Starkey v South Australia - Authorisation and Delegation Under the Aboriginal Heritage Act 1988 (SA)

Abstract

In Starkey v South Australia [2011] SASC 164, the Full Court of the Supreme Court of South Australia determined an appeal from a decision on an application for judicial review of a decision of the Minister for Aboriginal Affairs and Reconciliation. The Minister’s decision that was challenged in the judicial review proceedings was a decision to grant an authorisation pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA) a partner in a mining exploration venture and its joint venture partner is the holder of an exploration licence under the Mining Act 1971. The authorisation gave Straits, and others, permission to 'damage, disturb or interfere with' any Aboriginal sites, objects or remains that may exist on Lake Torrens and a portion of Andamooka Island – part of the area the subject of the exploration license. The applicants for judicial review were members of the Kokatha people and the Adnyamathanha people. After the application by Straits for authorisation, the applicants and others had requested that the Minister delegate to them, as the traditional owners of the relevant sites, the power to grant authorisations for the purpose of s 23. The applicants sought orders quashing the Minister’s authorisation under s 23 of the Act and requiring the Minister to delegate her power to give that authorisation. This article offers a critique of the decision.