Gavin Scott is Co-Chair, and Sonali Seneviratne and Stephanie Willis are members of Norton Rose Fulbright Australia’s Reconciliation Action Plan Working Group (RAPWG). The authors would like to acknowledge Nicholas Moran, also a member of RAP WG, for his contributions to this article.
The Joint Standing Committee on Northern Australia has recently been tasked with inquiring and reporting in September on the adequacy and effectiveness of Australian laws to protect Indigenous cultural heritage, and how they might be improved to guarantee protection of culturally and historically significant sites.1
Few declarations have been made under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Heritage Act), and cases considering it are even more rare. Accordingly there has been much attention on the latest case, Talbott v Minister for the Environment  FCA 1042 (Talbott), which was brought by Ms Dolly Talbott, a Gomeroi woman on behalf of the Gomeroi Traditional Custodians Group (Applicant). The Gomeroi Traditional Custodians group reportedly represents over 600 Gomeroi people and 31 Aboriginal Nations.2 The Applicant challenged the validity of decisions of the Federal Minister for the Environment, Sussan Ley (Minister) in refusing to make declarations under the Heritage Act to protect Aboriginal areas from destruction from the development of the proposed Shenhua Watermark Coal Mine. The single ground of review for determination was whether the Minister was wrong to consider the “social and economic benefits of the mine to the local community”. The case was dismissed. Justice Abraham determined that the Minister was permitted to consider a wide range of factors unrelated to Indigenous people in exercising her discretion, and that this did not prevent the Heritage Act from being a “special law” made under the “race power” in section 51(xxvi) of the Australian Constitution.
This case demonstrates the limitations of the race power and the Heritage Act and the wide discretion of the parliament and the Minister to make laws and decisions affecting Indigenous people.
The Applicant made two applications under s 10 of the Heritage Act in 2015 and 2017 seeking declarations for the protection of areas of Aboriginal cultural significance within the footprint of the propose mine. Ms Susan Phillips was subsequently appointed by the Minister to report on various matters in relation to the specified areas. In making the decisions, the Minister considered the reports of Ms Phillips, accepted that the areas under threat of injury or discretion were significant, and noted that it was open for her to take into account “a wide range of policy and public interest considerations” under s 10(1)(d) of the Heritage Act. Ultimately the Minister found that “the expected social and economic benefits” of the mine to the local community outweighed the impacts of the mine on the Applicants “as a result of the likely destruction of parts of their Indigenous cultural heritage”.3
The Applicant claimed that the Minister’s decisions were invalid because the social and economic benefits of the mine on the local community were an irrelevant consideration. The constitutional source of power for the Heritage Act was the “race power”, and the Heritage Act was a special law enacted for the purpose of filling a gap in state laws for the protection of cultural heritage of people of a particular race. Relying on the decisions of Gaudron and Kirby JJ in Kartinyeri v Commonwealth (1998) 195 CLR 337;  HCA 22 (Kartinyeri), or the Hindmarsh Bridge Act case, the Applicant argued that the race power was a purposive power, meaning that the Minister could only consider matters which were “conducive” to that purpose, and could not consider factors relating to the general public.4
What was the scope of the Minister’s power under the Heritage Act?
Her Honour found that once the Minister was satisfied of the statutory precondition that the area is a significant Aboriginal area under threat of injury or desecration, s 10 of the Heritage Act conferred a discretion on the Minister to make or refuse to make a declaration. This meant the Minister could consider both conducive and countervailing considerations. In fact, that discretion is wide, extending to the social and economic impacts of the mine on the wider community. This was evident from the section expressly permitting the Minister to consider “such other matters as he or she thinks relevant”.5 Further, the Minister was required to consider Ms Phillips’ report6 covering various matters including the effects of a declaration on proprietary or pecuniary interests of other persons, and any representations from interested persons in the wider community.7
Were any limitations imposed by the race power?
Her Honour rejected the proposition that the race power is a purposive power, relying on the majority decision in Kartinyeri.8 In that case the High Court considered the validity of the Hindmarsh Island Bridge Act 1997 (Cth) (Bridge Act) which prevented the making of a declaration under s 10 of the Heritage Act for the protection of an area or object from the threat of injury or desecration posed by the construction of the Hindmarsh Island bridge. Gummow and Hayne JJ controversially found that the Bridge Act was a valid law within the scope of the race power, even though it removed a privilege conferred on Aboriginal people.9
Similarly, in Talbott, Abraham J stated that having regard to the rights, powers, liabilities and duties created by the Heritage Act, it was a law with respect to the race power. The Minister’s power to make a declaration is only enlivened by the receipt of an application10 by or on behalf of Aboriginal people.11 The purposes of the Heritage Act are defined as to preserve and protect objects and areas that are of particular significance to Aboriginal people in accordance with Aboriginal tradition.12 Her Honour found that the Heritage Act does not cease to be a special law or law with respect to the race power because the Minister may consider non-racial or countervailing factors in exercising her discretion.14
Ultimately, the Applicant failed to establish that the Minister’s decisions in refusing to make the declarations under the Heritage Act to protect the areas significant to the Gomeroi Traditional Custodians were invalid.
However, this is not the end of the saga. The Applicant has the option to appeal the decision. Although, that appears unlikely as the Applicant has reportedly lodged a new application for a declaration with “substantial new information”.14 It remains to be seen whether this new application will be successful, and what recommendations, if any, the Joint Standing Committee on Northern Australia will make in relation to the Heritage Act in light of this case.