Kevin Childs

What do British posties’ actions to stop South African apartheid and the London  Guardian’s republican push have to do with the destruction  of prized indigenous culture,  ancient trees near Ararat and allegations of corruption in the State’s major road builder?

The answer comes from Victorian Supreme Court Justice Jacinta Forbes, who  decided charges of corruption involving destruction of native heritage on the Western Highway are best left to the Ombudsman.

Martang, an Indigenous group which formally approved the road project in 2013 extracted $1 million from the old VicRoads through a promise to pay that much over 10 years in royalties for land conservation.

Djab Wurrung woman Marjorie Thorpe on behalf of protestors argued that trees threatened by the highway project would be unlawfully harmed and that Martang acted unlawfully in approving the plan.

Justice Forbes produced  a 30,000-word decision which includes as precedents British House of Lords’ findings on the posties and an article in the Guardian. In this, she finds no case against Martang.

Some background

In October-December 2020, Justice Forbes ordered the suspension of work on a section of the Western Highway duplication project near Ararat  after opponents said it threatened  culturally significant trees. The trees and land are also said to be culturally significant to the Djab Wurrung people.

Marjorie Thorpe’s lawyers said the roadworks,  between Buangor and Ararat, are on land culturally significant to her people.

Justice  Forbes found that there was a serious question to be tried as to whether Aboriginal cultural significance, located throughout the specified area, was or might be accorded protection under the Victorian Aboriginal Heritage Act.

Protests against the work started in June 2018 and a Djab Wurrung Heritage Protection Embassy was set up to stop work at state and federal levels.

Tensions came to a head in October 2020 when a tree was felled that the traditional owners said was culturally significant.  Police made  dozens of arrests.

Six trees on the area were singled out as culturally significant by two nationally respected archaeologists, as well as a barrister engaged by the Federal Minister for the Environment, with one tree to be axed and the rest left in tree protection zones which are close to the slightly re-routed highway.

What influenced the decision

Justice Forbes says that harm is defined in the Heritage Act as including: ” damage, deface, desecrate, destroy, disturb, injure or interfere with”. “Harm to Aboriginal cultural heritage” is permitted in limited circumstances, including where the acts are undertaken in accordance with a cultural heritage management plan approved by the relevant Registered Aboriginal Party (RAP). 

The Heritage Act impact on the Western Highway Duplication project requires an approved cultural heritage management plan for its work areas. A plan approved by Martang.

The ABC has reported on documents that show Victoria’s roads department gave Martang — all members of one family — hundreds of hectares of land east of the highway, as part of a Trust for Nature covenant agreement stretching over 10 years.

Martang’s business arm bought the land and was  refunded the cost within the first year of the covenant. This was part of a requirement to offset the road’s destruction of native vegetation, that the department was obligated to meet before works could start.

In return for conserving the site, Martang was promised annual royalties amounting to tens of thousands of dollars over  each of the remaining nine years after the first payment exceeding $600,000 enabled the purchase of the “offsets land”.

Startling evidence came from the highway builder, then VicRoads now Major Projects Victoria, which had told a Parliamentary inquiry that Martang said it would not take part in an area-based agreement unless VicRoads agreed to pay for some property. Martang was said to want to “develop expertise in native vegetation management”.

As a result there were questions about Martang’s conduct. But the judge said she was not satisfied that there is any real prospect that might permit a civil court to make declarations as to past criminal conduct.

The judge was asked to exercise  legal discretion to allow the matter to go to trial even if there were no real prospect of success because it is in the interest of justice to do so.

But she found that “… there is no real prospect that the Court would make a declaration that past works contravened the relevant penal provisions of the Heritage Act.”

Justice Forbes found that because Martang was stripped of its RAP status in 2019 and another Aboriginal group replaced it in early 2020 and  circumstances in 2013 have been modified by amendments to the Heritage Act, Martang has no role to play in the protection of Aboriginal cultural heritage.  Justice Forbes decided scrutiny of its actions is of historic but not continuing significance.

She also noted that “public scrutiny has already been directed to this very question by the Ombudsman.”

Justice Forbes found differences of opinion between Thorpe and other Indigenous people about the cultural heritage of the area. The views of others should be heard in preparing a cultural heritage management plan, but a full court hearing as sought before a legal process would not resolve differences.

As to the future, the road makers do not propose to resume construction until  the completion of a fresh cultural heritage management plan. Major Roads Projects Victoria has suggested this might not be before April 2022 or later.  And if Marjorie Thorpe decides to appeal the Forbes decision, that means more delay.

Kevin Childs is an author and journalist.

Editors’ note: A number of local residents, including the late Isobel MacKenzie have been heavily involved in the campaign to save the trees.