DJAB WURRUNG WOMAN SEEKS FOR INJUNCTION TO RESTRAIN THE CONSTRUCTION OF A HIGHWAY
Thorpe v Head, Transport for Victoria & Ors [2020] VSC 804 (3 December 2020)
This case involves the plaintiff seeking Declaratory relief and interlocutory injunction for the preservation of significant Aboriginal cultural heritage from prospective harm due to the construction of the Western Highway duplication project.
Facts:
Marjorie Thorpe is a Djab Wurrung woman. By this proceeding she seeks declaratory relief and injunctive relief restraining the four defendants from constructing part of the Western Highway duplication project (‘WHD project’), between Buangor and Ararat which travels within Djab Wurrung traditional land.
The plaintiff seeks the protection of Aboriginal cultural heritage in the area impacted by part 2B of the WHD project. The focus of that protection has centred on six trees and the area surrounding them but the protection of Aboriginal cultural heritage is identified as being impacted by work throughout this section of the WHD project.
The the Aboriginal Heritage Act 2006 makes it unlawful to cause harm to an Aboriginal place. If harm is caused, whether by act or omission, offences are created by s.27 and s.28 of the Act. The plaintiff at trial seeks a declaration that the works associated with the construction of route 2B are unlawful as they breach either s.27 or s.28 of the Act.
Issue: Should the court grant the injuction sought by Thorpe?
Law:
Analysis:
The court is satisfied that there is evidence of physical features of cultural heritage importance within the landscape of the specified area more broadly than the six identified trees and the focus areas. The significance that is accorded to those features in accordance with Aboriginal tradition and the importance drawn beyond the specific archaeological sites is central to the identification of ‘Aboriginal place’ and to the question of management of as approved by the statutory process.
In light of the statements of significance made by a number of traditional owners as outlined in the Phillips report, the various expert evidence relied on by the plaintiff and the absence of any expert opinion to the contrary, there is a fairly compelling basis for preservation of the status quo broadly beyond the presently identified trees until trial.
Conclusion: The court will therefore grant an interlocutory injunction in relation to the specified area.
