The Queensland Court of Appeal will hear a landmark case across Tuesday and Wednesday that will determine whether Aboriginal cultural rights under the Queensland Human Rights Act can be enforced to protect sacred sites from environmental destruction.
The case has drawn interventions on opposite sides with the Queensland Attorney General supporting the government's appeal, and the Queensland Human Rights Commission supporting Nagana Yarrbayn, Wangan and Jagalingou Cultural Custodians' position on the application of human rights act to enforcement.
The Cultural Custodians are defending their case while also cross-appealing to strengthen protection for the sacred Doongmabulla Springs, which are threatened by Adani's Carmichael Coal Mine.
The appeal and cross-appeal concern how cultural rights cases can be brought under Queensland's Human Rights Act, and whether these rights are freestanding and enforceable when government agencies fail to prevent environmental harm to sacred sites.
Nagana Yarrbayn Senior Cultural Custodian, Adrian Burragubba said the Queensland government's "application to dismiss our case has been rejected by the trial judge, yet it continues to try to kill off our case by appeal".
"Our cross appeal is defending the integrity of our human rights and environment case; and our fundamental right as the Cultural Custodians, under our own cultural law protocols, to protect the Doongmabulla Springs," he said.
"We hope the Judges will ultimately allow us to have our day in court to test the scientific evidence of the harm to the Doongmabulla Springs. The government needs to be held to account for their failure to enforce its own law to protect the Springs from mining, and to uphold our human rights. While all this legal argument is going on, the Springs are further imperiled."
Mr Burragubba said Traditional Owners have fought for eleven years to protect the Springs.
"We have always warned the mine would destroy this significant site and now the evidence is mounting," he said on Monday.
"The (state) government acknowledged in their own court documents that the Springs have 'exceptional ecological value' and 'spiritual significance' to us. Yet the LNP Government has chosen to fight us in court rather than do its job and protect the Springs from the mining operations.
"The government has a responsibility not to usurp our cultural rights, which are rooted in First Law. But the government is being obstinate by refusing to respect our right to be heard and failing to understand our law."
The government seeks to establish that cultural rights cannot compel regulatory enforcement action to protect culturally significant sites - reading down the Human Rights Act. The Cultural Custodians argue the opposite: that the Act creates obligations when sacred sites and the environment face destruction. The outcome will set precedent across Queensland for how cultural rights interact with environmental law.
Alison Rose, Special Counsel at Ninox Law, said the case strikes at the heart of two intersecting legal systems with different foundational philosophies; "the Western Legal System, which focuses on individual rights; and the First Law which focuses on collective duties to care for Country, community and environment".
"The Court of Appeal must decide whether, and the way in which Queensland's Human Rights Act can bridge these two systems," she said.
The Cultural Custodians have presented expert evidence from Griffith University's Professor Matthew Currell and Flinders University's Professor Adrian Werner, along with CSIRO and Geosciences Australia reports, showing "serious risks of irreversible damage to the Doongmabulla Springs from mining operations, in contravention of the Environmental Approval for the mine".
