Australia: 42/13 Nona & Ors v the Hon Andrew Powell MP & Anor [2013] QPEC 46 (Everson DCJ - 11 September 2013)

P&E Court Updates - September 2013

Environment and Planning – Application – Validity of declaration of a nature reserve

Nature Conservation Act 1992 (Qld), ss 22, 44, 45, 46, 173B
Nature Conservation (Protected Areas) Regulation 1994 (Qld), s 8
Nature Conservation (Protected Areas) Amendment Regulation (No. 2) 2012 (Qld)
Statutory Instruments Act 1992 (Qld), ss 7, 20

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 (SIWR).

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 2012.

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 issue.

Decision: The Court held, in dismissing the application:

  1. 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.
  2. 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 [2006] QPELR 731; Project Blue Sky v ABA (1998) 194 CLR 355 referred to.
  3. 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.
  4. 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.
  5. 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 resources.
  6. 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.
  7. 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 the NCA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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