Traditional Owners celebrating following court win over Lake Torrens drilling

The South Australian Supreme Court found that approval given by the former Aboriginal affairs minister would have undermined his own ability to promptly assess danger to heritage items.

Barngarla chairperson Jason Bilney and supporters pictured in front of the South Australian Supreme Court. Source: Jason Bilney/Kim Mavromatis

A South Australian Aboriginal group has welcomed news that the state’s Supreme Court will block a mining company from drilling on Lake Torrens, north of Adelaide.

The Barngarla Aboriginal Determination Corporation launched a Supreme Court judicial review bid in January to stop exploration company Kelaray, which is a subsidiary of Argonaut Resources, from drilling at the sacred site.

Barngarla chairperson Jason Bilney said it was a victory for First Nations people.

“Ever since the horrible destruction of Juukan Gorge, we knew that if we didn’t stand up for ourselves as Barngarla People, government and industry would walk all over us,” he said.

“This just proves that when you stand [up] as First Nations People, you can achieve anything”.

Kelaray's drilling rig sits on top of Lake Torrens in the SA's mid-north. Traditional Owners have had a victory in shutting down operations. Source: NITV

Unconditional approval 'substantially diminishes' oversight powers

Former South Australian premier Steven Marshall granted the company the authority to damage or interfere with the site under section 23 of the Aboriginal Heritage Act in late 2020, using his powers as the state’s Aboriginal affairs minister.

However, in handing down his decision on Thursday, Chief Justice Chris Kourakis approved the application for a judicial review after determining the authorisation was inconsistent with section 20 of the Act.

Under section 20, someone who discovers an Aboriginal site, object, or remains must notify the South Australian Aboriginal affairs minister “as soon as practicable”.

Justice Kourakis raised concerns that Kelaray’s plans would allow it to interfere with items, on the advice of its own archaeologists, before notifying the minister.

“The obligation to notify the Minister of the discovery of items of Aboriginal heritage is necessary if the statutory powers conferred on the Minister are to be exercised effectively,” Justice Kourakis said in his judgement.

A map shows how Lake Torrens connects four different Aboriginal Nations being the Kokatha, Kuyani, Adnyamathanha and Barngarla peoples. Source: Mobile Language Team

Justice Kourakis argued that a failure to put conditions on the authority granted to the company made it invalid.

“True it is that Kelaray would still be liable to prosecution for failure to comply with [section] 20 of the Aboriginal Heritage Act despite the grant of the authority,” he said.

“However, allowing Kelaray to remove, and interfere with, an item of Aboriginal heritage without first complying with [section] 20, substantially diminishes the power of oversight and review by the Minister and puts items of Aboriginal heritage at risk.”

In a statement to the ASX on Friday, Argonaut Resources said would contact the new state Labor government to determine its position on the issue.

“Argonaut notes that the majority of the application as pressed by members of the Barngarla Determination Aboriginal Corporation was dismissed and that the review succeeded only on a very limited basis,” the statement said.

“Counsel for Kelaray is considering the judgement and will advise the Company on the merits of an appeal.”