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Notice of an application for the protection of significant traditional areas located within the proposed Shenhua Watermark Coal Mine, Breeza, New South Wales – Invitation to make representations

Notice of an application for the protection of significant traditional areas located within the proposed Shenhua Watermark Coal Mine, Breeza, New South Wales – Invitation to make representations

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au C2018G00178 In force Gazette

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Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Notice of an application for the protection of significant traditional areas located within the proposed Shenhua Watermark Coal Mine, Breeza, New South Wales

Invitation to make representations

I, Susan Phillips, hereby give notice as follows:

The Minister for the Environment and Energy, responsible for the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act), has received an application made under section 10 of the Act. The application is seeking to protect traditional areas located within the proposed Shenhua Watermark Coal Mine, Breeza, New South Wales, and appointed me to provide a report to him under section 10(1)(c) of the Act.

The Applicants

The application is made by Andrew Beatty, of Beatty Legal Pty Ltd, on behalf of the Gomeroi Traditional Custodians.

The purpose of the application

The application seeks the preservation or protection of the area specified in the application, and shown at Figure 1 below, from injury or desecration. Section 10 of the Act enables the Minister to decide whether to make a declaration to preserve and protect the specified area, if the Minister is satisfied that the area is a significant Aboriginal area and is under threat of injury or desecration. In the Act, the term ‘significant Aboriginal area’ refers to an area that is of particular significance to Aboriginal people in accordance with Aboriginal tradition. Section 3 of the Act provides definitions of ‘significant Aboriginal area’ and other relevant terms including ‘Aboriginal tradition’ and ‘injured or desecrated’. The area specified for protection, the claimed significance of the area, and the claimed nature of the threat of injury or desecration are set out below.

Matters the report is required to deal with

The Minister will consider my report under section 10 of the Act in relation to the area specified for protection before deciding whether to make a declaration. Under section 10(4) of the Act, the report is required to deal with the following matters:

(a) the particular significance of the area to Aboriginal people;

(b) the nature and extent of the threat of injury to, or desecration of the area;

(d) the prohibitions and restrictions to be made with respect to the area;

(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the applicants on whose behalf the application is made;

(f) the duration of any declaration;

(g) the extent to which the area is or may be protected by or under a law of the State of New South Wales, and the effectiveness of any remedies available under any such law; and

(h) such other matters (if any) as are prescribed.

The area sought to be protected (the 'specified area')

The applicant specifies eight areas for which protection is sought as traditional areas located within and near the proposed Shenhua Watermark Coal Mine, Breeza, New South Wales. These include:

Watermark Mountain (the entire mountain)
Two grinding groove complexes
One culturally significant gully area
One culturally significant river area
One culturally significant swamp
Three culturally modified trees

In addition, the applicants have requested that a defence, protective and hunting area (travelling and viewing corridor) and a ceremonial travelling and viewing corridor from the summit of Watermark Mountain looking towards the culturally significant areas identified above, must not be impacted by overburden from the mine works or other significant landscape changes.

Figure 1: Map showing the specified area near Watermark Mountain, New South Wales.

Claimed nature of particular significance

The application indicates that the particular significance of the specified area arises predominately from its significance as (summarised version of the Applicants’ claims):

The areas are part of the Applicants’ traditional homelands (Country) and senior Elders and traditional owners strongly identify their connection to Country with the cultural practices and memories relating to the areas. There is a deep cultural, social, environmental, spiritual and economic connection of the traditional owners, the Gomeroi (also identified as Kamilaroi) and other Nations to the lands and waters within and beyond the project area.
A connection with the Dreamtime and a connection to the past. The interaction between connection to Country and cultural identity is highly important as traces and memories of the past contribute to maintaining distinctive Gomeroi and Aboriginal culture and spirituality, and cultural interaction with the landscape.
The area contains lore and traditions associated with guarding and guiding people through the area and will remove the footprint of ancestral songlines that keep the meaning of this lore and tradition.
The area plays a broader cultural role in ceremonial, spiritual and religious songlines used by many south-eastern Indigenous Australian communities, including the Gomeroi. The area is a ‘cultural junction area’ where gathering, ceremony, trade and defence of country take place.
The archaeological sites and objects throughout the area show tangible evidence of culturally significant places and objects contributing to the cultural meaning and understanding for Aboriginal and non-Aboriginal people. These objects and their changing uses over time show an evolutionary, historical and cultural connection to the project area.
The areas and the general region have a history of continued camping and social, cultural and spiritual importance and connection, while also having a number of relationships to dispossession and violence, including against women, children and families.
There are continued historic and contemporary cultural practices relating to the areas, including hunting as well as gathering of medicinal plants and vegetation for bush tucker purposes and gathering of materials for cultural arts. Grinding grooves contained within the specified area have been attributed to the preparation of both food sources and stone artefacts.
The area has rare, intact grinding groove sites, burial cairns, burial trees, markers and pathway indicators and ceremonial places containing the remains of ancestral family members and Elders.
The general region has a history of Gomeroi (also identified and referenced as Kamilaroi) resistance and organised frontier warfare.
The general region has a history of massacres against Aboriginal people which requires acknowledgement, reconciliation and healing.
The places and culturally sensitive and significant objects within the cultural landscape are particularly important to the Gomeroi, especially to the values for Gomeroi men.
There is evidence of multiple use, and ingenuity in the use, of resources for cultural purposes.
The project area houses numerous multi-complex burial places, showing rare examples of differing practices and traditions used under local law and remain part of traditional teachings today.
Ceremonial or place markers that in the area denote ceremonial usage, where certain aspects of culture are taught (teleteglyphs), or places, primarily as indications of burial sites (taphoglyphs).
Trees within the areas have cultural value because of their historic utility. For example, trees were used for water extraction and as food larders.

Claimed threat of injury or desecration

The application indicates that the potential injury or desecration is attributed to the development of the Watermark Coal Mine near Breeza, New South Wales, by Shenhua Watermark Pty Ltd. The application claims that the large scale open cut coal mining project will irreversibly desecrate or destroy the specified areas.

Invitation to make representations

Interested persons are invited to make representations on this matter to:

Susan Phillips
Barrister
13th Floor, St James Hall
169 Phillip Street
PYRMONT NSW 2000

Ph: 02 9335 3063
Fax: 02 9237 0895
Email: phillips@stjames.net.au

Representations must be made in writing by close of business 06 April 2018 or within such further period as may be allowed. You should not send your representations directly to the Minister.

If you wish to claim confidentiality over any part of your representation, please identify why you are claiming confidentiality and how you want confidentiality to apply. All representations, whether or not they are provided in confidence, will be provided to the Minister for the Environment and Energy, and the Department of the Environment and Energy, along with the section 10 report. Representations, even those subject to confidentiality, may be disclosed where it is authorised or required by law, to meet procedural fairness requirements, and in response to a request by a House or Committee of the Parliament of the Commonwealth.

Overview

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was enacted to address the problem of protecting significant Aboriginal areas from injury or desecration due to industrial or other developments. The Act empowers the Minister for the Environment and Energy to make a declaration to preserve and protect specified areas if they are considered significant to Aboriginal people and are under threat. The policy objective of the Act is to safeguard the cultural heritage and traditional practices of Aboriginal and Torres Strait Islander peoples by providing a legal mechanism for the protection of significant sites. The Act provides a framework for assessing the significance of an area and the nature of any threat, and for determining the appropriate measures to protect the area. This legislation was enacted by the Commonwealth Parliament to ensure the preservation of Aboriginal and Torres Strait Islander heritage and to provide a means for the community to be involved in the decision-making process.

Scope and Application

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) applies to areas of cultural significance to Aboriginal and Torres Strait Islander peoples that are under threat of injury or desecration due to proposed developments. The Act provides a mechanism for the Minister for the Environment and Energy to consider applications from traditional owners or custodians seeking protection for these areas. The application process under section 10 of the Act involves an assessment of the particular significance of the area, the nature and extent of the threat, the appropriate extent of the area to be protected, and the potential effects of a declaration on other interests. The Act’s jurisdiction extends nationally, allowing for the protection of significant Aboriginal areas across Australia, regardless of state or territory boundaries. However, the effectiveness of such protections can be influenced by the laws and regulations of individual states and territories. While the Act generally applies to all significant Aboriginal areas under threat, certain exclusions and exemptions may apply, particularly where other legislative frameworks provide sufficient protection. The Act may also be extended or restricted through subordinate instruments, which can clarify the application of the Act in specific contexts.

Key Provisions

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act) contains key provisions that govern the protection of significant traditional areas. Section 10 of the Act allows the Minister for the Environment and Energy to make a declaration to protect a specified area if satisfied that it is a significant Aboriginal area and is under threat of injury or desecration. This process begins with an application made under section 10 of the Act, as in the case of the Shenhua Watermark Coal Mine in Breeza, New South Wales. The Act defines terms such as "significant Aboriginal area," "Aboriginal tradition," and "injured or desecrated" in section 3. The application must include details about the particular significance of the area, the nature and extent of the threat, and other specified matters detailed in section 10(4) of the Act. The obligations imposed by the Act on the parties involved are comprehensive. The Minister, upon receiving an application, must consider a report prepared under section 10(1)(c) of the Act before making a decision. The report must address various matters, including the particular significance of the area, the threat of injury or desecration, the extent of the area to be protected, and the potential effects on other parties. The applicants must provide sufficient information to support their claim, ensuring that the Minister has all necessary details to make an informed decision. Additionally, the Minister must consider the extent to which the area is already protected under state laws and the effectiveness of any available remedies. The Act imposes specific consequences for breaches of its provisions. While the Act itself does not explicitly outline offences or penalties, related legislation and common law principles may apply. Any actions that undermine the protection of a significant Aboriginal area could potentially lead to civil or criminal liability under other statutes or common law, including charges for damage to cultural heritage sites. In the context of mining projects, companies and individuals could face substantial fines and penalties if they are found to have caused injury or desecration to protected areas, as per environmental protection laws and regulations. The Act’s framework ensures that significant traditional areas receive the necessary protection against threats such as mining projects. By requiring thorough evaluations and inviting public representations, the Act aims to balance the interests of traditional custodians with other stakeholders. The potential for legal action against those who cause injury or desecration to protected areas underscores the importance of adhering to the Act's provisions.

Area of Law: Indigenous Peoples & Native Title Law
Instrument: Gazette Notice
Concepts: Definitions & Interpretation; Offence Provisions; Enforcement Powers

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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