Re Wamba Wamba Local Aboriginal Land Council and Murray River Regional Aboriginal Land Council v the Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and Murray Downs Golf & Country Club Limited [1989] FCA 169 (12 May 1989)

FEDERAL COURT OF AUSTRALIA

Re: WAMBA WAMBA LOCAL ABORIGINAL LAND COUNCIL and MURRAY RIVER REGIONAL
ABORIGINAL LAND COUNCIL
And: THE MINISTER ADMINISTERING THE ABORIGINAL AND TORRES STRAIT
ISLANDER HERITAGE PROTECTION ACT 1984 and MURRAY DOWNS GOLF & COUNTRY
CLUB LIMITED
No. G114 of 1989
FED No. 210
Administrative Law
23 FCR 239

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - significant Aboriginal area under serious and immediate threat of injury or desecration - whether "may" used in facultative or imperative sense in sub-s. 9(1) - s. 3 definition of desecration or injury - declaration - mandamus - Administrative Decisions (Judicial Review) Act 1977 - relevant and irrelevant considerations.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984: ss. 3, 9

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903: s. 39B

HEARING

SYDNEY
12:5:1989

Counsel for Applicants: Mr. G. Masterman Q.C.,

Mrs. J. Kelly

Solicitors for Applicants: Goddard, Dean & Co.

Counsel for First Respondent: Mr. D.M.J. Bennett Q.C.,
Ms. R.M. Henderson

Solicitors for First Respondent: Australian Government
Solicitor

Counsel for Second Respondent: Mr. F.M. Douglas Q.C.
Mr. R.J.H. Darke

Solicitors for Second Respondent: Allen Allen & Hemsley

ORDER

The application be dismissed.

The matter be stood over to a date to be fixed to determine the issue of costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant seeks a declaration that certain land near the Murray River at Swan Hill is a significant Aboriginal area under serious and immediate threat of injury and desecration within the meaning of sub-s. 9(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Act") and a further declaration that they are entitled to a declaration by the first respondent pursuant to that sub-section preserving or protecting that land from injury or desecration. The applicants seek the second declaration and an order that the first respondent immediately take all steps necessary to make it, pursuant to this Court's powers to grant the remedy of mandamus pursuant to s. 39B of the Judiciary Act 1903.

2. The applicants also challenge a decision of the first respondent declining to make a declaration pursuant to sub-s. 9(1) of the Act in relation to the land in question. This application is brought under the Administrative Decisions (Judicial Review) Act 1977.
Facts

3. The land with which this case is concerned is being developed by the second respondent as a golf and country club. The area of the proposed developement is about 3 square kilometres, formerly part of the Murray Downs Station in New South Wales and is 2 kilometres east of Swan Hill, Vic.

4. The area has a significant archaeological history. It is accepted by archaeologists that human occupation in Australia occurred as early as 50,000 years ago. The area in and about the proposed development appears to have been one of the earliest settled areas in Australia by human beings.

5. In November 1986 an archaeological investigation of the proposed development was carried out by Mr. David Crew, an archaeological consultant, instructed by a firm of environmental planners and economists. In the course of his investigation Mr. Crew consulted Aboriginal people including a member of the Deniliquin Aboriginal Land Council and the Chairperson and representative of the Wamba Wamba Local Aboriginal Land Council. Two concerns were expressed by them, the first of which centred on the sites located in an area of land adjacent to the Murray River below the levee bank at the southern end of the proposed development. That area is not directly affected by the initial development, but may be affected by subsequent recreational facilities. Two sites were located in that area by Mr. Crew. To ensure their protection the local Aboriginal community wished to be consulted by the developers to determine protection plans prior to the commencement of the development.

6. The second concern involved a sand dune at the centre of the development. This sand dune is at the heart of this case. The local community was, so Mr. Crew says, aware of previous finds of skeletal remains on the Murray Downs station and wished to be consulted by the developers at all stages of the project and wished their representatives to be present when earth moving processes were in progress. Mr. Crew was informed that, if these two concerns were dealt with to the satisfaction of the Wamba Wamba Local Aboriginal Land Council, there would be no further objections to the project continuing. Mr. Crew's conclusions and recommendations were:

. that the survey showed that the area had significant
archaeological history, but that no archaeological sites would
be affected by the proposed development;
. that both sites located below the levee bank at the
southern end of the development were in no immediate danger
of destruction, but with the increased use of the area their
survival may be threatened. He therefore recommended that
consultation between the second respondent, the Wamba Wamba
Local Aboriginal Land Council and the New South Wales
National Parks and Wildlife Service be undertaken to
determine how those sites might best be protected and how
they might be used for public recreation.

7. Mr. Crew also referred to a sensitive area being the sand dune where the country club was to be constructed. He said that the survey showed that the area had been occupied by Aboriginal populations and that evidence from the surrounding area indicated that the occupation may have occurred over some 30,000 years. It is not unlikely, he said, that this particular sand dune may contain skeletal material. He recommended that, in the event of construction taking place, the excavations be monitored by a member of the local Aboriginal community, and, if necessary, an archaeologist. Should any skeletal material be located it is required, he said, under the National Parks and Wildlife Act 1974, that all work cease immediately and the New South Wales National Parks and Wildlife Service be notified. He concluded by saying that, apart from those two concerns, there were no objections, on archaeological grounds, to the development being continued.

8. On 20 October 1987 the Council of the Shire of Wakool approved the proposed development by the second respondent of the golf and country club, but the approval was subject to the following relevant condition:

"4. All excavations carried out in association
with the Club House and ancillary buildings
shall be done so in accordance with the
recommendations of the David Crew
archaeological Report 1986 prepared in
association with the Murray Downs Local
Environmental Plan."

9. The New South Wales Minister for Planning and Environment made a local environmental plan for the area which was published on 5 February 1988. The relevant interim development order is clause 29 and need not be set out.

10. The second respondent proceded with the development and commenced building work. A Mr. Bevan or (Doug) Nicholls acted as a monitor on the site, though there is some question as to the particular authority he had to represent either of the applicants.

11. In early December 1988 human relics were exposed during construction in the sand dune area. Mr. H. Johnston, Regional Archaeologist for the Lower Darling District of New South Wales, National Parks and Wildlife Service inspected the site on 5 December and made a report dated 3 February 1989 in which he listed the findings of his inspection. He recommended:

. from the number and density of distribution it appeared
highly likely that more burials would be encountered at some
stage of the development. For that reason it was advisable
that the developers employ an Aboriginal observer to monitor
further construction works at the site to identify and
minimise any damage to burials;
. the developers be required to undertake a full impact
assessment of further works if more burials were encountered
which would involve contracting an archaeologist to conduct a
field investigation and liaison with the Aboriginal community.

12. On 14 February 1989 representatives of the applicants met representatives of the second respondent. After discussion an agreement was reached, reduced to writing and signed on behalf of the applicants, the second respondent and the landowners. The relevant parts of that agreement are summarised as follows:-

. the second respondent and the owners of the land shall
not excavate, develop or construct erections on certain
portions of the land which included the proposed site for the
club house and the bowling greens until such time as an
archaeological report has been obtained from two qualified
archaeological consultants in relation to Aboriginal remains
and relics on that area. This undertaking extended also to
another area to which I need not refer for present purposes;
. Archaeologists were to be appointed to conduct a survey
and prepare a report and were to be mutually agreed between
the landowners, the second respondent and the applicants;
. four monitors shall be employed whilst excavations or
earth works occur on the site during the first seven days,
after which a review of the required number of monitors will
be made in consultation with the parties;
. the second respondent shall be permitted to continue
works without hindrance on certain lands subject to certain
provisoes.

13. The terms of this undertaking contain some twelve paragraphs and in some detail spell out the machinery to be adopted to give effect to the arrangement, in particular for the availability and work of monitors.

14. An archaeological study was commissioned jointly by the applicants and the second respondent. Anutech was commissioned to undertake the study with the investigation being carried out by Dr. Colin Pardoe, a specialist in human skeletal remains and Dr. Brian J. Egloff, a specialist in archaeological techniques. The study was commissioned on 15 February 1989 and it was a study with respect to the archaeological investigation of the Stage I project area of the second respondent's development. The report of Dr. Pardoe and Dr. Egloff noted:

. Mr. Crew's earlier archaeological survey of 1986 and the
fact that at the commencement of site works in October 1988
Mr. Doug Nicholls had monitored the construction work for the
Wamba Wamba Local Aboriginal Land Council;
. burials were exposed during excavation for the
construction of the northern bowling green on 2 December
1988. There were at least three, and possibly as many as
five, individuals buried in an area approximately 20 metres
by 20 metres. The remains were collected and reburied
nearby;
. the large scale of the development project and the
concern of the Aboriginal community for human remains that
were found on parts of the site led to discussions between
the second respondent and various authorities including the
applicants and the Departments of Aboriginal Affairs (State
and Federal) and the National Parks and Wildlife Service.
Mr. Gary Murray, Chairperson of the Murray River Regional
Land Council, sought to have work stopped on the site,
especially on the club house and bowling green area at the
top of the sandhill.
. The National Parks and Wildlife Service advised on 7
February that work on the club house area would be
permissible provided further relics were not disturbed. Work
continued on the golf greens but ceased at the club house
area;
. meetings were held on a number of occasions about the
most appropriate way to reach a solution as to where the
works on the club buildings and the bowling green could
proceed and the Aboriginal remains could be properly curated;
. the report said in summary (para. 6.6) that there were
two areas where there were archeolgical remains, namely, the
northern bowling green area on the crest of the sandhill with
up to five individuals buried there and what were called the
"midden" and "cremation" areas on the eastern slope of the
sandhill. Both areas had been disturbed by earthworks and
the remains redeposited to various locations on the golf
course.

15. The report recommended (para. 7.1):

"There would appear to be little likelihood of
burials or relics being endangered at the site of
the club house excavation or at the bowling green.
This statement is made on the basis that the
majority of the area has been excavated to such a
depth that any trace of burials would either have
been destroyed (or) be noticeable. ... There is
a low probability that burials could be found in
the location of the temporary parking lot and a
slight possibility that there may be some
disturbed bones in the spoil heaps on the
perimeter of the excavations ...
The immediate vicinity of the club house is not
likely to yield more remains. However,
investigation of that area is recommended before
the Stage 2 construction of the club house is
planned."

16. The report said in para. 7.2.2:

"From an anthropological standpoint the
continuation of works on this site is open to
question (that is the club house and bowling
greens areas). Much of the work that Drs. Egloff
and Pardoe undertake as consultants is in relation
to prehistoric human skeletal material. ... There
is no doubt that throughout New South Wales and
throughout Australia, Aboriginal peoples express a
great concern when the graves of their ancestors
are disturbed. The expression of concern and
outrage by the Wamba Wamba Local Aboriginal Land
Council is what one would expect given the present
circumstances. In anticipation of burials being
encountered, the archaeological survey in 1986 by
Mr. Crew correctly indicated, that the location
within the project area where the burials later
were encountered, was sensitive."

17. The report noted that the parts of three to five skeletal remains which were recovered in December from the construction works on the northern bowling green area together with other remains were moved with the soil from that location to a spoil heap, and that other material containing remains was placed upon the surface of the 14th and 15th fairways. The human skeletal material collected from the northern bowling green area was reburied at a location south of the club house in a relatively undisturbed place and the material in the spoil heap and on the fairways remained at those locations at the time of writing the report.

18. Drs. Pardoe and Egloff considered a range of options for treating the skeletal material. Option A was to rebury the skeletal remains in the northern bowling green area and they noted that this option would include relocating the club house and bowling green complex at a distance to the burial site. Option D involved reburial of the skeletal remains in the similar setting to the original burial place at a nearby location. The applicants indicated they would only accept option A. The respondent made it clear that option A was not acceptable.

19. Drs. Pardoe and Egloff suggested that option D be considered. They said in para. 7.3.1:

"Acceptance of Option D would place the skeletal
material within an appropriate setting where
measures could be made for the long term
conservation of the remains. Option D would allow
the present works program to continue and as such
would meet with the immediate needs of the Club.
However, the Club and (the owners) would incur a
cost penalty from the loss of prime real estate
and a requirement to redesign the northern
eighteen hole golf course. The Aboriginal
community would also be making a considerable
concession.
There is good reason to believe that Option D
would place the burials in a reasonable, but not
the best situation, with respect to Aboriginal
requirements. It is suggested that the bowling
green site is substantially disturbed and its
proximity within the centre of a recreational area
would considerably lessen its spiritual
significance. An untouched location on the edge
of the golf course with a similar aspect and
ambience, in European terms, or strength/power in
Aboriginal terms, would seem to be appropriate."

20. Amongst other recommendations the report stated that the remains currently on the soil stockpile and the 14th and 15th fairways, having come originally from the northern bowling green area, should be reunited with the bowling green burials.

21. On 5 March 1989 the first respondent visited the site and held discussions with representatives of the applicants and of the second respondent.

22. On 7 March 1989 the second respondent submitted in writing to the first respondent a proposed basis of operation for resumed construction of the works which may be summarised so far as relevant as follows:

. work would recommence on the entire site on 8 March 1989
with the exception of the northern bowling green area and
other areas delineated by tapes which contain skeletal
fragments and midden material;
. excavation work in sensitive areas will be carried out
strictly in accordance with the guidelines of the National
Parks and Wildlife Service;
. with respect to material yet to be excavated in
sensitive areas or material yet to be excavated to a depth of
500mm in sensitive areas, close monitoring will occur down to
a depth of 500mm as recommended in the Pardoe/Egloff
archaeological report;
. the Wamba Wamba Land Council will be requested to supply
two monitors to watch excavation work in sensitive areas;
. the National Parks and Wildlife Service will be
requested to send an officer to the site as soon as possible
to advise on monitoring and excavation procedures.

23. By letter dated 9 March 1989 the solicitors for the second respondent wrote to the first respondent enclosing a copy of what the second respondent was prepared to do in the matter and requested that, if the first respondent was prepared to make a declaration only in relation to the northern bowling green area or was prepared not to make a declaration upon the second respondent entering into undertakings as set out in the enclosed proposals, this would be acceptable to the second respondent subject to what was described as a small proviso to which I need not refer.

24. The written proposals which accompanied the letter contain thirteen paragraphs some of which I shall mention as they are relevant for present purposes, namely:

"1. The Club will not develop that part of the
northern most bowling green where the
graves were discovered and will allow the
Land Councils to re-bury bones coming from
that area thereon. As far as the Club is
concerned this will involve, at the Club's
option, either physically moving the
northern bowling green off the sensitive
area or deleting that bowling green
altogether from future developments.
2. The Club will landscape the area and erect
a cairn or commission a statue to
Aboriginal people. The area will be
landscaped and maintained with dignity and
good taste.
3. The Club will arrange for a one acre area
on (the owner's) property adjacent to the
peppercorn trees on the high rise to be
allocated for reburial of other bones and
enable it to be maintained as a sacred
area. It is noted that an area would have
direct access from a public road.
4. The Club will re-design the first fairway
of the course so that he located midden and
cremation sites are dealt with according to
the recommendations contained in the
Egloff/Pardoe report.
5. The Club will carry out future excavations
in the presence of two mutually acceptable
monitors. ...
6. The Club and the Land Councils will carry
out the disposal of any bones located in
the future in accordance with National
Parks and Wildlife Service requirements.
7. Subject to 6 future bones will be reburied
on the area referred to in 3 above. ..."

25. The first respondent decided on 9 March 1989 to decline to make a declaration under sub-s. 9(1) of the Act. On 10 March 1989 the applicants lodged applications in this Court challenging the first respondent's decision. It is not necessary to recount the subsequent history of these applications to the Court except to say that they were superseded by subsequent events because on 27 February 1989 the applicants applied to the first respondent to make a declaration under sub-s. 9(1), their first such application having been made on 9 February 1989. The first respondent's decision declining to make such a declaration and made on 9 March 1989 was with respect to the prior application of 9 February not the later one of 27 February. On 5 April 1989 the first respondent decided with respect to the applicants' application of 27 February, that he would not make a declaration under sub-s. 9(1). By application filed in this Court on 31 March 1989 the applicants sought the relief to which mention has been made earlier and it is this last mentioned application that is the subject of the present proceedings.

26. Evidence was given on behalf of the second respondent that the total budgeted cost for the development of the golf club is a little over $7 million of which construction of the golf course represents $2.26 million, construction of the club house buildings $2.9 million and the construction of roads, drainage and other services $1.376 million. The expenditure is being funded by bank overdraft, members' debentures, members' funds, subscriptions and fund raising activities and by certain creditors. The second respondent has experienced construction delays of some weeks and has lost and will continue to lose money through delays. The second respondent, having agreed to the relocation of the proposed northern bowling green and modifications to the planned golf course, will incur costs in the vicinity of $45,000 to $50,000.
Findings

27. The first question, and, the question which was at the forefront of the argument of counsel for the applicants centres on s. 9 of the Act which provides as follows:-

"9.(1) Where the Minister -
(a) receives an application made orally or in
writing by or on behalf of an Aboriginal or
a group of Aboriginals seeking the
preservation or protection of a specified
area from injury or desecration; and
(b) is satisfied -
(i) that the area is a significant
Aboriginal area; and
(ii) that it is under serious and immediate
threat of injury or desecration,
he may make a declaration in relation to the area.
(2) Subject to this Part, a declaration under
sub-section (1) has effect for such period, not
exceeding 30 days, as is specified in the
declaration.
(3) The Minister may, if he is satisfied that
it is necessary to do so, declare that a
declaration made under sub-section (1) shall
remain in effect for such further period as is
specified in the declaration made under this
sub-section, not being a period extending beyond
the expiration of 60 days after the day on which
the declaration under sub-section (1) came into
effect."

Counsel for the applicants submitted that, once the conditions precedent mentioned in sub-s. 9(1) have been satisfied, the first respondent is obliged to make the declaration mentioned in that sub-section ("the emergency declaration"). It was argued that "may" should be read as if it were "shall". The first respondent's argument was that the word "may" imports a power coupled with a discretion to make or not to make the emergency declaration.

28. As Windeyer J. observed in Finance Facilities Pty. Limited v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134:

"While Parliament uses the English language the
word 'may' in a statute means may."

29. The word "may" is generally an empowering word which imports a discretion to do or not to do something. The particular context in which it appears may confer a power, but not a discretion, a power which must be exercised if the circumstances call for its exercise. In that event it connotes an imperative. The cases touching this question are legion. It is sufficient to refer to Julius v Bishop of Oxford (1880) 5 App. Cas 214; Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505-506 and Finance Facilities Pty. Limited (supra) at 134-135.

30. The answer to the question is to be found in the language, structure and purpose of various sections of the Act.

31. The two conditions specified in sub-s. 9(1) are whether the first respondent is satisfied that (a) the area is a significant Aboriginal area and (b) that it is under serious and immediate threat of injury or desecration.

32. The Act defines "area" as including a site (sub-s. 3(1)). "significant Aboriginal area" is defined as meaning:

"an area of land in Australia ... being an area of
particular significance to Aboriginals in
accordance with Aboriginal tradition."

The expression "Aboriginal tradition" is defined as meaning "the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.

33. Under sub-s. 3(2) an area or object shall be taken to be injured or desecrated if:

"(a) in the case of an area -
(i) it is used or treated in a manner
inconsistent with Aboriginal tradition;
(ii) by reason of anything done in, on or
near the area, the use or significance
of the area in accordance with
Aboriginal tradition is adversely
affected; or
(iii) passage through or over, or entry upon,
the area by any person occurs in a
manner inconsistent with Aboriginal
tradition; or
(b)in the case of an object - it is used or
treated in a manner inconsistent with
Aboriginal tradition,
and references in this Act to injury or
desecration shall be construed accordingly."

34. In addition to the exercise of powers by way of emergency declarations under s. 9 the first respondent is empowered to make declarations under s. 10 which may subsist for longer periods than emergency declarations.

35. Although the first respondent declined the application made by the applicants for an emergency declaration under s. 9 he did so on the grounds that the areas in question were significant Aboriginal areas but were adequately protected against any immediate and further threat of injury or desecration. The first respondent nominated a person in accordance with para. 10(1)(c) of the Act to enable him to consider whether he may need to make a further declaration under sub-s. 10(1) so as to protect and preserve the area in the longer term.

36. The purpose of a s. 9 declaration is to preserve the status quo of a significant Aboriginal area which is under immediate threat of injury or desecration until the first respondent decides whether to make a more permanent declaration under s. 10. Of its nature, like an interlocutory injunction, a s. 9 declaration will be made in circumstances of urgency where the issues and conflicting interests cannot be fully examined. Although the Act is remedial legislation, there are likely to be conflicting interests of a sensitive nature to be considered by the first respondent in the cases that come before him under s. 9. The first respondent's task is to balance the various competing interests and views before deciding whether or not to make an emergency declaration.

37. By its nature, an emergency declaration under s. 9 is a discretionary remedy vested in the first respondent. The two matters specified in para. 9(1)(b) are conditions precedent to the exercise of the power to make emergency declarations; but the first respondent's satisfaction that they exist does not automatically require the making of such a declaration.

38. Sub-section 9(3) empowers the first respondent to extend the term of duration of an emergency declaration "if he is satisfied that it is necessary to do so". The language of that provision clearly demonstrates that the first respondent's power to extend is facultative not imperative. It would be odd if the power to make the initial declaration was not also facultative.

39. A perusal of the Act shows that the draftsman used the words "may" and "shall" deliberately throughout the Act: for example see sub-ss. 10(3) and (4), ss. 11 and 16 and sub-s. 17(1).

40. In my opinion, the power conferred upon the first respondent by sub-s. 9(1) to make an emergency declaration is facultative not imperative.

41. The next challenge to the first respondent's decision not to make an emergency declaration under sub-s. 9(1) was based on what was asserted to be his misunderstanding of the approach which the Act was said to require him to take when considering the application for such a declaration. It was submitted that the first respondent overlooked the fact that the statutory definition of "significant Aboriginal area", as extended by sub-s. 3(2) of the Act, necessarily involved considering an area of land and things done in or near the significant Aboriginal area. The first respondent was said to have confined his attention to the particular area where the Aboriginal relics were first found, that is the northern bowling green area and not taken into account relics found elsewhere in the region and, generally to have failed to appreciate the significance which Aboriginal tradition attached to the higher ground of the second respondent's land including the proposed club house area. It is alleged that the first respondent thereby failed to properly consider the possibility of disturbing a significant area by things done near the area. The evidence does not disclose a misunderstanding on the part of the first respondent in relation to the question of desecration, in particular as regards sub-s. 3(2) of the Act. It is plain that the issue of desecration or injury by acts done near the site in question was before the first respondent and there is no indication that he failed to consider or misunderstood the relevance of such material. The first respondent's decision in the present case is based upon his view that undertakings given by the second respondent adequately protect the area in question from any serious and immediate threat of desecration or injury.

42. It is plain from the evidence that the first respondent and his Department were aware of the sensitivity of the decision which was made and of the conflicting interests involved.

43. The first respondent is the Minister of the Commonwealth responsible for the administration of the Act and other legislation relating to the recognition and welfare of the Aboriginal people of this country; but he does not operate in isolation from other interests and influences. The National Parks and Wildlife Service is directly involved in many of the decisions made by the first respondent which have relevance to the administration of the Act, as the facts of this case plainly demonstrate. The undoubted historical significance and strength of Aboriginal tradition relating to land with which this case is concerned and land nearby raise questions of political sensitivity, high emotion and spiritual, as well as material, significance.

44. The submission made to the first respondent by his Department, which preceded his decision of 5 April 1989, shows plainly that the he had drawn to his attention the various delicate aspects of the problem before him. The evidence does not lead to the conclusion that the first respondent failed to give proper consideration to the submission and exercise his own judgment as to the correct course to follow. Indeed, the material suggests that the first respondent was particularly careful to consider the relevant material before him and that he made his decision not to make an emergency declaration well aware of the highly sensitive nature of the question before him.

45. Amongst the material that was before the first respondent when he made his decision was the correspondence relating to the giving of undertakings by the second respondent as to the future development of the land in question; the Anutech Report; the attitude of the National Parks and Wildlife Service; the views of the applicants and of Aboriginal people.

46. In my opinion the attack upon the first respondent's decision on the ground that he misunderstood or misapplied his task including the alleged misunderstanding of the statutory definition of the expression "significant Aboriginal area" where it appears in the Act fails.

47. It was next submitted on behalf of the applicants that the undertakings furnished by the second respondent to the first respondent were irrelevant, that the first respondent took them into account in a material respect and that his decision is therefore reviewable under the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act") or liable to be corrected by proceedings for mandamus.

48. It is plain that the undertakings which had been furnished to the first respondent by the second respondent were taken into account by the first respondent in reaching his decision; but in my opinion it was plainly relevant for him to have done so and could not be said to have been irrelevant.

49. It was further submitted on behalf of the applicants that the first respondent failed to take into account relevant considerations when making his decision. This ground of attack is in essence a restatement of the ground which has been considered by me earlier, namely, that the first respondent misunderstood the approach which the Act required him to take. The material before the first respondent adverted to the matters referred to in sub-s. 3(2) of the Act being acts or conduct which that sub-section deems to constitute injury or desecration to a significant Aboriginal object.

50. The final attack on the first respondent's decision was that it was so unreasonable that no reasonable person in his position could have made it. This ground of attack plainly fails for reasons which have been advanced earlier with respect to other grounds. The first respondent had a difficult decision to make. He was presented with a great deal of material and a substantially fair representation of the case for both sides by his Department. The conclusion which the first respondent reached could not be said to be unreasonable.

51. It follows that the application must be dismissed.

52. There is one final observation which I propose to make. The circumstances that arose here are almost insoluble. On the one hand there is the claim of the Aboriginal people requiring that burial places remain peaceful, tranquil and undisturbed by human beings. This observance of Aboriginal tradition is not confined to the formal boundaries of the second respondent's development of bowling greens and club houses but obviously relates to areas of land, in particular the large mound or sand dune being the high point in the land which the second respondent has chosen for the site of its club house, bowling greens and other substantial facilities for use as a golf club and country club.

53. Aboriginal tradition requires that burial places remain peaceful and tranquil and must not be walked upon or otherwise intruded upon by human beings. They are the places which Aboriginals believe are the place of the spirits waiting to be called back, and, if the spirits are disturbed, the Aboriginal people believe that they will suffer because of the failure to care for them. There is no doubt that the Aboriginal community are disturbed and distressed by the actions of the second respondent and will continue to be disturbed if the club house and bowling greens are constructed on their proposed sites even if the northern bowling green is moved to a different site or not constructed at all on any part of the land of the second respondent.

54. On the other hand, sensitivity of the area to Aboriginal tradition was recognised at least three years ago when the services of Mr. Crew were engaged to undertake an archaeological survey of the proposed golf course and country club development on Murray Downs Station and to provide an archaeological report concerning archaeological significance of the area. This report was followed in more recent times by the Anutech Report which was commissioned by the applicants and the second respondent. The second respondent placed material before the first respondent to establish its concern to ensure that it did its best to respect Aboriginal tradition with respect to burial and other places of importance to Aboriginal people; and the second respondent offered undertakings to the first respondent to give effect to its stated attitude. The first respondent chose to accept those undertakings.

55. It is a difficult and delicate situation. It is not for this Court to enter into the merits of the dispute between the parties. The juridical function is to ensure that any actions of the first respondent which may be contrary to law (including any failure to observe the rules of natural justice) are corrected. In my opinion it has not been shown that the first respondent acted contrary to law or failed to observe the rules of natural justice or that this Court is otherwise entitled to intervene in this matter.

56. I would dismiss the application. I shall stand the matter over to consider costs.