The Victorian State Government say they have waited long enough to complete the Western Highway upgrade, west of Ballarat. They say the court cases are over, too much money has been spent and ‘it’s time to get on with this urgently needed safety upgrade,’ over the objections of a group of Djab Wurrung people who have been occupying the site for 26 months now.
Huge old trees are already coming down, and the works are advancing further towards several trees that are considered sacred. Security guards and police have fenced the trees off, and two protesters are in the trees. There will be more confrontations: 60 people have already been arrested. Desperate rearguard court actions are underway.
How did it come to this, again?
According to Victorian Ombudsman, Deborah Glass, part of the answer is that when the road was being planned, we—the state and the settler people of Victoria—didn’t listen carefully enough. In her report on the road, she says the dispute contains lessons about to how to consult with Indigenous people.
The State Government points out that two Registered Aboriginal Parties (RAPs) for the area have agreed to the road. The protestors, calling themselves the Djab Wurrung Heritage Protection Embassy, say the RAPs don’t speak for them. But the Aboriginal Heritage Council—a peak statutory body of respected Indigenous Victorians—told the Ombudsman that to consult outside the RAPs could interfere with the RAPs’ rights.
Alongside elected representatives, the RAPs have seats on the First People’s Assembly of Victoria, which is key to the current treaty process. So it really matters that deals done with RAPs have the backing of everyone those RAPs are supposed to represent.
The Ombudsman made clear that she wasn’t investigating the two RAPs, or ruling on the differences of opinion. But she questioned how the State’s planning decisions were made, and the human rights implications of the whole process.
In careful legal language, she ‘noted’ that there was nothing to stop the government from ‘consulting more broadly with Aboriginal peoples’.
‘The processes under the Aboriginal Heritage Act, while intended to empower traditional custodians … have the potential to exclude some voices,’ she wrote, and found that the deal struck by the RAPs has ‘not satisfied all Djab Wurrung traditional custodians’.
That is: there are still Djab Wurrung people saying no, and backing their words with their ongoing occupation. They include respected elder Aunty Sandra Onus, who was one of a group that took the Federal Government to court over its failure to protect the heritage sites. They won that case, forcing Environment Minister Sussan Ley to reconsider, but her new decision again said the road’s benefits outweighed the Indigenous heritage.
One foggy morning not long ago, I walked all 12.5 kilometres of the road route, through dewy fields and past ancient trees, sacred and otherwise. I disturbed kangaroos and magpies as I went, thinking about the small endangered insects and reptiles underfoot, too scarce and too hidden to see. It makes me deeply sad to picture that land becoming a four-lane highway shaking with 50-tonne trucks, but even sadder to think that we may be repeating the mistakes of the past.
The Ombudsman suggested that Parliament could consider making it easier to consult outside the RAPs. Which I read as saying we could listen better, and more broadly. As Glass points out, the need to identify ‘other Aboriginal parties with connections to and knowledge of the area’ was heightened by the extent to which the Djab Wurrung have been displaced from their land by Western settlement. Her report devotes several pages to the history of Djab Wurrung occupation and the subsequent invasion. If there are conflicting views, they stem partly from that fracturing event. If it’s hard to get everyone on the same page, it’s because our arrival scattered the population.
The report doesn’t say the road shouldn’t go ahead. These issues are as complex as they come.
Still, I keep coming back to this: it’s happening on our terms, under our laws, and we seem to be using our power to pick and choose who we listen to.
Even Aboriginal Victoria, which is part of the Department of Premier and Cabinet, conceded there were ‘some areas of Victoria’s cultural heritage management and protection system which AV could explore for both policy and legislative improvement’. Glass did not find that the Djab Wurrung’s human rights had been breached. But, she added, those rights should be considered ‘when determining whether and how to move forward’.
Which reminds us that in this case, it’s not too late. While we ponder our ‘improvement’ of the listening process, the road is yet to be built.
It would be a brave decision to throw out all the work so far and redesign the road from scratch, using Glass’s insights as a guide.
But we could. We could just listen harder to the descendants of the people who have lived on that land for at least 12,500 years. We could recognise that there are things our legal system isn’t built to grapple with, and we could all sit with the problem a little longer. We could recognise the protestors’ two-year occupation as proof of sincerity and passion, and not unjustly require of them that they cede us their country yet again.
