Supreme court halts controversial roadworks for three weeks
Controversial Western Highway roadworks have been halted for three weeks after a Supreme Court hearing was told Djab Wurrung traditional owners believed the removal of culturally-significant trees would contravene the Aboriginal Heritage Act and human rights laws.
In a hearing before Justice Jacinta Forbes, lawyers for the Victorian government gave an undertaking no work would be done within the “specified area” of the claim, which included a kilometre around six large trees referred to as E1 to E6. These trees have not been felled. The court made an order to this effect.
Protests at Parliament over the Djab Wurrung trees. Credit:Simon Schluter
The cutting down of a large yellow box tree – widely referred to as the "directions tree" and also known as a "fiddleback tree" – on Monday to make way for the $157 million duplication of the Western Highway caused a public outcry.
The original statement of claim filed on behalf of Djab Wurrung woman Marjorie Thorpe, the mother of Senator Lidia Thorpe, alleged the construction and completion of the re-aligned route, and damage or removal of culturally significant trees, was unlawful under the Aboriginal Heritage Act.
Ms Thorpe’s lawyer, barrister Ron Merkel, QC, told Justice Forbes on Thursday that his client would also be making reference to the Australian Charter of Human Rights in later hearings.
“At the moment the Djab Wurrung people have been removed from that area, which is sacred to them, and a lot of people have been charged with trespass and so forth. [It] seems Djab Wurrung people can be excluded from their own country,” Mr Merkel said.
“This case goes to the heart of what an Aboriginal traditional area means and how it is to be protected under the human rights charter and Aboriginal Heritage act,” he said. “It’s obviously a matter of enormous public interest”.
Richard Atwill, QC, acting for the state, said the issues had been the subject of multiple Federal Court proceedings over a number of years and questioned why Ms Thorpe had only made this application now.
“Why are these rights in relation to the trees only something that has come about now?,” he asked. “My learned friend’s client ... has been concerned about these trees but they haven't come before your honour and made these claims until now.”
He said the plaintiff was unable to clearly identify the area around the trees that was culturally significant. “There’s no explanation for a delay here, none whatsoever,” he said.
Mr Atwill said the trees identified at E2 to E6 would not be removed. He said tree E1, which is identified on the statement of claim as a "Yellow box scarred tree", would not be removed before the next hearing.
The defendants are the Head of Transport for Victoria, the Minister for Transport Infrastructure, the Secretary of the Department of Transport and the State of Victoria.
There were protests outside State Parliament and the Supreme Court while the matter was being heard.
The Left faction of the youth wing of the Victorian Labor Party – the faction associated with Premier Daniel Andrews – held an emergency meeting on Thursday and labelled the decision to chop down the directions tree "colonial genocide".
"While Daniel Andrews was announcing the end of lockdown, the Victorian Labor government used the distraction to cut down the directions tree," a motion passed at the meeting said.
"It is time that we call out Victorian Labor for the settler colonial genocide they are commiting.
"We ... will not stand by and support this genocide."
It is rare that the youth wing of the party splits from the position of an elected Labor government.
Also on Thursday, at least 480 academics from across Australia, including historians, geographers, lawyers and scientists signed an online letter condemning the removal of the directions tree and urging the government to halt works and protect the remaining trees.
“We have come together in our sorrow and anger at the colonial violence currently being perpetrated by the Victorian government against the Djab Wurrung people, and against all First Nations people in Australia,” the letter states.
“While all trees hold value, especially in a climate crisis, the Djab Wurrung trees are so much more than ‘just trees’; they are living entities with significant historical, cultural and spiritual value and meaning.”
A statement was also issued by three Djab Wurrung people who had been living at the protest camp until police moved them on and made about 60 arrests on Monday.
Chelsea Lovett-Ahern said she was given no choice but to leave: “When I got arrested, I had clap sticks and was singing language and they grabbed one arm each and the lady grabbed my clap sticks," Ms Lovett-Ahern said.
The matter is likely to come back to the court on November 19, or a date agreed to by both parties, when an application for an injunction will be considered.
With Paul Sakkal
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Miki Perkins is a senior journalist and Environment Reporter at The Age.