The Gomeroi people have lost their legal bid to protect significant areas of Aboriginal cultural heritage within the footprint of the Shenhua Watermark open-cut coalmine on the Liverpool Plains in north-west New South Wales, but said they will fight on a new front.
Gomeroi custodian Dolly Talbott was suing the environment minister, Sussan Ley, in the federal court, alleging Ley made an error of law in deciding not to make a declaration to protect the Aboriginal heritage.
On Wednesday, federal court judge Wendy Abraham dismissed the application but the full decision is yet to be released. Abraham ordered the Environmental Defenders Office, which is representing Talbott and the Gomeroi traditional owners, to pay costs of $1,000.
The CEO of the Environmental Defenders Office, David Morris, said the judgment was “really disappointing” for the Gomeroi people but Talbott “will consider her legal options from here”.
“While we haven’t had an opportunity to read it yet, the outcome is another example of the gross inadequacy of cultural heritage protection legislation in Australia,” Morris said.
“We think this outcome highlights the fact that our federal culture and heritage laws are not fit for purpose,” he added in a statement.
“The laws are designed to protect places of significance to Aboriginal people – yet the decision shows that the ATSIHP [Aboriginal and Torres Strait Islander Heritage Protection] Act allows the expectation of short-term economic outcomes from mining to outweigh the protection of culturally important sites.
“The court has found that the minister was permitted to consider very broad, non-Indigenous, matters in deciding to refuse protection for these ancient sites of immeasurable value.”
But the Gomeroi traditional custodians say they have “substantial new information” to put before the environment minster, in a new application for protection of the sites under the ATSIHP Act.
“We are hopeful the minister will carefully consider this application and exercise her powers to declare protection of our areas of high cultural significance,” they said in a statement after the court decision.
“It remains vitally important to us to protect our sacred places, songlines and burials of our ancestors, which is a sacred place to us, a place which holds our ancestors’ footprints, their legacy to us,” Talbott said.
Under the ATSIHP, the environment minister has the power to protect areas of cultural heritage if she is satisfied they are significant areas that are under threat of injury or desecration.
Ley has acknowledged the sites “retain immeasurable cultural values and connection to country” and “are of particular significance to Aboriginal people” but decided the mine’s potential economic and social benefits outweighed their heritage value.
The significant areas include sacred places and significant ceremonial corridors, large grinding groove sites, scarred trees and artefacts Gomeroi people consider sacred and irreplaceable.
“Especially after the destruction of the Juukan caves, there’s an urgent need to protect the places of significance to Aboriginal people. If this mega-mine proceeds, our interlinked sacred places will be completely destroyed and obliterated from the landscape,” Talbott said.
“We will no longer be able to read our country, share our sacred places with our children and grandchildren. Our ancestors’ burials and their footprints, their legacy to us, will be lost – lost forever.”
