Legal challenge leads to reconsideration for Murray floodplains project

A Wadi Wadi Traditional Owner has successfully challenged the approval of a floodplain engineering project at Nyah on the Murray River after the Victorian government and Lower Murray Water accepted that Traditional Owners were not properly consulted and, hence, the approval was made in error. 

After today’s decision, the “water offset” project cannot proceed under its current Cultural Heritage Management Plan (CHMP).

Vince Kirby, represented by Environmental Justice Australia, argued the approval process had failed to protect Aboriginal cultural heritage properly, had not adequately consulted Traditional Owners before works were approved, and failed to properly consider his rights under Victoria’s Charter of Human Rights and Responsibilities.

Vince Kirby argued the approval process had failed to protect Aboriginal cultural heritage properly. All images: Mitchell Barkman

Vince Kirby has also launched a new legal challenge against the CHMP for Vinifera, a floodplain engineering project four kilometres downriver from Nyah.

The Vinifera project is also part of the Victorian Murray Floodplain Restoration Project. Vince is arguing that the CHMP for Vinifera failed to properly assess Aboriginal Cultural Heritage.

“We’ve looked after these rivers and wetlands for generations. The Murray runs through our veins. It’s part of who we are,” Mr Kirby said.

“Today’s decision gives me hope that there’s still a chance to protect the places where my grandmother grew up, and where I take my great-grandchildren now to be on Country.

“I’m glad the government has admitted it got this wrong. But we shouldn’t have had to go all the way to the Supreme Court just to make the government follow its own laws and listen to Traditional Owners.

“Real consultation can’t be rushed. Our people deserve to be listened to with respect, and our knowledge should be central to decisions about our Country. That didn’t happen here, and that’s what needs to change.

“This isn’t just about Nyah, either. The same thing’s happening up and down the Murray. That’s why we’ve filed another case in court. My brothers and I want our Wadi Wadi Country, our waterways and wetlands, respected and cared for properly, so we can pass them on to our kids and great grandkids.

“Our people have cared for this Country for generations. That’s where these decisions should start – on Country. Walking the rivers, looking at the trees, the birds, the animals, the wetlands, understanding what they really need. Not people sitting in offices a long way away making the calls.”

Environmental Justice Australia lawyer Mera Sivanesan said the the government has conceded that it unlawfully approved the Victorian Murray Floodplain Restoration Project’s Nyah Cultural Heritage Management Plan.

“But it is incredibly frustrating that it has taken an individual Traditional Owner like Vince, at substantial risk to himself, to force the Victorian government to do its job and follow its own laws.

“This case shows the importance of Traditional Owners and other community members being able to access the courts when they are concerned that the government has not done the right thing. If Vince hadn’t pushed to have this decision reviewed by the Court, the project at Nyah would have gone ahead with an unlawful Cultural Heritage Management Plan, putting his irreplaceable cultural heritage at risk of harm or worse, destruction.

“It is imperative that communities and individuals like Vince be able to scrutinise to these projects, because at the end of the day, they are the ones who will feel the brunt of their impacts.

“Our client is seeking that the decision to approve the Vinifera Cultural Heritage Management Plan also be reviewed by the Court to determine whether it too was made unlawfully.”