Thorpe V Head, Transport for Victoria & Ors

IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE COMMON LAW DIVISION VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 04091

MARJORIE THORPE Plaintiff

HEAD, TRANSPORT FOR VICTORIA First Defendant

and

MINISTER FOR TRANSPORT INFRASTRUCTURE Second Defendant

and

SECRETARY, DEPARTMENT OF TRANSPORT Third Defendant

and

STATE OF VICTORIA Fourth Defendant

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JUDGE: FORBES J WHERE HELD: Melbourne DATES OF HEARING: 19,20, 23 November 2020 DATE OF JUDGMENT: 3 December 2020 CASE MAY BE CITED AS: Thorpe v Head, Transport for Victoria & Ors. MEDIUM NEUTRAL CITATION: [2020] VSC 804

--- INJUNCTION - Declaratory relief and interlocutory injunction for preservation of significant Aboriginal cultural heritage from prospective harm – restraint of construction of part of the Western Highway duplication project which travels within Djab Wurrung traditional land – Buangor to Ararat – Validity and application of Cultural Heritage Management Plan – Serious question to be tried – Interlocutory injunction granted in respect to ‘specified area’ – Clark v Minister for the Environment [2019] FCA 2027- Clark v Minister for the Environment (No 2) [2019] FCA 2028 – Simsek v MacPhee (Minister for Immigration and Ethnic Affairs) (1982) 148 CLR 636 - Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 - Mackenzie & Ors v VicRoads & Ors [2016] VSC 698 – Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27 - Aboriginal Heritage

Act 2006 (Vic) ss 4, 5, 27, 28, 29, 38, 42, 54, 63, 64 – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3,9,10, 12 - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 19(1), 19(2), 38.

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APPEARANCES: Counsel Solicitors

For the Plaintiff Mr R. Merkel QC Phi, Finney, McDonald Mr T. Wood Mr J. Murphy

For the Defendant Mr R. H M Attiwill QC Minter Ellison Ms A. Robertson Mr T. Barry

HER HONOUR:

1 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.

2 The plaintiff sought an urgent injunction prior to the commencement of the proceeding. It was brought in light of media reports of works commencing, including the removal of a large old tree known as a ‘directions tree’. 1 At a hearing after hours before me in the Practice Court on 27 October 2020, the defendants gave an undertaking in terms sought by the summons pending return of the summons. I adjourned the matter to 29 October for filing of the proposed proceeding and the making of directions and appropriate timetabling for hearing the interlocutory injunction. At that time the parties presented further material but were agreed that some further time was required before that interlocutory hearing could properly occur. In the absence of agreement as to the narrower form of undertaking then offered by the defendants, I granted an urgent interim injunction until argument was heard as to whether an injunction until trial should be granted. That application was heard over three days. These are my reasons for decision in granting an interlocutory injunction.

Background 3 The WHD project is upgrading the highway to a four lane divided road between Ballarat and Stawell. The 35km section from Ballarat to Beaufort has been completed and was opened to traffic in 2015. A second section from Beaufort to Ararat is being constructed in two parts. Part 2A extends from Beaufort to Buangor, a 22km stretch which was completed in 2016. Part 2B is to continue from Buangor to Ararat. It is approximately 12.5km in length. In part it traverses the area to the south of Mt Langi Ghiran State Park. The final 25km, section 3, extending from Ararat to Stawell is in

1 Not one of the six trees identified below at [11].

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the ‘pre-construction phase’.

4 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.

5 The WHD project was subject to a number of planning and other statutory requirements. An Environmental Effects Statement (EES) was required. It assessed two options for alignment of Section 2 of the WHD project. Ultimately on 1 October 2013 the Minister determined that Option 1 was to be preferred. Acting upon that decision since 2013, Part 2A has been constructed and a number of steps have already

been taken in relation to Part 2B; planning schemes have been amended to authorise the work, land has been compulsorily acquired, contracts have been entered into, construction and associated works has at some points been commenced and advanced.

6 One of the approvals necessary for construction of the road is the approval of a cultural heritage management plan for the land under the Aboriginal Heritage Act 2006 (Vic) (‘the Act’). At least two cultural heritage management plans were prepared to cover parts of section 2 of the road. Work under part 2A and the Buangor Bypass has been completed under a different cultural heritage management plan. VicRoads, as predecessor of the First Defendant engaged a consultant to prepare a cultural heritage management plan during 2012 and 2013 on its behalf that covered the proposed routes for Part 2B from Mile Post Lane (Buangor) to Ararat.

7 Where a cultural heritage management plan is prepared the scheme of the Act prescribes standards for its preparation. This includes notification by the plan’s sponsor (in this case VicRoads) to the relevant Registered Aboriginal Party (‘RAP’) for

the area. 2 On occasion the area to be impacted will cover an area involving more than one RAP in which case all involved are notified. In 2013 the relevant RAP for Part 2B

2 Aboriginal Heritage Act 2006 (Vic) s 54.

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of the project was Martang Pty Ltd (‘Martang’). Where, as here, a RAP elects to evaluate a cultural heritage management plan, then statutory approval of that plan lies with the relevant RAP. A RAP must either approve or refuse to approve a cultural heritage management plan in accordance with s 63 of the Act. Martang approved the plan on 18 October 2013 (the ‘2013 CHMP’).3 The approval then takes effect once the approved plan is lodged with the Secretary to the Department of Premier and Cabinet. 4

8 Approval of a cultural heritage management plan is important. The Act makes ‘harm’ to Aboriginal cultural heritage as defined, unlawful5. Harm is broadly defined. It:

‘includes damage, deface, desecrate, destroy, disturb, injure or interfere with’6 Aboriginal cultural heritage.

The Act renders such harm to Aboriginal cultural heritage lawful in circumstances including where a person is “acting in accordance with an approved cultural heritage management plan that applies to the Aboriginal cultural heritage”. 7

The subject matter of the claim 9 The plaintiff and others have been attempting to protect Aboriginal cultural heritage they say is threatened with harm by the alignment of section 2B of the WHD project. Those attempts have included public protest and seeking protection of the area through application to the Federal Environment Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘ATSIHP Act’).

10 The relief in this proceeding is directed at ensuring compliance with the Act in the protection of Aboriginal places. The plaintiff’s claim has four aspects to the way it seeks to identify an ‘Aboriginal place’. Three are relevant at present. First, each of the six trees are said to meet the statutory definition of an ‘Aboriginal place’.

11 The six trees are defined here, and in other litigation, by references E1 to E6. The trees

3 Cultural Heritage Management Plan Number 12327. 4 Aboriginal Heritage Act 2006 (Vic) s 64(1). 5 Ibid s 27 or s 28. 6 Ibid s 4. 7 Ibid s 29(a)(i).

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are:

E1 Yellow Box Scarred Tree

E2 Canoe Tree

E3 Hollow Tree BT 1

E4 Scarred Tree No 1

E5 Scarred Tree No 2

E6 Hopkins River Hollow Tree BT2

Second, the area ‘immediately surrounding’ each tree is also said to be an Aboriginal place.

12 The third way that Aboriginal place is defined is to cover a ‘specified area’, broadly delineating the area corresponds to that over which the roadworks will impact and so the 2013 CHMP applies. It is not said that the specified area is defined by reference to aboriginal tradition or cultural heritage. Fourthly, at trial, but not at this interlocutory stage, the plaintiff also contends that the area immediately surrounding the specified area is an Aboriginal place. The approximate location of the six trees and the ‘specified area’ can be seen from the Map that is Annexure A to the summons and the statement of claim.

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13 The protection has been and is centred on the six identified old trees that had been culturally modified in various ways. Although the six trees were the focus of the federal protection application, it was clear that they were said to stand within a wider landscape of significant sites that were alleged to be under threat of injury or desecration. 8 The progress of that federal application and its relevance is detailed further below. 9

14 The issues in dispute at this interlocutory stage became clearer in the course of the hearing. The defendants’ position has been that no injunction is necessary as since 2019 they had agreed to realign the road so that trees E2 to E6 would not be removed at all and they would not remove tree E1 prior to trial. There was therefore no identified threat. Ultimately through their Counsel the defendants indicated on 23 November they would undertake to the Court until trial to refrain from works within a 100 metre radius of each of the six trees. The form of the proposed undertaking is set out in detail later in these reasons.10 They opposed any wider injunctive relief for

8 The breadth of the application was discussed by Robertson J in Clark v Minister for the Environment [2019] FCA 2027 (Robertson J) (‘Clark’). 9 See [27] below. 10 See [75] below.

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reasons detailed below. 11

15 The plaintiff’s pleading included as final relief a declaration that the construction and/or completion of proposed Section 2B and any associated works is unlawful and final injunctive relief over the entirety of the specified area. The restraint is broadly described as ongoing restraint from constructing or completing the proposed Route and carrying out any associated works in the defined areas. The pleadings do not set out how or to what extent the areas immediately surrounding the six trees are defined Aboriginal places in any way that could allow injunctive relief limited to such areas. The plaintiff proposed as an alternative position restraint covering the six trees and two focus areas identified in the expert report of ‘On Country Consulting’. The two areas are one at the eastern end of Part 2B surrounding trees E1, E2 and E3. The second

is at the western end of the route surrounding Tree E6.

Protection of Aboriginal cultural heritage – the scheme of the Act

16 Under the Act, an ‘Aboriginal place’ is an area:

…that is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria.12

Area is defined to include a number of expressions of place. 13 Relevantly any one or more of an area,14 a natural feature, formation or landscape,15 or an area immediately surrounding a natural feature, formation or landscape16, may meet the definition of an Aboriginal place. Where the definition relied on is subsection (e) as an area immediately surrounding an identified place, those surrounds only fall within the definition, and are therefore protected from harm:

…to the extent that it cannot be separated from the thing without diminishing or destroying the cultural heritage significance attached to the thing by Aboriginal people;

11 See [54] below. 12 Aboriginal Heritage Act 2006 (Vic) s 5 (1). 13 Ibid s 5(2)(a) – (e). 14 Ibid s 5(2)(a). 15 Ibid s 5(2)(c). 16 Ibid s 5(2)(e).

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17 As can be seen, an Aboriginal place, however identified, must be a place of ‘cultural heritage significance’. This term is also defined. It includes:

(a) archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and

(b) significance in accordance with Aboriginal tradition;17

The Aboriginal tradition that accords the cultural heritage significance is also defined. It means:

(a) the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and

(b) any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships;18

18 The Act 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. Section 29 of the Act provides circumstances where harm does not amount to an offence:

29 When is harm permitted?

A person who does an act that harms or is likely to harm Aboriginal cultural heritage does not commit an offence under section 27 or 28 if –

(a) the person is acting –

(i) in accordance with a cultural heritage permit or approved cultural heritage management plan that applies to the Aboriginal cultural heritage; or

(ii) in accordance with an Aboriginal cultural heritage land management agreement; or

(iii) in accordance with Aboriginal tradition as it relates to the Aboriginal cultural heritage; or

(b) the person does the act in the course of preparing a cultural heritage management plan or an Aboriginal cultural heritage land management agreement in accordance with this Act; or

17 Ibid s 4. 18 Ibid.

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emergency; or

(d) the person is a coroner or a person assisting the coroner who does the act in the course of determining whether human remains are Aboriginal ancestral remains.

The plaintiff’s claims 19 The plaintiff seeks relief on three bases. She says firstly that, if valid the 2013 CHMP does not apply to any of the Aboriginal places she has defined, as the protection afforded by s 29 only applies to the Aboriginal cultural heritage that is identified by the 2013 CHMP. As neither the six trees themselves nor any broader Aboriginal cultural heritage is identified and since there is no plan for its protection outlined in the document, any harm will be unlawful. It will be unlawful because it will be harm because the actions are not “in accordance with a cultural heritage management plan”.

20 The defendants contend that the 2013 CHMP validly applies to the whole of the activity area that it covers. They contend that matters of cultural heritage not identified at the time of approval are contemplated to be covered and are so covered by the contingency provisions contained within the 2013 CHMP. The 2013 CHMP therefore provides a complete answer to the claim that offences are anticipated by further work.

21 This issue principally turns on questions of construction of s 29 in light of the statutory regime and the content of the 2013 CHMP.

22 Secondly, the plaintiff contends that the approval given by Martang under s 63 of the Act was a decision made in circumstances where Martang had an actual or perceived conflict of interest, or an actual or perceived bias such that the approval that it gave was not made in accordance with the Act. As a consequence she alleges, the 2013 CHMP is not valid at all. As a consequence there is no cultural heritage management plan applicable to Part 2B of the route.

23 The defendants contend that none of the grounds of challenge to the approval decision of Martang, if made out would result in invalidity of the 2013 CHMP. They contend that the approval was an exercise of power delegated to Martang and once registered

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the 2013 CHMP has legislative force and so is a cultural heritage management plan under the Act. This question turns on whether the plaintiff can establish a factual basis for any fraud or conflict, but if she can, also on whether those facts give rise to the power being exercised in such a way that invalidates the approval and registration process or in a way that breached any duty owed by reason of a fiduciary relationship that exists between the RAP and the members they represent.

24 Thirdly, the plaintiff brings a claim for relief pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) alleging that the works intended in construction of Part 2B involves the defendants acting in a way incompatible with her human rights as protected and identified in s 19(1) and (2)19 of the Charter. She alleges that the acts proposed in constructing the section of road are therefore unlawful

pursuant to s 38(1) of the Charter. The defendants for the reasons outlined in opposition to the first two claims contend that there is no unlawfulness “otherwise than because of the Charter” as all of the proposed works are in conformity with a valid cultural heritage management plan.

25 Finally, the plaintiff also initially sought a permanent restraint on any further cultural heritage management plan being approved by the defendants. At the time the proceeding was commenced the Department of Premier and Cabinet, through the Office of Heritage Services, Aboriginal Victoria, had written advising that Major Roads Project Victoria (‘MRPV’), a project team within the first defendant, 20 intended to prepare a new cultural heritage management plan for the realignment. Counsel for the defendants informed the Court and the plaintiff that no such new plan is now intended. As a result this issue is presently limited to the plaintiff seeking an order

19 Section 19(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides that: ‘All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practice his or her religion and to use his or her language. Section 19(2) provides that ‘Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community – (a) to enjoy their identity and culture; and (b) to maintain and use their language; and (c) to maintain their kinship ties; and (d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs. 20 Who took over the rights and liabilities previously held by VicRoads.

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pending trial that she be given 14 days’ notice of any intent to prepare a new plan.

26 Before turning to the principles applicable to a grant of interlocutory injunction and their application to the present matter, it is necessary to set out some of the background to this claim as it has developed under Federal legislation.

ATSIHP Act Protection Application 27 In June 2018, the plaintiff and eight others made an application under federal legislation for heritage protection (‘the federal protection application’) . They sought declarations from the Minister for the Environment under the ATSIHP Act. The Minister may make a declaration in respect of an area that the Minister is satisfied meets the definition of a ‘significant Aboriginal area’ and that is under threat of injury or desecration as both are defined in that legislation. 21 The effect of a declaration made under the ATSIHP Act is to create offences in respect of activity in contravention of a declaration. 22

28 The Minister declined to make the declarations and the applicants began Federal Court proceedings seeking judicial review of that Ministerial decision. 23 The Minister conceded an error of law had been made and consented to orders setting aside the decision on 21 April 2019.

29 On 23 May 2019 MRPV had entered into an agreement with Eastern Maar Aboriginal Corporation (‘EMAC’) to alter part of the road alignment within Part 2B to ensure that five of the six identified old trees would not be removed (‘the realignment agreement’). The realignment agreement also covered a further eleven trees which had been identified for removal but which had also been identified as having cultural importance. This agreement was not reached with Martang. EMAC were not the RAP for the area in May 2019, although they became so in February 2020.24

21 Under Part II Division 1, ss 9, 10 or 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Vic) (‘ATSIHP Act’). 22 As set out in Part III of the ATSIHP Act, ‘Offences, penalties and legal Proceedings’. 23 Federal Court proceeding VID 168 of 2019. Justice Mortimer set aside the decision and remitted the Application to the Minister for determination according to law. 24 Defendants’ Second Affidavit of Ben Andrew Dodgshun, 13 November 2020 (‘Defendant’s 13

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30 The Minister made a second decision on the federal protection application on 16 July 2019. The decision accepted that five of the six trees were significant Aboriginal objects but were not now threatened with removal by reason of the realignment agreement with EMAC. The evidence did not satisfy her that the sixth tree (E1) had the requisite significance as an Aboriginal object.

31 The Minister was also required to form a view about whether the specified area, in the federal language was a ‘significant Aboriginal area’. For present purposes the area must have “particular significance to Aboriginals in accordance with Aboriginal tradition.” 25 Aboriginal tradition is defined in similar although not identically worded terms to the definition applicable under the Victorian legislation. The Minister was satisfied of the significance of the specified area but declined to make the declaration

on the basis that she was not satisfied that the cultural heritage was under threat from the proposed roadworks. Her reasoning was that the significance of the area derived from the significance of the five trees which she had accepted were significant Aboriginal objects. As the trees were not to be removed, then the specified area was not under threat of injury or desecration. No declaration was made.

32 That decision was also subject to a judicial review proceeding in 2019 which again led to the setting aside of the Minister’s decision for error. In his reasons Robertson J identified the error in this way:

In my opinion, the Minister’s reasons reveal a misunderstanding of the provisions of the [ATSIHP Act]. The legal error on the part of the Minister was to oversimplify both the meaning of Aboriginal tradition, as defined, and the statutory concept of injury or desecration. That oversimplification was in treating the statutory questions posed by those provisions as outlined at [142] – [144] above, as sufficiently answered by the fact of non-destruction of five of the six trees.

The breadth, and the subtlety, of the defined expression “Aboriginal tradition” is explained by the Full Court, in particular by Lockhart J and by French J, in Tickner v Bropho. More immediately, it is demonstrated by the finding of the Minister at [5.48] as to cultural connection rendering the Specified Area particularly significant “with a degree of antiquity, involving Aboriginal

November 2020 Affidavit’), ‘BAD – 8, VIC604.001.0011’, Statement of Reasons for the Decision of the Victorian Aboriginal Heritage Council in relation to a registration variation application by Eastern Maar Aboriginal Corporation, 6 February 2020 (‘Minister’s 2020 reasons’). 25 ATSIHP Act (n 21) s 3.

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traditions, observances, customs and beliefs that are passed down from generation to generation through dreaming stories, song lines, spirituality, culture and traditional interaction with the cultural landscape compromised by, and within, the Specified Area”. There is, however, a disconnect between that finding and the Minister’s reasoning, at [5.52], that the significance of the Specified Area derived (only or principally) from the culturally significant trees contained in the area such that in circumstances where the trees, or five of them, would not be removed, she was not satisfied that the Specified Area was under threat of injury or desecration. It was legally necessary for the Minister to undertake the task of considering the statutory questions outlined at [142] – [143] above in light of the traditions, observances, customs and beliefs she had found.

There is a similar disconnect between the Minister’s finding, at [5.26], of a “cultural connection” in relation to five of the six trees which rendered them “particularly significant, with a degree of antiquity, involving Aboriginal traditions, observances, customs and beliefs that are passed down from generation to generation through spirituality, culture and traditional interaction”, and her conclusion at [5.37], having found that those trees would not be destroyed, that she was not satisfied they were under threat of injury or desecration. Again, it was legally necessary for the Minister to undertake the task of considering the statutory question outlined at [144] above in light of the traditions, observances, customs and beliefs she had found.26

33 A third determination was made by the Minister on 6 August 2020. On this occasion the Minister was satisfied on the evidence before her of the cultural heritage significance of the specified area but nevertheless declined to make the declaration sought. When considering whether to make a declaration one of the matters of relevance was “the extent to which the area is protected under State legislation”. The Minister’s reasons included reference to Part 4 of the Act and the requirement for the registration of an approved cultural heritage management plan and the process for approval. She listed a number of specific measures in the plan for the management of heritage likely to be affected by the activity. 27 She noted the submission that the 2013 CHMP lacks credibility as it had failed to identify any of the six trees and acknowledged that neither Martang nor EMAC speak for all Djab Wurrung people. 28

34 I will return to the reasons for that determination later. 29 It too is the subject of judicial review in a Federal Court proceeding listed for hearing commencing on 6 December

26 Clark (n 8) [146] – [148]. 27 Minister’s 2020 reasons (n 24) [5.132]. 28 Ibid [5.134]. 29 See [86] below.

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2020.30

The claim for injunctive relief in the federal protection application 35 In the Federal Court proceeding heard by Robertson J, 31 the applicants sought to join the State of Victoria as a party and obtain injunctive relief restraining them from constructing the highway upgrade pending the Minister’s lawful determination. Work was halted from time to time when the state authorities had given undertakings while the application for an urgent federal declaration was pending.

36 In October 2019 the plaintiff and the other applicants in that Federal Court judicial review proceeding entered a settlement agreement with the state authorities concerning specified works along a 3.85km stretch of the route including soil and vegetation removal. The area over which the settlement agreement was reached did not include any of the six identified trees. Tree E4 was within the stretch of proposed works, located approximately 100m outside of the construction zone in Work Area 5.32

37 The claim for injunctive relief was not successful in the Federal Court as that Court had no power to grant such an injunction given the nature of the claim before it. In deciding that question, Robertson J said:

So far as concerns the [ATSIHP Act], I follow the judgments of Wilcox J and of Lindgren J…in the Williams litigation and of Bennett J in Dates to the effect that the third party’s activities are lawful at least until there is a valid declaration providing for the protection or preservation of the relevant site which the third party’s activities threaten.

…

It is also part of my reasoning that, leaving aside as not relevant for present purposes the law of native title, the general law does not recognise Aboriginal persons as having a legally enforceable interest in a specified area able to be enforced or protected by injunctive relief and the right under the [ATSIHP Act ] of any Aboriginal person to apply for a declaration and to have their application considered according to law does not constitute such an interest.33

30 Federal Court proceeding number VID 599/2020. 31 Clark v Minister for the Environment (No 2) [2019] FCA 2028 (‘Robertson J’) (‘Clark No 2’). 32 Defendant’s 13 November 2020 Affidavit (n 24), Exhibit BAD-8, VIC.603.001.1601, ‘Applicants Further Amended Originating application for judicial review in VID885 of 2019’, 14[5(xi)]. 33 Clark No 2 (n 31) [14].

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Interlocutory injunction - principles 38 To obtain interlocutory injunctive relief pending trial of a proceeding, the plaintiff must establish two things: First, that there is a prima facie case for the relief that she ultimately seeks, and second, that the balance of convenience favours the grant of an injunction pending determination of the rights of the parties.

39 These principles are well settled. In Australian Broadcasting Corporation v O’Neill,34 the Court described the application of these two considerations in this way:

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights (the plaintiff) asserts and the practical consequences likely to flow from the order he seeks.”35

40 The two questions are in this sense interdependent. The case might demonstrate the likelihood of success that is less than probable but that likelihood must be sufficient to justify the relief in light of the consequences that flow to both parties. In assessing the consequences that might flow when considering the balance of convenience, attention may also be given to the adequacy of damages as a remedy if the injunction is not granted.

41 Further, the defendants in this case rely on delay by the plaintiff in bringing the proceeding despite knowledge of the intended works since at least June 2018, and in circumstances where she has previously agreed to allow interim works within a 3.85km defined area within the specified area. They say that both of these matters go to the likelihood of success of permanent injunctive relief and to the exercise of discretion in granting any relief.

34 (2006) 227 CLR 57 (‘O’Neill’). 35 Ibid 82 [65] (citations omitted).

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42 In this regard they rely among other matters on a refusal by Emerton J to grant interlocutory injunctive relief in 2016 in relation to work on the construction of route 2B. 36 Proceedings were commenced by a landowner whose land was to be compulsorily acquired for construction of the route. Those proceedings sought relief by way of orders “akin to mandamus” requiring the Minister or VicRoads to consider an alternative alignment to that which had been gazetted in accordance with the Minister’s decision. In particular the defendants rely on those aspects of Emerton J’s decision that decide against the Mackenzie plaintiffs on the balance of convenience.

43 The plaintiff says that she has standing to bring this proceeding. She asserts a special interest in the subject matter of the proceeding, namely the protection from harm of Aboriginal places on land for which she has custodial responsibilities. 37 While the

defendants do not explicitly contest standing in their written submissions, they contest that the present circumstances are not applicable to the grant of an interlocutory injunction to a private individual to restrain breaches of the criminal law. They accept that such matters do raise a serious question to be tried and will be a matter for trial.38 They do so on the basis this is not a situation where permanent injunctive relief will be granted at trial. 39

How cultural heritage was identified and planned to be managed by the 2013 CHMP within the 2B specified area 44 A cultural heritage management plan under the Act has two functions. It assesses an area to determine the nature of any Aboriginal cultural heritage present; places, objects and ancestral remains. Then it determines conditions to be complied with to manage and protect the heritage that is present. 40 Within the management regime set by an approved plan, the Act contemplates a level of harm to cultural heritage even though it is heritage of significance. The management of that harm and the level of harm that may be approved is for Aboriginal people to decide through the mechanism

36 Mackenzie & Ors v VicRoads & Ors [2016] VSC 698 (Emerton J) (‘Mackenzie 2016’). 37 Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27. 38 Transcript of Proceeding, Thorpe v Head, Transport for Victoria (Supreme Court, S ECI 2020 04091, Forbes J, 19,20 & 23 November 2020) (‘Transcript’) 241 [20]. 39 The defendants also made oral submissions on this point. See Ibid 104 [11] – [27]. 40 Aboriginal Heritage Act 2006 (Vic) s 42.

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of RAP’s.

45 The 2013 CHMP undertook what the legislation describes as a complex assessment. That is, it comprised a ‘desktop assessment’, followed by a ‘standard assessment’. The standard assessment involved a surface archaeological survey to locate any previously unrecorded Aboriginal archaeological sites and identify areas of potential archaeological sensitivity. The standard assessment involved time on site with Martang representatives undertaking a pedestrian survey that located the two previously recorded sites and identified four new sites. The new sites were three scarred trees and one artefact scatter. None of the three scarred trees newly identified were E1 to E6.

46 As the desktop assessment identified the probability of mortuary trees within the specified area, all hollow bearing trees of an appropriate age were recorded and classified as to further examination as part of the standard assessment. An arborist was then engaged to eliminate trees based upon age or species and to undertake the further examinations of the remaining trees to inspect for the presence of material indicative of grave sites. No mortuary trees were identified.

47 It was thought that the standard assessment was not sufficient to locate artefact scatters within the activity area and a Complex assessment was carried out with field work excavating eighty four test pits for archaeological testing. This recovered artefact items from 16 sites. A plan for the management of the of the three scarred trees and the archaeological sites (including the 16 sites newly identified) was developed.

48 The 2013 CHMP makes general observations about the geographic area and its features, the land use, the history of land use both Aboriginal and colonial. The desktop assessment described Aboriginal land use of landforms for travel, occupation and in the provision of resources.

49 The 2013 CHMP summarises the Aboriginal cultural heritage of each item recorded in the activity area, and assessed the significance of each site in accordance with Aboriginal tradition. This language follows that of the Act. Each site is discussed

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individually. Other than recording whether any comments about cultural significance were communicated, it was recorded that those preparing the plan “understand that all artefacts and sites are of social significance to the Traditional owners as they provide tangible links to the past.” 41 In relation to each individual site the 2013 CHMP also described that no other scarred trees were located within the area.42 A process of identification of heritage and a plan to manage it are required before work commences.

50 The evidence relied on by the parties before me comprised:

(a) Four affidavits of Brett David Orion Spiegel ,the solicitor acting for the plaintiff, two sworn on 27 October 2020 and one on each of 2 and 6 November 2020.

Those affidavits deposed to instructions of the plaintiff as to the heritage and the harm anticipated, and they annexed a great many documents.

(b) Two affidavits of Ben Andrew Dodgshun sworn 28 October 2020 and 13 November 2020, solicitor for the defendants again annexing a great many documents, some of which are also annexed to the affidavits relied on by the plaintiff.

(c) An affidavit by Timothy Edward Price sworn 13 November 2020 , a Program Director at MRPV deposing to the WHD project and the history of approvals and construction. It describes works undertaken and to be undertaken over route 2B comprised by 7 Work Areas. Relevantly trees E1, E2 and E3 are within Work Area 1. Work Area 2 commences 150 metres southwest of tree E3. Tree 4 is within Work Area 5. Tree E5 is within work area 6 and tree E6 within Work Area 7. In addition Mr Price’s affidavit deposed to works that would minimise the disruption to section 2B construction if injunctive relief was granted and the cost likely to be caused by delay. It also exhibited drone flyover footage travelling east to west along the route 2B.

41 Second Defendant’s Affidavit of Ben Dodgshun dated 28 October 2020, Exhibit BAD-7, ‘Cultural Heritage Management Plan Number: 12327’, 19 September 2013 (‘2013 CHMP’) 207 [6.2.11.4]. 42 Ibid, see Part 6, in particular examples at [6.2.14.4], [6.2.13.4], [6.2.12.4].

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51 The following documents as exhibited were central to the submissions and I will outline those documents here:

(a) The 2013 CHMP complied by Dr Shaun Canning, a Cultural Heritage Advisor and prepared by a number of authors.43

(b) Four Reports of Dr Builth a Landscape Archaeologist with special expertise in Culturally Modified Trees (‘CMT’), one dated 31 August 201744, two dated 20 August 201845, a supplementary report dated either 11 or 13 June 201946 and an email dated 30 January 2020. 47

(c) Two reports from On Country Consulting authored by Natasha Sanders, Heritage Manager and a Cultural Heritage Advisor. The reports were

commissioned by EMAC and supported by VicRoads. One, dated December 201848 was a report of on-site community consultations. Dr Builth also participated in this on site consultation. A second, notification report in accordance with the requirements of the Act was prepared addressed to Aboriginal Victoria. This foreshadowed Preliminary Report forms that would be submitted to the Victorian Aboriginal Heritage Register. A letter authored by Natasha Sanders dated 30 January 2020 was also exhibited.49

(d) A report to the federal Minister for the Environment by Susan Phillips,

43 2013 CHMP (n 41). 44 Defendants’ 13 November 2020 Affidavit (n 24), Exhibit BAD-8, VIC.604.001.0019, Dr Heather Builth, Desktop Report on Culturally Modified Trees along Planned Road Works of Southern Deviation route of Option 1 for the Western Highway between Ararat and Beaufort, Victoria, 31 August 2017; Plaintiff’s Affidavit of Brett Spiegel 27 October 20202, Exhibit BS-4 (‘First Builth report’). 45 Ibid, Exhibit BAD-8 VIC.600.010.4201, Dr Heather Builth, Report on Djab Wurrung Country, 20 August 2018 (‘Second Builth report’). 46 Ibid, Exhibit BAD-8, VIC.603.001.2844, Dr Heather Builth, Report on Two Trees in Djab Wurrung Country, 11 June 2019 (‘Supplementary Builth report’); also at Plaintiff’s Exhibit BS 10, dated 13 June 2019. 47 Plaintiff’s Affidavit of Brett Spiegel dated 6 November 2020 (‘Spiegel 6 November Affidavit’), Exhibit BS4-4, Email from Heather Builth to Michael Kennedy, 30 January 2020. 48 Defendants’ 13 November 2020 Affidavit (n 24), Exhibit BAD-8, VIC.600.002.4328, On Country Heritage & Consulting, Community Consultation on two culturally significant trees along the proposed Western Highway Duplication, between Buangor and Ararat, Victoria, 7 December 2018 (‘On Country report’); see also Plaintiff’s Affidavit of Brett Spiegel dated 27 October 2020, Exhibit BS-8. 49 Spiegel 6 November 2020 Affidavit (n 46), Exhibit BS4-6, Letter of Natasha Saunders to Michael Kennedy, 30 January 2020.

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prepared at the request of the Minister in accordance with the requirements of

the ATSIHP Act, together with all the documentation received by her

(e) The Reasons of the Environment Minister dated 6 August 2020 refusing a declaration under the ATSIHP Act.

(f) The previous Federal Court proceedings including the decisions of Robertson J setting aside the second Minister’s decision and refusing the plaintiffs injunctive relief.50

(g) Various pleadings and submissions on behalf of the plaintiff in relation to the three federal court judicial reviews. 51

(h) Agreements being:

(i) The agreement between EMAC and VicRoads dated 23 May 2019, both redacted on the basis of the parties obligations of confidentiality52 and un-redacted; 53

(ii) The agreement between the plaintiff and MRPV dated 1 October 2019 for allowable works in a particular area within Work Area 5;

(iii) An Area-based Agreement;54 and

(iv) A Credit Trading Agreement and the Trust for Nature Purchase Order relevant to that agreement.55

(i) Various newspaper articles and correspondence between the parties.

50 Clark (n 8); Clark (No 2) (n 31). 51 Proceedings VID168/2019, VID885/2019 and VID599/2020 and associated documents contained within Exhibit BAD-8 to Defendants’ 13 November 2020 Affidavit (n 24). 52 Spiegel 6 November 2020 Affidavit (n 47), Exhibit BS4-13, Redacted Eastern Maar Aboriginal Corporation (‘EMAC’) compromise. 53 Plaintiff’s Exhibit P4, Letter from MRPV to Mr Jamie Lowe of EMAC (Un-redacted). 54 Plaintiff’s Exhibit P1, VicRoads Martang Area-based Agreement, 10 April 2012. 55 Plaintiff’s Exhibit P2, Credit Trading Agreement, Trust for Nature (Vic) and Roads Corp and Martang, 24 July 2014; Plaintiff’s Exhibit P3, Tax invoice from Trust for Nature to VicRoads, 19 June 2014.

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A prima facie case 52 The first limb of the plaintiff’s claim is that unlawful harm will be done to Aboriginal cultural heritage because the 2013 CHMP does not protect or manage it. The lawfulness of the activity depends upon whether the defendants’ actions will be protected by s 29 of the Act. The lawfulness that the plaintiff contests and the defendants maintain they are given by the 2013 CHMP, turns on the construction of s 29 and its place in the Act more generally. I accept that there is a serious question to be tried as to the interpretation of s 29 of the Act and the extent to which the 2013 CHMP provides for the lawful harm to cultural heritage that is present but not identified by that management plan.

53 The defendants concede that in relation to the six trees there is a serious question to be tried. Firstly that concession accepts that there is a prima facie case in relation to the six trees each being an Aboriginal place, at least for present purposes. The defendants contend that the plan covers all cultural heritage whether specified or not and in any event the Aboriginal Heritage Regulations 2007 provides for the trees to be covered by the contingency plans which are contained within the 2013 CHMP. Construction of the Act, to determine whether or not the trees can be and have been incorporated by this mechanism, or whether, as the plaintiff contends, the 2013 CHMP required amendment in accordance with s 66A of the Act for protection of newly identified sites to be conferred on activity that impacts them, does amount to a serious question to be tried.

54 The same concession is not made with respect to the wider ‘specified area’. Clearly the delineation of the ‘specified area’ accords with the area of impact identified by the proposed construction (in other places described as the maximum construction footprint), and is the area over which the cultural heritage management plan was therefore conducted. There is no reliance on the boundary itself as deriving from Aboriginal tradition. What is said is that the area as specified by those processes is an area of cultural heritage significance because it has, throughout it (and beyond), archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance and significance in accordance with Aboriginal tradition.

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55 It is for the plaintiff to establish, in one or more of the ways that significance exists, how that cultural heritage is or may be harmed by the activity on the land associated with the road construction. While the cultural heritage that is protected by the legislation includes both tangible and intangible aspects, it is the physical activity on the land and the consequent change to the landscape that is the source of the harm that might be caused.

56 The significance, and whether it can be protected by the measures set out in the 2013 CHMP, is a matter for trial. At this stage, the case must be evaluated on the evidence, largely incomplete and untested such as it is before me. The evidence in support of Aboriginal cultural heritage of significance beyond the six trees comes principally from :

(a) the statement contained in the federal protection application that:

These trees have played an important role in the health of our country and the wellbeing of our people for countless generations. They are living beings that embody our stories throughout this significant landscape.56

(b) the reports of Dr Builth which describes special features of the country including trees as being physical features in and of the landscape having cultural and spiritual significance that persists.

(c) the 2018 ‘On Country’ consultation which identified the impact of development generally on intangible aspects of cultural heritage and tradition but also identified the cultural importance of ancient living trees and the relationship between the trees, their environment and cultural practices. The identification of at least 16 further culturally modified trees, in the focus areas identified by ‘On Country’ for review indicates the potential importance of this representation of cultural heritage. It is consistent with the statement in the 2013 CHMP that within the wider geographic region and within the more immediate 5km area around the activity area being assessed, scarred trees are

56 As set out in the Phillips Report (n 58).

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one of the most common recorded sites (being most common at 33% of sites in the wider region and second most common at 28% within the 5km area)57.

(d) Phillips report which concluded that

the trees many culturally modified by their ancestors are situated in a landscape in which Djab Wurrung people maintain certain traditions. The existence of these traditions has been identified in work done with local Aboriginal people since before the current controversy.58

and

(e) the Federal Ministers’ decision, 6 August 2020.59

57 On this basis I am 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.

58 This is clear at the very least from the identification by the ‘On Country’ consultation report of the further 16 culturally modified trees identified or near to the two focus areas studied in 2018 and their submission for inclusion on the Aboriginal Victoria Heritage Register. The cultural heritage of those trees either individually or in relation to each other, if it be of significance, like the six trees cannot be adequately protected unless the ways in which they are significant are articulated. In relation to the additional trees identified by the realignment agreement as now not to be removed, the same question arises as for the six trees: is any harm caused to them protected by the 2013 CHMP?

59 There are large tracts of land within the specified area where the landscape is already altered by agricultural activities or by the presence of the existing highway, railway

57 2013 CHMP (n 41) 22 and 27 [5.1.3]. 58 Spiegel 6 November Affidavit (n 47), Exhibit BS4-1, Phillips Report (‘Phillips Report’). 59 Minister’s 2020 decision (n 24).

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and other land uses. This includes parts where substantial roadworks have been commenced, some with the agreement of the plaintiff. The defendants say that in light of this widespread disruption of the natural landscape, no claim can be maintained over the whole of the area. Whilst that may be ultimately established in respect of some or all of the specified area, at this stage there is a real question to be tried as to whether Aboriginal places have been identified throughout the area so that the harm that they may suffer is managed to be avoided or minimised in accordance with the Act, and done so in a way approved by statute and thereby rendered lawful.

60 Given my conclusions as to the first limb it is not necessary to say more than a few words on the second limb of the plaintiff’s claim; the invalidity of the 2013 CHMP in total. There seem to me greater difficulties presently with identification of the factual

basis for such a claim. At present it is articulated based upon a separate agreement being negotiated between Martang and VicRoads at the time Martang was evaluating the cultural heritage management plan sponsored by VicRoads. Ultimately, after the 2013 CHMP was approved, Martang and VicRoads entered into such an agreement whereby Martang received funds to purchase a property to be used to generate native vegetation credits to sell to VicRoads to offset native vegetation losses associated with the WHD project.

61 Whether or not any such arrangement gives rise to the potential for a conflict of interest or perception of bias is at this stage asserted with a limited factual basis. The existence of a fiduciary relationship as a matter of law is not straightforward, and different considerations would apply to the availability of an interlocutory injunction against the present defendants rather than damages against Martang.

62 The Charter claim takes matters no further on the serious question to be tried than the strength of the first and second limbs.

63 Finally and for completeness the plaintiff sought alternative relief based upon the preservation of property under Order 37 of the Supreme Court (General Civil Procedure) Rules 2015. Apart from the obvious difficulty at present in framing the property

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affected by such an order beyond the six trees, in my view the injunctive relief is more appropriate. As was said of the power to make orders preserving the subject matter of the proceeding by Stephen J in Simsek v MacPhee (Minister for Immigration and Ethnic Affairs):

That jurisdiction provides no general substitute where application for injunctive relief would be the normal course….60

Balance of Convenience 64 Accepting that there is a serious question to be tried relating to the entire specified area, a discretion is enlivened as to whether the balance of convenience favours granting an interlocutory injunction. The plaintiff must establish that the balance favours a grant. The plaintiff contends that to refuse the injunction over some or all

of the Aboriginal places would permit the disposal of the action finally in favour of the defendants by allowing the harm to continue. If so, cultural heritage of significance in accordance with Aboriginal tradition may be lost. I accept that the loss of culture of such great antiquity is irreplaceable and not adequately compensated by damages. The defendants did not argue to the contrary.

65 The purposes of the Act and the requirement that approval, resting with Aboriginal entities, be obtained before works commence furthers the aim of preservation of such heritage. In weighing the balance of convenience it is helpful to set out the main purposes of the Act in full:

1 Purposes

(a) to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria; and

(b) to empower traditional owners as protectors of their cultural heritage on behalf of Aboriginal people and all other peoples; and

(c) to strengthen the ongoing right to maintain the distinctive spiritual, cultural, material and economic relationship of traditional owners with the land and the waters and other resources with which they have a connection under traditional laws and customs; and

(d) to promote respect for Aboriginal cultural heritage, contributing to its protection as part of the common heritage of all peoples and to the sustainable

60 (1982) 148 CLR 636, 641.

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development and management of land and of the environment.

66 The defendants say, if I was satisfied of a serious question to be tried, the following additional factors are relevant to the balance of convenience:

(a) The insufficient prospects of success of final injunctive relief;

(b) The fact that significant planning and construction has already occurred;

(d) The plaintiff's delay in bringing this claim without explanation;

(e) The undertaking given in light of the cost of delay, lacks substance as the cost of injuncting the works is estimated to be $4 million to $5 million per month; and

(f) the public interest in upgrading the highway for improved safety for road users.

67 I accept that the plaintiff’s prospects of obtaining permanent injunctive relief in terms that preclude an upgrade of the highway between Buangor and Ararat indefinitely through the specified area are unlikely. But final injunctive relief may be obtained on a more limited basis over some or all of the area until compliance with the Act, however that may be determined at trial. It is compliance with the Act and the validity of the instrument registered under that Act that are in question. Mr Merkel QC did not submit that no further steps under the Act could be taken over the specified area. He did not seek to submit that the duplication of the Western Highway itself should not occur. He submitted, if a degree of re-routing of Section 2B was required even limited to the need to avoid the removal of tree E1, then a further cultural heritage management plan would need approval.

68 In this context the decision of Emerton J in Mackenzie61 is of limited assistance. There her Honour was dealing with a proceeding seeking judicial review of various

61 Mackenzie 2016 (n 36).

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decisions made under other legislative schemes by the Minister or by VicRoads in 2013 and 2016. In relation to the Minister’s reviewable decisions in 2013 her Honour determined that the lawfulness of those decisions would have to be considered in light of the fact that any errors upon which they were made did not become apparent until well after the Minister’s approval and the fact that the approvals have been acted upon. In relation to the 2016 decisions, her Honour determined that the plaintiffs there had not identified any legal obligation requiring the review that the plaintiffs had requested and been refused. Accordingly the Court declined to grant relief on the basis that the plaintiffs had not demonstrated a sufficient likelihood of success to justify in the circumstances, the preservation of the status quo until trial.

69 Her Honour’s observations about the balance of convenience in that context is of limited assistance to the considerations in this litigation where the prospects of success are differently assessed and the nature of what is to be preserved pending trial is also completely different. Here the action seeks to preserve Aboriginal cultural heritage from prospective harm based upon what are alleged to be failures to comply with the statutory regime for its protection.

70 Nor do I consider any delay on the part of the plaintiff of great weight. While there has been delay in seeking relief in this court, I accept that from at least mid-2018 the plaintiff has been endeavouring to seek protection of the area and has made known her claim that significant cultural heritage was being put at risk by the road construction. As set out earlier, this proceeding was commenced in the face of destruction of one of the trees, the significance of which was squarely in dispute and the assertion that the works, (presumably including the removal of that tree) was in accordance with “the approvals in place which include a Cultural Heritage Management Plan regulating how MRPV deals with cultural heritage as part of its

works”.62 Prior to commencing this claim the plaintiff has been actively pursuing protection, including attempts to obtain interlocutory restraint.

71 At times the defendants have agreed or given undertakings to halt works, usually at

62 Plaintiff’s Affidavit dated 27 October 2020, Exhibit BS-3, Email from solicitor for MRPV,26 October 2020.

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the request of the Federal Minister pending consideration of the federal application for protection. At other times approvals or other statutory requirements have prevented work proceeding. Compliance with the Act, necessary to authorise the works is no less important.

72 The piecemeal approach to date has led to dissatisfaction by all parties.

73 Both parties sought an expedited trial date in February 2021. I indicated that the court could accommodate this. An expedited trial date means that any further delay occasioned by an interlocutory injunction is limited.

74 The cost of delay is substantial in absolute terms if not in terms of the overall budget for the project. The undertaking as to damages given by Ms Thorpe is unlikely to be

adequate if called on to meet damages. However, I accept that the balance of convenience does require a cessation of the construction and associated works until trial given the unique nature of what is put at risk.

75 The plaintiff also seeks a declaration. The effect of the declaration that she seek’s would, if established itself lead to the need for compliance with the statutory processes before works could continue. Subject to demonstrating standing, seeking relief by way of declaration may found a grant of interlocutory injunction.63

76 The breadth of any interlocutory injunctive relief was developed through the hearing, so that three options were canvassed:

(a) The defendants indicated they will give an undertaking that:

…until trial in this proceeding, or further order, they shall not (whether acting by their officers, employees, agents or otherwise), construct and/or complete the Western Highway Duplication – Section 2B Buangor to Ararat project (the Section 2B route), within a radius of 100m from the trunk of Trees E1, E2, E3, E4, E5 and E6 as defined in the Amended Statement of Claim, except for:

a) Undertaking any maintenance, safety, environmental protection works or activities on the existing highway or existing local roads;

b) Steps necessary to secure the site and the project area; or

63 Asian Pacific Building Corporation Pty Ltd v Aircon Duct Fabrication Pty Ltd (No 2) [2010] VSC 340 [31].

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c) Survey, inspection or assessment of:

(i) Trees E1, E2, E3, E4, E5 and E6; or

(ii) The area within a radius of 100m from each of Trees E1, E2, E3, E4, E5 and E6.

and therefore no injunction is required;

(b) A limited injunction, in the form consistent with the undertaking given by the defendants, or as proposed in the alternative by the plaintiffs over focus areas 1 and 264 surrounding E3 and E6 with some expansion to provide an area of 100 meters around any already identified culturally modified trees close to the boundary of those areas. This in essence would restrain work in Work Areas 1, 6 and 7. E4 at present stands at least 100 metres from the works area at its

location in Work Area 5.65 It would otherwise permit works along the intervening sections of the route.

77 The difficulty that is presented by the defendants’ undertaking is the same difficulty identified by Robertson J in his review of the Minister’s reasons. It would result in restraint that is limited to protection of a number of individual trees without due regard for the broader elements of how those trees hold cultural significance within their landscape. Would relocating a living tree, whether it be a distance of metres or kilometres, to preserve the tree if it were possible to do so, preserve some or all of its social or other significance in accordance with Aboriginal tradition? Put another way, if the tree is preserved but the landscape surrounding it altered by substantial roadworks, how is the impact on the significance of the tree being managed in accordance with the Act?

78 Without understanding the significance of each tree in all the ways embodied in the definition of cultural heritage significance, there is a danger that such an approach may be unnecessarily broad or unduly restrictive in application. This approach is not

64 As defined by the ‘On County’ consultation report (n 48). 65 Plaintiff’s Affidavit of Timothy Price dated 13 November 2020 [33].

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the same exercise as creating a buffer to protect the health of the tree as a living organism to ensure its root system and canopy is protected from compaction or other disturbance. That buffer is necessary to protect the tree itself rather than necessarily protecting the cultural heritage associated with it.

79 The evidence as to significance in accordance with Aboriginal tradition is strongest in relation to the six trees and the focus areas. An injunction over these limited areas has some attraction for the following reasons:

(a) It accords with strongest evidence as to a prima facie case and is directed at specifically identified ways in which Aboriginal cultural heritage exists in the places nominated,

(b) The works traverse a landscape that it is already on in which road and rail and other impacts on the landscape are present; and

(c) It allows some works to continue in areas previously undertaken including areas of work to which the plaintiff has previously consented;

80 Ultimately I have come to the view that it is an unsatisfactory approach.

81 First, the time of the injunction to trial is approximately three months. In the broader context of various delays to this part of the WHD project, that time is relatively short.

82 Second the continuity of some works in some parts of the specified area will increase in cost by reason of the work departing from the planned construction schedule and will lead to ‘double handling’. Mr Price deposed to this disruption and its associated increase in cost in relation to the agreement to undertake some works that was reached in the Federal Court proceedings.

83 Third, the proposal also seems to be based upon the assumption that the road as presently configured will not be further realigned, (at least within those areas where

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work might continue), as a result of any outcome at trial even if the plaintiff was to succeed in relation to the limited areas that are identified.

84 Fourthly, and importantly, the purpose of identification of the two focus areas was “to record and document any cultural values, including intangible cultural heritage, that Eastern Maar Traditional Owners may hold for the area around the culturally significant trees, as well as any knowledge on the context of the broader area.” 66 They were in a sense representative sample areas and demonstrate identification of particular aspects of cultural heritage that are not otherwise identified. There may well be good reason for EMAC to have engaged ‘On Country’ to focus on those particular areas. However, that report concluded as to the cultural values and Aboriginal sites identified:

Several important and significant cultural values were identified during the on-site consultation. As the cultural values expand beyond the arbitrary boundaries that delineate the two focus areas, the values identified during the consultation have been presented by theme. The following themes represent the cultural values discussed during the onsite consultation with EMAC representatives and community participants.67

The themes then discussed were ancestral / guardian trees, cultural landscapes and storylines, a written record marked on the trees and associations with massacres generally within Djab Wurrung country.

85 The report makes specific reference to aspects of significance beyond the study areas and the existence of identified cultural heritage beyond them. Ten sites were identified outside the focus area that were considered relevant to the cultural values of the broader area. 68 The report concludes that the road construction impacts upon the intangible values that are placed on the landscape features within what is the specified area. In this context it discussed the relationship between ancient trees, the environment of those trees and cultural practices.

86 Acting on the ‘On Country’ reports from 2018 and the other evidence before her the

66 On Country report (n 48). The report was based on the culturally significant trees relevantly being E3 and E6 specifically. 67 Ibid 47. 68 Ibid 104 [Table 10].

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Minister determined on 6 August 2020 that she was satisfied that:

…I accept that there is a cultural connection that renders the Specified Area of particular significance to Djab Wurrung people, with a degree of antiquity, involving Aboriginal traditions, observances, customs and beliefs that are passed down from generation to generation through dreaming stories, songlines, spirituality, culture and traditional interaction with the cultural landscape comprised by, and within, the Specified Area. I was satisfied that those Aboriginal traditions relate to the songlines and stories that reach from Langi Ghiran (the Djab Wurrung people’s black cockatoo dreaming site), the Hopkins River (which is connected to the Djab Wurrung people’s eel dreaming) and the trees within Djab Wurrung country that embody key stories to Djab Wurrung traditions.69

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.

87 Fifthly, as at this time the evidence explicitly indicates cultural heritage of significance beyond those areas and throughout the specified area, to permit works while the lawfulness of any harm to that cultural heritage remains in question, would destroy at least that much of the subject matter of the proceeding, potentially by unlawful conduct.

88 For completeness I should also observe that the plaintiff no longer seeks interlocutory relief preventing approval of a further cultural heritage management plan, merely by way of final relief, 14 days’ notice of any such further plan.

89 The Act requires any person sponsoring a cultural heritage management plan to give notice of their intention to prepare a plan to the relevant RAP, now EMAC. 70 The plaintiff is a member of EMAC. The RAP must in turn give notice of any intent to evaluate the plan. In my view these provisions are adequate to ensure that any intention to prepare a further cultural heritage management plan will come to the

69 Minister’s 2020 reasons (n 24) [5.79]. 70 Aboriginal Heritage Act 2006 (Vic) s 54.

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notice of EMAC and so to the plaintiff.

90 I will therefore grant an interlocutory injunction in relation to the specified area. In terms of the activity to be covered by the injunction I will hear from the parties. There were a number of activities such as those covered by paragraph (a) of the defendants proposed undertaking that seemed not to be caught by a prohibition on road construction and associated works. Those matters should as best can be done, be identified for clarity. I will also grant liberty to the parties.

---

CERTIFICATE

I certify that this and the 31 preceding pages are a true copy of the reasons for judgment of Forbes J of the Supreme Court of Victoria delivered on 3 December 2020.

DATED this third day of December 2020.

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