The Iron Gates development site in Evans Head is surrounded by Crown Lands to the north, east and south which have been Native Title recognised (Bandjalang People Determinations 2013 and 2021) and at Ballina Court on Tuesday, 4 June who was an expert on the cultural heritage of the site was in question.
The second day of the appeal (by the Iron Gates developers) against refusal of the DA by the Northern Regional Planning Panel (NRPP) in August 2022 saw the three parties to the appeal process, Goldcoral Pty Ltd (in administration), Richmond Valley Council (RVC) and Simone Barker (Bandjalang Elder and knowledge holder) in the tiny Ballina Court House from 10am until 4pm. The case had been set to be heard at the Ballina Court on the afternoon of Monday 3 June but the long first day at the site with the Chief Judge, Justice B Preston, of the Land & Environment Court (L&EC), the appellant and the two respondents reviewing the Evans Head location meant the case was pushed back to the Tuesday.
The Monday inspection included the Crown Land Dirawong Reserve at Evans Head which is part of the greater Bundjalung cultural landscape encompassing the Iron Gates site and surrounding properties.
Last intact natural cultural landscape
The landscape is said to be one of the last remaining intact natural cultural landscapes in coastal NSW with the Iron Gates property being the connection between the south and north parts of the landscape divided by the Evans River. Both sides were once connected physically with an almost complete ironstone ridge between the two, blown up in 1894, as part of the government’s Evans River Drain Project to allow flood waters to get away to the ocean from the Richmond River.
The failure of Draft Aboriginal Cultural Bill 2018 to give legal status to cultural landscapes in NSW means that the main piece of legislation for managing and protecting Aboriginal cultural heritage in New South Wales is the National Parks and Wildlife Act 1974 (NPW Act) which takes what is referred to parochially as a ‘stones and bones’ approach to protection. The NPW Act fails to recognise critically important cultural landscapes where people lived their lives and congregated and engaged in cultural practices which gave temporal continuity to cultural knowledge transmission and other matters often critically important to social cohesion and survival. The standing of the evidence used in National Native Title Determinations evidence does not appear to have any legal standing in NSW Courts and was not raised.
Are local knowledge holders experts of their own lands?
Knowledge holder for the Iron Gates site and surrounding Bandjalang Native Title areas Simone Barker took to the stand to provide evidence to the Court about various cultural matters. These related to how the proposed development might impact on Aboriginal culture including development on or around burial sites where information about them had been passed on to her from earlier generations through her father, Lawrence Wilson. The late Mr Wilson was the successful applicant for Native Title on many pieces of Crown Land on and around the Evans Head area.
‘There was significant dispute about the location of the burial site(s)and while legal counsel for the Appellant indicated he would have preferred not to cross examine Ms Wilson’s evidence. However, he did so vigorously, getting her outline in drawings on maps presented to her where a particular burial location might be. Ms Wilson obliged the request but indicated she had not actually visited the site(s) as this was “men’s business”. But she said that she had been told the area in which they were located and warned that if they were disturbed by development, including noise, it would make an “angry spirit” and people “who lived there sick”,’ said a spokesperson for the Evans Head Residents for Sustainable Development Inc (EHRSD) who have been watching the trail.
‘Counsel for the Appellant called an archaeologist and cultural anthropologist to the stand who then gave evidence regarding various interviews he made with Bundjalung people and reviews of material he had undertaken as part of his cultural assessment of the development. His evidence included an interview of the late Bandjalang Elder Mary Wilson by well-known Scottish-born Australian archaeologist the late Mary Dallas, who specialised in the area of Aboriginal cultural heritage management. There was considerable dispute over the evidence given particularly information about burial sites which was called into question. Cross examination raised doubts about who the expert witness had actually interviewed for one part of his evidence as there seemed to be confusion over names.
‘One of the major questions which arose as a result of evidence provided by Ms Barker was would the cultural evidence prevent the whole development proceeding or could areas for protection be fenced off and building not be done in that area with the development proceeding elsewhere.’
Challenge for community to follow
Those watching the case said it was difficult to follow the case even for those with an intimate knowledge of then details as the court had not released many of the details of the case to the community.
‘It was very difficult for those not directly party to the Court Appeal to follow proceedings as reference was made to voluminous materials in a large white folder defined by various tabs and other descriptors, and pieces of legislation,’ said EHRSD.
‘For those who knew nothing about the case it would have been virtually impossible to follow what was happening as various maps and pieces of legislation were passed around, and contentions raised where there was disagreement or agreement. There was significant discussion about Stage 2 development and whether or not it should be treated as a separate DA in the future.
‘Some time was also devoted to zoning of the land and changes to that zoning over time particularly given the fact that most of the land was zoned for residential development in 1983 but more recent zoning had increased recognition of the environmental significance of the site including a protected Littoral Rainforest Habitat in the middle of the proposed development.’
The case continues to be heard in Sydney Courts and interested members of the community can listen to the proceedings online.
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