A ruling which could block developments on land where traditional ownership of significant sites can be asserted.
On 11 May 2012 the High Court refused an application for special leave to appeal a decision of the South Australian Supreme Court reversing an authorisation of the South Australian Minister for Aboriginal Affairs and Reconciliation (“Minister”) to Straits Exploration (Australia) Pty Ltd (“Straits”) to carry out a drilling program at Lake Torrens in South Australia. Straits sought an authorisation under Section 23 of the Aboriginal Heritage Act (SA) 1988 (“Heritage Act”) allowing it to disturb or interfere with a recorded Aboriginal Heritage Site.
The Minister granted the authorisation, though more broadly than in the terms sought by Straits. The broadness of the authorisation was criticised by Justice Gray in the Supreme Court but that was not determining of the Full Court decision.
Aboriginal heritage and the right to veto exploration activities in South Australia
Under section 6 of the Heritage Act the Minister must, when requested by traditional owners, delegate the Minister’s powers under various sections in the Act (including section 23) to the traditional owners.
In this case that did not happen. Whilst a request for delegation had been made, uncertainty in the mind of the Minister as to the identity of the traditional owners resulted in a failure by the Minister to delegate. Nevertheless, the Minister authorised Straits to proceed with its drilling program under Section 23 of the Heritage Act. The Minister’s decision was confirmed by a single judge of the Supreme Court at first instance but overturned on appeal.
The Full Court held that it was a condition of the exercise by the Minister of her power under Section 23 authorising Straits to proceed with its drilling program at Lake Torrens that the Minister should observe procedural fairness principles in relation to a request to delegate a section 23 power in accordance with section 6(2) of the Heritage Act. This required the Minister to establish and consult with the traditional owners before any authorisation was made.
If the Minister was uncertain as to the identity of the traditional owners, as here, then it was incumbent upon the Minister to make further enquires to establish the identity of the traditional owners who may have requested a delegation before the making of any authorisation.
The State applied to the High Court to be granted special leave to appeal the decision. The application for special leave was refused. Whilst the High Court did not necessarily endorse all of the reasoning of the Full Court, the High Court did not think that the matters in issue were of sufficient importance or gravity to warrant the granting of special leave to appeal the decision to the High Court.
What does this mean for you?
It must be borne in mind that the decision in the Straits was made upon its particular facts and circumstances. However, the process for obtaining an authorisation under the Aboriginal Heritage Act to access land for exploration or mining will now be more difficult in sensitive Aboriginal Heritage areas. The Heritage Act is presently under review in South Australia.