Facts: This was a proceeding for a declaration
brought by the applicants pursuant to s. 173B of the Nature
Conservation Act 1992 (NCA), challenging the
validity of the Steve Irwin Wildlife Reserve Nature Refuge
The SIWR was declared a nature refuge pursuant to the Nature
Conservation (Protected Areas) Amendment Regulation (No. 2)
2012 made under the NCA and with effect from 14 September
The SIWR was located in the north western part of the Cape York
Peninsula adjacent to the Wenlock River. The applicants asserted
that they were the traditional owners of the land.
At the time of the hearing, the only issue remaining in dispute
was whether the Minister had failed to observe the procedural
requirements in s 44(1) and (2) of the NCA that the proposal for
the SIWR specify the proposed management intent for the area. The
applicants alleged that the proposed management intent was
insufficiently described so as to render the proposal invalid and
the consequential declaration of the SIWR invalid.
The proposed management intent for the SIWR had been set out in
a letter from the Minister to the Cape York Land Council (the body
representing the applicants) dated 27 June 2008.
A Conservation Agreement and a Management Plan were subsequently
entered into. The applicants contended that those documents did not
adequately address cultural resources within the SIWR and
particularly the likely presence of Aboriginal human remains. It
was uncontroversial that the documents did not address that
Decision: The Court held, in dismissing the
The applicants were each traditional owners with a legitimate
interest in the conservation and management of the cultural
resources relating to their ancestors which were likely to be
present within the SIWR.
The proceeding was akin to judicial review. As a consequence,
the Court's task was confined to considering whether the
Minister's decision was legally flawed. The appropriate test
for determining the issue of validity was to ask "whether it
was a purpose of the legislation that an act done in breach of the
provision should be invalid". Dimarco v Brisbane City
Council & Ors  QPELR 731; Project Blue Sky v
ABA (1998) 194 CLR 355 referred to.
The process for declaring a nature reserve pursuant to the NCA
did not mandate a more detailed statement of the proposed
management intent pursuant to s. 44.
There was no legislative purpose to invalidate the declaration
of the SIWR, in the event that the proposed management intent was
found to be insufficient.
While it was true that management principles for nature refuges
extended to conserving significant cultural resources and
controlling the use of them, these matters were not the primary
focus of the NCA. There was no evident legislative purpose that a
declaration of a nature reserve should be invalid where the
proposed management intent failed to address cultural
The applicants' particular concerns in respect of
Aboriginal cultural heritage were expressly addressed by the
Aboriginal Cultural Heritage Act 2003 and were unaffected
by the declaration of the SIWR. The Second Respondent had expended
in excess of three million dollars to establish a research centre
within the SIWR and could suffer prejudice if the SIWR was declared
invalid. Regardless of the findings concerning the construction of
the NCA, the relief sought should be declined given the absence of
demonstrable prejudice to the rights of the applicants.
There was nothing in the wording of the NCA which warranted a
declaration of invalidity as a consequence of the proposed
management intent described pursuant to s. 44 either having regard
to the wording of the provision itself or the legislative scheme of
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