Daniel Andrews accused of enabling ‘manufactured consent’ in Djab Wurrung tree case

A Greens senator has accused the Premier of using legislation to enable consent from traditional owners to remove trees for a highway upgrade.

Greens senator Lidia Thorpe has taken aim at Victorian Premier Daniel Andrews. Picture: Sean Davey.

Greens Senator for Victoria Lidia Thorpe has accused Premier Daniel Andrews of using legislation to enable “manufactured consent” from traditional owners, after the Andrews government this week proceeded with plans to bulldoze trees in western Victoria, amid a long-running dispute between Indigenous groups over their cultural significance.

The Supreme Court of Victoria issued an injunction on Tuesday preventing works from going ahead on the western highway duplication, following the arrest of 60 people who were protesting after a tree was removed on Monday morning.

The application for the injunction was filed by Ms Thorpe’s mother Marjorie Thorpe, who is descended from the local Djab Wurrung people, and says the felled yellow box tree was a sacred “directions” tree.

However, the Eastern Maar Aboriginal Corporation — which represents the group of Djab Wurrung people officially recognised as the traditional owners under the Andrews government’s cultural heritage legislation — says “extensive reassessments” have not revealed the tree to have “any characteristics consistent with cultural modification”.

The reassessment resulted in 16 other trees being found to have cultural significance with the duplication of the highway between Ararat and Buangor consequently realigned to save them.

Activists have been camped at a Djab Wurrung “embassy” at the site since June 2018 amid ongoing disagreements between different Indigenous factions, with an application to protect the trees rejected by federal Environment Minister Sussan Ley, and the dispute since the subject of Federal and Supreme Court proceedings, and an Ombudsman’s report.

The Djab Wurrung Heritage Protection Embassy.

Senator Thorpe seized upon Ombudsman Deborah Glass’s comment in her July report, in which the Ombudsman questioned the sufficiency of consultation with Djab Wurrung people, stating: “While consultation with local residents and landholders was extensive, consultation with Aboriginal communities was limited to the officially recognised body.”

“This complied with legislation, and underlines the statutory importance rightly given to Registered Aboriginal Parties. But given the history of the dispossession of the Djab Wurrung, was this good enough?” Ms Glass asked.

Senator Thorpe said the legislation “promotes traditional owners in communities to fight against one another around country and consent”.

“What the cultural heritage legislation does is it enables manufactured consent,” she said.

“It’s a shortcut to a recognised native title corporation in which you have to be according to that act, that piece of legislation, you have to be recognised by the government to be a Registered Aboriginal Party.

“If the government doesn’t recognise you as a Registered Aboriginal Party, then you don’t get a say over your country. To become a Registered Aboriginal Party you have to be a corporation with membership and AGMs. It locks out a lot of traditional owners.

“The Premier can blame the blackfellas on the ground disagreeing with each other, it’s a good cop-out to say that, but his government set up the legislation that causes this problem for our people. We are all family, and some people know stuff and some people don’t.”

Tree ‘highly unlikely’ to predate European occupation

Eastern Maar Aboriginal Corporation said in a statement their “significant advocacy” had resulted in a reassessment of the trees in the area and consequent realignment of the duplication.

“This realignment saves 16 trees that were identified as culturally significant. This includes two identified birthing trees, as well as other trees of significance, such as the ‘marker’, ‘directions’ and ‘grandmother’ trees,” EMAC said.

“Over several years, EMAC fought an exhaustive battle to save culturally significant trees, to the extent possible given our statutory limitations.

“On Monday afternoon, the removal of a towering fiddleback tree – felled in preparation for the highway’s expansion – made headlines.

“Despite its age and majesty, extensive reassessments did not reveal any characteristics consistent with cultural modification. It did not appear to have been altered by our peoples for usage in our cultural traditions.

“Independent arborists have indicated that the tree in question is “highly unlikely” to predate European occupation.”

EMAC said they were not given statutory authority until February but had raised community concerns over the tree with Major Road Projects Victoria and told a viable engineering solution to avoid destroying the tree could not be applied.

“EMAC had limited influence with respect to the felling of the fiddleback tree – a Cultural Heritage Management Plan had already been authorised prior to us being awarded statutory authority,” they said.

“EMAC continue to advocate for country. We take our role as the inherent rights holders of our ancestral estate seriously. However, we can only use the tools available to us. The distress caused by this event highlights the gaps which exists in the Victorian Aboriginal Heritage Act.”

‘I mean no disrespect to any Aboriginal Victorian who may have a different view’: Andrews

During a feisty exchange in state parliament on Wednesday, state Greens MP Sam Hibbins asked the Premier about the timing of the felling of the tree, which occurred as Victorians were turning their attention to Mr Andrews’ announcement on Monday that stay-at-home coronavirus restrictions would be relaxed after 111 days of lockdown.

Victorian Premier Daniel Andrews. Picture: NCA NewsWire / Paul Jeffers

“Premier, did the government deliberately choose to cut down the tree on the very same day we were coming out of lockdown, or was this just a coincidence?” Mr Hibbins asked.

“The answer to his question is no, and what‘s more, the question is riddled with assumptions and assertions that are not borne out by the views of the traditional owner group who speak for that country, with whom the government has been deeply engaged,” Mr Andrews hit back, quoting from the Eastern Maar statement.

“Now in pointing that out, I mean no disrespect to any Aboriginal Victorian who may have a different view. People are entitled to have a view that is different to mine or different to the government, they’re even within the Aboriginal community and beyond, able to have a view that’s different than the traditional owner group who have made their view very clear.”

Mr Andrews said there had been 100 accidents and 11 fatalities on the stretch of road in recent years.

“We have come to agreements with the traditional owner group who speak for this country,” he said.

“This road must be redesigned, upgraded. It must be improved, and whilst there are some in the community, and I mean no disrespect to any of them who may feel very, very, very personally and profoundly about this issue, I dare say that the families of the 11 people who have died on that road take these matters pretty personally and feel about them pretty deeply as well.

“We cannot sit around and see more people dying on this dangerous road while we wait for 100 per cent agreement. If we wait for a unanimity of view, then this road will never get upgraded, people will continue to die.

“I am not prepared to settle for that. I committed to get this road built and that is exactly what I will do, and I point out for the Member for Prahran (Mr Hibbins), the cultural heritage framework in this state is the product of a Labor government, and treaty will be a product of this Labor government and commentary from the sidelines that is actively misleading the community is of no benefit whatsoever.”