Gomeroi woman in legal challenge to Environment Minister’s decision not to protect areas of “immeasurable” cultural value
The Environmental Defenders Office NSW is acting for Veronica “Dolly” Talbott, as a member of the Gomeroi Traditional Custodians, and has filed proceedings in the Federal Court challenging the lawfulness of a decision by the Environment Minister not to grant protection to several Significant Areas of Aboriginal cultural heritage within the footprint of the approved Shenhua Watermark open cut coal mine on the Liverpool Plains in NSW.
27 August 2019: The Minister made this decision despite acknowledging the “immeasurable” cultural value of the sacred places and objects under direct threat of destruction and desecration.
This will be an important Constitutional test case.
The Gomeroi Traditional Custodians first lodged an application for protection of the Significant Areas in April 2015 under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act). The purpose of the ATSIHP Act is:
“the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.”
The Minister acknowledged that the development of the mine would destroy or desecrate the Significant Areas, but concluded that the mine’s potential economic and social benefits outweighed their heritage value.
Dolly Talbott expressed the deep hurt felt by the Elders and the community at this decision and that there was no choice other than to fight it.
“When we heard of the Minister’s decision, there was a high level of confusion and disbelief. Does our culture, our spiritual and sacred places of Aboriginal heritage, mean nothing in this country? We believe the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was put in place to protect our heritage, but in this case it hasn’t at all.
“If this mega-mine proceeds, our interlinked sacred places will be completely destroyed and obliterated from the landscape. We will no longer be able to read our Country, share our sacred places with our children and grandchildren. Our ancestors’ footprints, their legacy to us, will be lost - lost forever,” Dolly said.
“Our heritage shouldn’t be discounted for possible mining jobs in the future. We already have viable jobs in agriculture, and our heritage sites in this area have survived despite agriculture over many years.”
Dolly Talbott continued: “We have been trying to work within a system that is there to protect us and our cultural heritage. We have met all the criteria required under the ATSIHP Act.
The process was difficult and took four long years to be assessed. They acknowledge that our heritage will be desecrated, obliterated – it would be gone forever. They acknowledge the areas we sought protection of are of immeasurable value, sacred to us as a people and important for our cultural traditions – and yet the Minister has turned us down.”
“But our opposition is enduring. We are being guided by our ancestors. Our elders who protected these sites want this generation to carry on in the struggle to protect them.”
“We are the only ones who have no monetary interest in this”, said Dolly, “We just want to protect our heritage, our sacred places. As the oldest living culture on the planet, surely this should be of utmost importance to Australia?”
“If our sacred places are obliterated, we will no longer be able to read Country. It would also destroy the sacred connections for our neighbouring traditional people,” said Dolly, “So it doesn’t just impact us, the Gomeroi people and our clan groups, it impacts other First peoples clan groups as well.”
David Morris, CEO of the Environmental Defenders Office NSW, added, “We feel privileged to work with our client Dolly Talbott of the Gomeroi Traditional Custodians. The Minister’s decision raises important questions about how the ATSIHP Act works in practice.
“Our client will argue that the Minister made an error of law, incorrectly applying the legislation which is designed to protect Aboriginal Cultural Heritage. This will be an important test case, interrogating the limits of the Constitutional basis for the Act and the matters which the Minister was permitted to consider in deciding to refuse protection for the areas.”
In April 2015, the Gomeroi Traditional Custodians made an application to the Commonwealth Environment Minister under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). They sought a declaration from the Minister to protect several Significant Areas from destruction by the controversial Shenhua Watermark Open Cut Coal mine, proposed on the Liverpool Plains near Breeza in northwest NSW.
Despite accepting the “immeasurable cultural values” of these Significant Areas, the Environment Minister in July 2019 declined to make any declaration to protect the areas.
The Significant Areas, which are within the footprint of the mine, are an important cultural junction and part of a broader Aboriginal cultural landscape. They include sacred places and significant ceremonial corridors. The interlinked sites also include, but are not limited to, large grinding groove sites, scarred trees and artefactual objects of high order significance irreplaceable to the Gomeroi Traditional Custodians. If the mega-mine of three open-cut pits went ahead, not only would the existing landscape be destroyed but it would be replaced by a new, mine-created landscape.