YINDJIBARNDI ABORIGINAL CORPORATION as trustee for YINDJIBARNDI PEOPLE

Order nisi - Decision of the Minister - Section 18 of the Aboriginal Heritage Act 1972 (WA) - Test to be applied to application for grant in the form of an order nisi - Status of applicants - Relevance of prior breach of the Aboriginal Heritage Act - Nature of recommendation made by the Aboriginal Cultural Material Committee to the Minister - Unreasonableness - Procedural fairness

Aboriginal Heritage Act 1972 (WA), s 18, s 28, s 32

Application dismissed insofar as it relates to grounds 2 and 4

First respondent : State Solicitor for Western Australia

McKay v Commissioner of Police [2006] WASC 189

Re The Hon J McGinty MLA; ex parte Duff [2007] WASC 210

Western Australia v Bropho (1991) 5 WAR 75

(This judgement was delivered extemporaneously on 20 August 2009 and has been edited from the transcript.)

1 I will commence by setting out the facts which might be drawn from the evidence which has been tendered on this application by Michael Woodley and the Yindjibarndi Aboriginal Corporation for the grant of an order nisi to quash the decision of the Minister for Indigenous Affairs (the Minister) purportedly made pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA) (the Act). Robe River Mining Co Pty Ltd (Robe) has been joined as a respondent in these proceedings. Robe is the manager of the Robe River Iron Associates which is an unincorporated joint venture that conducts mining as part of the business known as Rio Tinto Iron Ore (Rio).

2 These findings of facts are not to be taken as findings of fact for the purposes of final relief because the question before the Court today is not whether final relief should be granted, but rather whether an arguable case for the grant of relief has been made out with sufficient strength to justify the grant of an order nisi. Instead, these findings of facts are expressions of the findings of fact that might be made if the applicant's case is taken at its highest on the evidence that I have received.

3 The case concerns a site known as Gurrwaying Yinda which is an area of the Booyeemala Creek (known to the Yindjibarndi People as Thurdimarlu Wurndu). It is approximately 12 km south of the Fortescue River crossing and approximately 126 km south of Cape Lambert. The site is crossed by a railway which connects Cape Lambert to Pannawonica. The purpose of that railway is to provide a means by which the iron ore mined at Pannawonica, and in particular the Mesa J mine operated by Robe, can be taken to the port at Cape Lambert.

4 The site itself has been very adequately described in the evidentiary materials and I fear I do not do justice to the eloquent descriptions of the site in these brief remarks. Gurrwaying Yinda comprises a series of permanent pools of considerable natural beauty in which fresh water mussels, known to the Yindjibarndi People as Gurrwa can be found. As a layperson it seems to me that the potential ethnographic significance of the site is and always has been obvious.

5 At the time of the events giving rise to these proceedings only part of the site was a registered site under the Act. However, since then the rest of the site which is relevant to these proceedings has been registered under the Act as a result of a decision made at the meeting of the Aboriginal Cultural Material Committee (the Committee) on 9 June 2009. Although registration of the entire site was not achieved until 9 June 2009, nothing turns on that because the operative provisions of the Act generally operate without being dependent upon registration of sites of Aboriginal heritage value.

6 In February of this year, unusually large rainfall resulted in a flood which damaged the pylons at the base of the bridge supporting the rail line over the pools to which I have referred. Particularly over the evening of 16 - 17 February 2009, the flow of water down the course of the creek was of such strength as to damage the base of one of the pylons (at least) and to render the bridge unsafe.

7 In order to continue the transport of iron ore from the mine to the port, Robe, or perhaps Rio - I make no finding as to precisely who, but a party acting with the authority it seems of Robe - commenced construction on the deviation of the railway line and its placement over a temporary bridge or causeway (called the Temporary Diversion) to be constructed adjacent to the existing damaged bridge. The Temporary Diversion involved the deployment of approximately 130,000 cubic metres of rocks and soil which was taken from borrow pits in the immediate vicinity of the site. The work that I have described in the creation of the Temporary Diversion was strenuously opposed by Mr Woodley and the Yindjibarndi People and took place over their opposition. The applicants say that the activities which I have described caused severe desecration of the site, constituted a breach of the Act and took place without adequate consultation with them. I will come back to these issues shortly.

8 The Temporary Diversion that I have described was not designed or constructed to last past the upcoming wet season, which will commence in the latter part of this year. In particular, the culverts that have been placed in situ under the rocks and soil to which I have referred, are not of sufficient dimension to allow great volumes of water to pass through. The evidence before me, and before the Committee, suggested and suggests to me that if this year's wet is of a magnitude that could be expected to occur once in every eight years, the flow of water down the creek would be of such a magnitude that it would not pass through the culverts. The water would bank up behind the Temporary Diversion and the rocks and soil to which I have referred, with the risk that the rocks and soil and the Temporary Diversion might be destroyed and flow downstream.

9 That would of course disrupt all deliveries from the mine to the port, but perhaps more significantly than that, if that were to occur it would of course devastate the downstream area of the site by dispersing around 130,000 cubic metres of rocks and soil over the pools.

10 Following and, indeed, during the course of the construction of the Temporary Diversion, there were discussions and negotiations between Robe (or Rio) and the Yindjibarndi People. It is unnecessary for me to chronicle those discussions.

Notice under s 18 of the Act

11 On 5 May 2009, a notice was filed by Robe under s 18 of the Act, foreshadowing the performance of works which might, without the consent of the Minister, constitute a contravention of the Act. Those works involved the creation of a new bridge essentially on the same site as the old bridge that had been damaged (and by now removed) and the removal of what I have described as the Temporary Diversion.

12 The notice under s 18 was amended on 12 May 2009 and supported by various documents which it is unnecessary to detail. Those documents included the authority of the various landowners interested in the site. An issue previously taken by the applicants with respect to that authority is no longer pressed. There was also a short report on the ethnographic significance of the site supplied in support of the notice.

13 The Committee met on 9 June 2009 and the persons present at that meeting are as described in the minutes. It is unnecessary for me to relate them. There was a quorum, although the Committee did not comprise a person recognised as having 'specialised experience in the field of anthropology as related to the Aboriginal inhabitants of Australia' pursuant to s 28(3) of the Act. That is because the person on the Committee who had met that description had resigned on 7 May 2009 and no person having similar qualifications was appointed until July 2009 because the Act requires a process of consultation to be undertaken before such a person can be appointed. Nevertheless the Committee had a quorum of five as required by s 32(1) of the Act.

14 The Committee considered the materials before it and in addition received oral presentations from representatives of Robe and from representatives of the applicants. The minutes of its meeting record discussion to the effect that the Committee was concerned that Aboriginal groups were not consulted when 'a temporary bridge' (the Temporary Diversion) had been built over a pool 'that would reasonably be expected to have ethnographic significance'.

15 The minutes also record that members were concerned that the applicant for Ministerial consent (Robe), had not adequately advised the Committee of the 'potential impact of the purpose on heritage values'. The minutes further record that the Committee agreed to defer making a recommendation to the Minister as there was insufficient information to consider the s 18 notice and no evidence of adequate consultation with the Yindjibarndi People. To assist with the process of consultation, the Committee requested that mediation occur between the parties. There was then a dispute between Robe and the applicants about whether there was power to initiate a formal mediation process under the Act. No mediation occurred.

16 Further documents were supplied to the Committee including, in particular, a letter from Robe of 25 June 2009 which was copied to Mr Woodley of the Yindjibarndi Corporation. That letter supplied further information, particularly relating to the works that were to be carried out.

17 In addition, a letter of 29 June 2009 from the Yindjibarndi Aboriginal Corporation and of 30 June 2009 from solicitors acting on behalf of the Yindjibarndi Aboriginal Corporation were presented to the Committee. In those letters there was a response provided to some of the matters raised in the letter of 25 June from Robe. The Committee had before it a recommendation from the Department of Indigenous Affairs (the Department), which provides executive support to the Committee, to the effect that it recommended to the Minister that consent be declined.

18 Precisely what occurred at the Committee meeting on 1 July 2009 is controversial, and I will go in that respect to the affidavit which has been filed of Christine Julie Lewis, who is an officer of the Department. In par 92 of her affidavit of 17 August 2009 she deposes that she was present at the meeting of 1 July 2009.

19 In par 94 she deposes that at the meeting of 1 July 2009 the Committee resolved, in effect, to recommend to the Minister that consent be granted for the works, the subject of the s 18 notice, subject to certain conditions, including a condition that 'Rio Tinto' (which I take to be an inaccurate reference to Robe), develop and implement a Cultural Heritage Management Plan to the satisfaction of the Registrar on behalf of the Minister and that plan include but not be limited to, 'consultation ... with and to the satisfaction of the Applicants' (the 'Applicants' being in this affidavit a reference to Mr Woodley and the Yindjibarndi Aboriginal Corporation), 'prior to the construction of the new bridge so as to mitigate any detrimental impacts to the Site'. Various other conditions are also referred to.

20 In par 95 Ms Lewis deposes that it was agreed, amongst other things, that the Committee's heritage project officer would prepare a briefing note to the Minister in accordance with that resolution, and she asserts that 'copies of the draft and final minutes of that meeting are annexed hereto and marked with the letters CJL46'.

21 When reference is had to that annexure, there is only one set of minutes and they do not appear to be either draft or final in the sense that they are simply a document that was brought into existence, it seems, sometime during July and before the Committee itself had the opportunity to meet and resolve to adopt those minutes. It seems that in due course, the Committee did meet in early August and adopt the document which is CJL46 as a record of its meeting.

22 Document CJL46 records the condition to which I have referred in rather different terms to that described by Ms Lewis in par 94. In particular, the minutes which are CJL46 refer to the condition in the following terms:

Consultation ... carried out with Yindjibarndi People to the satisfaction of the Registrar on behalf of the Minister prior to the construction of the new bridge for the purpose of mitigating detrimental impacts to the cultural significance of Gurrwaying Yinda.

23 Before I leave the minutes, I should also note that the minutes record that the Committee noted that the applicant for the Ministerial consent (that is, Robe), should be advised that the Committee was concerned that if the Temporary Diversion is not removed before the beginning of the wet season, then the heritage values of the site may be damaged. I take that to be a reference to the consequence of the destruction of the Temporary Diversion by flood to which I have referred, namely the deposit of up to 130,000 cubic metres of rock and soil over the site downstream of the Temporary Diversion. It seems from the minutes that this was a significant factor in the mind of the Committee in determining to recommend to the Minister that consent be granted.

24 The circumstances in which the minutes came to take their final form are also referred to by Ms Lewis in her affidavit of 17 August 2009. She says at par 10 that on or about 9 July 2009 she reviewed a memo which had been prepared by others within the Department and as part of the review had cause to consider the minuted resolution, in particular the wording of the conditions. Ms Lewis further says in par 101 that she was concerned that the condition referred to in par 94 (which is an affirmation of the terms of the condition referred to in her affidavit), would in effect provide the applicants (that is, the Yindjibarndi People) with the power of veto over the Cultural Heritage Management Plan. She asserts this was clearly not the intention of the Committee and she therefore engaged in correspondence with others concerning a possible amendment. The expression of the view that it was not the intention of the Committee is a conclusion apparently drawn by Ms Lewis from something that is not specified in the affidavit. If it is a conclusion drawn from what was said at the Committee meeting, she has not set out what was said in order to enable the Court or anybody else to evaluate the accuracy of that conclusion, and of course no direct evidence has been adduced by any member of the Committee or from the chairman of the Committee as to precisely what was in fact resolved.

25 At all events, in par 102 Ms Lewis records that Mr Margetts, who was also an officer of the Department present at the meeting of the Committee, suggested a possible amendment, that amendment was agreed and that amendment was in the terms of the minutes that were then produced and to which I have referred. There is no evidence before me as to the earlier form of those minutes.

26 Ms Lewis has prepared and submitted a supplementary affidavit sworn 20 August 2009, further addressing these matters. Contrary to what she said in her first affidavit she now deposes that the conditions to which she referred in par 94 of the affidavit sworn on 17 August 2009 are not in fact the conditions which the Committee resolved to recommend to the Minister but were conditions incorrectly recorded in draft minutes. Ms Lewis states at par 13 of her supplementary affidavit that she cannot now recall the precise words utilised by the Committee when making its resolution but the thrust of it was ultimately expressed in the minutes referred to in par 95 of her first affidavit. She accepts that the reference in her first affidavit to copies of the draft and final minutes being attached to her affidavit is not entirely accurate in that the draft and final minutes are one and the same document, because the draft minutes were electronically written over at the time of creating the final minutes. Whether that means that the first version of those minutes cannot now be recovered is something I simply do not know, but one would have thought that the earlier version could be recovered somehow or another from the database on which the document was presumably created.

27 Ms Lewis refers also to the notes which she took at the meeting on 1 July 2009 and annexes them to her supplementary affidavit, but points out that they do not cover the resolution that was made. She says, at par 17 of her supplementary affidavit, that this was a matter which was being attended to by Mr Margetts, but no affidavit from Mr Margetts has been provided, nor have his notes been provided for consideration.

28 It seems to me therefore that on the current state of the evidence there is at least uncertainty as to precisely what took place at the Committee meeting.

29 At all events, before the Committee met again, the Director General of the Department provided a briefing note to the Minister. That was dated 17 July 2009. I should add that it does not seem that when the issue with respect to the accuracy of the minutes arose, that there was any reference back to any member of the Committee or indeed to the chairman. The Director General's briefing note to the Minister had an attachment which was described as 'an extract from the minutes of the meeting'. The extract attached to that submission is not included within Ms Lewis' affidavit but it seems a reasonable inference that the extract of the minutes was in the form in which the minutes are found in her affidavit sworn 17 August 2009; that is to say, the form in which satisfaction of the condition is expressed to be dependent upon the satisfaction of the Registrar, not the satisfaction of the Yindjibarndi People.

30 The briefing note from the Director General with its attachment appears to be the only materials before the Minister at the time he purported to grant consent pursuant to s 18 of the Act on 20 July 2009. As I indicated during the course of the hearing of this matter, it seems surprising to me, given the statutory scheme, that no document from the Committee itself was before the Minister, and that there was no memorandum from the chair of the Committee on behalf of the Committee. All that the Minister had from the Committee was a document purporting to be the Committee's minutes and which may or may not be an accurate version of the recommendation made by the Committee, given the contention that arose within the Department as to the precise terms in which that recommendation should be expressed. It also seems on the evidence that the document described as the minutes of the Committee meeting was sent to the Minister before it had been considered or adopted by the Committee.

31 I must say that it seems on the face of it to be a significant deficiency in the procedures adopted within the Department that the Minister is not provided with a record of the recommendation of the Committee from the Committee itself.

32 That leaves, I think, an open question on the evidence before me as to whether or not the Minister did in fact receive the recommendation of the Committee or whether he received something other than the recommendation of the Committee. On the evidence, it is at least possible that the Minister received a document that did not accurately record the condition proposed by the Committee. That is not a question that I can resolve today. If it were the fact that the Minister did not receive an accurate statement of the recommendation made by the Committee, counsel for the Minister accepts that that would give rise to a serious question as to the validity of the Minister's decision to grant consent under s 18 of the Act. In those circumstances and given the uncertainty which I have enunciated as to the precise factual position, counsel for the Minister seeks an adjournment of the application insofar as it relates to that ground in order to place further evidence before the Court. That adjournment seems to me to be appropriate. Whether or not that evidence can resolve the factual uncertainty is something we will have to wait and see. If that factual uncertainty continues then it may be that the only way to resolve it would be to grant the order nisi and have a trial to work out just what was said and by whom at that Committee meeting and precisely what its recommendations were.

33 At all events, as I have indicated, on 20 July 2009 the Minister gave his consent to the works proposed, subject to conditions which included a condition in the terms of the revised minutes of the Committee meeting.

34 Work is continuing on the construction of the new bridge at the moment. Work is taking place under a relatively tight timetable in order to ensure that it is completed before the commencement of significant rainfall later this year. The evidence produced by Robe is to the effect that if there were any demobilisation of work at the site, considerable expense would be incurred as a result of demobilising human resources and equipment.

35 There is also evidence that if the work constructing the new bridge is not completed before the onset of the wet, there would be a risk of the Temporary Diversion being washed away. There would be a number of significant adverse consequences from that. The first, of course, is that ore deliveries would be disrupted at very significant loss to Robe but also, and at least as significantly to my mind, there would be a risk of very substantial damage to the site downstream from the Temporary Diversion.

36 I will turn in that context to the issues that arise for my determination.

37 The first question is the test to be applied to the application for the grant of relief in the form of an order nisi with respect to the grant of prerogative relief. That test has been formulated in different ways. In McKay v Commissioner of Police [2006] WASC 189, I formulated the test in terms of an arguable case with some prospects of success [2] and went on to suggest that unless the case had reasonable prospects of success the order nisi should not be granted [3]. Jenkins J agreed with that formulation in her decision in Re The Hon J McGinty MLA; ex parte Duff [2007] WASC 210 [3]. That formulation does not necessarily accord with all the prior authorities. It seems to me that perhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the Court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case. The nicety of distinction between an arguable case and an arguable case without reasonable prospects of success is perhaps a semantic issue that need not trouble us unduly. In this case nothing much seems to me to turn on that distinction, for reasons that I will endeavour to enunciate.

38 The next question that I should address is the status of the applicants, Mr Woodley and the Yindjibarndi Aboriginal Corporation. As I have mentioned, the land in question is now a registered heritage site. The evidence would strongly suggest that it always had the characteristics of such a site within the meaning of the Act. Mr Woodley is a senior representative of the Yindjibarndi People and the Yindjibarndi Aboriginal Corporation is a corporate entity which is representative of the Yindjibarndi People. The Yindjibarndi People undoubtedly have a special interest over and above that of the community in general in the preservation of the heritage value of this site. They also have every reason to suppose that their interests would be respected in the processes relating to the grant of consent.

39 The evidence before me and to which I have referred suggests that there may well have been a prior breach of the Act when work was carried out to create the Temporary Diversion. That is not a question that it is either necessary or appropriate for me to decide because the only issue before me concerns the validity of the consent purportedly granted by the Minister on 20 July 2009. In the submissions filed in support of the application, reference is made to the doctrine of equity relating to persons coming with clean hands. It seems to me, with respect, that that proposition is misconceived because this is not a case in which equitable relief is sought. The relief sought is prerogative in nature and in any event Robe seeks no relief from the Court. It seems to me the question of whether or not there has been a prior breach of the Act is not particularly germane to the issues that I have to determine.

40 With those considerations in mind and the view that those findings of facts put the applicant's case at its highest, I turn now to the grounds of relief as amended.

41 The first ground of relief as amended concerns the issue relating to precisely what the Committee recommended on 1 July 2009. For reasons that I have already given, it seems to me that the applicants may well have an arguable case if, as a matter of fact, there is an arguable proposition to the effect that the recommendation transmitted to the Minister was not in fact the recommendation upon which the Committee resolved on 1 July 2009. Notice of that proposition only surfaced in submissions that were filed by the applicants earlier today and the ground raising that argument was only suggested during the course of this hearing. It seems to me that the Minister should be given an opportunity to provide further evidence on this issue and for that reason, as I have indicated, I would propose to adjourn the application insofar as ground 1 is concerned. I will come back in due course to make directions with respect to progressing the application in that regard.

42 I turn then to ground 2 which essentially asserts that the Minister took into account a recommendation made by the Committee which was so unreasonable that no reasonable Committee could have made it for a number of reasons, including the lack of adequate ethnographic evidence; having regard to the Committee's first resolution on 9 June 2009 that it lacked sufficient material to make a decision; and also having regard to the fact that there was no person qualified in terms of s 28(3) of the Act sitting as a member of the Committee on 9 June 2009.

43 It seems to me that ground 2 as formulated is not arguable and has no prospect of success for a number of reasons. The first is that the decision which is attacked in these proceedings is the decision of the Minister to grant consent under s 18 of the Act. The Minister's jurisdiction to grant such a consent is enlivened upon the receipt of a recommendation made by the Committee. The Minister received a document that asserted such a recommendation had been made, and it seems clear that some recommendation was made by the Committee, although its precise terms are, as I say, uncertain.

44 Unless and until there is a decision of the Court quashing the recommendation of the Committee, the Minister's jurisdiction was enlivened. It seems to me that a ground which attacks the decision of the Committee is misconceived because, even if that ground were upheld, it would not deprive the Minister of jurisdiction. Further, the Minister's decision is the only decision under attack and the Minister is the only person who has been joined as a party to these proceedings. In any event, there seems to me to be fundamental problems in the path of the particulars that are asserted in support of this ground.

45 As I understand it, the first particular concerns the alleged lack of adequate ethnographic material before the Committee. However, the adequacy of the ethnographic material before the Committee is a matter for the Committee to determine. Although it took the view on 9 June 2009 that it lacked adequate material to make a decision, it seems a fair inference from the materials to which I have referred that a very significant factor in its determination on 1 July 2009 was the consideration that if there was a one in eight year wet, very extensive damage would be caused to this site. That consideration of course presumes the ethnographic significance of the site and seeks to protect it. Whatever motivated the mind of the Committee, it seems to me, was essentially a matter for it to determine whether or not it had sufficient ethnographic material to make a recommendation to the Minister and there is no arguable prospect of persuading a Court that the Committee's decision in that respect was so unreasonable that it could not have been made. There is nothing preventing the Committee from changing its view as to the adequacy of the material before it.

46 In relation to the fact that there was not a person qualified in terms of s 28(3) of the Act at the meeting on 9 June 2009, it is I think of some significance that the provisions of the Act relating to a quorum do not require such a person to be present and therefore the Committee can validly meet without such a person being amongst its members.

47 Ground 3 was abandoned and it simply replicated ground 1.

48 Ground 4 asserts denial of procedural fairness by the Minister and in particular asserts that the applicants had the right to see the recommendation made by the Committee to the Minister and to make submissions in relation to that recommendation. That ground seems to me to be unarguable. The scheme of the Act is clear. There is a process whereby the Committee created under the Act makes recommendations to the Minister prior to his determination of whether or not consent should be granted. The Committee in this case afforded procedural fairness to the present applicants and there is no allegation that they were denied procedural fairness by the Committee.

49 In those circumstances, taking the law at its most favourable to the applicants, being the view of Malcolm CJ in Western Australia v Bropho (1991) 5 WAR 75, the Minister would only be under an obligation to afford procedural fairness to the applicants if he had taken account of some new matter that had not been identified to the applicants in the course of proceedings before the Committee. There is no evidence to that effect. On the contrary, the materials that were forwarded to the Minister appear to go no further than what was decided or indeed in evidence before the Committee and known to the applicants, save for the uncertainty as to the precise terms of the recommendation made by the Committee.

50 It seems to me that there is no arguable case for the proposition that the Minister was obliged to receive further submissions from the applicants. The ground as formulated does not assert that there was any new matter taken into account by the Minister over and above the matters before the Committee and of which the applicants were aware and in respect of which they had had the opportunity which they had exercised to put submissions before the Committee.

51 The fifth ground asserts that the Minister failed to take account of various matters in making his decision. There is simply no evidence to support that ground as particularised, so it seems to me that that ground is unarguable.

52 In conclusion, it seems to me that all the grounds that are formulated in the application for order nisi, with the exception of the amended ground 1, are not arguable and have no prospect of success and I will dismiss the application insofar as it relates to those grounds.

53 Insofar as amended ground 1 is concerned, as I have indicated I think the only course is to allow the adjournment and to provide a timetable for the filing of further affidavit evidence.

54 Because of my view that the applicants have not yet established a ground which justifies the grant of an order nisi, the question of such an order operating as a stay of the Minister's consent does not arise at this stage of the proceedings.