Aboriginal Heritage

Appeal lodged against decision of SA Supreme Court finding Lake Torrens s23 authorisation under Aboriginal Heritage Act 1988 invalid

Dare & Ors v Kelaray Pty Ltd & the Minister of South Australia [2022] SASC 91 (25 August 2022)

On 25 August 2022 the Chief Justice of the South Australian Supreme Court delivered judgement on an application by the Barngarla Determination Aboriginal Corporation and two others for judicial review of a decision by the responsible Minister to grant authorisation to Kelaray Pty Ltd pursuant to section 23 of the Aboriginal Heritage Act 1988 (the Act) to damage or interfere with any Aboriginal site, object or remains in the course of mining exploration activities on and around Lake Torrens.

While dismissing multiple other grounds of review, the Court found that deficiencies in the authorisation granted under s23 undermined the effectiveness of the reporting obligation under s20 of the Act, and on this ground the authorisation was invalid. The Court set aside the decision of the Minister to grant the s23 authorisation.

The decision is significant for, amongst other things, its findings about the interaction of the reporting obligation under s20 and the grant of an authorisation under s23 and in light of this the potential broader consequences both for current applications and existing authorisations granted under s23.

Facts

Kelaray, a wholly owned subsidiary of Argonaut Resources NL, proposed to undertake exploration activities on and around Lake Torrens under the authority of two exploration licences. The proposed activities included infill surveys, deep diamond exploration drilling, upgrading existing access tracks, creating new access tracks, drilling water bores, construction of a new exploration camp on Andamooka Island, vegetation clearing and the construction of multiple access points.

It was known that the entirety of Lake Torrens including a 500 metre-wide area inland from its shoreline is recorded in the Register of Aboriginal Sites and Objects under s9 of the Act as a site of significance.

In February 2020, Kelaray applied to the Premier of South Australia (who was at the time the Minister responsible for the administration of the Act) for authorisation under s23 of the Act to “damage, disturb and/or interfere with Aboriginal sites, objects and/or remains that may occur as a result of the Exploration Program activities”.  The application did not identify any particular Aboriginal site, object or remains in respect of which authorisation was sought other than in reference to the Registered Lake Torrens site – rather, it sought a general authorisation in respect of its proposed exploration activities.

The application included a proposed internal protocol for the protection of Aboriginal heritage which set out a series of steps to be followed in the event that any employee, contractor or visitor came across suspected Aboriginal heritage sites or objects:- the “Stop Work Direction and Chance (new) Finds Procedure” (CFP).

In mid-June 2020 the Premier’s Department undertook public consultation through which each of the Applicants was provided with a bundle of documents detailing the application including a copy of the CFP.

The authorisation was granted by the Premier in his capacity as the Minister responsible for the Act in December 2020 under cover of a letter setting out an extensive set of expectations he had of the way in which Kelaray would conduct its exploration activities for the purpose of the protection of Aboriginal heritage. In addition to setting out his general expectations, the Minister imposed a number of conditions on the s23 authorisation including condition 3:- that any person or entity to whom the authorisation applied must comply with the CFP, and that the CFP must not be inconsistent with the Department of Aboriginal Affairs and Reconciliation’s Aboriginal Heritage Discovery Protocols (AAR Protocols). The condition further provided that in the event of inconsistency between the CFP and the AAR Protocols, the AAR Protocols were to prevail.

Broadly, the CFP required works to be immediately stopped where any person to whom the authorisation applied came across suspected Aboriginal heritage sites, objects or remains. There was then a series of reporting steps up the line of supervision to Argonaut’s CEO, who was required to arrange for a Cultural Heritage expert to visit the site and conduct investigations, and to inform any relevant Aboriginal group representatives and arrange appropriate Aboriginal custodial representation. If a determination was made by the Heritage Expert and/or any Aboriginal custodial representative that the find was not a site or object of Aboriginal heritage, work was permitted to re-commence. Otherwise, work was to remain suspended and not to recommence without written clearance from the Department of AAR.

Grounds of Review

The Applicants brought judicial review proceedings against the decision of the Minister to grant authorisation on a number of grounds summarised by the Chief Justice in his judgement as being that the Minister had:

  1. erred in placing any weight on the prospect that Kelaray would meet the ‘expectations’ which the [Minister] had set out in a letter informing Kelaray of his determination but which were not expressed to be conditions of the authorisation (the expectation ground);
  2. erred in imposing conditions which were not valid and in failing to impose additional conditions (the conditions grounds);
  3. failed to take relevant considerations into account and took irrelevant considerations into account (the considerations grounds);
  4. improperly delegated the statutory power to grant authorisations under s 23 to Kelaray (or others), gave an impermissible blanket authorisation to damage or interfere with Aboriginal sites, objects and remains or made a decision which was otherwise legally unreasonable in granting a general authority (the delegation ground);
  5. authorised an impermissibly wide class of persons to damage or interfere with Aboriginal sites, objects or remains (the excessively wide class of persons ground);
  6. invalidly authorised damage to, and interference with, an unlimited and indefinite class of items of Aboriginal heritage (the excessively wide items ground).
  7. misdirected himself and/or acted ultra vires by relying on Kelaray’s Chance Find Procedures (CFP) which is part of its cultural heritage management plan to protect Aboriginal sites objects and remains (the Kelaray heritage plan ground).[1]

The Decision

The Court dismissed all but one of the summarised grounds of appeal, expressing the view that “the balancing of the protection of Aboriginal heritage against the economic development of the State is a matter of high government policy on which considerable deference must be accorded to the responsible Minister.”[2] For this reason, and in light of the fact that there were no statutory criteria to be applied in exercising the power to authorise damage, disturbance or interference, the Minister had “a great degree of decisional freedom[3] in determining considerations that are relevant to the decision whether to grant a s23 authorisation on any given application, and the weight to be afforded to each of those considerations in making the decision.

Grounds Dismissed

In respect of the unsuccessful grounds the Court found:

  • the Act does not prescribe any criteria for the exercise of the power to grant authorisations and given the complex policy context there could not be a forensic determination of mandatory relevant considerations for the decision. In any event, the material that was before the Minister indicates that many of the considerations were included and could not be said not to have been considered by him. The weight to be placed on each relevant consideration was a matter for the Minister.[4]
  • no invalidity arose by virtue of the way in which the conditions were framed (the fact that the first two conditions were not expressed to apply to Kelaray’s assigns and that there was a degree of uncertainty in the wording of conditions 2 and 4).[5]
  • the s23 authorisation did not constitute a “delegation” of the Minister’s power to make a determination or to give an authorisation under the Act.[6]
  • affirming the decision of the Full Court in Starkey & Others v The State of South Australia,[7] that a s23 authorisation may be issued in general terms and need not be preceded by a determination under s12 of the Act, did not require every person authorised to be individually identified, and did not need to identify the particular items over which the authority is given. An authorisation may be given in respect of a class of items provided the class is sufficiently well defined in the authorisation, and the classes of persons and items to which the Kelaray s23 authorisation was expressed to apply was not excessively wide.[8]
  • having regard to the broad discretion and “decisional freedom” the decision was not manifestly unreasonable, and specifically in respect of the grounds raised by the Applicants:
    • Having identified that the discretion was not fettered by statutory criteria and that a large number of relevant considerations were before the Minister, the balancing of these considerations was a matter of high public policy and in the circumstances of the case, a decision either to grant or refuse the authorisation was open to the Minister.[9]
    • the failure to incorporate the various expectations set out in the Premier’s covering letter into conditions of the authorisation was not manifestly unreasonable and did not invalidate the authorisation.[10]
    • the failure to include conditions requiring consultation with the Barngarla people (or other Aboriginal people) was not manifestly unreasonable, and it was a matter for the Minister to strike a policy balance in determining a consultation process on the significance of items of Aboriginal significance that is reasonably practicable and effective.[11]

Invalidity Ground Upheld – Authorisation inconsistent with s20 of the Act

The Court upheld the final ground of review (ground g) finding that the Cultural heritage plan was inconsistent with s20 of the Act. On this basis it found the authorisation was invalidly granted and set it aside.

The Court picked up on comments made by the former Chief Justice Doyle in the 2011 judicial review of the s23 authorisation granted in respect of works for the construction of the new Royal Adelaide Hospital which were undertaken on a registered Aboriginal Heritage site adjacent the River Torrens (Newchurch v The Minister for Aboriginal Affairs and Reconciliation[12]). In Newchuch, the then Chief Justice expressed surprise that the authorisation granted to the Minister for Health was not subject to a condition requiring the Minister to be notified if an Aboriginal object or remains were found, but found that this was not something that could affect the validity of the s23 authorisation. 

The Court in this matter distinguished the circumstances in the Newchurch matter on the grounds that the Royal Adelaide Hospital s23 authorisation did not permit the removal of the object or remains, and the challenge to that authorisation had not been based on the operation of s20 of the Act.[13]

In short, the Court found that the CFP and therefore condition 3 of the s23 authorisation was inconsistent with s20 of the Act in that it purported to allow interference with items of Aboriginal heritage before compliance with the reporting obligation under s20. His reasoning can be summarised as:

  1. Section 20 of the Act requires an owner or occupier of land who discovers an item of Aboriginal heritage, which he or she has no reason to believe is not such an item, to report the discovery to the Minister. A breach of s20 will be committed if the site, object or remains is, in fact, an Aboriginal site, object or remains regardless of whether the discoverer knew that it was.[14]
  2. The obligation under s20 to report discoveries to the Minister is of central importance to the effectiveness of the scheme for protection of Aboriginal heritage established by the Act, because it allows the Minister the opportunity to make his own determination as to whether the discovery is one of Aboriginal heritage, and to give directions under the Act as to the protection or preservation of the site, object or remains.[15]
  3. Kelaray’s CFP did not incorporate the obligation to report a discovery to the Minister under s20. The CFP and the AAR Protocol permitted the removal of objects and the re-commencement of works where the Heritage expert and/or Aboriginal custodial representative had determined it not be Aboriginal heritage before Kelaray was required under the CFP to report the discovery to the Department.[16]
  4. Consequently, the s23 authorisation, by virtue of condition 3 and the CFP, permitted Kelaray to interfere with or remove items in accordance with the advice of Aboriginal representatives or heritage experts before the Minister is notified and this had the potential to undermine the effectiveness of s20.  This was contrary to the Act which “does not authorise the grant of an authority which would allow persons to interfere with items of Aboriginal heritage discovered by them before they comply with the obligation imposed by s20”.[17] For this reason, the failure by the Minister to impose conditions on the s23 authorisation incorporating the obligation to report a discovery to the Minister as required by s20, rendered the authorisation invalid.[18]

What does this mean for other current and future s23 authorisations?

The Court found that the Department’s own Protocol (the AAR Protocol) which had been incorporated into the s23 authorisation by virtue of condition 3 was inadequate in that it did not incorporate the obligation under s20 of the Act to report the discovery to the Minister.[19]

The AAR Protocol issued to Kelaray is expressed by its terms to be “for proponents holding a section 23 Authorisation” suggesting it is a general document likely applied to other proponents of s23 authorisations (who may be conducting activities in the mining, exploration and/or building and construction sectors). It can therefore be assumed that there may be other s23 authorisations that are potentially vulnerable to challenge on the same ground that Kelaray’s authorisation was invalidated.  

Botten Levinson understands that Kelaray has lodged an appeal against the decision to the Full Court of the Supreme Court, but that the Minister for Aboriginal Affairs has elected not to appeal the decision. It is also possible that there may be a cross-appeal by the successful Barngarla applicants on some or all of the grounds that were dismissed by the Court.

For any queries about this decision please contact Ali Field, Principal at asf@bllawyers.com.au.

 

[1] Dare, Bilney & Barngarla Determination Aboriginal Corporation v Kelaray Pty Ltd & Premier of South Australia [2022] SASC 91 at [5]

[2] Dare, Bilney & others at [7]

[3] Dare, Bilney & others at [80]

[4] Dare, Bilney & others at [79] – [82]

[5] Dare, Bilney & others at [63] – [66]

[6] Dare, Bilney & others at [85] – [86]

[7] [2011] 111 SASR 537

[8] Dare, Bilney & others at  [98]

[9] Dare, Bilney & others at [80] – [81] & [83]

[10] Dare, Bilney & others at [61] – [62]

[11] Dare, Bilney & others at [67] – [69]

[12] Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [136]

[13] Dare, Bilney & others at [108]

[14] Dare, Bilney & others at [32]

[15] Dare, Bilney & others at [102]

[16] Dare, Bilney & others at [57-59] & [109]

[17] Dare, Bilney & others at [103]

[18] Dare, Bilney & others at [101], [103], [109] & [112]

[19] Dare, Bilney & others at [59]