Shenhua Watermark and Traditional Custodians
The Shenhua Watermark coal mine is a huge $1.2 billion project proposed for the Liverpool Plains in north-western New South Wales. The controversial project has seen massive opposition from local people, including farmers who fear the mine’s impact on an area renowned for its fertile, food-growing soil.
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EDO’s client is Veronica “Dolly” Talbott, a member of the Gomeroi Traditional Custodians. The site of Shenhua’s proposed three open-cut pits are located on the ancestral lands of the Gomeroi. The area includes irreplaceable Aboriginal cultural heritage such as large grinding groove sites, scarred trees and interlinked ceremonial corridors and sacred sites. The Shenhua Watermark mega-mine would destroy these places forever.
Dolly Talbott is suing the Environment Minister in the Federal Court, alleging she made an error of law in deciding not to make a declaration to protect the Aboriginal heritage.
Under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act), 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. Contravening such a declaration is a crime.
In July 2019, four years after the Gomeroi Traditional Custodians lodged their application, the Minister refused to make a declaration to protect the Significant Areas. This is despite her findings that the 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 areas.
The Minister’s decisions were made with the understanding that a declaration would stop the Shenhua Watermark coal mine from going ahead. She concluded that the economic and social benefits of the mine outweighed the loss of heritage in the Significant Areas.
The case will be an important test of the limits of the Constitutional basis for the ATSIHP Act, and the matters which the Minister is lawfully permitted to consider before making a declaration, or not.
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