Veronica “Dolly” Talbott as a member of Gomeroi Traditional Custodians v Minister for the Environment on Shenhua - EDO NSW

Veronica “Dolly” Talbott as a member of Gomeroi Traditional Custodians v Minister for the Environment 

EDO NSW is acting for Veronica “Dolly”Talbott, as a member of the Gomeroi Traditional Custodians, in Federal Court proceedings seeking review of the Environment Minister’s decisions to not make a declaration to protect several areas of significant cultural heritage within the footprint of the proposed Shenhua Watermark coal mine in northwest NSW.

In April 2015, the Gomeroi Traditional Custodians (GTC) lodged an application under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) for the protection of several areas of significant cultural heritage (the Significant Areas) located on the Liverpool Plains near Breeza in north-western New South Wales. A second consolidated application was made in 2017.

The applications were lodged because the Significant Areas will be destroyed by the construction of the Shenhua Watermark coal mine, a large new open-cut mine that has been approved on the Liverpool Plains.

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EDO NSW Solicitor Nadja Zimmermann, Dolly Talbott, and Acting Principal Solicitor Brendan Dobbie. Photo by Anthony Scully.

The Significant Areas 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, the existing landscape would not only be destroyed but would be replaced by a new, mine-created landscape.

Under the ATSIHP Act, the Environment Minister has the power to make a declaration to protect areas of cultural heritage if she is satisfied they are significant Aboriginal areas that are under threat of injury or desecration. It is a criminal offence to contravene the provisions of a declaration.

In July 2019, four years after the original application was lodged, the Environment Minister issued her decisions in respect to the GTC’s applications.

In her reasons for the decisions, the Minister accepted that the Significant Areas “retain immeasurable cultural values and connection to Country” and “are of particular significance to Aboriginal people.” She also agreed that the Shenhua Watermark coal mine will destroy or desecrate the Significant Areas, and found that NSW laws were inadequate to protect the Areas.

Despite those findings, and the very purpose of the ATSIHP Act, which is “the preservation and protection … of areas and objects … that are of particular significance to Aboriginals in accordance with Aboriginal tradition,the Minister decided to refuse to make a declaration to protect the Significant Areas.

The Minister’s decisions were made with the understanding that a declaration would prevent the Shenhua Watermark coal mine from proceeding. Given that, the Minister attempted to balance the competing interests of protecting “immeasurable” cultural heritage and protecting the benefits she saw arising from the mine. In purporting to conduct this task, she acknowledged the “difficulties in measuring or otherwise quantifying the value of Indigenous cultural heritage and in comparing the value of such to potential economic or social benefits of the mine.”

Ultimately the Minister concluded that the economic and social benefits of the mine, particularly to the local community, outweighed the loss of heritage value in the Significant Areas. Her refusal to grant the declaration was made on this basis.

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The Liverpool Plains. Photo: MDRX, Wikimedia.

Our client will argue that the Minister made an error of law in that she incorrectly applied the ATSIHP Act, which is designed to protect and preserve Aboriginal cultural heritage, in her refusal to grant a declaration to protect the Significant Areas.

This will be an important test case, which will interrogate the limits of the Constitutional basis for the ATSIHP Act and the matters which the Minister is lawfully permitted to consider when deciding whether to grant a declaration to protect areas of significant Aboriginal cultural heritage.

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