Recently, I wrote about the potential damage to our economy driven by a slavish devotion to the protection of Aboriginal heritage. I used the myth of the Juukan shelters to highlight my point.

Now we have the revelation that the deliberations and evidence used by Environment Minister Tanya Plibersek to deep-six the one-billion-dollar Blayney gold mine are to be embargoed for 30 years, following a Federal Court judgment.  Justice Stellios said the orders were ‘necessary to prevent prejudice to the proper administration of justice’ and ‘necessary to protect the safety of a person’.

According to the Australian, the judge said his reasons for making this decision would also be redacted for 30 years.

This is extraordinary. The first justification is meaningless drivel. The second is highly problematic, as it suggests that someone is under some sort of physical threat and that, rather than eliminating the threat, it should be thrust out of mind.  How can this be the basis of a judgment from any court?  If the judge believes that some person poses a risk to another, why would he not, at the very least, issue a restraining order?

Or does the ‘safety of a person’ relate to some nebulous concept like ‘cultural safety’?  Some secret business? Who knows?  But it’s hard to see how this ruling could survive a High Court appeal, or even one to the full bench of the Federal Court. Or that would be the case if we weren’t living under a two-tier legal system. One for us mere mortals and the other for ‘First Nations’ people.

This adds further weight to my argument that emotional rhetoric is trumping common sense in virtually all facets of Aboriginal heritage, indeed, our entire governance.

Another example is the Djab Wurrung birthing trees, generally characterised as the ‘destruction of 800-year-old birthing trees in Western Victoria’. This is a hobby-horse of Lidia Thorpe. She claims it is as significant as ‘Juukan’. The most controversial aspect of this furore is the removal of one particular tree known as a ‘directions’ tree.

Here we see the use of longevity (800 years) to generate an emotional response. It is highly unlikely that any of the trees are 800 years old, since most eucalypts live only 200 years at most, although it has been claimed that the river red gum can live up to 1,000 years. The best estimate I can find for the lifespan of the yellow box (the species in question) is that it often exceeds 100 years. One of the activists involved in protesting this site claimed that an independent arborist had estimated the life of the ‘directions’ tree as 350 years. In this case, ‘independent’ does not mean ‘highly qualified’. It simply means one who could be persuaded to stretch the lifespan to its breaking point.

What this means is that the site might have been used for birthing for 800 years, during which many trees would have died naturally, as will this current crop sooner rather than later. In principle, how is it possible for a tree that will eventually die to be ‘sacred’?

The claim is that Djab Wurrung women gave birth under these trees and mixed the placenta with the seeds, which they planted.  The resulting tree, known as a ‘directions tree’, became a sacred symbol of guidance and protection for the child. That the area is significant to them is uncontroversial and understandable. But for an area used for such a basic function as giving birth, to be accorded such a spiritual significance – to be classed as ‘sacred’ – is questionable.

Nonetheless, the cultural significance of a stand of ‘birthing’ trees eventually came up against the need to upgrade and divert a part of the Great Western Highway that had become a death trap.  According to the Victorian government, the upgrade of that stretch was essential because, over a ten-year period, 100 accidents and 11 fatalities had occurred there.

From 2017, a series of protests and negotiations followed, during which the Aboriginal community was represented by the registered Indigenous group for the area, the Eastern Maar Aboriginal Corporation. In February 2019, amid long project delays and cost blowouts, the government agreed to change the route to save 16 trees inside the boundary, in consultation with Eastern Maar. On October 6, 2020, the ‘directions’ tree that is at the heart of this controversy was cut down.

According to a report in the Sydney Morning Herald, Eastern Maar says it advocated for the fiddleback [the ‘directions’ tree] too, but lengthy surveys, including by local elders walking country, did not find the same markers of cultural significance on that tree ‘despite its age and majesty’. Chief executive Jason Mifsud has said that trees that were saved, including birthing and directions trees, were still a win for Aboriginal heritage, even if the Djab Wurrung were not negotiating from a position of strength.

All 12 of the ancestral families in the area have a seat on the Eastern Maar board, but that was not enough for the activists, including Lidia Thorpe, who say the group does not speak for all Djab Wurrung people. Therein lies the problem. Unless Aboriginal communities are prepared to concede some agency to their representative bodies – as do the rest of us – then there will never be an end to these costly, divisive controversies. Unless they concede that ‘colonisation’ brought immeasurable benefits as well as losses – and those losses necessarily include the loss of some cultural heritage – they will never be content, never contribute to material progress in their own nation, Australia.

Thorpe has a real-world example of the power of these trees:

She recalls helping a non-Indigenous woman carry a new baby out to see the Djab Wurrung birthing tree one day. The woman’s pregnancy had been complicated, with the child not turning around in the womb. ‘But she told me when she sat inside the tree last time, the baby turned – the baby I was holding right then, they had a connection to the tree too.’

That should settle your hash, you damned cynics!

There is one consolation for the Djab Wurrung. The ‘grandfather’ tree, partner of the now-defunct ‘directions’ tree, is still standing. It is claimed to be 800 years old, so the Djab Wurrung had better ‘worship’ it while they can. It can’t be much longer for this world, even if it hangs on long enough to be granted ‘person’ status and thus immune to felling.

I cover this, and many other examples, in Juukan – the New Dark Emu published this month by Quadrant Books.