A pastoral company owned by West Australian billionaires Andrew and Nicola Forrest has lost an appeal to build an irrigation project in a Pilbara river sacred to traditional owners.
The State Administrative Tribunal (SAT) released a decision late on Thursday afternoon refusing an appeal by the Forrests of the controversial Section 18 provision of the Aboriginal Heritage Act.
The family's cattle company Forrest and Forrest Pty Ltd lodged an application in 2019 to build two granite quarries and 10 weirs along the Ashburton River, which runs through Minderoo Station, about 1,300 kilometres north of Perth.
Forrest and Forrest Pty Ltd needed a Section 18 approval, the same kind of permit which allowed Rio Tinto to destroy the 46,000-year-old Juukan Gorge rock shelters, to be able to build the weirs.
This was because the river from its mouth near Onslow to inland near Nanutarra is a registered Aboriginal heritage site where the Thalanyji people believe the water serpent Warnamankura lives.
Warnamankura created the river, according to Thalanyji belief, and still travels up and down it to protect the country.
Traditional owners feared the weirs could kill the water serpent spirit in the river.
Any activity like the extraction of minerals or construction of bridges and other infrastructure in the river requires Section 18 approval.
Former WA Aboriginal affairs minister Ben Wyatt refused the Section 18 application at the start of 2020 because of the area's significance to the Thalanyji and because he did not think the project had enough public benefit.
The Forrests wanted to build the weirs, which still allowed water to pass through them so the river flowed, so more water could be held back longer to drought-proof the station and allow for an expansion in cattle numbers.
One weir had already been built in 2010 in consultation with the Thalanyji.
The last tribunal hearing into the case was held nearly two years before Thursday's decision.
In the decision, Justice Janine Pritchard and two other tribunal members found the entirety of the river was of spiritual significance to the Thalanyji.
"We have found that in the Thalanyji culture, the river is regarded with deep respect and reverence," they wrote.
"From the Thalanyji people's perspective, the implementation of the ... project, which will affect the natural flow of the river, risks killing or harming the water snake, or causing the water snake to become angry.
"And that that would have a significant adverse impact on the Thalaynji people."
Lawyers for the Forrests said the entire river was not a site under the Aboriginal Heritage Act.
The tribunal panel stated there was no way the weirs could be built in a way that minimised the impact on the river as a site of spiritual importance.
It also decided the primary benefit of the project would be a private one for the Forrests and generally did not have weight in benefiting the overall general interest of the community.
The tribunal panel did find, however, the increased beef production and creation of jobs would have community benefit.
The decision was made under the old Aboriginal Heritage Act, which will be replaced on July 1.
But the outcome could still have greater ramifications as a test case for how the tribunal deals with the belief systems of Traditional Owners under the new Aboriginal Heritage Act.
The new law gives native title holders the ability to appeal government decisions allowing for sacred sites to be damaged or moved unlike the previous version, where the right was only held by proponents.
Native title group Buurabalayji Thalanyji Aboriginal Corporation (BTAC) released a statement saying it welcomed the SAT's decision.
"We are grateful the decision puts our spiritual connection and culture before private cattle interests," a BTAC spokesman said.
"The Thalanyji people have been custodians of the river for over 60,000 years, and damage to the river rightfully should not be allowed for the sole benefit of a local pastoralist."
The statement said the decision provided hope that "the lessons needed after the destruction of Juukan Gorge are being learnt".
A spokesperson for Harvest Road, the Forrests' food production company, said the firm was "considering our options and remain willing to engage with the Buurabalayji Thalanyji Aboriginal Corporation in respect of achieving an outcome that improves the sustainability of agriculture in the area".
"Our respectful desire has always been to work collaboratively with the Thalanyji people – the traditional custodians of the land – to nourish the water and land at Minderoo Station," the spokesperson said.
"The first upside-down leaky weir was installed at Minderoo Station in 2011 with the support of Thalanyji Elders. The weir does not stop water flow and was successful in improving the health of the Country nearby.
"Upside-down leaky weirs do not hold back the flow of water at all. Their design raises the freshwater table, which makes it accessible to all vegetation and fauna, particularly wildlife, known also as bush tucker.
"Without the weirs, this groundwater is not accessible to vegetation and will flow to the ocean, where it is wasted."
