In short:
Traditional owners say a successful appeal for Andrew Forrest is “extremely disappointing” after the mining billionaire’s development plans for the Ashburton River were initially blocked.
Mr Forrest has sought to build multiple river weirs near Minderoo Station since 2017.
What’s next?
The Court of Appeal has ordered the matter be re-heard by the State Administrative Tribunal in 2025.
Traditional owners say a recent legal victory for mining billionaire Andrew Forrest is a “sad let-down” in their longstanding fight against plans to capture a sacred river in Western Australia’s Pilbara.
Mr Forrest won an appeal in the Supreme Court of WA last week on the grounds a procedural error meant the case was mishandled in the State Administrative Tribunal.
The ruling sends the matter back to the tribunal, where it will appear before a fresh panel of judges.
The Buurabalayji Thalanyji Aboriginal Corporation (BTAC) described the result as “extremely disappointing”.
The Thalanyji have been custodians of Minduruu, or the Ashburton River, for more than 60,000 years.
The waterway flows through Minderoo Station, a prized 230,000-hectare pastoral lease more than 1,300 kilometres north of Perth.
The lease was held by the Forrest family for 120 years before it was sold, only to be repurchased by Mr Forrest in 2009.
In 2017, the magnate’s pastoral company, now managed by Tattarang, lodged a controversial Section 18 notice with the Aboriginal Cultural Materials Committee (ACMC), proposing to build 10 “upside-down leaky weirs” along the river to irrigate surrounding property for cattle and cropping.
At the time, Mr Forrest’s representatives argued the weirs did not impede the flow of water down the river, and had improved the health of the surrounding country.
The application sought approval for what Mr Forrest acknowledged could impact a recognised Aboriginal heritage site.
The Thalanyji believe a powerful water spirit known as the Warnamankura lives at the site.
“Our people believe that human interference with the natural order of the river will have harmful spiritual effects upon Thalanyji country and Thalanyji people,” a BTAC spokesperson told the ABC.
“We feel the proposed construction puts private cattle interests before the spiritual connection and culture of our people.”
River-reliant ecosystems ‘in danger’
In a statement, Tattarang welcomed the opportunity to have the matter reconsidered.
A spokesperson said huge amounts of fresh water flows down the Ashburton River out to the Indian Ocean and pointed towards the benefits of the proposed weirs for 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,” the spokesperson said.
“On average, each year 777 gigalitres of water flows down the Ashburton River.
“This project aims to use a small amount of this valuable resource that is otherwise lost.”
The spokesperson also noted that an upside-down leaky weir was installed at Minderoo Station in 2011 in consultation with Thalanyji elders.
The ACMC ultimately advised then-state Aboriginal Affairs minister Ben Wyatt to reject the project and he did so in 2019, noting the river’s cultural significance outweighed the general community interest in agribusiness on Minderoo Station.
An initial appeal by Mr Forrest, reducing the number of weirs to nine as well as discarding plans to dig granite quarries, was refused in State Administrative Tribunal four years later.
It is that decision that has raised the ire of the Supreme Court.
In court documents, Justice Michael John Buss wrote that the tribunal was “plainly wrong” to factor in the former minister’s conclusions when the reasoning behind them was under review.
But the court noted there was no challenge to dispute Minduruu as an archaeologically valuable place central to the Thalanyji belief system.
It is home to six surveyed locations of “artefact scatters” and a grinding patch at Jiminu Pool.
‘Development over preservation’
Native title lawyer Marshall McKenna said the decision meant Mr Forrest’s legal team would “almost certainly” change strategy.
“Having done a hearing once, there is, in my mind, no doubt that the parties will approach things slightly differently,” he said.
“You’d be surprised if they didn’t, because otherwise they wouldn’t have learnt from what the tribunal [originally] decided.”
Mr McKenna said the case shed light on the “calculus” of Section 18 permits, despite an amended Aboriginal Heritage Act.
“If you were to count the number of times that Section 18 applications are made and declined versus the number that are made and approved, there is an overwhelming preponderance of approvals versus refusals,” he said.
“What the Aboriginal Heritage Act has often been used for … is to privilege development over preservation of Aboriginal culture.”
That occurred most often, Mr Mckenna argued, by taking proceedings out of Aboriginal hands.
“I don’t believe any of the decision makers in the current matter were Aboriginal,” he said.
“Then it goes to the Supreme Court and only one of the judges of the Supreme Court is Aboriginal, and he wasn’t on the Court of Appeal that made this decision.”
The court has ordered the SAT to re-hear the case in 2025.
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