Following on from the important decision in Robinson v Fielding last year, the Supreme Court of Western Australia has shed more light on the parameters around the requirement to afford procedural fairness under the Aboriginal Heritage Act (WA) 1972.
On 24 August 2016 the Court dismissed an application for judicial review to quash a decision of the Aboriginal Cultural Material Committee (ACMC) pursuant to section 18 of the Aboriginal Heritage Act 1972 (WA) (Heritage Act). The decision was that two sites within the Beeliar wetlands were not Aboriginal sites and that the ACMC recommend the Minister consent to the construction of the Roe Highway which would impact on the land.
The sole ground of review was that the decision of the ACMC is invalid because it was made without affording the applicant, Ms Abraham, procedural fairness.
The ultimate basis for Ms Abraham’s claim was that she was entitled to procedural fairness as a member of the Cockburn Aboriginal Advisory Committee (CAAC). The reasons the case was dismissed included the following:
- Consultation with CAAC had been with the Chair of CAAC and there was no evidence to suggest that Ms Abraham had been personally consulted at any time by Main Roads as a member of CAAC in respect of the s.18 notice. Further Robinson provides no support for Ms Abraham’s claim that the ACMC was required to afford procedural fairness to her as a member of the CAAC.
- Whilst the ACMC was required to afford procedural fairness to the Chair of the CAAC there was evidence that the Chair was consulted by Main Roads.
- A response time of 2 weeks for the Chair of CAAC to a large volume of information was not held to constitute a denial of procedural fairness as:
- The ACMC is an inquisitorial body with a statutory role to evaluate the presence and significance of sites, and make recommendations regarding whether the Minister should consent to a development. The ACMC is not required to provide the persons consulted with a copy of every document to which it might have regard in forming its opinion.
In addition, a response time of 2 weeks for the Chair of CAAC to a large volume of information was not held to constitute a denial of procedural fairness as:
- the decision-making process incorporated stages of consultation which satisfies the requirements of natural justice;
- there was no evidence to suggest the CAAC Chair considered that the opportunity to respond was inadequate;
- it was not possible, on the evidence, to conclude that the provision of the large volume of material of itself gave rise to an inadequate opportunity to respond; and
- the issue for response, was a matter within their knowledge , namely the importance and significance of sites from an Aboriginal heritage perspective.
Pritchard J stated that the factors that are relevant cumulatively to determining what constitutes an adequate opportunity to provide a response to a decision-maker include:
- The importance of the matter being determined;
- The number and complexity of the legal and factual issues involved;
- The volume of materials involved;
- Previous opportunities to provided submissions; and
- Any statutory time limit or other to constraint applicable to the decision-maker’s exercise of
This decision reinforces the requirement that procedural fairness must be afforded traditional owners in the section 18 process. However there are limits to the steps required in order to satisfy that process. In this case, the ACMC was found to have satisfied its consultation obligations.
Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.
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