The Supreme Court of Victoria has issued a 'stop work' order halting the Victorian Government's Western Highway widening works until 19 November 2020 in what is the latest chapter of a protracted legal battle. The order follows protests on 27 October 2020 over the removal of trees protestors claim are sacred to the Djab Wurrung people. Members of the Djab Warrung Heritage Protection Embassy (DWHPE) have camped along the existing portion of the highway since 2018 in efforts to stall works on the Western Highway upgrade between Buangor and Ararat.
The 12-kilometre span is being upgraded by the Victorian Government to reduce fatal traffic accidents on what is a dangerous stretch of highway. According to the Victorian Premier, there have been more than 100 accidents, including 11 fatalities on the broader Ballarat-Stawell highway in recent years, explaining the urgency of the safety upgrades.
On 27 October 2020, a fiddleback tree was removed which members of the DWHPE believe was a culturally significant 350-year-old "directions tree”. The legal representatives of both the landholders and the protestors in the area argued that the felled tree was identified in a report commissioned by VicRoads as being culturally significant.
The Victorian Government claims that the fiddleback tree was not identified as having tangible heritage values by the Eastern Marr Aboriginal Corporation (EMAC), a registered group of traditional owners who guided the assessment of heritage at the site. Independent arborists indicated that the tree was unlikely to pre-date European occupation and was roughly 100 years old. EMAC had lobbied for the protection of the tree in question, but despite its age and beauty, the tree did not possess markers of cultural significance. A nearby tree also referred to as a directions tree has been flagged in Federal Court proceedings and will not be removed.
The broader $672 million project commenced in 2013 but works have been intermittent due to court battles, disputes within the local Indigenous community and requests for federal heritage assessments. The design of the road was significantly altered in 2019 to avoid cutting through some of the more sensitive areas and sparing 16 trees which were identified as being culturally significant in consultation with EMAC.
In 2019, the Commonwealth government rejected a protection order to spare a further six trees. A Federal Court ruling identified a 'legal error' in the Federal Environment Minister's misunderstanding of the scope of protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The Minister was ordered to consider the matter further and recently decided against the protection order for a second time.
These ongoing matters are sensitive and complex. Decision-makers will need to come to a resolution by carefully navigating the cultural and legal issues at hand.
Authors: Joseph Monaghan & Sam Marks
 Clark v Minister for the Environment  FCA 2027
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