Coal versus Hunter native title claims

An elderly woman stands in front of the cave painting. She has soft grey curls. She wears a brooch on her blouse collar and a red cardigan. Her eyes are raised to Baiame.

As far as tourist brochures go, it is very moving.

The brochure was produced by Singleton Council to promote Aboriginal heritage in the Upper Hunter. Alongside it on the display rack at Singleton Tourist Information Centre is a brochure for self-drive tours of the area’s coalmines.

Since Lieutenant Shortland, on a mission to recapture convicts absconding from Sydney Cove, first spied glossy black seams in the coastal cliffs of what would become Newcastle, Aboriginal heritage and big coal have been uneasy bedfellows.

The elderly lady in the brochure for Baiame Cave is Barbara Foot, the senior elder of the Wonnarua people, whose traditional lands cover some of the richest and most heavily mined coal seams in Australia. This is a source of great sadness to Barbara. As senior elder, she is responsible for protecting her traditional land.

As Australia rides the prosperity of the minerals boom, known as ‘‘the coal rush’’, the coal industry is expanding at a rate previously unknown. While the benefits and disadvantages of this expansion are hotly debated, the loss of Aboriginal heritage has received little acknowledgement. The coal industry has eaten into the sacred places of Barbara’s country for much of her life. Now, with her health failing, she fears one of the Wonnarua people’s most important cultural and spiritual places is being threatened by a major mine expansion.

The area in question is Camberwell. Depending on your aspect and the time and day of your visit, Camberwell is either an idyllic green village, with a picturesque creek, a historic chapel and some wacky exterior home décor, or a lonely cluster of unfortunate houses surrounded by deeply pitted earth and towering mullock heaps. The area has received its share of media coverage as Camberwell residents have staged a long-running battle against the Ashton Coal Project.

The project, managed and majority-owned by Chinese government subsidiary Yancoal, sits on coking coal reserves estimated at more than half a billion tonnes. Its open-cut pits squeeze up close to the village of Camberwell, and its underground mine eats below.

Ashton has been operating since 2002, digging up almost 4million tonnes of coal each year to be sold to the Asian steel industry at between $200 and $400 a tonne. For continued access to these rich black seams, Ashton needs to expand.

Now a great-grandmother and the most revered elder of the Wonnarua people, Barbara Foot says she was a lonely child, taught to read by Batman and Superman.

Then a rural military base and dairy town, Singleton was not an easy place to be an Aboriginal child in the 1940s and Barbara’s childhood was a difficult one. During World War II, rations could not always stretch far enough to fill the stomachs of a family of seven. But ration cards were swapped and sometimes, when her parents weren’t too busy working, there was bush tucker to be had.

The hardest part of her childhood was the racism and the bullying. Racism was a pervasive part of her early experience. Talking about it now, her voice lowers, the hurt still visible. “It was hard growing up, going to school. I took to wagging it to get away from the slurs, the hurt.”

She wagged school whenever the bullying became too much; quite often. She says she wouldn’t have learnt to read if she hadn’t been so drawn to her brothers’ comic books. She can still list her favourites.

Apart from the hours spent with her superheroes, her happiest memories are of ranging through the bush with her siblings. Running through the pastures next to Camberwell, Bowmans Creek was, and still is, Barbara’s special place. “The place is very sacred to me. You feel welcome out there,” she says.

She would spend hours there fishing, swimming and playing, watching tadpoles and listening to the birds.

But Bowmans Creek is more than one woman’s personal sanctuary. To the Wonnarua, Bowmans Creek is a sacred songline, laid down by the creator Baiame at the dawn of time.

This ‘‘sacred’’ waterway runs through Ashton’s planned expansion. To retrieve the underlying coal, Ashton will undermine the area and remove sections of the creek. Its plan is to divert the creek and replace 1.7kilometres with man-made channels.

For Barbara and the Wonnarua, this distortion of a songline and the destruction of the surrounding land is a cultural and spiritual tragedy. The land directly around the creek is rich with significant sites. A Department of Environment map of the area appears like a hyper-modern dot painting; Aboriginal archaeological sites, indicated with red dots, cover the map.

Three families from the area have sought to register a native title claim over the land.

One is Barbara’s; another is Scott Franks’s. Scott has made numerous impassioned pleas to the relevant ministers and departments, in writing and in person, explaining the importance of the area and the creek and requesting that the mine expansion application be reassessed.

He has taken his case to the NSW Land and Environment Court and, separately, lodged a request with the federal Environment Minister, Tony Burke, for an emergency declaration of protection under the Aboriginal and Torres Strait Islander Heritage Protection Act.

Scott explains these sites are traditional campsites, initiation sites, corroboree sites and burial grounds; there are artefacts in the creek, with bowls carved into the rock and fish traps dug into the creek bed. Of even greater significance is the songline; a complex and sacred concept in Aboriginal culture. The Wonnarua Songline is the path set down by the creator Baiame as he walked with his son Little Baiame, singing up the creek, the hills, the plants and animals; singing the world into existence.

“You just can’t move something that the creator has laid down,” Scott says. “Ashton says it’s OK because they’ll ‘remediate the site’. How do you ‘remediate’ the destruction of a sacred site? Ashton’s arguments for the removal of the creek and the mining of the site are hard to ignore. Moving Bowmans Creek and gaining access to the coal underneath will provide an additional 5.3million tonnes of coal (worth up to $2billion). To state and federal governments this means about $80million in additional revenue. It will also mean more highly paid mining sector jobs.

Scott dismisses these arguments: “What’s a few million dollars to a company like Ashton and what’s our heritage to us? There are umpteen mines in this area and no shortage of jobs in the mines, but this is our Uluru. From an Aboriginal perspective this is as important to us as the pyramids are to the Egyptians. We don’t have massive things to look at because our people utilised the land to survive.”

No one will ever flock to Camberwell or Bowmans Creek as they do to Uluru. It gives little away – there is nothing there that shouts out to tourists that it was created by a song sung by the creator at the dawn of time as a spiritual path for his people. It appears only as a nice little creek like so many other nice little creeks in the valley and around the country.

But there is no denying that this area is an important place. Ashton’s archaeological assessment confirms this. While most archaeological evidence of Aboriginal occupation in the Hunter Valley is dated at less than 4000 years old, occupation in the area of Bowmans Creek has been dated from 10,000 to 13,000 years old. One archaeological dig site, referred to as the Waterhole Site, was reported to contain 256 Aboriginal artefacts.

Ashton’s report acknowledges that the potential archaeological deposits in the Bowmans Creek area are of “moderate scientific significance”, and that “all sites within the Bowmans Creek area are of cultural significance to the Aboriginal community’’. At the same time the report makes clear the extent of the potential damage to the area. Artefacts will be both dug up and buried. Subsidence contours will leave huge gashes in the earth where the ground drops down after it has been undermined. Ashton’s assessment predicts that subsidence will be up to 8.3metres in depth.

Ashton was unavailable for comment this week, but a spokesman said in April that the company placed ‘‘high priority on relationships with the Aboriginal community in the area in which the company operates”, and that it ‘‘operates within the requirements of all government regulations in relation to native title claims, heritage and the environment”.

Ashton has outlined an Aboriginal heritage mitigation and management plan, with emphasis on consultation. But for Barbara and Scott, their input has not achieved any hoped-for outcomes.

The destruction of the sites was approved by the NSW Planning Department under the contentious and now scrapped Part 3A planning provision on Christmas Eve last year. Part 3A jettisoned development approvals out of the normal planning approval process and gave the planning minister consent authority for major projects deemed to be of ‘‘state or regional significance’’. While the new Liberal state government is in the process of fulfilling an election promise to repeal Part 3A, the Ashton expansion has already been approved. The final go-ahead awaits an Aboriginal Heritage Impact Permit. The Department of Environment and Heritage is responsible for the granting of impact permits, however, in this case, the permit was not given and Ashton took the department to the NSW Land and Environment Court. It is now at the court’s discretion whether Ashton will be issued the permit to allow the expansion to proceed.

Scott’s application to be made a party to the court’s process was denied and the permit could be granted any day.

He and Barbara also await a decision from the Native Title Tribunal, where their case has been pushed, after negotiations between the parties failed.

Eddy Neumann, the lawyer representing Scott and Barbara in the native title case, explains that the case is unusual. He says it is rare to have a finding in NSW where native title hasn’t been extinguished, and even rarer to have a case where negotiations break down.

“Usually agreements are reached rather than going through the tribunal’s determination process. Under the Native Title Act it’s quite permissible to negotiate on the native title party receiving something like a royalty payment in the form of a percentage of the mine’s profits.”

However, to negotiate for the company to refrain from mining rather than applying for compensation is unusual. Neumann says that while it is open to the tribunal to disallow the mining of the area, under NSW legislation there’s very limited basis for doing so.

“The NSW Aboriginal Land Rights Act gives native title claimants limited avenues to prevent mining on native title land. There are limited rights, very limited rights; that’s the situation in NSW compared to most other states.”

The tribunal is expected to hand down a determination within a month. If all else fails, Neumann explains, they will try the argument made famous in the Australian film The Castle. “Like that movie, they will have to argue that compensation couldn’t be adequate to cover the destruction.”

When pushed as to how likely that argument would be to succeed, Neumann sounds less than hopeful. “That’s a big long haul. I think that only happens in movies.”

Scott, Barbara and their families are hoping their requests for a reassessment of Ashton’s expansion plan will register with the government.

‘‘I don’t want my sons to have to walk into a museum to look at our artefacts, the artefacts of our people, my direct descendants,” Scott says.

Barbara echoes his thoughts.

“The mines have destroyed a lot, but there are some [sites] left and they need to leave those for the kids. Not just my grandkids and great-grandkids but all kids. That’s what I want to do – make sure the rest of those places aren’t lost.”