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The Victorian Supreme Court has granted an interim injunction to stop work on the Western Highway upgrade, where protests have raged throughout the week.
Djab Wurrung woman Marjorie Thorpe is fighting the State Government over the protection of culturally significant land between Buangor and Ararat that stands in the path of the roadworks.
Today Supreme Court Judge, Justice Forbes, granted an interim injunction to temporarily halt the project's construction in the contested area.
The matter will return to the Supreme Court on November the 19th.
Today's decision comes after days of protests sparked by the felling of a tree demonstrators said was significant.
'Goes to the heart'The battle to protect culturally significant country in western Victoria "goes to the heart" of the cultural heritage issue, a lawyer says.
Ms Thorpe's representative, Ron Merkel, QC, told the court today that there were a number of matters that needed to be dealt with under section 32 of the Human Rights Charter and the State Government's Aboriginal Heritage Act.
"It appears the defendants are approaching this not in the context of Aboriginal cultural heritage … but as if this is just an object like a museum object," he said.
"We say that is a total renunciation of Aboriginal cultural heritage."
People line up outside the Supreme Court in Melbourne to support the Djab Wurrung people.(Supplied: MairiAnne Mackenzie)Mr Merkel said it was a case of enormous public interest and that the order to stop work on the highway should be extended until it could be dealt with properly by the court.
"Djab Wurrung people [have been] excluded from their own country," he said.
"This case goes to the heart of what Aboriginal tradition and significant Aboriginal area means, and how it is protected by the Human Rights Charter.
"These matters [are] of very significant importance.
"It is an affront to the protection the charter and State act seems to give."
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Protesters are arrested at the Western Highway site(Ararat Advocate: Craig Wilson)Ms Thorpe's case claims the construction or completion of the highway upgrade between Buangor and Ararat is unlawful.
It argues for final injunctions stopping roads authorities from works in the area laid out as culturally significant, or in close proximity to it.
It also argues for an injunction to stop the State from approving a Cultural Heritage Management Plan under the Aboriginal Heritage Act in the specified area.
Management plan scrutinyA key part of the plaintiff's case focuses on a 2013 Cultural Heritage Management Plan for the project, and the fact that a new plan has not been developed since.
Mr Merkel pointed to a report by the Victorian Ombudsman that raised issues with the Cultural Heritage Management Plan that was used to decide on the alignment of the highway upgrade.
The report highlighted a potential conflict of interest with Martang, the Registered Aboriginal Party at the time of the cultural heritage approval.
Mr Merkel told the court that this case was brought on an entirely different basis to Federal Court proceedings launched by members of the Djab Wurrung Heritage Protection Embassy, who were seeking protection under the Aboriginal and Torres Strait Islander Heritage Protection Act.
In August this year the Federal Environment Minister made a decision to again the application for the further protection of six trees for a second time.
However, another appeal in that matter is due to be heard in early December.
A fiddleback tree was removed to make way for the Western Highway upgrade on Monday.(Supplied: Djab Wurrung Heritage Protection Embassy)'State of flux'Representing the State of Victoria and others, Richard Attiwill, QC, said the plaintiff had not properly identified the area that was considered significant.
"There has been a failure by the plaintiff to identify what area is the subject of the Aboriginal place in addition to the trees," he said.
Mr Attiwill argued a "specified area" outlined in the application was too broad and questioned why the claims had not been made earlier, given the years of legal proceedings.
"Why are rights in relation to trees only coming about now?" he asked.
He argued that the road authorities should be allowed to continue some work on the highway project while the court action focused on the trees was resolved, including surveying work and the spraying of weeds.
Mr Attiwill said the plaintiff's case was "in a state of flux".
The Registered Aboriginal Party for the region, Eastern Maar Aboriginal Corporation, had previously raised concerns with the State Government about the impact of the highway duplication on trees deemed culturally significant.
In response to the concerns, Major Road Projects Victoria previously agreed to alter the alignment of the section between Buangor and Ararat to avoid removing 16 trees.
This article first appeared on www.abc.net.au
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