G. ATSIHP Act case law

Recent ATSIHP Act cases
Case
Facts
Decision
Onus v Minister for the Environment [2020] FCA 1807
Applications relating to concerns over the effect of the construction and alignment of a section of the Western Highway between Ararat and Buangor in Victoria on the area and certain scarred trees by nine traditional owners of the Djab Wurrung Country - Minister declined to make a declaration under s 10 and s 12 of the ATSIHP Act.
Minister decision not to make declaration under s 12 unlawful and set aside and matter referred back to Minister to re-consider; decision in relation to s 10 valid.
Talbott v Minister for the Environment [2020] FCA 1042
Judicial review of two decisions made by the Minister for the Environment declining to make a declaration under s 10 of the ATSIHP Act. The areas over which the declarations were sought lie within or close to the site of the proposed Shenhua Watermark Coal Mine (Shenhua Mine). In making the decisions the Minister took into account, inter alia, the social and economic benefits of the Shenhua Mine to the local community.
Discretion of Minister empowered Minister to have regard to the considerations regarding social and economic benefits.
Clark v Minister for the Environment (No 2) [2019] FCA 2028
Protection of an area and of certain objects (six trees) located in the area from a claimed threat of injury or desecration attributed to part of an upgrade of the Western Highway proposed by VicRoads.
Decision of Minister aside; referred back for additional consideration (note that further cases followed this).
Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships [2018] QSC 248
Judicial review of a decision of the Department to set aside Mirvac’s cultural heritage plan. The Chief executive decided to set aside the plan on the basis that the Aboriginal party (Jagera People) Mirvac had endorsement from ceased to be an Aboriginal party due to native title claims that were registered in the Greenbank Project area. However, Mirvac provided the executed plan to DATSIP on 6 September 2017. There were two native title claims registered with the relevant date of the full area was 14 September 2017. This meant the Jagera people lost their Aboriginal party status from this date. DATSIP made the decision on the 20 October 2017 and rejected the plan stating that there was no endorsement by an Aboriginal party, because the Jagera people were no longer an Aboriginal party
The Court held however that the Chief Executive had erred in their decision to refuse approval. The relevant date is the date that the application is submitted and given that Mirvac had met all the elements of the in section 107(b), the Chief Executive must approve the plan.
Section 4 of the ATSIHP Act provides that the main purpose of the ATSIHP Act is to provide effective recognition, protection and conservation of Aboriginal cultural heritage.
Source: Terri Janke & Company Pty Ltd

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About this inquiry

On Thursday 11 June 2020 The Senate referred the following inquiry to the Joint Standing Committee on Northern Australia for inquiry and report by 30 September 2020:

The destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia.

On Monday, 7 December 2020 The Senate agreed to a reporting extension for the following inquiry to the Joint Standing Committee on Northern Australia for inquiry and report by 18 October 2021.

Submissions Closed.



Past Public Hearings

27 Aug 2021: Canberra
08 Jul 2021: Canberra
06 Jul 2021: Canberra