review is dismissed.

6. It is first appropriate to consider the relevant legislative scheme.

Statutory scheme

7. The purposes of the Heritage Act are defined to be “the preservation and protection from injury or desecration of areas … that are of particular significance to Aboriginals in accordance with Aboriginal tradition”: s 4.

8. Section 10, which empowers the Minister to make a declaration to preserve and protect significant Aboriginal areas, is relevantly in the following terms:

10 Other declarations in relation to areas

(1) Where the Minister:

(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b) is satisfied:

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

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

(c) has received a report under subsection (4) in relation to the area from a person nominated by him 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.

…

(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:

(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

(iii) specifying an address to which such representations may be furnished; and

(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a) the particular significance of the area to Aboriginals;

(b) the nature and extent of the threat of injury to, or desecration of, the area;

(c) the...