[3][4] Robert Bropho, an Indigenous Australian activist, applied to the Supreme Court of Western Australia for an injunction against the development, claiming it was sacred Aboriginal land.

Although Section 17 of the Aboriginal Heritage Act 1972 established a criminal offence, Bropho sought the civil remedy of an injunction.

[5] The Supreme Court refused to grant an injunction, holding that the Aboriginal Heritage Act 1972 did not bind the Crown in right of Western Australia.

[8] The High Court unanimously upheld Bropho's appeal, holding that Section 17 of the Aboriginal Heritage Act 1972 bound the Crown in right of Western Australia.

[10] Justice Brennan concurred with the joint judgment, noting his view that employees and agents of the Crown should not be exempt from criminal laws.