Investigation into the planning and delivery of the Western Highway duplication project

Letter to the Legislative Council and the Legislative Assembly

To

The Honourable the President of the Legislative Council

and

The Honourable the Speaker of the Legislative Assembly

Pursuant to sections 25 and 25AA of the Ombudsman Act 1973 (Vic), I present to Parliament my Investigation into the planning and delivery of the Western Highway duplication project.

Deborah Glass OBE
Ombudsman

30 July 2020

Warning to Aboriginal and Torres Strait Islander readers

Aboriginal and Torres Strait Islander readers are warned that early sections of this report contain names and images of deceased persons.

Additionally, passages of the report set out information from historical sources that may be considered confronting or offensive to Aboriginal people. In the interests of truth-telling about the negative effects of colonisation for Aboriginal and Torres Strait Islander peoples, information from these sources has not been sanitised, and is presented ‘as is’.

Foreword

It connects all our mob, through that one dreaming and one songline. […] [The highway duplication works] will take out part of our dreaming.

Oral submission to the investigation

The ancient trees soar overhead, twisted and gnarled; the surrounding grasslands shimmer in the hot afternoon breeze. On this sultry December day I can see the blue hills of Langi Ghiran State Park on the horizon. Djab Wurrung Country is beautiful; but its traditional custodians are fighting for more than its beauty.

Parts of Djab Wurrung Country have been occupied by Aboriginal people for more than 12,500 years. But from the late 1830s, Europeans began a decades-long process of invasion and dispossession, culminating in the ‘near-ethnocide’ of the Djab Wurrung by the end of the 1870s. Few continue to maintain a presence on their traditional lands.

This process of dispossession also saw the creation of a road between Buangor and the gold-diggings in Ararat, through the foothills of Mount Langi Ghiran, that would one day become the Western Highway, the major route between Melbourne and Adelaide. The duplication of a stretch of that highway remains unfinished as a result of both protest action and litigation.

“Songlines, Not Highways” reads one of the signs at the Djab Wurrung Heritage Protection Embassy by the side of the Western Highway, just outside Ararat. Given the region’s history of ethnic murder and dispossession, it is hard not to sympathise.

In this investigation I sought to find answers to the key concerns raised about the project: fundamentally, that VicRoads and its successors designing the project failed to consult the traditional custodians of the land; did not properly investigate the Aboriginal cultural heritage of the area; and ignored options that would have provided better cultural and environmental outcomes.

This report shows the answers are complicated. The impact of the project on Aboriginal cultural heritage was recognised as a key issue when planning began in 2008. Consultation did take place, on numerous occasions, with the Registered Aboriginal Parties for the area, though some people have disputed that those consulted were properly representative of the Djab Wurrung peoples.

While consultation with local residents and landholders was extensive, consultation with Aboriginal communities was limited to the officially recognised body. This complied with legislation, and underlines the statutory importance rightly given to Registered Aboriginal Parties. But given the history of dispossession of the Djab Wurrung, was this good enough?

The two large old trees by the Embassy were not in fact identified until 2017 and claimed to be ‘birthing trees’, after the highway alignment had been determined. While there is no doubt of their age and beauty, traditional custodians continue to express different views as to their status.

In any event, once they were identified, the project sponsors undertook further consultation. Eastern Maar Aboriginal Corporation, now representing registered native title claimants for the area, commissioned a further independent cultural heritage assessment. Modifications were made to the route to keep 16 of the 22 trees identified as culturally significant, including the two ‘birthing trees’. For many reasons, including cultural and environmental considerations, other route options were not considered to provide a better outcome.

In light of these and other commitments, Eastern Maar has now indicated it is satisfied that Aboriginal cultural heritage impacted by the project will be adequately protected. This outcome also enjoys the support of the Victorian Aboriginal Heritage Council. But it is not supported by many others.

It is not for the Ombudsman to determine the best route for the highway and as I told members of the Embassy when I met them last December, even though I have the powers of a Royal Commission, I cannot make an order to stop the road. Knowing that, they still wanted me to investigate. ‘If you have powers, you should use them’, one of them told me.

So I have done so, having considered not only their views but the wider public interest in this long-running and contentious saga.

I can now observe that the motivations and actions of all the parties, no matter on which side of the fence they sit, appear to have been carried out in good faith, and resulted in significant compromise. This is a major achievement for those who mobilised to speak up for Country, inconceivable when the original road was built in the nineteenth century.

It is inevitable that it will not satisfy those for whom every tree and contour on Country must be preserved, and I acknowledge it is not only the trees, but all the surrounding landscape that carries the weight of Aboriginal history. We cannot turn the clock back to undo the damage of the past, nor can we entirely avoid the damage of the present. But we can minimise the damage – and we can work together to better understand and celebrate that the land always was, always will be, Aboriginal land.

Deborah Glass
Ombudsman

Clarification

Following conclusion of the investigation, the Department of Transport notified the Ombudsman it had located additional records concerning the development of the Credit Trading Agreement between VicRoads and Martang. Some of these documents were previously requested by the Ombudsman but were unable to be located by the Department during the investigation. The Ombudsman accepted the Department’s explanation as to why the documents could not be located at the time of the investigation.

The additional documents supplied by the Department tend to reinforce the conclusion of the investigation that the terms of the Credit Trading Agreement were not influenced by the requirement to obtain Martang’s approval of the cultural heritage management plan required by the Western Highway duplication project. The documents also indicate that during planning of the Western Highway project, some staff at VicRoads identified there was a possibility that negotiation of the Credit Trading Agreement could delay Martang’s determination to approve the cultural heritage management plan. This appears to reinforce the investigation’s conclusion that the simultaneous negotiation of both instruments was arguably capable of creating a conflict of interest (refer to paragraph 441 of the investigation report).

Having considered the contents of the additional documents, the Ombudsman has determined that no further action is warranted in the circumstances.

Glossary

Timeline of key events

Executive summary

Why we investigated (summary)

1. In August 2019, the Ombudsman received a number of complaints about the planning and delivery of the Victorian Government’s Western Highway duplication project. The complaints invariably raised concerns about the potential for the highway project to damage or destroy sites of Aboriginal cultural heritage significance, including a number of trees in the vicinity of Langi Ghiran State Park, to the east of Ararat, that were said to be sacred to Djab Wurrung traditional custodians.
2. This followed claims, first reported in the media in early 2017, that planning authorities had failed to recognise the cultural significance of two hollow trees in the path of the approved highway alignment, said to have been traditionally used by Djab Wurrung women when giving birth.
3. Those claims, and the efforts of some traditional custodians to halt construction associated with the project, have received considerable local and international media coverage, which highlighted concern about a lack of consultation by the Government with Djab Wurrung traditional custodians during the project planning phase.
4. In December 2019, the Ombudsman decided to conduct an ‘own motion’ investigation into the planning and delivery of the project.
5. Among other things, the investigation looked at:
   • how the alignment of the section of highway between Beaufort and Ararat was determined
   • the extent to which development of the project made allowances for the protection of Aboriginal cultural heritage
   • VicRoads’ decision to negotiate and enter into a Credit Trading Agreement with a Registered Aboriginal Party involved in assessing the project’s cultural heritage impacts
   • how authorities responded to the cultural heritage concerns about the project, once raised.
6. The investigation also considered whether the actions of the relevant authorities were compatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter of Rights Act’).

Djabb Wurrung Country (summary)

7. The traditional lands of the Djab Wurrung people are part of an ancient volcanic landscape, interspersed with temporary and perennial lakes and swamps, intermittent streams and open plains. Archaeological surveys have demonstrated that parts of Djab Wurrung Country have been occupied by Aboriginal people for more than 12,500 years.
8. These surveys have emphasised the relative prevalence of Aboriginal cultural heritage sites in the vicinity of what is now Langi Ghiran State Park, attesting to the traditional Aboriginal connection to this area. The name ‘Langi Ghiran’ itself is generally understood to mean ‘home of the black cockatoo’ in the Djab Wurrung language.
9. Traditional Aboriginal occupation of the area was largely interrupted when, from the late 1830s, Europeans began to force Djab Wurrung ancestors from their traditional lands. What followed was a decades-long process of invasion, dispossession and murder, culminating in the ‘near-ethnocide’ of the Djab Wurrung by the end of the 1870s. Today, many Djab Wurrung descendants live off Country, while others continue to maintain a presence on their traditional lands.
10. This process of dispossession also saw the creation of a road between Buangor and the gold-diggings in Ararat, through the foothills of Mount Langi Ghiran, that would one day become the Western Highway.

Reports of possible birthing trees

11. Substantive planning for duplication of the Western Highway between Ballarat and Stawell commenced in early 2008. In May 2013, the Minister for Planning endorsed an alignment for the section of duplicated highway between Beaufort and Ararat, including the area to the south of Langi Ghiran State Park.
12. In early 2017, before substantive construction of the relevant section of highway commenced, Aboriginal Victoria - the office responsible for administering Victoria’s Aboriginal cultural heritage legislation - notified VicRoads, the authority then responsible for the project, that it had received preliminary reports from a member of the public concerning a number of trees in the vicinity of Langi Ghiran State Park. This included two hollow trees that were said to have ‘all the hallmarkings’ of highly culturally significant birthing trees used by Djab Wurrung ancestors when giving birth.
13. VicRoads subsequently facilitated inspections of the nominated trees by Aboriginal Victoria. Those inspections involved senior female Djab Wurrung representatives of Martang Pty Ltd (‘Martang’) and Eastern Maar Aboriginal Corporation (‘Eastern Maar’). At the time, the former was recognised by the Aboriginal Heritage Council - an independent statutory body made up of traditional custodians appointed by the Minister for Aboriginal Affairs - as the primary source of cultural heritage advice for the area, and the latter represented Aboriginal peoples with a registered native title claim over the region.
14. Aboriginal Victoria later wrote to VicRoads to report that these inspections had not substantiated the claims made about the area. On two occasions in May and November 2017, respectively, Aboriginal Victoria informed VicRoads that it was authorised to proceed with the project in accordance with a cultural heritage management plan previously approved by Martang.
15. In June 2018, as tree-removal near Langi Ghiran State Park was scheduled to commence, several individuals, including some Djab Wurrung traditional custodians, began to occupy the project site, causing works to cease. Members of this group later established a camp - the ‘Djab Wurrung Heritage Protection Embassy’ - at several locations along the approved highway alignment.
16. Around the same time, several Djab Wurrung traditional custodians made an application to the Commonwealth Government seeking protection of the project area under Commonwealth Aboriginal heritage protection legislation.
17. In August 2018, and again in February 2019, Eastern Maar also wrote to the Victorian Government to express concerns about the project and requested that it investigate alternatives to the approved highway alignment.
18. Broader community interest in the Western Highway project increased dramatically after details of efforts to protect the site were first published in traditional and social media platforms. To date, more than 179,000 people have signed an online petition calling upon the Victorian Government to halt works associated with the project.
19. Djab Wurrung people in opposition to the project who spoke with the Ombudsman said the natural features and contours of the area impacted by the approved highway alignment - including, but not limited to, the nominated birthing trees - were sacred according to Aboriginal tradition; and that the highway works would involve unacceptable impacts to cultural heritage in this area.

We’re holding on to the last of what’s left.

Oral submission to investigation.

20. These traditional owners also said they held concerns about the nature and thoroughness of the cultural heritage assessments conducted by VicRoads when the highway alignment was developed, as well as the extent of VicRoads’ consultation with traditional custodians during this period.

Project planning (summary)

Development of the alignment

21. VicRoads recognised the Western Highway duplication project was likely to impact Aboriginal cultural heritage in early 2008, when it began preliminary planning activities associated with the project.
22. This led VicRoads to commission a desktop report into Aboriginal cultural heritage within the vicinity of the existing highway corridor. This report recognised the traditional Djab Wurrung connection to the region, and cautioned that previously unrecorded cultural heritage sites were likely to be encountered within the area.
23. Protection of Aboriginal cultural heritage sites was subsequently identified as one of several key objectives for the project. In 2011, two further Aboriginal cultural heritage assessments were commissioned for the purposes of evaluating alignment options for the section of highway between Buangor and Ararat, the focus of the present-day dispute. Information concerning broader cultural sensitivities was also solicited from the Registered Aboriginal Party for the area, Martang, and mapped against shortlisted alignment options.
24. The results of these assessments were considered and weighed against other project objectives. Information identified during the assessments influenced VicRoads to favour some alignment options and eliminate others.
25. Owing to the location of Langi Ghiran State Park, alignment options for the relevant section of highway were effectively limited to those which followed the existing highway alignment, either in full or in part, and those which deviated through farmland to the south.
26. It is noted that largely owing to this constraint, none of the alignment options shortlisted by VicRoads would have entirely avoided the areas later identified for protection by some Djab Wurrung traditional custodians.
27. The two alignment options nominated by VicRoads for inclusion in the project’s Environment Effects Statement, prepared under the Environment Effects Act 1978 (Vic), were the subject of a further cultural heritage impact assessment, conducted in early 2012. This assessment concluded that while both alignment options could encounter previously unrecorded Aboriginal cultural heritage sites, this risk could be managed by undertaking targeted archaeological excavations and through preparation of a cultural heritage management plan for the project. VicRoads subsequently followed this advice.
28. Neither alignment option presented in the Environment Effects Statement would have entirely avoided the areas surrounding the nominated birthing trees – both options followed the same route between Ararat and Langi Ghiran State Park, where one such tree is located, and both diverged south of the existing highway between Langi Ghiran and Buangor, intersecting to different degrees the area surrounding the other tree.
29. The investigation established that VicRoads did not receive reports concerning the possible birthing trees until early 2017, after the highway alignment had been determined by the Minister for Planning.
30. The decision not to pursue development of an alternative alignment favoured by some, but not all, Djab Wurrung opponents to the project – often referred to as the ‘northern option’ – appeared to have been based on a combination of environmental, cultural heritage, financial and road configuration considerations, and did not seem unreasonable in the circumstances.

Consultation with traditional custodians

31. While VicRoads’ consultation with local residents and affected landholders during the project’s design phase was thorough and responsive, its consultation with Aboriginal communities was more limited, and tended to rely upon discussions between VicRoads, Aboriginal Victoria and Djab Wurrung traditional custodians associated with Martang.
32. VicRoads did not develop a cultural heritage consultation plan for the project. The preparation of such a plan was recommended, but not required by VicRoads’ Cultural Heritage Guidelines, and could have assisted VicRoads to identify and consult with other Aboriginal parties with connections to and knowledge of the area.
33. Despite this, the investigation noted that the Aboriginal Heritage Act 2006 (Vic) prioritised consultation between project proponents and Registered Aboriginal Parties – these bodies being the ‘primary source of advice and knowledge’ on matters relating to Aboriginal cultural heritage within their designated area.
34. It may be for Parliament to consider whether the processes under the Aboriginal Heritage Act should be made more permissive of consultation with individuals and bodies who have not been accorded Registered Aboriginal Party status; noting, at the same time, the need to respect the principles of Aboriginal self-determination underpinning this legislation.
35. In this case, it is not clear that broader consultation would have led to earlier identification of the possible birthing trees or the other cultural values subsequently attributed to the area.

Cultural heritage management plan

36. Under the Aboriginal Heritage Act, VicRoads was required to prepare a cultural heritage management plan through which impacts to Aboriginal cultural heritage associated with the project were to be identified and addressed.
37. Possible Aboriginal cultural heritage sites within the approved alignment corridor were investigated as part of this process. This involved three levels of cultural heritage assessment, including 66 days of field surveys and excavation activities undertaken in cooperation with Martang between January 2012 and August 2013.
38. VicRoads consulted with Martang throughout the cultural heritage management plan process. This consultation did not lead to the identification of the possible birthing trees or the more significant cultural values that were subsequently attributed to the area. The investigation noted there appeared to be differing views within the Djab Wurrung community concerning the degree to which the project would impact cultural values associated with the area.
39. Martang indicated it was satisfied that measures were in place to suitably minimise harm to Aboriginal cultural heritage when it determined to approve the project’s cultural heritage management plan in October 2013. This was in accordance with the criteria identified in the Aboriginal Heritage Act, which, although prioritising principles of harm avoidance, required only that an activity be conducted in a way that minimised harm to Aboriginal cultural heritage.
40. While some traditional custodians claimed that Martang was not sufficiently representative of Djab Wurrung people, the investigation noted that this body’s limited ownership structure was recognised and addressed by the Aboriginal Heritage Council when it determined to approve Martang’s application for registration as a Registered Aboriginal Party in September 2007.
41. The investigation nevertheless saw the tensions at the heart of the Aboriginal Heritage Act and observed that, while processes under this legislation were intended to empower traditional custodians when speaking for Country, they also had the potential to exclude some voices from the discussion.

Credit Trading Agreement

42. The investigation did not substantiate allegations that VicRoads unduly influenced Martang to approve the project’s cultural heritage management plan.
43. Despite this, VicRoads’ decision to negotiate a Credit Trading Agreement relating to the project with Martang during the period when Martang was required to evaluate the cultural heritage management plan was ill-advised and arguably created a conflict of interest.
44. The authority responsible for facilitating the Credit Trading Agreement, Trust for Nature, was not informed of Martang’s role in evaluating the cultural heritage management plan and was not criticised by the investigation for its involvement in the arrangement.
45. There was no evidence before the investigation, however, that the Credit Trading Agreement was intended to influence Martang or that it had any impact on Martang’s decision to approve the cultural heritage management plan.
46. Although its actions were not a subject of the investigation, records reviewed by the Ombudsman indicated that Martang approached its responsibilities concerning the project diligently, and in accordance with the requirements established under the Aboriginal Heritage Act.

Response to cultural heritage concerns (summary)

47. In June 2018, after works associated with the project were effectively halted by efforts to protect the site, VicRoads undertook to support a further, independent cultural heritage assessment of the area impacted by the project.
48. Following this assessment and further dialogue with Martang, Eastern Maar and representatives of the Djab Wurrung Heritage Protection Embassy, Major Road Projects Victoria (‘MRPV’) - the authority currently responsible for the project - developed several ‘localised realignments’ to the proposed highway. These are expected to avoid - in some cases only narrowly - 16 of approximately 22 trees identified as culturally significant by Djab Wurrung opponents to the project, including the two nominated birthing trees.
49. In light of these and other commitments made by MRPV, Eastern Maar - representing native title claimants for the area - has indicated it is satisfied that the project will adequately protect Aboriginal cultural heritage impacted by the project. This outcome also enjoys the support of the Federation of Victorian Traditional Owner Corporations and the Aboriginal Heritage Council.
50. It is not supported by representatives of the Djab Wurrung Heritage Protection Embassy who spoke with the Ombudsman or the Djab Wurrung traditional custodians seeking Commonwealth protection of the area.

You can’t separate the land from the tree, or the tree from the land. […] It’s still going to go through and take out a part of sacred Country.

Oral submission to investigation.

Observations (summary)

51. While VicRoads’ initial project consultation did not appear to have reached all relevant audiences, the investigation ultimately concluded that VicRoads and MRPV had made legally sound and good faith efforts to consult with traditional custodians and arrive at a compromise solution to the cultural heritage concerns about the project, once raised.
52. On one view, this outcome - which will see the proposed highway avoid 16 trees of significance, including the two nominated birthing trees - represents a significant achievement for those who mobilised to speak up for Country.
53. Yet it is also clear that the terms of the preliminary agreement between MRPV and Eastern Maar have not satisfied all Djab Wurrung traditional custodians who have expressed concerns about the project. These individuals have observed that the duplication works will inevitably harm a landscape that was once nurtured and revered by Djab Wurrung ancestors.
54. It is also clear concerns about the project continue to resonate with the broader community, and may risk impacting some sectors of the public’s confidence in the Victorian Government’s commitment toward protecting Aboriginal cultural heritage and the delivery of other initiatives seeking to mend relationships between the State and Aboriginal peoples.

Compliance with human rights (summary)

55. The investigation did not conclude that the actions of VicRoads and MRPV were incompatible with the distinct cultural rights of Aboriginal people identified in section 19(2) of the Charter of Rights Act, while noting that MRPV and the other authorities responsible for the project must give proper consideration to the cultural rights of Aboriginal people when determining whether and how to move forward.

Introduction

Why we investigated

56. In August 2019, the Ombudsman received a number of complaints about the planning and delivery of the Western Highway duplication project. The complaints invariably raised concerns about the potential for the highway project to damage or destroy sites of Aboriginal cultural significance, including a number of trees in the vicinity of Langi Ghiran State Park, to the east of Ararat, that were said to be sacred to Djab Wurrung traditional custodians.
57. Substantive planning for duplication of the Western Highway between Ballarat and Stawell commenced in early 2008. In May 2013, the former Minister for Planning endorsed an alignment for the section of duplicated highway between Beaufort and Ararat, including the area to the south of Langi Ghiran.
58. In early 2017, the media first reported claims, endorsed by some Djab Wurrung traditional custodians, that planning authorities had failed to recognise the cultural significance of two hollow trees in the path of the approved alignment, said to have been traditionally used by Djab Wurrung women when giving birth.
59. In June 2018, as tree-clearing in the vicinity of Langi Ghiran was scheduled to commence, concerned individuals established a camp at the project site - later called the ‘Djab Wurrung Heritage Protection Embassy’ - temporarily postponing construction. At the time of this report, substantive duplication of the disputed section of the highway is yet to commence.
60. The protests concerning the Western Highway project have received considerable local and international media coverage, with reports tending to emphasise a perceived lack of consultation by the Victorian Government with Djab Wurrung traditional custodians during the project planning phase.
61. The individuals who approached the Ombudsman also raised concerns about:
    • the nature and thoroughness of the cultural heritage assessments conducted when the highway alignment was developed
    • the project proponent’s reliance upon the advice of Martang Pty Ltd (‘Martang’) – the Registered Aboriginal Party for the area during the planning phase – and the proponent’s decision to enter into a Conservation Covenant and Credit Trading Agreement with this body
    • the perceived failure of the proponent to consider alternative alignments for the duplicated highway capable of avoiding or minimising impacts to Aboriginal cultural heritage in the area..
62. These individuals, some of whom were occupying the project site, asked the Ombudsman to investigate the handling of the project.
63. Complaints and approaches to the Ombudsman concerning the Western Highway duplication project are identified in the following table:

Approaches to Victorian Ombudsman concerning Western Highway duplication project

64. After receipt of the first complaints, Ombudsman officers made enquiries with Major Road Projects Victoria (an office within the Major Transport Infrastructure Authority; ‘MRPV’) and the Aboriginal Heritage Council under section 13A of the Ombudsman Act 1973 (Vic).
    
65. Ombudsman officers also met with staff of these authorities and, in December 2019, the Ombudsman visited the highway site to meet with representatives of the Djab Wurrung Heritage Protection Embassy.
66. On 20 December 2019, the Ombudsman notified the following parties of her intention to conduct an ‘own motion’ investigation into the planning and delivery of the Western Highway duplication project, with particular regard to concerns about the protection of sacred Aboriginal sites:
    • the Minister for Transport Infrastructure
    • the Minister for Planning
    • the Minister for Energy, Environment and Climate Change
    • the Chief Executive Officer of VicRoads
    • the Director-General of the Major Transport Infrastructure Authority
    • the Chair of Trust for Nature.

Jurisdiction

67. Section 16A of the Ombudsman Act provides that the Ombudsman may conduct an own motion investigation into any administrative action taken by or in an ‘authority’.
68. The definition of ‘authority’ in the Ombudsman Act includes:
    • a body, whether incorporated or unincorporated, that is established by an Act for a public purpose
    • a body whose members are appointed by the Governor in Council or a Minister
    • an administrative office established under the Public Administration Act 2004 (Vic).

69. Over the years, responsibility for the Western Highway duplication project transferred between three agencies.
70. The agencies responsible for the project are:

VicRoads

71. During the period it was responsible for the project, VicRoads was a body corporate established by section 15(1) of the Transport Act 1983 (Vic) to manage Victoria’s road network for the benefit of the public and therefore satisfied the first definition of ‘authority’ identified above.
72. During this period, VicRoads was also a body consisting of one member (the Chief Executive) appointed by the Governor in Council under sections 80(2) and 84(1) of the Transport Integration Act 2010 (Vic) and therefore also satisfied the second definition of ‘authority’ above.
73. On 1 January 2020, most powers and functions of VicRoads were transferred to the Head of Transport for Victoria and the Secretary of the Department of Transport.

MRPA

74. Between 1 July 2018 and 31 December 2018, the Western Highway duplication project was managed by the now-defunct Major Road Projects Authority (‘MRPA’). MRPA was an administrative office established by order under the Public Administration Act on 14 June 2018 and therefore satisfied the third definition of ‘authority’ identified above.

MRPV

75. MRPV is an office within the Major Transport Infrastructure Authority. The Major Transport Infrastructure Authority is an administrative office established by order under the Public Administration Act on 21 December 2018 and therefore satisfies the third definition of ‘authority’ identified above.

Western Highway Project Section 2 Inquiry and Advisory Committee

76. Between November 2012 and February 2013, proposed alignments for the relevant section of the Western Highway were examined by an entity known as the ‘Western Highway Project Section 2 Inquiry and Advisory Committee’ (‘the Inquiry and Advisory Committee’).
77. The Inquiry and Advisory Committee comprised two bodies:
    • an inquiry appointed by the former Minister for Planning under section 9(1) of the Environment Effects Act 1978 (Vic)
    • an advisory committee established by the Minister for Planning under section 151(1) of the Planning and Environment Act 1987 (Vic).

78. The bodies constituting the Inquiry and Advisory Committee satisfied the first definition of ‘authority’ identified above because each was established under an Act for a public planning purpose.
79. Additionally, these bodies satisfied the second definition of ‘authority’ because their members were appointed by a Minister.

Trust for Nature (Victoria)

80. Trust for Nature (Victoria) (‘Trust for Nature’) was responsible for developing and administering the Credit Trading Agreement between VicRoads and Martang. It was also a party to the Credit Trading Agreement and the associated Conservation Covenant.
81. Trust for Nature is a body corporate established by section 2(1) of the Victorian Conservation Trust Act 1972 (Vic) for public conservation purposes and therefore satisfies the first definition of ‘authority’ above.

Terms of reference

90. All respondent authorities cooperated with the investigation and, where necessary, assisted Ombudsman officers to identify and retrieve records relating to the project.
91. Due to email disposal policies, machinery of government changes and other issues associated with the passage of time, the Department of Transport advised the Ombudsman that it was unable to locate some documents requested by the investigation.
92. These documents were not deemed critical to our understanding of the project, and their absence did not meaningfully impede the investigation.

Procedural fairness and privacy

93. This report contains adverse comments about VicRoads. In accordance with section 25A(2) of the Ombudsman Act, the Ombudsman gave VicRoads a reasonable opportunity to respond to a draft report. This final report fairly sets out its responses.
94. In accordance with section 25A(3) of the Ombudsman Act, any other persons who are or may be identifiable in this report are not the subject of any adverse comment or opinion. They are identified because the Ombudsman is satisfied:
    • it is necessary or desirable to do so in the public interest; and
    • identifying those persons will not cause unreasonable damage to their reputation, safety or wellbeing.

Djab Wurrung Country

95. The traditional lands of the Djab Wurrung people are located in Western Victoria and are generally considered to include or pass through the areas now known as Hexham (Petereet), Lake Bolac (Buluk), Middle Creek (Wangnarra), Buangor, Ararat (Butingitch), Stawell (Kobram), Halls Gap (Budgem Budgem), Dunkeld and Hamilton (Mulleraterong).¹
96. Djab Wurrung Country is part of an ancient volcanic landscape, interspersed with temporary and perennial lakes and swamps, intermittent streams and open plains. It was historically covered by savannah woodlands and grasslands - an ecosystem characterised by scattered trees. Archaeological surveys have demonstrated that parts of this area have been occupied by Aboriginal people for more than 12,500 years, representing approximately 417 generations.²
97. Prior to European contact, wildlife and game were abundant in the region. Djab Wurrung traditional food resources included a variety of marsupials, fish, shellfish, birds and plant foods such as murnang (daisy yam). When in season, eels were a ‘staple food’. Along seasonal migration routes, the Djab Wurrung would use a series of complex ma-nmade drainage systems, spanning many hundreds of metres, to harvest eels in ‘great quantity’.³
98. The Djab Wurrung cultivated the land, burning it to encourage regrowth which would in turn attract wildlife to the area. Djab Wurrung women would harvest edible roots such as murnang and gather birds’ eggs, shellfish and small animals. Seeds were harvested and ground for food, thistles were eaten to induce sleep and notches were cut into wattle trees to collect and store edible gum.
99. The Djab Wurrung also used native vegetation for other purposes. Plant fibres were used to craft string, nets, bags and baskets. The stems of reeds were fashioned into spears and necklaces. Wattle gum was mixed with wood-ash to form a waterproof adhesive, and wattle bark was used to treat rheumatism and indigestion. River red gums served particularly important functions: bark from these trees was fashioned into shelters and canoes, sap and gum were used to heal burns and steam from leaves was inhaled to treat a number of illnesses.⁵
100. Due to the relative abundance of food sources, the Djab Wurrung population is considered to have been semi-sedentary, particularly during autumn and winter. In wetland areas, the Djab Wurrung would intermittently reside in groups of permanent huts, likened to villages. During the summer months, Djab Wurrung, Girai Wurrung and Watha Wurrung clans would gather near Hexham for hunting and ceremonial purposes. In early autumn, as many as 800-1,000 individuals, including members of the Djab Wurrung, would gather at Lake Bolac for the annual eel harvest.⁶

Source: Ian D Clark, ‘We Are All of One Blood’ – A History of the Djabwurrung Aboriginal People of Western Victoria, 1836-1901 (Createspace, 2016), vol 1, 53

Source: Duncan Elphinstone Cooper, ‘Middle Creek, Challicum’; reproduced in Phillip Brown, The Challicum Sketchbook 1842-53 and Supplementary Paintings by Duncan Elphinstone Cooper (National Library of Australia, 1987), 66.

101. There were approximately 41 Djab Wurrung clans in total, the members of each of which spoke one of three dialects of the Djab Wurrung language. The area around Mount Langhi Ghiran (Larngi djerin) and Mount Cole (Burb-ba-burb) was occupied by the Utoul Balug clan, the area to the south of Ararat along the Hopkins River (Tonedidjerer) was occupied by the Tonedidgerer Balug clan, and the area surrounding Mount Cole, to the northeast of Langi Ghiran, was occupied by the Beeripmo Balug clan. Both the Utoul Balug and Beeripmo Balug clans were known to inter their dead in trees.⁷

That’s my country belonging to me.

Tung.bor.roong, head of the Tonedidgerer Balug clan, 1841

Source: George Augustus Robinson, The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Volume 2, 1 October 1840 – 31 August 1841 ed Ian D. Clark (Heritage Matters, 1998), 318 (entry dated 17 July 1841)

102. Religion was very important for the Djab Wurrung - it ‘gave a meaning to life, and it maintained order by a totemic geography’. Djab Wurrung traditional society was divided into two matrilineal totemic moieties - the Krokitch (white cockatoo) and Kaputch (black cockatoo). Within these moieties were a number of sub-totems such as the possum, moon, parrot and carpet snake (Krokitch) and the boa-snake, crow, bee and bunyip (Kaputch). The moiety system governed social relationships and determined whom one could marry.⁸
103. Historically, it was recorded that the Djab Wurrung clans near Mt William (Duwil) believed in two evil spirits, a male and a female, called Corokeet, that were said to reside in the mountains near Langi Ghiran.⁹
104. The name ‘Langi Ghiran’ is generally understood to mean ‘home of the black cockatoo’ in the Djab Wurrung language, and archaeological surveys have demonstrated that Mount Langi Ghiran and the surrounding area have been occupied at least intermittently by Aboriginal peoples for more than 4,000 years. At least three traditional Djab Wurrung rock art sites survive at Langi Ghiran today, depicting a unique and complex art style.¹⁰

Post-European contact

105. In his History of the Djabwurrung, Ian Clark estimates there were probably between 2,460 and 4,920 Djab Wurrung people living when Europeans began to invade their traditional lands.¹¹
106. In July 1836, Sir Thomas Mitchell conducted the first European survey of Djab Wurrung Country. In his account of this journey, Mitchell was either unwilling or unable to identify the extent of the Aboriginal connection to the area:
     
     "We had at length discovered a country ready for the immediate reception of civilised man, and fit to eventually become one of the great nations of the earth. Unencumbered with too much wood, yet possessing enough for all purposes; with an exuberant soil under a temperate climate; bounded by the sea-coast and mighty rivers, and watered abundantly by streams from lofty mountains: this highly interesting region lay before me with all its features new and untouched as they fell from the hand of the Creator!
     
     Of this Eden it seemed that I was only the Adam; and it was indeed a sort of paradise to me, permitted, thus to be the first to explore its mountains and streams – to behold its scenery – to investigate its geological character – and, finally, by my survey, to develope those natural advantages all still unknown to the civilised world, but yet certain to become, at no distant date, of vast importance to a new people."¹²
     
107. Little is known of how the Djab Wurrung experienced the period between 1836 and 1838. In his History of the Djabwurrung, Clark describes this time as the ‘lull before the storm.’ What followed was a decades-long process of invasion, dispossession and murder, culminating in the ‘near-ethnocide’ of the Djab Wurrung by the end of the 1870s.¹³

Invasion by squatters

108. By 1838, squatters had begun to trespass and settle on Djab Wurrung Country. Keen to establish and defend ‘their’ runs, these individuals dispossessed and in many cases excluded the Djab Wurrung from their traditional lands, often after exploiting the hospitality of local clans.¹⁴
109. Within three years, 25 per cent of Djab Wurrung Country was occupied by squatters. By the end of 1841, this figure had increased to 50 per cent. The squatters invading the Western District also left their mark upon the landscape, in turn interfering with traditional Djab Wurrung cultural associations.¹⁵
110. Almost immediately, the Djab Wurrung attempted to defend themselves and their lands, fighting a ‘sustained guerrilla war’ against the trespassing squatters. Their tactics were:
     
     "well thought out and involved the processes of evasion, surveillance, decoy and attack. Examples of fear were paralleled by displays of boldness where no fear was shown."¹⁶
     
111. Djab Wurrung resistance was effective in the short term, but was ultimately broken by a combination of superior European firepower and, later, the efforts of the Native Police Corps.¹⁷

Protectorate era

112. In 1838, the Port Phillip Aboriginal Protectorate was established to situate European colonisation ‘on a humanitarian footing’. Shortly afterwards, George Augustus Robinson was appointed Chief Protector of the Port Phillip District.¹⁸
113. Responsible for managing relations between government, the colonial settlers and Aboriginal peoples, Robinson divided the Port Phillip District into four Protectorate districts, splitting Djab Wurrung Country in the process.¹⁹
114. Ultimately, the goals of the Protectorate were at odds with government support for the activities of the squatters, and the system proved ineffective in protecting the Djab Wurrung from further dispossession and violence. The Protectorate was ultimately abolished in 1849, owing both to its poor performance and hostility from squatters.²⁰
115. In his Scars in the Landscape, Clark identifies a total of 23 recorded massacres and killings of Djab Wurrung people between 1840 and 1847, the majority of which took place between 1840 and 1842, at the height of Djab Wurrung resistance.²¹
116. Syphilis and other venereal diseases were also common illnesses amongst the Djab Wurrung by the latter half of the 1840s, and few children were being born. By 1845, the Djab Wurrung population is estimated to have numbered just 510 individuals - a decline from pre-European contact times of between 80 and 90 per cent.²²

They [Djab Wurrung] … wished me to go round to all the people who were unkind to them and drove [them] from their country and now would not permit them near their stations, and begged of me not to let the white man shoot them. … Their situation is to be deeply commiserated.’

Source: George Augustus Robinson, The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Volume 2, 1 October 1840 – 31 August 1841 ed Ian D. Clark (Heritage Matters, 1998), 372 (entry dated 8 August 1841)

Gold rush and Central Board eras

117. Abolishment of the Protectorate resulted in a largely unregulated relationship between the European squatters and Aboriginal traditional custodians. During the 1850s, following the discovery of gold, almost 30,000 miners and their families descended on the region, making camp in the area surrounding Ararat. Mining activities within the northern parts of Djab Wurrung Country further damaged the landscape, bringing about ‘a second wave of dispossession’.²³
118. During this period, the remaining Djab Wurrung sought work on pastoral runs, where they were often exploited and underpaid. Mortality rates were higher amongst the Djab Wurrung than the European population, and this, combined with low birth rates, caused the Djab Wurrung population to further decline. One submission to a Victorian Government Select Committee reported that there were no Djab Wurrung children born between 1850 and 1858.²⁴

I should not think it improbable that a very extensive area of paying shallow ground may be opened. That the ranges would pay for sluicing too, I do not for a moment doubt: but, as one peers into the future, one almost regrets that these magnificent slopes, so green and fertile, should be torn up by any other hands than that of the cultivator.

Source: The Star (Ballarat, 23 November 1857), 2

119. In 1860, a Central Board was established ‘to watch over the interests’ of Aboriginal people. This body quickly attempted to confine Aboriginal people ‘as closely as possible’ to permanent reserves and would later become infamous for its association with the Stolen Generations.²⁵
120. In his History of the Djabwurrung, Clark identifies the Central Board era as marking the ‘third wave of dispossession’ for the Djab Wurrung. The period was characterised by a ‘flood of movement’, as many of the remaining Djab Wurrung were exiled to various places located outside their traditional lands; chiefly Lake Condah, Framlingham and Coranderrk.²⁶
121. Those Djab Wurrung who fought to remain on Country were largely forced to rely upon station employment and begging to survive. Traditional gatherings and ceremonies all but ceased and, in 1862, the ‘last’ Djab Wurrung corrobboree was observed near Hexham.²⁷
122. The Djab Wurrung population continued to decline over the 1870s, before reaching its lowest point in 1880. Afterwards, the Djab Wurrung population is estimated to have slowly recovered.²⁸
123. Today, many Djab Wurrung descendants live off Country, while others continue to maintain a presence on their traditional lands.

In the spring of 1836, some of Major Mitchell’s head men spent a fortnight beside Lake Repose, a few miles southwest of Glenthompson[.] … One of the men marked the site of the camp by cutting the inscription on a red-gum tree. For years, the [Aboriginal people] protected the tree by removing the grass around it each summer, but after they were gone it was caught in a bushfire and badly charred.

Source: Lorna Banfield, Like the Ark: The Story of Ararat (Longman Cheshire, 1955) 54

The Western Highway

124. The routes observed by Australia’s colonial roads often held associations with Aboriginal history, and the precursor to the Western Highway was reportedly no exception:
     
     "Over centuries, the tracks used by [Aboriginal people], especially those across difficult country, came to be well marked. The Omeo Highway is said to partly follow one such route as it leads from the valley of the Mitta Mitta across the High Plains into the Tambo valley. Certainly river valleys were the routes by which an Aboriginal guide led Gippsland pioneer Angus McMillan to his discovery of cattle pastures. Similarly the Western Highway between Horsham and Dimboola follows part of an ancient road which elsewhere hugged the Wimmera River."²⁹
125. Although initially nameless, parish plans and local accounts from the late 1850s identify a track travelling west from Beaufort through the foothills of Mount Langi Ghiran and into Ararat:
     
     "The road goes for several miles through a forest, and then emerges into open land of rich quality, the greater portion of which is under cultivation. The neighbourhood of Lake Burrumbeet, -- a fine sheet of fresh water, some twelve miles in circumference, -- consisting of open country, beautifully grassed, and dotted with homesteads, is perhaps the finest in the colony; and indeed as far as the Emu creek, the quality of the soil is so rich that, at no distant time, it is almost certain to be the home of a very large population.
     
     "After leaving Emu creek the coach passes a country of very auriferous appearance, extending some two miles beyond Fiery Creek. The road then skirts the plains -- past Begg’s and Grattan’s, Stewart’s and Richardson’s stations, -- with the mountains on the right hand, crossing the Hopkins reaches Ararat, through a tract almost impassable with mud."³⁰
     
126. In 1853, the Central Road Board was established to administer the construction and maintenance of Victoria’s expanding road network. That year, construction began on a road between Geelong and the gold diggings in Ballarat. This served as the primary route from the coast to Ballarat until 1856, when a more substantive road was developed to the west of Bacchus Marsh, along the route of the present-day Western Highway.³¹
127. In 1859, work was similarly completed on a section of road leading east of Ararat towards Beaufort, although use of this route was largely abandoned when local conditions rendered it impassable. By the end of 1862, a more permanent road was quarried into the hillside between Ararat and Buangor.³²
128. By 1874, the road through Ballarat extended as far west as Stawell; although parts of the route remained unmade until at least the late 1920s.³³
129. Identified in later sources as the ‘Melbourne-Ballarat, Serviceton Road’, the Western Highway was officially proclaimed in July 1925, following passage of the Highways and Vehicles Act 1924 (Vic) and sustained lobbying by local government.
130. In 1974, the Western Highway was declared a national highway and, in 2005, it was designated as forming part of Australia’s National Land Transport Network. From official inception, the highway rapidly became the predominant mode of freight transport between Melbourne and Adelaide and, by the beginning of the 21st century, carried an estimated 3.36 million tonnes of goods per year, making it the second-busiest national highway link in Australia for interstate freight movements.
131. Due to this increased demand, most of the highway between Melbourne and Ballarat was duplicated in 1983. Despite this, the highway to the west of Ballarat remained largely a single carriageway for several further decades.
132. In 1999, the Victorian Government Western Highway M8/A8 Corridor Strategy identified that duplication of this section of the highway would likely be required to meet an expected two-fold increase in
     traffic volume. In 2007, this initiative was identified as one of 30 ‘priority projects’ meriting Commonwealth funding.
133. In 2008, the Commonwealth and Victorian Governments entered into a joint funding agreement through which a total of $505 million was committed towards the proposed duplication works.

In the more recently settled parts of the country, the roads are in many places bad, and the passage of the rivers and creeks is extremely difficult and dangerous: these roads are in fact nothing more than mere tracks, that have generally been formed by people who have settled themselves, or taken possession of a grazing run beyond the occupied part of the country.

Having ascertained the most practicable route to the spot they intend to occupy, the track is marked out by cutting pieces out of the bark of the trees along the line; this service is frequently performed by the black Natives, who have the most accurate knowledge of the country; the track thus marked is followed by such as have occasion, and becomes a beaten path, and at length a road.

Source: James Atkinson, An Account of the State of Agriculture and Grazing in New South Wales (J Cross, 1826), 136

At Mitchell’s line, I halted and asked the natives if they knew who made that road. They said white men a long time ago and that black fellow too much frightened and plenty run away. They said they saw the pass, and that they had come a long way.

George Augustus Robinson, The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Volume 2, 1 October 1840 - 31 August 1841 ed Ian D. Clark (Heritage Matters, 1998), 372 (entry dated 28 July 1841)

Western Highway traffic volumes west of Buangor, 2009

Source: Department of Transport

Project status

630. As at mid-February 2020, construction delays and modifications to the approved alignment are estimated to have cost the Victorian Government approximately $50-60 million.
631. MRPV informed the investigation that, subject to any declaration made by the Commonwealth Minister for the Environment, it intends to proceed with duplication of the highway in accordance with the modified alignment agreed with Eastern Maar.
632. MRPV said it believed it had followed all relevant legislative requirements and processes applicable to the project.
633. MRPV submitted to the investigation:
     
     "It continues to be [MRPV’s] understanding that the trees the subject of the Djab Wurrung Protection Embassy protests are still not considered an Aboriginal place for the purposes of the AH [Aboriginal Heritage] Act by AV [Aboriginal Victoria]. This is in accordance with the comprehensive assessment process AV has undertaken in consultation with the recognised Traditional Owners from both Martang and EMAC.
     
     "Irrespective, 16 of the 22 trees have been saved through [MRPV] realigning sections of the road carriageways to accommodate the retention of additional trees."
634. Eastern Maar, the Federation of Victorian Traditional Owner Corporations (of which Eastern Maar is a member) and Aboriginal Victoria have all expressed public support for the preliminary agreement reached between Eastern Maar and MRPV.
635. Despite earlier misgivings about MRPV’s engagement with Eastern Maar, the Aboriginal Heritage Council has also publicly stated that it supports this outcome.
636. Over the years, the highway duplication project has also received expressions of support from local councils, community associations and emergency services representatives.
637. On the other hand, representatives of the Djab Wurrung Heritage Protection Embassy advised the Ombudsman that they were not satisfied with MRPV’s intention to duplicate the relevant section of highway in accordance with the preliminary agreement reached with Eastern Maar.
638. They explained that the trees and landscape were interconnected in Aboriginal beliefs and, for this reason, preservation of some significant trees was not enough to protect Aboriginal cultural heritage within the area.

You can’t separate the land from the tree, or the tree from the land. […] It’s still going to go through and take out a part of sacred Country.

Oral submission to investigation.

We don’t believe we’ve been given a fair hearing. So far it’s been the government’s way.

Oral submission to investigation.

639. Some Djab Wurrung traditional custodians who spoke with the investigation also emphasised that they did not identify as Maar and therefore did not recognise Eastern Maar’s authority to negotiate an agreement on behalf of Djab Wurrung people.
640. The preliminary agreement is also not supported by the Djab Wurrung traditional custodians who are seeking Commonwealth protection of the area.
641. In a written submission to the Ombudsman, these traditional custodians said the preliminary agreement between Eastern Maar and MRPV was legally invalid, that the modifications to the highway alignment failed to protect one of the trees identified in the application to the Commonwealth Minister, and that MRPV and VicRoads had failed to properly investigate the ‘northern option’ as an alternative to the approved alignment.

We’ve been denied natural justice through this process. […] MRPV are above the law – most government departments are.

Oral submission to investigation.

642. Despite the modifications made to the highway alignment, MRPV has also continued to receive criticism from some members of the public for its perceived failure to reconsider the merits of the duplication works in light of the remaining opposition to the project.
643. Members of the public also contacted the Ombudsman to state they were not satisfied with the proposed modifications to the highway alignment.
644. Several of these individuals told the Ombudsman that they still wished for a comprehensive review of the approved alignment, including further investigation of the ‘northern option’.

I am a 16 year-old Australian student. I write to you about something close to my heart - the intended destruction of culture and environment, the proposed bulldozing of the 800-year-old sacred trees in the Djab Wurrung country in Victoria.

Online comment to MRPV on 29 August 2019.

I have never sent an email of this nature to a government body of any kind, but feel compelled to in this situation.

Email sent to MRPV on 22 August 2019.

Saving 15 trees?? What about the rest? You’re a bunch of disgraceful shameful racists. How can you live with yourselves?

Email sent to MRPV on 18 August 2019.

Dear Ombudsman, I am very sad to think that the trees and the cultural area will be damaged by the MRPV (or anyone!). Please do not allow this cultural heritage to be destroyed by roadbuilding.

Email to the Ombudsman dated 10 April 2019.

Thank you for reading this letter and adding my concerns to the review that your office is undertaking. The mass destruction of these trees for a proposed highway is the same as tearing down Flinders Street Station or St. Paul’s cathedral. It would be unlawful and destroy irreplaceable heritage. These trees are sacred to the Djab Wurrung people, the history of these trees goes back further than white settlement.

Letter to the Ombudsman dated 15 April 2019.

Conclusions

Cultural heritage due diligence

645. VicRoads recognised that the Western Highway duplication project was likely to impact Aboriginal cultural heritage in early 2008, when it began preliminary planning activities associated with the project.
646. This led VicRoads to commission a desktop report into Aboriginal cultural heritage within the vicinity of the existing highway corridor. This report recognised the traditional Djab Wurrung connection to the region and cautioned that previously unrecorded cultural heritage sites were likely to be encountered within the area.
647. Protection of Aboriginal cultural heritage sites was subsequently identified as one of several key objectives for the project. In 2011, two further Aboriginal cultural heritage assessments were commissioned for the purposes of evaluating alignment options for the section of highway between Buangor and Ararat, the focus of the present-day dispute.
648. The first of these assessments focused on previously identified Aboriginal cultural heritage sites within the area. At the recommendation of the Registered Aboriginal Party for the area, Martang, the latter assessment also attempted to predict the occurrence of undiscovered cultural heritage sites within the potential alignment corridors. Information concerning the broader cultural sensitivities of the area was also solicited from Martang and mapped against the shortlisted alignment options.
649. Specialist reports were also commissioned into the potential presence of mortuary trees and Aboriginal earth mounds within the project area. The decision to undertake detailed enquiries concerning these sites was guided by expert advice, which emphasised their relative prevalence in the region and significance according to Aboriginal tradition.
650. The results of the cultural heritage assessments were considered and weighed against other project objectives. It is noted that information identified during the cultural heritage assessments influenced VicRoads to favour some alignment options and eliminate others.
651. The two alignment options nominated by VicRoads for inclusion in the project’s Environment Effects Statement were the subject of a further cultural heritage impact assessment, conducted in early 2012. This assessment concluded that, while both alignment options could encounter previously unrecorded Aboriginal cultural heritage sites, this risk could be managed by undertaking targeted archaeological excavations and through preparation of a cultural heritage management plan for the project. VicRoads subsequently followed this advice.
652. The investigation established that VicRoads did not receive reports of possible birthing trees within the project area until early 2017, after the highway alignment had been determined by the Minister for Planning.

Project consultation

653. Some parties submitted to the Ombudsman that late identification of the possible birthing trees was attributable to a failure to consult more broadly with Djab Wurrung traditional custodians during the project planning phase.
654. While often challenging to coordinate, early, broad and culturally inclusive public consultation invariably assists public authorities to understand different perspectives about planned initiatives and major infrastructure projects.
655. VicRoads’ consultation with local residents and affected landholders was thorough and responsive. Feedback from community information sessions and stakeholder meetings led to the identification and assessment of additional alignment options and the reconfiguration of alignment evaluation criteria.
656. Consultation with Aboriginal communities was more limited, and tended to rely upon discussions between VicRoads, Aboriginal Victoria and the Registered Aboriginal Parties for the area.
657. VicRoads did not develop a cultural heritage consultation plan for the project. The preparation of such a plan was recommended by VicRoads’ Cultural Heritage Guidelines, although the Department of Transport observed that these guidelines may not have been kept fully up to date with developments in Victoria’s Aboriginal cultural heritage framework.
658. While there appear to have been no registered native title claimants or traditional owner groups for the area during the relevant period, preparation of a cultural heritage consultation plan could still have assisted VicRoads to identify and consult with other Aboriginal parties with connections to and knowledge of the area.
659. This was particularly important considering the degree to which Djab Wurrung ancestors were displaced from their traditional lands. It is also possible that such efforts would have led to earlier engagement with representatives of Eastern Maar.
660. In response to the Ombudsman’s draft report, the Aboriginal Heritage Council addressed this issue:
     
     "[the] suggestion that broad Aboriginal-focused consultation could be undertaken without interfering with the primacy of RAPs is erroneous [and would] unreasonably interfere with RAPs’ rights to exercise their statutory function as the primary source on Cultural Heritage matters relating to their Registration Area."
     
     
661. The Department of Transport, responding to the Ombudsman’s draft report on behalf of VicRoads, similarly emphasised:
     
     "The relevant statutory frameworks and [Aboriginal Heritage Council] guidance provides that the Registered Aboriginal Party […] is the relevant Traditional Owner group with which to consult on cultural heritage matters, and VicRoads, MRPA and MRPV have acted consistently with the requirements of this statutory framework and VAHC guidance in the planning and delivery of the Project."
     
     
662. It is acknowledged that the Aboriginal Heritage Act prioritises consultation between project proponents and Registered Aboriginal Parties. The Act clearly identifies Registered Aboriginal Parties as the ‘primary source of advice and knowledge’ on matters relating to Aboriginal cultural heritage within their designated area, although the investigation noted that the Act does not prohibit a proponent from consulting more broadly with Aboriginal peoples.
663. Ultimately, it may be for Parliament to consider whether the processes under the Aboriginal Heritage Act should be made more permissive of consultation with individuals and bodies who have not been accorded Registered Aboriginal Party status; noting, at the same time, the need to respect the principles of Aboriginal self-determination underpinning this legislation.
664. In this regard, the investigation noted that Aboriginal Victoria - the office responsible for administering the Aboriginal Heritage Act - observed that the Ombudsman’s draft report:
     
     "point[ed] to some areas of Victoria’s cultural heritage management and protection system which AV could explore for both policy and legislative improvement."

Selection of the highway alignment

665. Owing to the location of Langi Ghiran State Park, alignment options for the relevant section of highway were effectively limited to those which followed the existing highway alignment, either in full or in part, and those which deviated through farmland to the south.
666. It is noted that, largely owing to this constraint, none of the alignment options shortlisted by VicRoads would have entirely avoided the areas later identified for protection by some Djab Wurrung traditional custodians.
667. Following the alignment evaluation process, VicRoads resolved to present two alignment options for further consideration in the project’s Environment Effects Statement, finalised in August 2012. VicRoads determined to endorse one of these options, Option 2, as its preferred alignment for the duplicated highway.
668. The investigation noted that this decision contradicted internal advice presented to VicRoads’ executive team. While the Environment Effects Statement provided a detailed description of the alignment evaluation process, it did not include sufficient information to identify why this alignment was favoured by VicRoads. Further, VicRoads does not appear to have kept sufficient internal records concerning this decision.
669. Again, it is noted that neither option presented in the Environment Effects Statement would have entirely avoided the areas surrounding the nominated birthing trees - both options followed the same route between Ararat and Langi Ghiran State Park, where one such tree is located, and both diverged south of the existing highway between Langi Ghiran and Buangor, intersecting to different degrees the area surrounding the other tree.
670. VicRoads has publicly apologised for errors in the environmental data included in the Environment Effects Statement, although some community members maintain that the issues with this document are broader than have been acknowledged. These matters were largely outside of the terms of reference for the investigation and were not explored in detail by the Ombudsman.
671. The two alignment options presented in the Environment Effects Statement were subsequently evaluated by the Inquiry and Advisory Committee established by the Minister for Planning. In early 2013, this authority determined to recommend VicRoads’ alternative alignment, Option 1, at the expense of VicRoads’ preferred alignment, owing to its perceived environmental benefits. This was consistent with advice from the then-Department of Sustainability and Environment and was not unreasonable in the circumstances.
672. The Inquiry and Advisory Committee concluded that there would be a ‘low impact’ to Aboriginal cultural heritage associated with the project. This conclusion was consistent with the cultural heritage impact assessment included in the Environment Effects Statement and was also not unreasonable in the circumstances.
673. The Inquiry and Advisory Committee process appears to have provided a reasonable opportunity for members of the community to be heard about the project’s impacts.

Cultural heritage investigations

674. Aboriginal cultural heritage sites within the approved alignment corridor were investigated during preparation of the project’s cultural heritage management plan. This involved three levels of cultural heritage assessment, including 66 days of field surveys and excavation activities undertaken in cooperation with Martang between January 2012 and August 2013.
675. The assessments undertaken for the cultural heritage management plan identified a number of new cultural heritage sites within and surrounding the project area. This included several culturally modified trees located near Buangor that were subsequently managed in accordance with measures agreed with Martang.
676. The investigation noted that, while reasonably thorough in themselves, information concerning the desktop and standard assessments could have been made more accessible in the project’s Environment Effects Statement.
677. VicRoads consulted with Martang throughout the cultural heritage management plan process. This consultation did not lead to the identification of the possible birthing trees or the more significant cultural values that were subsequently attributed to the area.
678. This should not be interpreted as criticism of the advice provided by Martang. Evidently, there are differing views within the Djab Wurrung community concerning the degree to which the project will impact cultural values associated with the area.
679. Several individuals who approached the investigation said they believed the field inspections undertaken for the cultural heritage management plan did not involve participation of female Djab Wurrung traditional custodians and therefore may have failed to consider cultural values relating to women’s business.
680. The investigation noted that several female representatives of Martang participated in the field work undertaken for the complex assessment of the project area. Further, senior female representatives of Martang also participated in the cultural values workshop undertaken for the purposes of the alignment evaluation process.
681. In any case, the investigation considered that VicRoads was required to rely upon Martang’s judgement as to which of its representatives were best suited to participate in the inspections. It is noted that senior female representatives of Martang were involved in later inspections of the nominated birthing trees coordinated by Aboriginal Victoria and did not endorse the values attributed to these sites by other parties.
682. It is acknowledged that some traditional custodians have claimed that Martang was not sufficiently representative of Djab Wurrung people. These parties have suggested that it was inappropriate for VicRoads to have relied upon the advice provided by Martang when considering the cultural heritage impacts of the project.
683. During the relevant period, Martang was recognised by the Aboriginal Heritage Council as the primary source of cultural heritage advice and the body representing Djab Wurrung people for the area. The Aboriginal Heritage Act required VicRoads to consult with Martang before and during preparation of the cultural heritage management plan.
684. Presently, entities seeking registration as a Registered Aboriginal Party do not need to satisfy that they are the only, or even the most, representative body for traditional custodians of the relevant area; although this may still be a matter that the Aboriginal Heritage Council takes into account when considering an application.
685. Yet the degree to which a Registered Aboriginal Party represents traditional custodians is very important because, once registered, such bodies have sole responsibility for evaluating projects that may impact Aboriginal cultural heritage within their designated area.
686. Martang’s limited ownership structure was recognised by the Aboriginal Heritage Council when it determined to approve Martang’s application for registration as a Registered Aboriginal Party in September 2007. Despite this, the Aboriginal Heritage Council identified reasons why it was satisfied that Martang met the criteria for registration under the Aboriginal Heritage Act and was accordingly capable of speaking for Djab Wurrung cultural heritage.
687. The actions of the Aboriginal Heritage Council were not a subject of the investigation and it is not suggested that the Council’s decision to approve Martang’s application for registration was wrong.

Cultural heritage management plan

688. Under the Aboriginal Heritage Act, VicRoads was required to prepare a cultural heritage management plan in relation to the project. While this document was finalised prior to selection of the approved highway alignment in October 2013, it is unlikely to have meaningfully influenced the decision.
689. The cultural heritage management plan documented the Aboriginal cultural heritage sites identified during the investigations conducted with Martang and proposed measures intended to reduce the risks to Aboriginal cultural heritage associated with the project.
690. Martang indicated that it was satisfied that the cultural heritage management plan suitably minimised harm to Aboriginal cultural heritage when it determined to approve this document in October 2013.
691. This was in accordance with the criteria identified in the Aboriginal Heritage Act, which, while prioritising principles of harm avoidance, require only that a cultural heritage management plan minimise harm to Aboriginal cultural heritage associated with an activity. It is acknowledged that to some traditional custodians, any harm to Country and cultural heritage will be unacceptable.
692. Although its actions were not a subject of the investigation, records reviewed by the Ombudsman indicate that Martang approached its responsibilities concerning the project diligently and in accordance with the requirements established under the Aboriginal Heritage Act.

Credit trading agreement

693. The investigation did not substantiate allegations that VicRoads unduly influenced Martang to approve the cultural heritage management plan.
694. Despite this, VicRoads’ decision to negotiate a Credit Trading Agreement relating to the project with Martang during the period when Martang was required to evaluate the cultural heritage management plan was ill-advised and arguably created a conflict of interest.
695. Trust for Nature was not informed of Martang’s role in evaluating the cultural heritage management plan and deserves no criticism for its involvement in the arrangement.
696. There is no evidence that the Credit Trading Agreement was actually intended to influence Martang or that it had any impact on Martang’s decision to approve the cultural heritage management plan.
697. Other payments from the Victorian Government to Martang during the relevant period did not create an incentive for Martang to approve the cultural heritage management plan.

Response to cultural heritage concerns

698. VicRoads was first informed of reports of possible birthing trees within the project area in early 2017.
699. VicRoads subsequently facilitated Aboriginal Victoria’s inspection of the nominated trees. Those inspections involved senior female Djab Wurrung representatives of Martang and Eastern Maar. At the time, the former body had been recognised by the Aboriginal Heritage Council as the primary source of cultural heritage advice for the area and the latter body represented Aboriginal peoples with a registered native title claim concerning the region.
700. Aboriginal Victoria later wrote to VicRoads to report that these inspections had not substantiated the claims made about the area. Aboriginal Victoria informed VicRoads that it was authorised to proceed with the project in accordance with the cultural heritage management plan approved by Martang. That advice was reiterated after a further inspection of the area by representatives of Eastern Maar.
701. Under the Aboriginal Heritage Act, VicRoads was not responsible for assessing the preliminary reports concerning the possible birthing trees. It was reasonable in the circumstances for VicRoads to have relied upon the advice of Aboriginal Victoria regarding this issue.
702. In June 2018, after works associated with the project were effectively halted by efforts to protect the site, VicRoads resolved to undertake further consultation with Djab Wurrung opponents to the project, as well as representatives of Martang and Eastern Maar.
703. Following these discussions, VicRoads undertook to support a further, independent cultural heritage assessment of the area impacted by the project. After responsibility for the project was transferred to MRPA, this agency also began work to redesign the proposed highway to avoid the nominated birthing trees.
704. The announcement of a subsequent agreement with Eastern Maar was later criticised by the Aboriginal Heritage Council for its perceived disrespect to Martang’s role under the Aboriginal Heritage Act, underscoring the complexity of the situation.
705. The independent On Country assessment commissioned by Eastern Maar identified a number of previously unrecorded trees that were said to be culturally significant to Djab Wurrung people. Several of these trees were previously inspected during the investigations conducted for the project’s cultural heritage management plan.
706. While the On Country assessment did not speak in definitive terms regarding the issue, it discussed the significance attributed to the nominated birthing trees by some Djab Wurrung traditional custodians and identified archaeological signs suggestive of their traditional use by Aboriginal people.
707. The On Country assessment recommended that the areas surrounding the nominated birthing trees be avoided by wholesale redesign of the proposed highway alignment. It also expressed qualified criticism of the earlier cultural heritage assessments undertaken in relation to the project for their perceived focus on archaeological sites, rather than intangible values, associated with past Aboriginal use of the area.
708. The latter observation is reminiscent of the advice provided to VicRoads by one local Aboriginal body in the years prior to the duplication project:
     
     "To the Ballarat Aboriginal Community, a locality or place has more importance than the artefacts on or in it because they have a spiritual connection with the land itself. The natural context of a place then, often extends beyond the boundaries of an archaeological site."⁴¹
709. In some ways, this criticism also echoed observations made by VicRoads’ internal review into environmental errors associated with the project, which recognised the need for future environmental assessments to consider the ‘important local values’ often imbued into large old trees.
710. Considered in light of the many complexities encountered by the Western Highway project, these remarks reinforce the need for major planning decisions to be informed by broad, culturally inclusive consultation.
711. It is noted that the methodologies used by the cultural heritage assessments undertaken by VicRoads did incorporate input from Martang about cultural values associated with the area.

Modifications to the alignment

712. Following the On Country assessment, Eastern Maar wrote to the Victorian Government to request that it ‘genuinely consider an alternative route’ for the proposed highway.
713. In January 2019, responsibility for the project was transferred again to MRPV. Following further discussions with representatives of Eastern Maar and the Djab Wurrung Heritage Protection Embassy, this agency developed several localised modifications to the approved alignment.
714. This modified alignment, which represents the current project design, is expected to avoid - in some cases only narrowly - 16 of the approximately 22 trees that have been identified as culturally significant by some Djab Wurrung traditional custodians. This includes the two nominated birthing trees, as well as other trees identified as having particular significance, such as the ‘marker’, ‘directions’ and ‘grandmother’ trees.
715. In light of these and other commitments made by MRPV, Eastern Maar has indicated it is satisfied that the project will adequately protect Aboriginal cultural heritage impacted by the project. This aligns with Martang’s previous assessment of the project. It is noted that Eastern Maar is currently the Registered Aboriginal Party for the relevant area.
716. This outcome also enjoys the support of the Federation of Victorian Traditional Owner Corporations, Aboriginal Victoria and the Aboriginal Heritage Council.
717. It is not supported by representatives of the Djab Wurrung Heritage Protection Embassy who spoke with the Ombudsman or the Djab Wurrung traditional custodians seeking Commonwealth protection of the area.

Alternatives to the approved alignment

718. Some individuals who approached the Ombudsman concerning the project suggested that it was possible to avoid the areas surrounding the nominated birthing trees by duplicating the highway along the existing alignment through the foothills of Langi Ghiran State Park.
719. Media articles and approaches to the Ombudsman have included claims that VicRoads, and later, MRPV, failed to meaningfully investigate this ‘northern option’.
720. The northern option does not enjoy the unanimous support of the Djab Wurrung traditional custodians who hold concerns about the project. While this option is supported by the individuals seeking Commonwealth protection of the area, some representatives of the Djab Wurrung Heritage Protection Embassy who spoke with the investigation said that it would still involve unacceptable impacts to cultural values associated with the area.
721. It is also noted that the northern option, like the approved alignment, would not wholly avoid the area surrounding the second nominated birthing tree, to the west of Langi Ghiran State Park.
722. Further, although private assessments have been conducted, parts of this option have not been assessed for the potential presence of Aboriginal cultural heritage sites under the Aboriginal Heritage Act.
723. Alignment options resembling the northern option were developed and evaluated by VicRoads during preliminary project planning and as part of the formal alignment evaluation process. Following sustained pressure from some community members, versions of the northern option were developed and considered again in 2011, 2012 and 2015.
724. Independent from VicRoads, a version of the northern option was also considered and rejected by the Inquiry and Advisory Committee established by the Minister for Planning.
725. The northern option was also later presented to and rejected by the Minister for Transport Infrastructure as a possible resolution to some of the cultural heritage concerns about the project.
726. VicRoads and MRPV have publicly and privately maintained that it is not possible to construct a suitable road using the alignment identified by proponents of the northern option without causing significant additional impacts to the environment.
727. The decision not to pursue development of the northern option appears to have been based on a combination of environmental, cultural heritage, financial and road configuration considerations. Importantly, records reviewed by the investigation confirmed that the option was not dismissed on cost considerations alone.
728. While some parties may disagree with VicRoads and MRPV’s assessment of the northern option, the investigation was ultimately satisfied that these authorities had given fair and appropriate consideration to this possible design alternative.
729. It is noted that, as matters stand, MRPV is constrained to ensure that duplication of the highway occurs within the area identified in the public acquisition overlay included in the Ararat Planning Scheme.

Observations

730. While VicRoads’ initial project consultation did not appear to have reached all interested audiences, the investigation ultimately concluded that VicRoads, MRPA and MRPV had made legally sound and good faith efforts to consult with traditional custodians and arrive at a compromise solution to the cultural heritage concerns about the project, once raised.
731. On one view, this outcome - which will see the proposed highway avoid 16 trees of significance, including the two nominated birthing trees - represents a significant achievement for those who mobilised to speak up for Country.
732. Yet it is also clear that the terms of the preliminary agreement between MRPV and Eastern Maar have not satisfied all Djab Wurrung traditional custodians who have expressed concerns about the project. These individuals have observed that the duplication works will inevitably harm a landscape that was once nurtured and revered by Djab Wurrung ancestors, and which continues to be of immense contemporary significance to many.
733. It is evident that these parties continue to distrust the motivations and actions of public authorities associated with the project. That distrust, and the resilience displayed by some Djab Wurrung traditional custodians in seeking to protect their traditional lands, is hardly surprising considering past and ongoing Aboriginal experiences of government. It is a reminder that the trust of Aboriginal communities must be earned, and never assumed.
734. It is also recognised that the concerns raised by Djab Wurrung opponents to the project - some of which relate to matters of legislation and policy - are much broader than could ever be addressed by the investigation.
735. Many of those concerns appeared to derive from tensions at the heart of Victoria’s Aboriginal heritage protection framework. In this regard, the investigation observed that the processes under the Aboriginal Heritage Act, while intended to empower traditional custodians when speaking for Country, also have the potential to exclude some voices from the discussion.
736. In response to the Ombudsman’s draft report, Aboriginal Victoria submitted:
     
     "[Aboriginal Victoria] devotes considerable resources to assist Traditional Owners form sustainable representative organisations, and supports the Victorian Aboriginal Heritage Council in its policy to only appoint Registered Aboriginal Parties (RAPs) that are representative of the Traditional Owners of their areas. However, issues such as the representativeness of RAPs and the degree to which Aboriginal oral traditions are explored in cultural heritage management plan processes are areas for which AV could explore improvements."
     
     
737. It is clear that the concerns about the project also continue to resonate with the broader community, and may risk impacting some sectors of the public’s confidence in the Victorian Government’s commitment toward protecting Aboriginal cultural heritage and the delivery of other initiatives seeking to mend the relationships between the State and Aboriginal peoples.
738. It must be recognised that complaints relating to systemic issues often require systemic responses. In such cases, it may not be enough for public authorities to rely upon assurances as to the observance of proper processes to satisfy significant and far-reaching concerns about the way that government functions.
739. In this manner, it is recognised that the conclusions of the investigation are similarly unlikely to resolve remaining concerns about the impacts of the project. While no doubt likely to disappoint many of the individuals who approached the Ombudsman, the observations in this report do nothing to question the commitment and motivations of those who continue to speak for Djab Wurrung Country.

Compliance with human rights

740. Section 19(2) of the Charter of Rights Act recognises that Aboriginal people hold distinct cultural rights. This section provides that among other things, Aboriginal people must not be denied the right, along with other members of their community:
     • to enjoy their identity and culture
     • to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.
741. Decisions by the United Nations Human Rights Committee have recognised that the following matters may be relevant to whether the cultural rights of indigenous peoples have been denied by an administrative action:
     • the degree to which indigenous people were consulted in relation to, or participated in, the decision to undertake the action
     • the relative adverse impacts on traditional cultural practices and relationships associated with the action, including any measures adopted by the decision-maker to minimise those impacts.⁴²
       
742. The investigation did not conclude that the actions of VicRoads and MRPV were incompatible with section 19(2) of the Charter of Rights Act, while noting that MRPV and the other authorities responsible for the project must give proper consideration to the cultural rights of Aboriginal people when determining whether and how to move forward.

The above is a snapshot of the report. To read the report in full download Investigation into the planning and delivery of the Western Highway duplication project.

We will be progressively adding the remainder of the report to this page in coming weeks.