Between: 

Veroncia Joyce (Dolly) Talbott (Applicant)

and

Minister For the Environment (Commonwealth) (Respondent)

Judge: Abraham J

Background

On behalf of the Gomeroi Traditional Custodians Group, Talbott applied for a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act) to protect significant cultural sites. The sites included eight interconnected areas and three significant trees. The Gomeroi Traditional Custodians Group argued that these areas were threatened by their proximity to the proposed Shenhua Watermark Coal Mine site.

The first application was made in April 2015 and a subsequent application was made in 2017.

Under s 10 of the Act, Aboriginal people may make an application to the Minister for Environment for the protection of an area of land that is under threat of injury or desecration.

The Minister also has a discretionary power under the Act to make declarations. The Minister may make a declaration if they are satisfied that the area is significant to Indigenous people, and that area is under threat. Here, the Minister may consider a report made in relation to that area, and any other matters the Minister deems relevant.

As a representative for the Gomeroi People, Talbott sought a review of the Minister's decision.

Application:

Talbott argued that the Act does not allow the Minister to consider the social and economic interests of the mine.

Rather, Talbott submitted that the 'relevant considerations' under the Act are limited by the race power, which is the constitutional source of the Act. Talbott argued that because the race power itself is a purposive power, the Act must be "conducive" to that purpose to be considered valid.

Talbott argued that the Minister did not comply with the race power or the purpose of the Act, which is to protect Indigenous heritage. Therefore, the Minister had made an error in law when considering the social and economic benefits that the proposed mine delivers to the public.

Details of judgment

Section 10 of the Act

Abraham J held that the Minister must be satisfied that the area in review has met the precondition of being a significant Indigenous area under threat of injury or desecration under the Act. As such, if this has been met, the Minister holds the discretion to make or refuse an application.

Her Honour held that the discretion is wide and that the factors which the Minister takes into account can extend to considerations of social and economic impacts. However, the Minister must consider the report made under the application process listed in the Act (s 10(4)).

Race power

Abraham J held that the Act is a law with respect to the race power given the rights, powers, liabilities and duties created by the Act.

However, her Honour rejected Talbott's argument that because the Act is made under the race power, the decisions under it are limited to considerations that differentiate based on race that are found within the Act. The Act itself was held not to be so limited because it was made under the race power; s 10 was interpreted to consider all the effects an application may have on other interests and was not limited to matters within the race power. This means the economic and social facts at the centre of the application for review are considered relevant. The discretion awarded to the Minister allows for these considerations. This follows the majority decision in Kartinyeri.

Her Honour also held that the race power is a plenary power, which means the Act must have a sufficient connection to the power in order to be valid. However, its execution does not need to uphold the same principles. As such, this is achieved by s 10 only being activated by the application by Aboriginal People. Therefore, the Minister's decision does not need to uphold the character of the race power.