By C. Perera, JadeTimes News
Traditional owners have expressed profound disappointment over a recent legal triumph for mining billionaire Andrew Forrest, which they describe as a "sad letdown" in their ongoing battle against plans to harness a sacred river in Western Australia's Pilbara region. Last week, Mr. Forrest won an appeal in the Supreme Court of Western Australia, which found that a procedural error had occurred in the handling of the case by the State Administrative Tribunal. The court’s decision requires the matter to be reconsidered by the tribunal, which will convene a new panel of judges.
The Buurabalayji Thalanyji Aboriginal Corporation voiced their dissatisfaction with the ruling, which they found "extremely disappointing." The Thalanyji people have been the custodians of Minduruu, also known as the Ashburton River, for over 60,000 years. This significant waterway runs through Minderoo Station, a valuable 230,000 hectare pastoral lease located more than 1,300 kilometers north of Perth. The lease, originally held by the Forrest family for 120 years, was sold and then repurchased by Mr. Forrest in 2009.
In 2017, Mr. Forrest’s pastoral company, now managed by Tattarang, submitted a Section 18 notice to the Aboriginal Cultural Materials Committee. This proposal sought approval to construct ten "upside down leaky weirs" along the river to irrigate the nearby land for cattle grazing and crop production. Representatives of Mr. Forrest at the time argued that the weirs would not hinder the river's natural flow and would enhance the health of the surrounding environment. The application, however, acknowledged the potential impact on a recognized Aboriginal heritage site.
The Thalanyji people believe that the river is the dwelling place of a powerful water spirit known as the Warnamankura. A BTAC spokesperson stated, "Our people believe that human interference with the natural order of the river will have harmful spiritual effects upon Thalanyji country and Thalanyji people. We feel the proposed construction prioritizes private cattle interests over the spiritual connection and culture of our people."
Tattarang responded to the Supreme Court decision by emphasizing the benefits of the proposed weirs, particularly in a region affected by climate change. "The landscape is drying, and without slowing the flow of otherwise ocean bound fresh water, the ecosystems that rely on the Ashburton River are in danger," a Tattarang spokesperson noted. They also mentioned that an upside-down leaky weir had previously been installed at Minderoo Station in 2011 in consultation with Thalanyji elders.
The ACMC had advised then state Aboriginal Affairs minister Ben Wyatt to reject the weir project, a decision he made in 2019, citing that the river's cultural importance outweighed the benefits of agribusiness on Minderoo Station. Mr. Forrest appealed, reducing the number of weirs to nine and removing plans to excavate granite quarries, but this appeal was denied by the State Administrative Tribunal four years later. The Supreme Court's recent ruling highlights that the tribunal erred in considering the former minister’s conclusions when reviewing the reasoning behind them.
In his court documents, Justice Michael John Buss remarked that the tribunal was "plainly wrong" to factor in the minister's previous conclusions. However, the court did not dispute the significance of Minduruu as an archaeological site central to the Thalanyji belief system. The river features six surveyed locations of "artefact scatters" and a grinding patch at Jiminu Pool.
Native title lawyer Marshall McKenna predicts that Mr. Forrest's legal team will adjust their strategy in the upcoming tribunal hearing. "Having gone through the hearing once, it is almost certain that the parties will approach things slightly differently," he commented. "You'd be surprised if they didn't, because otherwise, they wouldn't have learned from what the tribunal decided."
The case brings to light the broader implications of Section 18 permits, which have been controversial, especially since the destruction of the Juukan Gorge caves. Mr. McKenna highlighted that the Aboriginal Heritage Act has often favored development over the preservation of Aboriginal culture, with most Section 18 applications being approved rather than declined. "What the Aboriginal Heritage Act has often been used for is to privilege development over preservation of Aboriginal culture," he stated
