Protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) extends beyond Mount Panorama – What you need to know

In May 2021, the Commonwealth Minister for Environment (Minister) declared the Wahlua-Mount Panorama Site in Bathurst to be a significant Aboriginal area under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Act). This declaration prohibited Bathurst Regional Council’s proposed development of a go-kart track just days before construction works were set to commence and provides a case study of an infrequently used pathway for land protection that developers, councils and other authorities should understand.

Background

The use of this protection came after Bathurst Regional Council had proposed to develop a go-kart track for the local Kart Club at the top of Mount Panorama (Wahlua). The Wiradjuri Traditional Owners Central West Aboriginal Corporation (Traditional Owners) challenged this approval in 2019, lodging a protection application over the proposed development site, stating that Wahlua was a significant site and voicing concerns over the destruction of a sacred women’s site and endangered flora.

The application was made by the Traditional Owners under section 10 of the Act which allows the Minister to make a protection order over the site for any period of time or indefinitely. There is also a power under section 9 of the Act for an emergency declaration (valid for up to 60 days) to be made by the Minister to protect an area from a serious and immediate threat whilst the Minister makes a decision under section 10 about the long-term protection of the area from that threat.

To make an order under section 10 of the Act, the Minister must receive an application by or on behalf of an Aboriginal person or group seeking ‘preservation or protection of a specified area from injury or desecration’ and be satisfied that the area is a significant Aboriginal area under threat of injury or desecration. To make this decision, the Minister requires a report from the applicant considering factors such as significance of the area, and the extent of protections, restrictions, and duration of declarations, as well as any other factors the Minister considers relevant.

In the current case, the Minister considered a report provided by the Traditional Owners as well as further submissions and consultation outcomes. The Minister conducted a visit to the site with the Traditional Owners before making a final decision on 3 May 2021.

Decision

After ordering a temporary protection order, the Minister made the Aboriginal and Torres Strait Islander Heritage Protection (Wahlua Mount Panorama Site) Declaration 2021 (Declaration) for a period of 10 years from 5 May 2021, stating:

“I am satisfied that the area identified at the top of Mount Panorama/Wahluu, one that helps define the iconic shape of the mountain top, is culturally significant and should be protected under the ATSIHP Act… It acknowledges the cultural significance Mount Panorama/Wahlua has for the Wiradjuri people, in contributing to local Aboriginal narratives, songlines, ceremonies and cultural heritage”

The Declaration will prohibit common development activities including the clearing of vegetation, the undertaking of any bulk earthworks, the constructing of any buildings, sealing of any part (including with bitumen or concrete), or the undertaking of any action that will, or is likely to, directly alter the topography or landform of the declared area.

Engaging in these prohibited activities will attract a maximum penalty of 5 years imprisonment or $22,200 for a person, or $111,000 for a body corporate.

Key lessons

Since the decision, other Aboriginal groups across Australia have voiced the potential use of this pathway of protection and proponents and consent authorities should be mindful that similar applications may be pursued in the future to prevent other developments from proceeding.

This comes at a time when the protection of Aboriginal heritage is an increasingly important consideration for all developments, and in this case was evidence by a petition of over 10,000 signatures arguing that the development should be moved to another location. Whilst the Council considered the petition, it still determined to proceed with the development. The use of permanent protection orders is at ministerial discretion, increasing the risk of external factors affecting development, like political pressures and changing social expectations. In this instance, the Traditional Owners compared the proposed development to the destruction of the the caves at Juukan Gorge last year.

In the future, proponents and consent authorities should be mindful that any development that threatens injury or descration of a significant Aboriginal area could be prohibited from proceeding if a protection order is made by the Minister under the Act.

Special thanks to Yasmin Box for her contribution to this article.

For further information on any of the issues raised in this alert, please contact:

• Dominic McGann on +61 7 3233 8838
• Liam Davis on +61 7 3233 8764
• Kate Swain on +61 2 4914 6914

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.