ABSTRACT
Tickner v Chapman (1995) 57 FCR 451 (the ‘Kumarangk Case’) involved judicial review of a decision by the Minister for Aboriginal and Torres Strait Islander Affairs to make a declaration pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) prohibiting the development of a bridge and buildings on Kumarangk (or Hindmarsh Island). The Court held that the Minister’s decision was unlawful because of (a) inadequate public notice (in particular, the notice was inadequate in terms of its geographic specificity) and (b) by virtue of the Minister failing to afford sufficient personal ‘consideration’ of representations (sacred information supplied by certain Ngarrindjeri women) before making the declaration. The case revealed how procedural justice principles that benefit the wider community can serve to frustrate statutory objectives and cause injustice for Indigenous people. The judgment has been rewritten as a judgment of the Full Court of the Federal Court, constituted by five judges (the original judges and the authors of this chapter). The authors have purposefully rewritten the judgment to bring Indigenous perspectives to the foreground, attempting to redress the loss of agency and damage incurred by the Ngarrindjeri people, especially women, throughout the dispute.
