Interview Ewan Gilbert, ABC, Central West

1 April 2021


EWAN GILBERT: The long-running saga over Bathurst Council's plan to construct a go-kart track atop Mount Panorama Wahluu has hit its biggest speed bump yet. The site in question, within McPhillamy Park, is sacred to local Aboriginal people. But the council has long been insistent there is little to no evidence of that. Ultimately, last year the matter landed on the desk of the Federal Environment Minister Sussan Ley to decide, and last month she came out to Bathurst to meet with as many of those involved as possible. Yesterday, Sussan Ley announced her preliminary decision and she joins us on the line this morning. Good morning, Minister.

SUSSAN LEY: Good morning, Ewan and good morning to your listeners.

EWAN GILBERT: You think that this site deserves protection from development?

SUSSAN LEY: It is a significant Aboriginal area under our Indigenous Heritage Protection Act, and that was clear to me after reading reports receiving further information and speaking to people when I visited the area. And that visit was just so important because I really felt the passion on both sides. I felt that the community go-kart club was bringing a great community project forward to look after not just members but the wider use in the area. I met with Aboriginal women at the top of the mountain and I heard directly from them about the significance of the top of the mountain for their traditions and not just for women but Aboriginal men and the relationship between that area and the broad Central West. So that visit is- has, of course, informed me. What I've now said is I need another 30 days. But by the way, I want this all done and dusted by the end of April. People have been waiting a long time to make that final declaration. So, I'm consulting on the proposed terms of a section 10 declaration. 

EWAN GILBERT: Okay. And so, what will that involve? Just speaking to all the parties again, and seeing whether they're happy with it?

SUSSAN LEY: Not that detailed and the consultation is by letter. So, my department has sent letters to those that had a say in the original decision - that's the clubs in the area. that's the traditional owners, that's the people who've been involved. I haven't met, by the way, with everyone who is being sent that consultation letter. They've been sent a proposed draft; the actual legal document, and it's called a consultation draft and they've got two weeks to come back with their thoughts on the detail. Not the overall fact that it's there and that it's protecting the area, but the detail. And that detail is important because what I heard very loud and clear from council was that they were concerned about the activities on the mountain now - the car racing; the club's; the future, perhaps, second track; and, so on. And the section 10 proposal, the section 9 proposal which is the emergency declaration, actually casts a very wide net over those areas. So, I've listened, I've heard that and I'm certainly not going to make a declaration that affects those activities, and be very clear in the declaration that those activities are not affected. So, public access to McPhillamy Park, the ongoing matters around the car race, the camping and so on, none of that will change. 

EWAN GILBERT: Okay. Because yeah, as you say, there has been, for lack of a better phrase, a bit of a scare campaign that this section 10 would be so widespread that it would take in, you know, the whole mountain, the local TAFE and as many as a 150 private houses. That's not the case?

SUSSAN LEY: It's not the case. It is just so not the case and I, I saw a lot of, I saw a lot of passion in the community. But I saw, unfortunately, some division which I know happens over issues from time to time. That's sad. I think there's a task to do to bring the two sides of this debate together. But to recognise that those sort of threat to existing activities are, are a million miles from this declaration. And to be honest, when I spoke to the traditional owners, they didn't talk about those things at all. They talked about that particular proposal, what they saw is desecration in that particular, relatively small area at the top of the mountain.

EWAN GILBERT: Did the council get this wrong? They remain adamant to the- they've done their own Aboriginal cultural heritage assessments and those have cleared the way for development.

SUSSAN LEY: They didn't see this as a significant area that I did. I'm not going to criticise council's process - they're a matter for local government, and obviously, the community that elects councils. But I do feel that we really have come to an eleventh-hour position on this that probably would have been better resolved a lot earlier with a lot less dissatisfaction and upset, really, in the community. And it's important that the go-kart club be looked after. Look, that's an observation I make, Ewan, it's- My job is to do the actual declaration itself [indistinct] set of circumstances. 

EWAN GILBERT: But I ask- I only ask because obviously you've seen something that, apparently, they haven't. It seems like a pretty serious miss on their behalf. 
SUSSAN GILBERT: I am the decision maker under this particular act and, you know, I have looked extensively at the information that's been provided to me. We engaged what we call a reporter under this act who took a long time, and people have been critical of the length of time. I had to wait for that report to come in. Then after my visit I wanted to speak one-on-one with traditional owners and then I actually received further information from them and from others. So, I did reach the conclusion that I reached based, I think, on really hearing everything about the area that needs to be heard to make that declaration of significance.

EWAN GILBERT: So, it wasn't so much a piece of physical evidence or archaeological evidence that swayed you as the stories that were told to you?

SUSSAN LEY: Well, the Act recognises the body of traditions, observances, customs and beliefs, and it looks at that in the context of an area and its significance. It also does talk about objects and remains that are particularly significant, but it isn't, if you like, pinning a particular spot on the ground where something is- absolutely needs to be ring-fenced. It's- in this case, it's about the top of the mountain. It's about the significance to traditional owners of that. And the fact that earthworks, digging up the physical desecration is a step too far when it comes to protecting that Indigenous significance. And in the draft declaration, it's clear that while obviously we don't mention the club or the activities in detail, we do say undertaking bulk earthworks affecting the specified area, construct any buildings on the specified area or clear any vegetation within the specified area, and that area is a small area, much smaller than the one that was in the original proposal, section 9 application.
EWAN GILBERT: I know you don't want to criticise anyone involved here and that's fair enough, and you're still consulting on it, but on a more broad level, how can we trust councils at all, any of our councils to get Indigenous heritage protection right if they seem to have gotten it so wrong here?

SUSSAN LEY: Councillors are elected representatives and the community elects them to have their say, and if they don't like what they're saying, they can elect different councillors. I mean, that's just a broad general statement. I think that councils generally are coming to understand the significance of Aboriginal heritage, but not -you need to see it- we need- all Australians need to see it as integral to the activities that we carry out day to date. Not something separate. I don't like an approach which sort of ring fences Aboriginal issues as something separate, something over there while we all carry on doing what we're doing. We have to bring everyone to the table and we have to have everyone understanding each other's points of view. That has to happen on both sides, only then will you get the best possible result.
So, as I said, it's not for me to tell council what- how to carry out their activities and be overtly critical of them at all. But bringing the traditional owners to the table and hearing from them, there's nothing worse than having a conversation that isn't direct, that isn't two people looking each other in the eye across the table and saying, well, what's going on here? What is important to you? And we want to hear from you directly. I think it's been conducted perhaps a little bit around the edges with third parties, with- the media has done a good job in bringing the issue, but if people speak through the media, but not to each other, that doesn't work very well either.

EWAN GILBERT: Okay. Well, can I just ask you just finally on that point this morning. Minister, as you say, this proposal has been a bit of an open wound in the community for many years. It's been dividing, at times seemingly deliberately so, and has ultimately I guess wasted millions of dollars in ratepayer funds. That's not your fault, but it ultimately ended up on your desk because everything else beforehand failed. So, is that a flaw in the system or as you're kind of alluding to there, perhaps a flaw in community leadership?

SUSSAN LEY: Ken Wyatt, our Minister for Indigenous Affairs, and I brought together a group around the table of State Ministers at the end of last year. We're going to continue that work. We want to see better alignment between Aboriginal heritage protection starting at local government level and finishing with the act that I administer at Federal Government level. If we can do that well, we can set those clear expectations as governments and bring all Australians together around the issue of Indigenous heritage protection because we are starting to learn the extraordinary stories of our first Australians. In some cases, we've known them or some sections of the community have known them for a long time. But recognition of our heritage hasn't happened at the rate that it would have been good to see. But it's got to be broad community recognition. So that is a piece of work, but I think we can do it across governments, and it is important.

EWAN GILBERT: Okay, Sussan Ley, thank you very much for your time this morning.

SUSSAN LEY: Always a pleasure. Thank you.

EWAN GILBERT: That's the Minister for the Environment Sussan Ley this morning on her preliminary decision that was announced yesterday to draft a potential section 10 declaration for an area atop of Mount Panorama, a much smaller area than has been kind of discussed in the past. So, really only takes in this particular site where the Minister is pretty keen to further protect it from construction and undertaking of bulk earthworks and buildings but does not go as far as some people have tried to point out, that would take in the whole mountain and stop car racing or anything along those sorts of lines.