Onus v Alcoa (1981) 149 CLR 27
ONUS v. ALCOA OF AUSTRALIA LTD.
(1981) 149 CLR 27
Administrative Law
COURT
High Court of Australia
Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4),
Aickin(5), Wilson(6) and
Brennan(7) JJ.
HRNG
1981, March 3, 4; September 18. #DATE 18:9:1981
JUDGE1
September 18.
The
following written judgments were delivered: -
GIBBS C.J.
The appellants, Lorraine Sandra Onus and Christina Isabel
Frankland, have brought proceedings in the Supreme
Court of Victoria for the
purpose of preventing the respondent, Alcoa of
Australia Ltd. ("Alcoa"), from
carrying out on land in its occupation works which it
is claimed will
interfere with aboriginal relics on that land. Such
interference would, it is
claimed, be a breach of s. 21 of the Archaeological
and Aboriginal Relics
Preservation Act 1972 (Vict.), as amended ("the
Relics Act"). Section 2 of
that Act contains the following definition:
"'Archaeological relic' or 'relic' includes a relic pertaining to
the
past occupation by the Aboriginal people of any part
of Australia, whether or
not the relic existed prior to the occupation of that
part of Australia by
people of European descent, and without affecting the
generality of the
foregoing, includes any Aboriginal deposit, carving,
drawing, skeletal remains
and anything belonging to the total body of material
relating to that past
Aboriginal occupation of Australia, but does not
include a body or the remains
of a body interred in a cemetery, burial ground or
place of burial after the
year 1834, or a handiwork made for the purpose of
sale."
Section 21 of the Relics Act provides as follows:
"A
person who wilfully or negligently defaces or damages or otherwise
interferes with a relic or carries out an act likely
to endanger a relic shall
be guilty of an offence against this Act."
By s. 28(2)
of that Act a person who is guilty of an offence against the Act
is liable to a penalty not exceeding a thousand
dollars or to imprisonment for
not more than three months or to both. The question
for decision in the
present appeal is whether the appellants have
standing to maintain the action.
(at p31)
2. Alcoa is a
company which proposes to construct an aluminium smelter on
land which it occupies at Portland in western
Victoria. Alcoa is obliged to
construct the smelter by an agreement made between
that company and the State
of Victoria on 2 September 1980. The agreement has
been ratified, validated,
approved and given the force of law by the Alcoa
(Portland Aluminium Smelter)
Act 1980 (Vict.) ("the Agreement Act").
However, the agreement is subject to
certain conditions precedent, not all of which have
yet been fulfilled. The
land on which the smelter is to be built contains
relics of the former
aboriginal occupation of the area - particularly
stone artefact scatters, i.e.
stone tools and manufacturing debris, usually on the
sites of former
aboriginal workshops. Many of the scatters are in a
very poor state of
preservation. There seems no doubt that these
scatters are "relics" within the
Relics Act. The appellants, by their statement of
claim, allege that Alcoa has
wilfully interfered with the said relics in breach of
the provisions of s. 21
of the Relics Act and that Alcoa threatens and
intends further to interfere
with the said relics over the whole or a substantial
part of the said land by
constructing industrial works thereon. They claim a
declaration that the said
relics are "relics" within the meaning of
the Relics Act and an injunction
restraining Alcoa, its servants, agents or
contractors from carrying out any
works upon the said land which would interfere with
relics thereon. The
appellants applied on summons to the Supreme Court of
Victoria for an
interlocutory injunction, and Alcoa similarly applied
for an order that the
action be dismissed or perpetually stayed on the
ground that it was an abuse
of the process of the Court and that it was frivolous
and vexatious. The
applications came before Brooking J. who held that
the appellants had failed
to make out a prima facie case either of a private
right or of standing to sue
to prevent a contravention of s. 21. He dismissed the
appellants' application
for an injunction, and on Alcoa's summons ordered
that the action be
dismissed. An application for leave to appeal against
the order dismissing the
action, and an appeal from the order refusing the
interlocutory injunction,
were refused by the Full Court of the Supreme Court.
The present appeal is
brought, by special leave, from that part of the
order of the Full Court
whereby the application for leave to appeal was
dismissed. (at p31)
3. According
to the statement of claim the appellants are descendants from
inhabitants of Australia in prehistoric ages and
members of the
Gournditch-jmara aboriginal people and are custodians
of relics of the
Gournditch-jmara people according to their laws and
customs. It is further
alleged that the relics referred to in the statement
of claim relate to the
occupation of the land in question by the
Gournditch-jmara aboriginal people
and are relics of which the appellants are custodians
according their laws and
customs. It appears from the evidence that the
Portland area was inhabited in
prehistoric times by a group of aboriginal people
known as the
Gournditch-jmara people and that descendants of those
people, who still live
in and around Portland, form "a tightly knit
ethnic community in the area".
One of the appellants, Mrs. Onus, said in evidence
that she had had an
association with the relics on the land at Portland
for about ten years. When
asked what she had done in relation to the relics
during that period, she
replied:
"Well, that particular area where the smelter - not just where the
smelter is going to be, but the land that Alcoa has
purchased, has been land
that my people have frequented. It is near land that
has not been or is not
frequented by other members of the community so much
as the Gournditch Mara
(sic) people. We have been free to more or less do
what we like there: camp
there, teach our children our culture, explain to
them what different parts of
the land are and how important different sites are on
that area; we go fishing
there, we go hunting there."
Her evidence then continued:
"Are the relics which are to be found at the sites there of
significance
in terms of the use which you have made of this area
of land? . . . They are
significant because they are part of our culture. It
is an area that we well
know because, as I have just stated, it is
educational for our children.
. . .
So far
as the sites of the relics, do they have any spiritual
significance to you? . . . The land as it stands is
of spiritual significance
to aboriginal people, that area particularly because
we frequent it, and we
are very much aware of what went on there with our
people.
And is
there any significance in the fact that these sites were sites
where your ancestors lived in antiquity? . . . Very
much so. It is a very deep
thing with aboriginal people."
In cross-examination she said that all the
descendants of the Gournditch-jmara
people have a responsibility to ensure that any
relics on the aboriginal
sites, sacred or otherwise, are protected, and that
all the members of the
tribal group were just as much entitled to be
custodians of the relics as were
the appellants; the only thing that was special about
the position of the
appellants was that they were spokeswomen for the
group. She was not
cross-examined in an attempt to elicit information as
to the nature of the
laws and customs according to which she was one of
the custodians of the
relics, or to elaborate on the use made of the relics
in or on the land. (at
p33)
4. The first
submission advanced on behalf of the appellants was that the
Relics Act was passed for the benefit or protection
of the aboriginal people
as a class, and that any member of the class could
sue to enforce the
prohibitions contained in the Act, without the necessity
of proving that
special damage had been suffered or that a special
interest existed. A
consideration of the Relics Act shows that this
argument cannot be sustained.
The object of that Act, as its title shows, is to
make provision for the
preservation of archaeological and aboriginal relics.
It is not clear that
there are in Australia relics that can properly be
described as archaeological
that are not aboriginal, but since the definition of
"relic" is not expressed
to be exhaustive it may be suggested that the Act refers to relics other
than
aboriginal relics; it is not necessary to decide this
question, but it may be
assumed, in favour of the appellants' argument on
this point, that the Act
refers to aboriginal relics only. By s. 5 of the Act there is established a
committee, called the Archaeological Relics Advisory
Committee, whose
functions are to consider and advise the Minister on
all matters it thinks
necessary in relation to archaeological relics and
the preservation of those
relics (s. 7). The Committee consists of twelve
members. One, the Director of
Conservation or his nominee, is the chairman, and -
"eleven shall be persons appointed by the Governor in Council -
(i) one
being the Director of the National Museum of Victoria or his
nominee;
(ii) one
being a member of the National Trust of Australia (Victoria);
(iii) one
being a member of the Archaeological and Anthropological Society
of Victoria;
(iv) one
being the Secretary for Lands or his nominee;
(v) one
being a professional archaeologist from a Victorian university;
(vi) one
being the Director of National Parks or his nominee;
(vii) one
being the Chairman of the Forests Commission or his nominee;
(viii) one
being a member of the Institute of Aboriginal Studies; and
(ix) three
being Aborigines nominated by the Minister."
Counsel for the appellants attached some significance
to the fact that three
members of the Committee were required to be
aborigines, but it hardly seems
necessary to say that the fact that one-quarter of
the members of this
Advisory Committee are aborigines is no indication
that the Act was passed for
the benefit of a class comprising only aborigines.
The composition of the
Committee suggests that it was intended that a wide
range of public interests
should be reflected in its recommendations. By s. 9 the Governor in Council is
empowered to appoint in an honorary capacity
inspectors and wardens, who are
given powers to enable them to assist in the
administration and enforcement of
the
Act: see ss.
12-14,
31. The Relics Act
provides that in certain
circumstances land may be declared to be an
archaeological area (s. 15(1)) but
no such proclamation may be made without the consent,
if the land is private
land, of the owner and, if the owner is not the
occupier, of the occupier (s.
15(2)). The consequences of proclaiming an
archaeological area are that no
person may be within the area without the permission
of an authorized person
(s. 17) and that all relics within the area shall be
the property of the Crown
and under the protection of the Crown (s. 20). The
National Museum of Victoria
is to be the official place of lodgment of relics
which are the property of
the Crown (s. 20A(1)). By s. 18(1) it is provided as
follows:
"Notwithstanding anything to the contrary in this Act the Minister
may
compulsorily acquire any land other than land
established as an aboriginal
reserve and on which aborigines are living when he is
informed by the Advisory
Committee that there is a unique and irreplaceable
relic on, in or under the
land which is in danger of loss or damage, has
notified the owner of the land
in writing that he has been so informed, and has
allowed time for an appeal to
be lodged . . . . "
The Minister is given various powers for the purpose
of preserving relics: ss.
22, 25, 26. A person who discovers a relic shall
forthwith report the
discovery to the Director or to an inspector or
warden unless he has
reasonable cause to beli