Traditional Owner calls for the enactment of Section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act have fallen on deaf ears, as Boral continues the sandmining of a sacred site along the Minnamurra River where new evidence has further confirmed the area was used as a traditional burial ground.

Wodi Wodi Elder, Aunty Sheryl Fulcher, and her sister Charmagne Davis, spoke with National Indigenous Times, raising concerns and anguish over mining that has already happened and continues at a site which was used for ceremonial burying.

Aunty Sheryl said the "burials of our ancestors including that of our great great grandfather, are the cultural connection to our traditional lands and are an integral part of our identity and who we identify as".

"The burials are our connection to the land and it's been like that for time immemorial," she said.

The Wodi Wodi sisters have attained a copy of their Great Great Grandfather's Death Certificate, which states that he was buried at Minnamurra River "according to Aboriginal rites". The Death Certificate is evidence that the area currently being mined was used for burials by Aboriginal people who occupied the area, as archaeological evidence shows, for at least 30,000 years.

The Death Certificate also shows that the Wodi Wodi people were burying their dead there in accordance with Aboriginal burial ceremonies and rites as late as 1895 and reinforces community concerns that a number of graves may have already been desecrated.

The many Traditional Owners who belong to multiple family groups and who still live on Wodi Wodi Country say they are deeply distressed.

The Wodi Wodi Elders have been working alongside Friends of Minnamurra River (FOMR), an active community group with skills ranging from environmental science, botany and plant ecology, anthropology and archaeology to political campaigning and journalism, to further support knowledge that has been passed down through oral traditions.

Earlier this month, together with FOMR representative, Graham Pike, Aunty Sheryl visited the sacred site currently being destroyed by Boral Limited's sand dredge.

Aunty Sheryl told National Indigenous Times: "I was deeply distressed, I cried. It's just terrible."

"I'll never forget, it brings tears to my eyes every time I think of that occasion. I felt the sorrow coming up," she said.

Mr Pike said: "Boral has been able to say, as has the NSW Government and the Federal Government, that there has not been any hard evidence of burial grounds in the area Aunty Sheryl has applied to the Federal Government's Department of Environment to protect. But with that Death Certificate its stated place of burial, we do have the evidence now."

Aunty Sheryl said "They just can't say there aren't burials down there. There's got to be other records, other death certificates like we've got".

Dr Brendan Corrigan, a renowned Anthropologist commissioned by the Federal government two years ago to provide a report to the Minister for the Environment on Boral's proposed sand mining sites at Minnamurra, strongly recommended to the Minister in May last year that the entire site be declared a Significant Aboriginal Area under Section 10 of the ATSIHP Act because of its high landscape values and wealth of Aboriginal heritage.

A declaration of a Significant Aboriginal Area would immediately stop the current destruction of the site by Boral's mining sand mining and protect it in perpetuity from any further damage.

According to the Aboriginal and Torres Strait Islander Protection Heritage Act (ATSIPHA), once an area is deemed significant, it must be protected.

Appealing to the Minister for the Environment and the general public, Aunty Sheryl said: "Imagine the uproar if a mining company came along and desecrated a cemetery. It just wouldn't happen."

Mr Pike stated Indigenous occupation of this area has been continuous for 30,000 years or more and given the confirmation of at least one burial on the site, "there are bound to be more records. We just need more time and resources to explore this."

He said that only 200 metres from where the mining is taking place, there is a NSW Government sign that states "the Aboriginal people used the banks of the Minnamurra river for burials".

Research undertaken by the University of Newcastle on the 1818 Minnamurra Massacre also documented the area was occupied by Aboriginal groups.

The old river and former oceanfront sands where groups camped was the only place suitable for Aboriginal burials, Mr Pike said, because surrounding soils were too hard in which to dig graves by hand or with simple stone or wooden tools and there were no large trees for ceremonial burials in trees as practised by many inland groups such as the Wiradjuri.

The sand which is being sourced by Boral because of its texture and fine grains, suitable for the construction industry, would have been perfect for Aboriginal burial purposes for the same reasons.

"Burial Ceremonies were a big thing, mobs from other groups would travel to attend; at an event like this there would have been many hundreds, perhaps a thousand of First Nations' people in the area," he said.

Aunty Sheryl said her mother and Elders had told her the area in the Minnamurra River floodplain and along the river banks was a cultural site for all burials, including deaths such as those that occurred from natural causes, and the deaths that occurred as a result of 1818 Minnamurra Massacre.

It was her mother's dying wish that Aunty Sheryl and the family take care of and protect the resting place of her mother's Great Grandfather, Aunty Sheryl and her siblings' Great Great Grandfather.

The Wodi Wodi Elders and Friends of Minnamurra River have stated that the provisions of Sections 9 and 10 of ATSIAP, have been ignored and so, therefore, have the rights of Wodi Wodi Traditional Owners and Elders.

Section 10 states that an Aboriginal heritage area under threat of injury or desecration can be protected by its declaration by the Minister for the Environment as a Significant Aboriginal Area. It states that the process can take between 6-9 months to process, to allow the Minister of the time to request a detailed report by an independent reporter. (In the Minnamurra River case, this was completed by Dr Corrigan in May 2022.)

A Section 9 application, such as that made by Aunty Sheryl, is for emergency protection of Aboriginal heritage areas under immediate threat of desecration or damage. The legislation states that applications can provide protection for such sites for 30 – 60 days.

The legislation does not specify a time limit in which the Minister has to make a decision and in the case of Aunty Sheryl's Section 9 application, the department says its consideration of her application could take one to two months.

Aunty Sheryl told National Indigenous Times she has stressed to the department that at the rate Boral is destroying the sacred burial site she is trying to protect with her "emergency" ATSIHP Act application, it is likely to be totally destroyed by the time the department comes to any decision.

Aunty Sheryl submitted a Section 9 emergency application on the 27th November and received a call that day by an assessing officer from the Department of the Environment in Canberra. Aunty Sheryl said the prompt response was appreciated but this was tainted by the treatment she received, where she felt interrogated.

She said the Government employee lacked any degree of cultural competence and reduced her to tears because of the lack of sensitivity shown by the department officer to the traumatic nature of what is occurring at the mining site.

"She wasn't interested in what I had to say. She said I needed more information to say how I am culturally connected."

Aunty Sheryl expressed concern over the process and the hoops and hurdles that are required by the department to protect sacred sites not only for her, but for other applicants across the nation.

Referring to the application process, Aunty Sheryl said: "There is no respect for our culture and no apparent concern for us wanting to protect our ancestors' burial sites, and the legislation and the bureaucratic red tape within these government departments makes it so difficult for Aboriginal people to protect sites that are greatly significant to our culture and heritage."

She noted the support she has received from the Friends of Minnamurra River and how grateful she is, but expressed a deep concern: "What other Aboriginal communities are going through the same, but don't have the support?"

Section 9 applications are decided upon the following criteria:

• has received an application for protection from, or on behalf of, an Aboriginal person or group
• is satisfied that − the area is a significant Aboriginal area, and − the area is under serious and immediate threat of injury or desecration
• has consulted with the appropriate state or territory minister as to whether there is effective protection offered to the area in question under state or territory law. If those requirements are met, the minister is able to use their discretion to make a declaration under section 9 of the ATSIHP Act.

Aunty Sheryl and her siblings have strong ancestral ties to the area which have been demonstrated by the NSW Government in the Aboriginal Women's Heritage document, where her mother Muriel Davis tells her story of her culture and heritage.

Her mother and father were well respected Aboriginal and non-Aboriginal community, for their unwavering commitment to help people in need. Their mother Muriel was recognised by the Lord Mayor upon her passing as a stalwart of the Aboriginal community and the Wodi Wodi Elders Group.

Now with a death certificate confirming the burial of her Great Great Grandfather at Minnamurra River, Aunty Sheryl believes this is sufficient evidence to enact Section 9 and protect the site as per the wishes of Traditional Owners.

A Department of the Environment spokesperson said "four applications concerning an expanded sand mine at Minnamurra in NSW under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) are being progressed and it is not appropriate to comment further".

"The department is processing a further application seeking emergency protection under section 9 of the ATSIHP Act. Applications under section 9 take a minimum of 1-2 months to process, depending on the urgency of the application. The department cannot comment further on this," they said.

The spokesperson said: "There are no provisions for stop work orders under the ATSIHP Act."

"In making her decision, the Minister will consider the assessment, departmental advice and comments from interested parties. The department's advice will be informed by Dr Corrigan's report," the spokesperson said.

Earlier this month, the Bugle Newspaper reported that Kiama Labor Branch unanimously passed a motion at its November meeting calling for the Minister for the Environment and Water Tanya Plibersek to declare the site as a Significant Aboriginal Area under the under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) until further assessment and consultation with Aboriginal guardians.

The President of Labor Kiama Branch, Katelin McInerney said Boral's continued mining on what should be a Significant Aboriginal Area was not only deeply disrespectful and hurtful, but "flagrantly disregarded the evidence that established the significance of the site and the need to preserve it.

"It is well past time that we listen to and respect Aboriginal history in our area and that is why our branch has called on Minister Plibersek to intervene as a matter of urgency."

The eldest daughter of Jim and Muriel Davis, Sister Louise said: "The desecration of our ancestors burials is a desecration of our culture and our spiritual connection to the land. It is important to protect the sacred burials of our people and to look after Country for the next generation to come not only for my people but for all Australians."

A Spokesperson for Boral told National Indigenous Times the company fully recognises and understands that the massacre site is of cultural and spiritual importance.

"However, Boral has undergone a rigorous process from the NSW Independent Planning Commission (IPC) – including reviewing evidence for the site of Aboriginal heritage significance – and received all necessary approvals to operate our expansion," he said.

"As part of the findings, the IPC granted Boral approval in November 2020 after a detailed assessment that included consideration of Aboriginal heritage and consultation with the public, and 20 Aboriginal groups who registered an interest in the site and project, including the Illawarra Local Aboriginal Land Council (ILALC), and concluded that while a massacre of Aboriginal people is likely to have occurred in the broader geographic area it was 'unlikely to have occurred within the proposed disturbance area' (i.e. the area now operated under the expansion)."

The Boral spokesperson said reiterated that the company's expansion plans for Dunmore Sand & Soil (Stage 5 project) have been accepted by both the NSW IPC and the Federal EPBC processes, which are rigorous and detailed.

"An extensive Heritage Management Plan has also been approved and is in place for the site. The plan includes unexpected finds protocols which we have not had to use to date," he said.

"Under Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the then minister denied the Section 9 protection under this Act in 2021 for the Stage 5 project as it did not meet the protection criteria. All other decisions for this Act remain pending."

"We recognise that Traditional Owners and community groups, including the FOMR, make different claims as to the location of the massacre. We would expect them to be reported as such – claims made by community groups and Elders (which are in contradiction to the official determination of the NSW IPC)."