Briggs v Aboriginal Heritage Council

As Traditional Owners themselves, Council bring to their decision making a profound understanding of the responsibilities and breadth of Traditional Ownership.

Justice Bell identified that it was application of this unique knowledge of the Council, with membership eligibility and apical ancestry, that enabled Council’s robust decision-making processes.

Today’s decision validates our strong, independent Registered Aboriginal Parties and their role under the Aboriginal Heritage Act 2006 to provide protection of Aboriginal cultural heritage in Victoria. It supports RAPs as the Traditional Owners, custodians and First Peoples to once again take their rightful place as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage in Victoria.

Background on the decision

• On 19 July 2017 Council appointed the Bunurong Land Council Aboriginal Corporation(opens in a new window) (BLCAC) as a RAP over an area of Victoria to the south-east of metropolitan Melbourne. BLCAC’s RAP appointment area is bordered by Port Phillip Bay to the west, Leongatha to the east, Warragul to the north, and Victoria’s coastline to the south.
• RAPs have cultural heritage responsibilities under the Aboriginal Heritage Act 2006(opens in a new window) (the Act), including the evaluation of cultural heritage management plans and decisions on cultural heritage permit applications.
• In its decision-making role, the Council is required to adhere to the provisions of the Act and the requirements of administrative law. Its decisions are subject to review in the Supreme Court, ensuring accountability in affording due process to RAP applicants and other parties.
• Carolyn Briggs and the Boon Wurrung Foundation Ltd (BWFL) sought a review by the Supreme Court of the Council decision to appoint Bunurong as a RAP in October 2017.
• This is only the second review of a decision of the Council. A key issue in the proceeding was whether the Council was correct in finding that BLCAC was a body representing the Traditional Owners of the area it was appointed for.
• The matter was heard by Justice Bell on 27 September 2018. Justice Bell handed down his decision on 12 February 2019(opens in a new window).

“The strength of RAPs lies in their inclusivity and bringing together of culture and people. Our appointment of BLCAC was underpinned by the inclusivity of its membership.”

Rodney Carter
Chairperson

Justice Bell's decision

Justice Bell noted that, throughout their consideration of the applications of BWFL and BLCAC, Council had

“emphasised the importance of recognising as a RAP a single organisation capable of representing, and effectively representing in fact, all Bunurong people and Traditional Owners.”

In their decision making, Justice Bell considered that Council’s approach to “resolve the many complex and highly sensitive issues raised” had been “cautious and gradual”.
 
The decision validated Council’s application of an inclusionary policy framework and consideration of issues relating to traditional knowledge and responsibility as well as apical ancestry.

Justice Bell acknowledged that Council had “explicitly recognised the outstanding contribution made by Auntie Carolyn and her family to reviving and sustaining Bunurong cultural heritage, including the promotion of Bunurong identity, language and history.” However, he found that BWFL had “not established grounds upon which they have sought judicial review of Council’s determination to grant RAP approval to BLCAC with respect to Bunurong Country.”