Applicants' submissions
33 The applicants made clear that they did not contend that there should not be a road but that there ought to be protection of the Aboriginal cultural heritage in the area and that that could be accommodated. Their submissions were as follows.
34 The applicants submitted that the principal error made by the Minister was her conclusion that she lacked jurisdiction to make protection declarations under the Heritage Protection Act because she was not satisfied that the Specified Area or the six trees were under threat of injury or desecration by the Section 2B upgrade. The applicants contended that in failing to be so satisfied the Minister:
(a) failed to have proper regard to the definition of Aboriginal tradition in s 3(1) of the Heritage Protection Act;
(b) failed to have proper regard to the circumstances in which an area or object will be taken to be injured or desecrated for the purposes of the Heritage Protection Act, as set out in s 3(2) of that Act; and
(c) failed to have proper regard to the circumstances in which an area or object will be taken to be under threat of injury or desecration for the purposes of the Heritage Protection Act, as set out in s 3(3) of that Act.
35 The applicants submitted that it was evident from her reasons that the Minister misunderstood her statutory obligation. This caused her to identify the wrong issue, and to ask herself the wrong question, the applicants submitted.
36 The concepts in issue in Northern Territory v Griffiths [2019] HCA 7; 364 ALR 208 and in the definition of Aboriginal tradition identified in s 3 of the Heritage Protection Act were essentially the same, the applicants submitted.
37 The applicants submitted that the s 10 application was always about the significance of the area, and the cultural landscape including the tree landscape along the Western Highway. They submitted that it was never put, and indeed there was much material to the contrary, that the only reason that the area was significant was because the six trees were significant, such that if the six trees remained standing there could be no desecration of the area. The area was significant beyond the significance of the six trees, the applicants submitted, and the issue was about cultural heritage more widely than simply the six trees.
38 The Minister made several errors in connection with the decision, the applicants submitted. Most related to her claimed failure properly to construe the Heritage Protection Act. In particular, the applicants submitted, she failed properly to construe or appreciate the definition of Aboriginal tradition; she also failed to have regard to the requirements of ss 3(2) and 3(3), with the consequence that she asked herself the wrong questions, and thereby erred in purporting to assess whether she had reached the state of satisfaction required by ss 10(1)(b) and 12(1)(b) of the Heritage Protection Act.
39 The applicants submitted that the Heritage Protection Act was directed at the preservation and protection of significant areas and objects. Section 3(2) defined broadly and expansively what would constitute injury or desecration for the purposes of the Heritage Protection Act, and the concept of threat was also broadly defined in s 3(3), the applicants submitted.
40 The applicants submitted that the Heritage Protection Act did not permit the Minister, in assessing the significance of an area, to adjust the significance because of the way the Application was put. The Heritage Protection Act had provisions which prescribed the way the Minister identified and approached the question of what is Aboriginal cultural heritage, the applicants submitted. The Minister's finding about the way the trees were significant did not reflect the material before her about what Aboriginal tradition is and the Minister misunderstood the application of the test, they submitted. The notion that the significance of the area derived from the trees was not reconcilable with the finding at [5.48] of the reasons that there was a cultural connection that rendered the Specified Area particularly significant, with a degree of antiquity, related to the dreaming stories, the songlines, the spirituality and traditional interaction with the cultural landscape comprised by, and within, the Specified Area. The applicants submitted that this disconnect meant that the Minister erred, when considering the question of injury or desecration, in reasoning that because the six trees were not going to be destroyed it followed that the Specified Area was not under threat. The Minister had not applied the test in s 3(2)(a) which applied in the case of an area, the applicants submitted.
41 The applicants also submitted that the Minister took an eccentric approach to reaching the states of satisfaction required by ss 10(1)(b) and 12(1)(b); she looked first at the 12(1)(b) issue. There was nothing in the legislation that suggested that was the correct approach. In fact, that approach led to serious error, the applicants submitted.
42 In approaching the s 12(1)(b) issue, the Minister determined that she was not satisfied that any of Trees E2 to E6 were under threat of injury or desecration for the purpose of the Heritage Protection Act. The basis for this conclusion was her acceptance of a representation from MRPV that it would "avoid" Trees E2 to E6.
43 That approach asked the wrong question, the applicants submitted. The question for the Minister was not whether these six trees would be "avoided"; that is, whether they would be clear-felled or otherwise destroyed by the Section 2B upgrade. The correct question was that posed by ss 3(2) and 3(3), namely, whether it was "likely" that Trees E2 to E6 would be "used or treated in a manner inconsistent with Aboriginal tradition" as a consequence of the Section 2B upgrade.
44 The question posed to herself by the Minister was fundamentally different to the question required to be asked by the Heritage Protection Act, the applicants submitted. The Minister approached the question of her satisfaction under s 12(1)(b)(ii) on the basis that she could be satisfied there was no relevant threat of injury or desecration if there was no physical destruction of or injury to Trees E2 to E6. The Heritage Protection Act called for a much broader inquiry about whether the threatened conduct would be likely to lead to use or treatment that was inconsistent with Aboriginal tradition, the applicants submitted, and the Minister's approach constituted error of a fundamental sort.
45 The applicants submitted that the error by the Minister in relation to the discharge of her obligations under s 10(2)(b), regarding the threat to the Specified Area, was even more acute. Sections 10(2)(b)(ii), 3(2) and 3(3) required the Minister to ask herself three questions, they submitted:
(a) first, whether it was likely that as a consequence of the Section 2B Upgrade the Specified Area would be used or treated in a manner inconsistent with Aboriginal tradition (s 3(2)(a)(i));
(b) secondly, whether it was likely that anything done in, on or near the Specified Area as a consequence of the Section 2B Upgrade would adversely affect the use or significance of the Specified Area in accordance with Aboriginal tradition (s 3(2)(a)(ii)); and
(c) thirdly, whether it was likely, as a consequence of the Section 2B Upgrade, that passage through or over, or entry upon, the Specified Area by any person would occur in a manner inconsistent with Aboriginal tradition (s 3(2)(a)(iii)).
46 The applicants submitted that her reasons showed that the Minister did not ask herself these questions. Accordingly, the analysis performed by the Minister in purporting to reach the necessary state of satisfaction did not comply with the statutory requirement cast on her.
47 The Minister's analysis appeared in [5.51]-[5.52] (see [23] above) of the reasons: she "noted" the view of the applicants to the Application that "even if the trees were not considered under threat, the surrounding area will be destroyed by the works and therefore the Specified Area is under threat of injury". However, she dismissed that view summarily.
48 Several errors were apparent, the applicants submitted. First, and most fundamentally, the Minister failed to ask herself the questions prescribed by ss 3(2) and 3(3) and instead asked a different, much narrower, question. The question posed by the Minister was whether the six trees would be "removed".
49 Second, the applicants submitted, the conclusion expressed in this passage, that the significance of the Specified Area "derives from" the culturally significant trees, reflected a misreading of "Aboriginal tradition" as defined in s 3(1) of the Heritage Protection Act. The Aboriginal heritage values called within the scope of the Heritage Protection Act by the definition of Aboriginal tradition must be understood as a "scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole", the applicants submitted, citing Griffiths: see [36] above. That understanding of Aboriginal tradition was at odds with the model of Aboriginal tradition adopted by the Minister, the applicants submitted, which was one in which the significance of the area derived from, and solely from, the presence of the trees; and while the trees stood, no inconsistency with the traditional use of the Specified Area - not even the total destruction of the area and the construction of a multi-lane highway through the Specified Area - would be found to threaten the use of the Specified Area in accordance with Aboriginal tradition. The Minister's approach was plainly at odds with the scheme of the Heritage Protection Act, the applicants submitted. They submitted it was wrong as a matter of law, for the reasons explained in Tickner v Bropho (1993) 40 FCR 183 and Griffiths.
50 Even if that were not so, the applicants submitted, there was no material available to the Minister that would support her analysis of the relevant Aboriginal tradition working in the way suggested. The Reporter concluded at [224]-[225] of her report that "the trees, many culturally modified by their ancestors, are situated in a landscape in which Djab Wurrung people maintain certain traditions … The particular traditions … include the belief in the trees as personifying their ancestors … These spiritual beliefs, which are connected to other stories in the landscape and the cultural modification of some of the trees in the specified area, demonstrate the particular significance of both trees and area under Djab Wurrung traditions." Further, the Minister's analysis of Aboriginal tradition was inconsistent with her own determination that there was "a cultural connection that rendered the Specified Area particularly significant, with a degree of antiquity, involving Aboriginal traditions, observances, customs and beliefs that are passed down from generation to generation through dreaming stories, song lines, spirituality, culture and traditional interaction with the cultural landscape". That determination and the Aboriginal tradition it described was impossible to reconcile with the later conclusion that the Specified Area was not threatened by the Section 2B upgrade, the applicants submitted.
51 Finally, the Minister's analysis failed, even in its own terms, the applicants submitted. The Minister found there was no threat of injury to the area because "the trees will not be removed". In fact, the decision relied on an arrangement made between the Eastern Maar Aboriginal Corporation (EMAC) and MRPV that involved Tree E1 being destroyed.
52 The applicants submitted that MRPV set about reaching a compromise with EMAC (EMAC Compromise) that would permit the Section 2B upgrade to be constructed largely on the planned alignment, with adjustments that would avoid the need to destroy five of the six trees.
53 Notably, the applicants submitted, MRPV chose to negotiate with EMAC but not the applicants who had asserted that cultural heritage existed. The elements of the EMAC Compromise were also notable; it involved MRPV committing to "additional incentives" in return for EMAC supporting the existing alignment of the Section 2B upgrade. The incentives MRPV committed to were in part financial, the applicants submitted: "1% of procurement spend being obtained from Aboriginal owned businesses" and an "'Aboriginal Employment Target' of 2.5% for the Western Highway Duplication".
54 Additionally, the applicants submitted, there was a commitment by MRPV to "undertaking a cultural values assessment for the additional projects planned for the Western Highway" that would include "both tangible and intangible Aboriginal heritage values" and "consultation with Traditional Owners".
55 Lastly, the applicants submitted, MRPV agreed to install "interpretative signs to acknowledge the cultural significance of the land". In summary, the applicants submitted, by offering financial advantages for some unidentified Aboriginal businesses and people, changes in the route alignment that would avoid destruction of five of the six trees and the other measures identified, MRPV procured EMAC to withdraw its opposition to the works to upgrade the Western Highway.
56 The EMAC Compromise was formally notified to the Minister's Department on 29 May 2019. On the same day the Department sent a letter to the applicants, in which the Department foreshadowed the reasoning later adopted by the Minister in the decision; namely, the conclusions that Tree E1 was not significant, and that none of the other trees, nor the Specified Area, were threatened by the Section 2B upgrade. The timing and content of this letter obviously suggested co-ordinated action, the applicants submitted.
57 These events suggested several errors that impugned the lawfulness of the decision, the applicants submitted.
58 First, as part of the statutory machinery the Heritage Protection Act created in aid of the purposes of that Act, it contemplated communication between the Minister and the "appropriate" State Minister about whether State law provided effective protection to the relevant area or objects, the applicants submitted, referring to s 13(2). They submitted that it was to be inferred that the "appropriate" State Minister was the person with responsibility for administering the State law which might provide the relevant protection. That consultation did not take place, the applicants submitted. Instead, the Minister wrote to the Victorian Minister for Roads, with responsibility for the Western Highway upgrade, Minister Donnellan. Minister Donnellan invited the Minister to consult directly with the MRPA (the predecessor to MRPV). The applicants submitted that an obligation to consult with the appropriate State Minister was a duty that should be implied into s 13(3) as necessary or "proper" for the discharge of a statutory function set up by the Heritage Protection Act. The applicants submitted that what occurred undermined the scheme of that Act because the Minister conducted her consultation with the statutory entity responsible for development of the project said to threaten the Specified Area and the trees (namely, MRPV), and not with the Victorian Minister charged with protecting Aboriginal interests.
59 Second, the Heritage Protection Act was enacted with the express purpose of preserving and protecting from injury or desecration areas and objects in Australia that are of particular significance to Aboriginals in accordance with Aboriginal tradition. Informing its enactment was the idea that it would be used as a protective mechanism of last resort where State or Territory legislation was ineffective or inadequate to protect heritage areas or objects, the applicants submitted. The events described above undermined this protective purpose, they submitted. By consulting with MRPV, the developer, and not the Victorian Minister charged with protecting Aboriginal heritage, the Minster and her Department, implicitly or expressly, became participants in the EMAC Compromise, which had as its sole objective the advancement of the Section 2B upgrade along its existing alignment, the applicants submitted.
60 The EMAC Compromise was not directed at protecting the Specified Area or the trees, but was a bargain, struck on the basis of incentives offered by the developer to EMAC, expressly intended to allow the project to be built notwithstanding its impact on the Specified Area, the applicants submitted. They submitted that by its conduct, the Department set the Minister upon a course that failed to give effect to her statutory obligations: she failed to consider the Application in good faith by reference to the statutory criteria; she allowed the exercise of her statutory powers to be fettered and constrained by the need to bring her decision within the framework contemplated by the EMAC Compromise; and she failed to give proper and appropriate consideration to the material before her. In all the circumstances, the decision was properly characterised as the purported exercise of the powers under ss 10 and 12 of the Heritage Protection Act other than for the purposes for which they were conferred.
61 Finally, and most fundamentally, in adopting the analysis of the Department and the draft reasons provided to her, the Minster erred in concluding that she lacked jurisdiction to make declarations under ss 10 and 12 of the Act, the applicants submitted. At [6.1]-[6.2] of her reasons, the Minister determined that by reason of not being satisfied about the threat to the Specified Area or the six trees, she was not empowered to make the declarations sought by the Application. The applicants relied on their earlier submission that, in assessing her state of satisfaction about the alleged threat, the Minister failed to apply the statutory criteria in s 3(2). That occurred because the process miscarried at an earlier stage. Instead of applying the Heritage Protection Act in good faith, the Minister engaged in an artificial process and adopted contrived reasons, the applicants submitted, which were crafted by the Department to bring about a predetermined result. The applicants submitted that the Minister did not, as the Heritage Protection Act required, engage with the desirability of making declarations that would protect significant Aboriginal cultural heritage for the benefit of the applicants, the Djab Wurrung people and all Australians; instead, she adopted reasons calculated solely to reach a conclusion that would facilitate and give effect to the EMAC Compromise.
62 For these reasons, the applicants submitted, the Minister also failed to take into account whether on the material before her she was satisfied that the Specified Area was, or was likely to be, injured or desecrated for the purposes of s 3(2) of the Heritage Protection Act. She also failed to apply the criterion in s 3(2) in assessing the threat to the six trees (or at least Trees E2 to E6). The failure to have regard to this important issue was (inter alia) a failure to have regard to a relevant consideration.
63 In addition, the applicants submitted, the Minister failed to take into account a representation made by the applicants that expressly identified the errors in the Minister's approach. In a letter dated 13 June 2019 to the Department, the applicants submitted, they had contended that:
(a) the suggestion that there was a 'nexus between a significant aboriginal area and significant aboriginal Objects' so that preservation of the Trees meant the Specified Area may not be under threat was wrong and unjustified; and
(b) even if it were correct that there was no threat to the Trees (which the applicants did not accept), because 'the area surrounding [the] trees will be destroyed by the proposed works' there was no basis for the Minister to find that the Specified Area was not under threat of injury and desecration.
The reasons showed that the Minister failed to consider these representations, the applicants submitted.
64 As to unreasonableness, the applicants submitted that the Court was required to consider the quality of the decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power. In making that assessment the Court was concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. It also considered whether the decision fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law. On either test, the decision by the Minister may be impugned, the applicants submitted.
65 For these reasons, the purposes and objects of the Heritage Protection Act were not given effect by the decision. Additionally, the determination that the significance of the Specified Area derived from, and implicitly solely from, the culturally significant trees totally lacked evidence to support it or any other justification, the applicants submitted. It was inconsistent with both the material before the Minister and her own conclusions about why the area was significant for the purposes of the Heritage Protection Act. Even if these errors were not expressly apparent in the reasons, the decision was not "within a range of possible, acceptable outcomes". The conclusion that construction of a four-lane highway through an area of significant Aboriginal cultural heritage did not threaten to injure or desecrate that heritage, needed only be articulated for it to be seen to be indefensible. That was true based on an ordinary analysis of the concepts of injury, desecration and threat. When the extended definitions of those concepts in s 3 of the Heritage Protection Act were accounted for, the decision was revealed clearly to be legally unreasonable, the applicants submitted.
66 As to procedural fairness, the applicants submitted that between 12 April 2019 and 29 May 2019, the Department radically changed its approach to the consideration of the Application. The Department's letter to the applicants dated 17 April 2019 had suggested that the Minister, like the former Minister, was contemplating refusing the Application based on the benefits that the Section 2B upgrade was said to achieve. The 29 May 2019 letter from the Department to the applicants alerted them to "new information" but did not put them on notice of the complete change in the Department's approach to the Application. In the context, to understand the significance of "new information" required the applicants to have access to the Department's analysis as provided to the Minister (Departmental Analysis), the applicants submitted. In the circumstances, the provision of this information was necessary to accord procedural fairness. Despite requests, the Departmental Analysis was not provided to the applicants.
67 As to the grounds relating to Tree E1 considered by itself, the applicants noted that the Minister was satisfied that the Specified Area was a significant Aboriginal area for the purposes of s 10(1)(b)(i) of the Heritage Protection Act "except to the extent of the vicinity of Tree E1 eastwards".
68 The applicants submitted that the conclusion regarding the area "[in] the vicinity of Tree E1 eastwards" was unexplained, and that nowhere in her reasons did the Minister articulate a basis for "excising" this area. Nor did the reasons define, or depict on a map, the boundaries of the area "[in] the vicinity of Tree E1 eastwards". The area was unknown and therefore uncertain, and one was left to speculate about where the area was, and for what reason the Minister excised it, the applicants submitted.
69 The applicants challenged this aspect of the decision on two bases. First, the applicants submitted that they were not given notice of the possibility that the Minister might treat the area "[in] the vicinity of Tree E1 eastwards" differently from the Specified Area as a whole, and thus were given no opportunity to comment. This was claimed to be a breach of the rules of natural justice.
70 Second, the applicants submitted that there was no evidence to support the conclusion that the area "[in] the vicinity of Tree E1 eastwards" was not significant. There was much evidence to support the conclusion that the Specified Area (as a whole) was "significant". But the evidence did not address the area "[in] the vicinity of Tree E1 eastwards" separately from, or in any different way to, the Specified Area (as a whole). In terms of s 5(3) of the ADJR Act, the applicants submitted that:
(a) the Minister was required by law to reach a decision (namely, that she lacked jurisdiction to make a protection declaration under the Heritage Protection Act) only if a particular matter was established (namely, that she was not satisfied that the area "[in] the vicinity of Tree E1 eastwards" was significant), and, having determined that the Specified Area was significant, there was no evidence or other material (including facts of which she was entitled to take notice) from which she could reasonably be satisfied that the matter was established; and
(b) the Minister based the decision on the existence of a particular fact (namely, that the area "[in] the vicinity of Tree E1 eastwards" lacked the characteristics that she had found pertained to the remainder of the Specified Area), but that fact did not exist.
71 The applicants also contended that the Minister's failure to be satisfied that Tree E1 was a significant Aboriginal object based on the material before her was so unreasonable that no reasonable person could have so exercised the power.
72 The applicants observed that the Heritage Protection Act (in s 3(1)) relevantly provided that significant Aboriginal object meant an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition. The question for the Minister therefore was whether she was satisfied that Tree E1 was an object "of particular significance to Aboriginals in accordance with Aboriginal tradition".
73 The applicants noted that on the basis of the Builth 2017 and 2018 reports, the Sanders 2018 report and Ms Phillips' report, the former Minister had been satisfied that Tree E1 was a significant Aboriginal object.
74 The Minister's justification for coming to a contrary decision on Tree E1 spanned [5.17]-[5.25] of the reasons. The Minister started by referring to views expressed by Martang Aboriginal Corporation and, later, EMAC, that Tree E1 bears a "European scar". The applicants submitted that the source of the views ascribed to Martang and EMAC was not clear from the reasons; neither made a representation to the Reporter (or to the Minister).
75 The Minister then noted the Reporter's conclusion that all six trees were significant Aboriginal objects. But, the applicants submitted, the Minister effectively disregarded or downplayed the Reporter's conclusion on Tree E1 by characterising her report as "focussed on Trees E3 and E6".
76 The Minister went on to consider the expert material from Dr Builth and Natasha Sanders. In relation to Ms Sanders, the Minister noted that her report "included information on the cultural values of some of the Six Trees". The applicants submitted that characterisation disregarded or downplayed Ms Sanders' actual conclusion (namely, that the tree was "culturally modified") and Ms Sanders' overall conclusion, quoted in terms by the Reporter:
All of the old trees, both within the focus areas and the broader area, were identified as having cultural significance even if there were no clear or visible markings from modification. These old trees were often referred to throughout the consultation as Ancient Trees, Ancestor Trees, or Guardian Trees highlighting the relationship between the trees and the ancestors that live within them.
77 In relation to Dr Builth, the Minister referred to all three of her reports. The Minister summarised aspects of Dr Builth's reports, the applicants submitted, but omitted to refer to the key evidence and conclusions in Dr Builth's reports concerning Tree E1.
78 The applicants contended that the Minister reached her conclusion at [5.25] (see [15] above) by a process that:
(a) ignored the statutory definition of "significant Aboriginal object" (the Minister did not mention it, but instead appeared to approach the question by considering that the question for her was whether Tree E1 was as significant as Trees E3 and E6);
(b) presented and relied on a highly selective subset of the evidence before her, and disregarded or downplayed "unhelpful" evidence or conclusions that had been placed before her;
(c) gave equal weight to the beliefs of the applicants (supported both by the expert evidence they adduced from Dr Builth, and the "independent" expert evidence from Ms Sanders), and the unascribed hearsay views of Martang and EMAC (who did not represent the applicants);
(d) relied on and gave weight to what was said to have been concluded during the Walk-through on 29 April 2019, when the Walk-through did not include the applicants.
79 The process of reasoning followed by the Minister in respect of Tree E1 was the opposite of a process of justification, transparency and intelligibility, the applicants submitted. The decision was indefensible in light of the whole of the evidence before the Minister; it only had the appearance of defensibility when presented in the reasons in a way that ignored or downplayed "unhelpful" evidence or conclusions. In light of the whole of the evidence before the Minister, the applicants submitted that the Minister's decision was so unreasonable that no reasonable person could have reached it.