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Expert Witness Report
NSW Planning & Assessment Commission (PAC),
R027/14 Warkworth Continuation Project & R028/14 Mt
Thorley Continuation Project
Author Maria Cotter
(PO Box 1262)
Armidale NSW 2350
Client EDO NSW
On behalf of Bulga Milbrodale Progress Association (BMPA)
Subject
Aboriginal Cultural Heritage
Date 18 December 2014
Signature
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TABLE OF CONTENTS
Table of Contents ................................................................................................................................... 1
List of Abbreviations ............................................................................................................................. 2
Uniform Civil procedure Rules (2005) Matters ................................................................................... 4
Duty to the PAC .............................................................................................................................. 4
Qualifications and experience ....................................................................................................... 4
Report Brief ........................................................................................................................................... 7
Context ........................................................................................................................................... 7
Approach to the Brief .................................................................................................................... 9
Section ‘A’ – Summary of Tocomwall Submission ............................................................................. 11
Context .......................................................................................................................................... 11
Key Concerns– Aboriginal Community Consultation .................................................................. 12
Key Concerns– Location of the Bulga Bora Ground .................................................................... 13
Section ‘B’ – Substantiation of Matters Raised in Tocomwall Submission ..................................... 14
Introduction ..................................................................................................................................... 14
Location of the Bulga Bora Ground ................................................................................................. 15
Background ....................................................................................................................................... 15
Reconnaissance survey .................................................................................................................... 19
Background to the survey ........................................................................................................... 19
Results of the survey .................................................................................................................... 21
Critique of evidence ......................................................................................................................... 23
Brayshaw approach to evidence ................................................................................................. 27
Key concerns .................................................................................................................................... 30
Use of the 1912 Warkworth Parish Map ...................................................................................... 30
Use of Archival documents ......................................................................................................... 33
Thorpe Sketch Map ...................................................................................................................... 33
Thorpe Sketch Map Continued ................................................................................................... 36
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1905 Map of the Parish of Wollombi ........................................................................................... 36
Australian Museum Photographs ............................................................................................... 37
Vegetation within the vicinity of the BBG .................................................................................. 38
Ceremonial activities to the east of Wallaby Scrub Road?......................................................... 39
Summation ................................................................................................................................... 41
Section ‘C’ – Review of Response To Submissions ........................................................................... 41
References ........................................................................................................................................... 45
LIST OF ABBREVIATIONS
ACHAR Aboriginal Cultural Heritage Assessment Report
ACHCRs Aboriginal Cultural Heritage Consultation Requirements for Proponents (2010)
AHIP Aboriginal Heritage Impact Permit
BBG Bulga Bora Ground
BMPA Bulga Milbrodale Progress Association
BOP Bulga Optimisation Project
C&A_ACHWG Coal & Allied Aboriginal Cultural Heritage Working Group
CQCHM Central Queensland Cultural Heritage Management Pty Ltd
DECCW Department of Climate Change & Water
EDO NSW Environmental Defenders Office
EIA Environmental Impact Assessment
EIS Environmental Impact Statement
EP&A Act Environmental Planning & Assessment Act (1979)
HLRV Historical Land Records Viewer
LCACHCA Loders Creek Aboriginal Cultural Heritage Conservation Area
LGA Local Government Area
LPI NSW Land & Property Information
OEH Office of Environment and Heritage
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NP&W Act National Parks & Wildlife Act (1974)
NP&WAct Amendment
National Parks & Wildlife Act Amendment (Aboriginal Objects and Aboriginal Places) Regulation (2010)
NP&W Regulation National Parks & Wildlife Regulation (2009), also referred as The Regulation
NSWMIC New South Wales Mineral Industries Council
PAC Planning & Assessment Commission
PCWP Plains Clans of the Wonnarua People
RAPs Registered Aboriginal Parties
RTS Response to Submissions
Secretary’s Report Secretary’s Environmental Assessment Report
SSD State Significant Development
SiX Spatial Information Exchange Portal
Tocomwall Tocomwall Pty Ltd
The Regulation National Parks & Wildlife Regulation (2009)
WBACHCA Wollombi Brook Aboriginal Cultural Heritage Conservation Area
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UNIFORM CIVIL PROCEDURE RULES (2005) MATTERS
Duty to the PAC
1. I, Maria Majella Cotter, of 17 Marsh Street, Armidale affirm that I have read the
Expert Witness Code of Conduct which is Schedule 7 of the Uniform Civil Procedure
Rules 2005, and I agree to be bound by it. I acknowledge that the Planning and
Assessment Commission (PAC) Hearing is not a Court Proceeding but in giving
expert evidence to this forum I accept that the same code of conduct that
applies in Court should be adhered to.
2. As per Clause 2 of the Expert Witness Code of Conduct I have prepared this
report with the understanding that my paramount duty is to assist the PAC
impartially on matters relevant solely to those areas for which I claim expertise.
I acknowledge that my role as an expert witness is not one of advocacy for any
party. This includes the Bulga Milbrodale Progress Association (BMPA) on whose
behalf the EDO NSW has sought my expert opinion; and my former employer
Tocomwall Pty Ltd (Tocomwall), for whom I authored a submission to the PAC
in relation to the Warkworth Continuation Project (Warkworth). A copy of this
submission is attached to this report as Appendix ‘1’.
Qualifications and experience
3. I am a qualified geoarchaeologist and Aboriginal cultural heritage management
specialist with 20 years of experience in the survey, assessment and
management of Aboriginal cultural heritage within New South Wales. Attached
to this report and marked as Appendix ‘2’ is a copy of my Curriculum Vitae. In the
context of the evidence I provide herein the following elements of my
Curriculum Vitae (in descending chronological order) establish why, in my
opinion I am qualified to comment on Aboriginal cultural heritage issues specific
to the Warkworth Continuation Project and the Mt Thorley Continuation Project.
August 2011 to September 2014
4. I was employed as the Cultural Landscape Programs Manager of Tocomwall Pty
Ltd (Tocomwall) from August 2011 until September 2014. Tocomwall is a
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specialist Aboriginal cultural heritage assessment and management consultancy
business. The Director of Tocomwall is Mr Scott McCain Franks. Mr Franks is an
Aboriginal man and a Registered Native Title Claimant for the Plains Clans of the
Wonnarua People (PCWP). In the period of my employment with Tocomwall I
have undertaken a number of tasks specifically relating to the documentation
and assessment of the Aboriginal cultural values of the traditional lands of the
PCWP including:
a. Assisting the ‘Heads of Families’ of the PCWP in the preparation of their
individual personal statements as provided to the National Native Title
Tribunal (NNTT) in support of PCWP Native Title Application #2 (NNTT
#NC12/4); and
b. The conduct of a major consultancy project focused on the documentation
of the PCWP specific cultural values in the area of proposed impact from the
Bulga Coal Optimisation Project (BOP) Area; and the surrounding landscape.
With respect to this project I note the following:
i. I was the lead author of the resultant Tocomwall report titled: Our
Country, Our Culture. Our Values: The traditional historical and
contemporary cultural landscape of the Bulga Optimisation Project Area:
A Plains Clans of the Wonnarua Peoples Perspective, (Tocomwall, 2013,
pp.273).
ii. This Tocomwall report was appended, as a non-disclosed report, to the
Aboriginal Cultural Heritage Assessment Report of the BOP EIS and
submitted to the Department of Planning for Approval in 2013. This
project was approved by the PAC on December 2 2014.
iii. Attachments 1-7 of the Tocomwall report included a tabulated summary
of the PCWP natural resource values recorded by me (in partnership
with members of the PCWP) across the BOP Project area and included
technical description of the noted vegetation communities as per (i) the
Biometric Vegetation Types database for the Hunter –Central Rivers
Catchment Authority (HCRCMA) and (ii) the Vegetation Community
Profiles prepared by Peake (2006).
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c. Conduct of a reconnaissance field survey of the area described in the report
authored by Dr Helen Brayshaw in March 2003 titled “Looking for the Bora
Ground in the Wallaby Scrub near Bulga NSW” (Brayshaw Report) as the
probable location of the ‘Bulga Bora Ground’ (BBG). [This report was
included as Attachment D1 in the Aboriginal Cultural Heritage Assessment
Report prepared by Ms Elizabeth White (White Report) for the 2003 Wambo
Development Project EIS.] This survey was conducted in November 2011 in
the company of Mr Lachlan Crawford, Environmental Officer Wambo Coal
and Mr Scott Franks and Mr Robert Lester of the PCWP. A copy of an email
I sent to Mr Lachlan Crawford of Wambo Coal on the 18 November 2011 is
attached to this report as Appendix ‘3’. It provides confirmation of the
conduct of this survey and documents its outcomes. I provide further
contextual detail of this reconnaissance survey in Section ‘B’ of this report.
5. In May 2010 my doctoral degree was conferred by Southern Cross University
(SCU), Lismore NSW. My doctoral thesis is titled: Landscapes of Deception: A
multi-modal exploration of the Indigenous cultural heritage values of Deception
Bay Southeast Queensland. It represents the outcomes of a transdisciplinary
study in which I combined quantitative earth science techniques such as
palynology, geochemistry and sedimentology with qualitative techniques drawn
from cultural geography to understand the temporal, spatial, historical and
contemporary cultural contexts of the Indigenous archaeological heritage
values within Deception Bay, Southeast Queensland. Of relevance here is that
my study area included the intact and publically accessible Toorbul Point Bora
Ground and its associated Aboriginal cultural Landscape.
April 2006 to January 2010
6. I was employed as a Regional Archaeologist by the then equivalent(s) of OEH
from early April 2006 to end of January 2010. A key task of this position was to
provide technical advice and assistance to OEH in the regulation of Aboriginal
cultural heritage in NSW as per the objects and Part 6 provisions of the National
Parks & Wildlife Act 1974 (NP&W Act). This included the assessment of Aboriginal
Heritage Impact Permit (AHIP) applications and the preparation and
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recommendation of AHIPs for approval by Management. In addition to
conducting ‘checks for adequacy’ of all supporting documents to such AHIP
applications (including Aboriginal cultural heritage assessment reports) I
routinely had to review and comment upon whether issues of intergenerational
equity and cumulative impact(s) had been adequately addressed by proponents.
September 2002 to April 2006
7. During this period I was employed as a Research Fellow (Indigenous Resource
Use) at the University of New England (UNE) Armidale. In this research only role
I was responsible for the day to day conduct of research focused on
documenting the traditional ecological knowledge and contemporary natural
resource use values of the Gamilaraay people of northwest New South Wales.
This involved extensive in-field recording and documentation of the ethno-
ecological values held by Aboriginal informants with traditional knowledge of
Gamilaraay Country.
REPORT BRIEF
Context
8. On the 2 December 2014 EDO NSW sent me a letter Brief via email in which they
formally advised that they acted on behalf of the Bulga Milbrodale Progress
Association in relation to the proposed open cut extensions by Rio Tinto Coal
Australia (Rio Tinto) for the Warkworth Continuation 2014 (Warkworth) and for the
Mount Thorley Continuation 2014 (Mt Thorley). In this letter EDO NSW noted that I
had previously made a submission in response to the Environmental Impact
Statements (EISs) for the Warkworth and Mt Thorley projects (i.e. ‘Appendix ‘1’)
and requested that I act as an expert witness to:
I. Prepare a written review of the response to Submission (RTS), Secretary’s
Environmental Assessment Report (Secretary’s Report) and recommended
Conditions of Consent (Conditions) for both the Warkworth and Mt Thorley
EISs and
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II. To present the results of my review to a Planning Assessment Commission
(PAC) public hearing for these projects.
9. In conducting my review of the above-mentioned documents the EDO NSW
specifically requested that I consider the issues raised in my submission to the EISs
and comment on whether these issues have been adequately addressed. I was
further requested to consider whether there were any additional issues that should
be put before the PAC. A copy of this letter Brief is attached to this report as
Appendix ‘4’.
10. In addition to these instructions EDO NSW provided me with electronic copies
(and/or links to the NSW Department of Planning and Environment [DP&E] website
from which I could retrieve electronic copies) of the following documents:
List 1: Court Documents
a. Uniform Civil Procedure Rules 2005 NSW, Part 31, Division 2 (Current).
b. Expert Witness Code of Conduct (Current).
List 2: Relevant Project Documents – Warkworth Continuation Project
a. State Significant Development Assessment Warkworth Continuation
Project (SSD-6464), Secretary’s Environmental Assessment Report. Section
89E of the Environmental Planning and Assessment Act 1979 (NSW
Department of Planning & Environment, November 2014).
b. Warkworth Continuation 2014, Response to Submissions Volume 1, Main
Report (prepared by EMM for Warkworth Mining Limited, November, 2014,
pp. 392) including:
� Chapter ‘4’: Government submissions, pp.79-156;
� Chapter ‘6’: Public submissions of objection, pp. 171-283; and
� Chapter ‘7’: BMPA submission, pp.285-376.
c. Warkworth Continuation 2014, Response to Submissions Volume 2,
Appendices (prepared by EMM for Warkworth Mining Limited, November,
2014, pp. 472) including:
� Appendix ‘C’: Summary of submissions, pp. 173-250;
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� Appendix ‘E’: Social impacts and opportunities from the
proposal – perceived and technical studies, pp. 283-313; and
� Appendix G: Response to Albrecht review (Appendix 4 of
BMPA submission), pp.319-329.
d. Warkworth Continuation Project- Recommended Conditions of Consent,
(Department of Planning & Environment nd), pp. 1-70.
List 3 Relevant Project Documents – Mt Thorley Continuation Project
e. State Significant Development Assessment Mt Thorley Continuation Project
(SSD-6465), Secretary’s Environmental Assessment Report. Section 89E of
the Environmental Planning and Assessment Act 1979 (NSW Department of
Planning & Environment, November 2014).
f. Mt Thorley Operations 2014, Response to Submissions Volume 1, Main
Report (prepared by EMM for Warkworth Mining Limited, November, 2014,
pp. 248) including:
� Chapter ‘4’: Government submissions, pp.39-95;
� Chapter ‘6’: Public submissions of objection, pp. 111-194; and
� Chapter ‘7’: BMPA submission, pp.195-234.
g. Mt Thorley Operations 2014, Response to Submissions Volume 2,
Appendices (prepared by EMM for Warkworth Mining Limited, November,
2014, pp. 252) including:
� Appendix ‘A’: Summary of submissions, pp. 3-74.
� Appendix ‘C’: Social impacts and opportunities from the
proposal – perceived and technical studies, [pp. C1-C26] and
� Appendix ‘E’: Response to Albrecht review (Appendix 4 of
BMPA submission), [pp.1-15].
h. Mt Thorley Operations - Recommended Conditions of Consent, pp. 1-42
(NSW Department of Planning & Environment nd).
Approach to the Brief
11. In order to logically address the Brief provided by EDO NSW I have adopted the
following sectional approach:
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a. In Section ‘A’, (commencing at paragraph 12) I provide a summary of the
Aboriginal Cultural Heritage matters raised in the submission I forwarded to
Department of Planning on behalf of Tocomwall and the PCWP [herein the
‘Tocomwall submission’] in relation to the Warkworth Continuation Project,
on 6 August 2014 (i.e. Appendix ‘1’ of this report). These matters relate to
(a) the adequacy of consultation with Registered Aboriginal Parties (RAPs)
and (b) the adequacy of the proposed WBAHCA.
b. In Section ‘B’ I substantiate the matters raised in the Tocomwall submission
by detailing the factual evidence and/or logic upon which (a) I relied upon
when preparing it and/or (b) have subsequently used to further verify the
claims made in the submission. I conclude Section ‘B’ by highlighting the
Aboriginal Cultural heritage management implications of the matters
substantiated.
c. In Section ‘C’ I provide a written review of the Response to Submission
(RTS), Secretary’s Environmental Assessment Report (Secretary’s Report)
and recommended Conditions of Consent (Conditions) for both the
Warkworth and Mt Thorley EISs as these relate to Aboriginal cultural
heritage. The focus of this review is to ascertain:
a. Whether or not the matters raised in the Tocomwall submission
have been addressed in the EIS Assessment Review process; and if
addressed;
b. Whether or not, the form and manner by which they have been
addressed provides for adequate and informed decision making
about Aboriginal cultural heritage management for the life of the
Warkworth and the Mt Thorley Projects.
c. In concluding this section I draw upon the evidence presented in Section
‘B’ and the review of documents described in Section ‘C’ to bring to the
attention of the PAC Aboriginal Cultural Heritage matters arising or
coincident that have not previously been presented. These matters
include:
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1. The Cumulative impacts to the Aboriginal cultural heritage resource
associated with the Warkworth and Mt Thorley Continuation
Projects;
2. The intergenerational equity issues arising from these cumulative
impacts (and any mitigation of harm to Aboriginal objects); and
3. The ‘solastalgia’ (sensu Albrecht, 2003) attributable to the local
Aboriginal community (particularly native title claimants such as the
PCWP), when faced with the in-situ destruction of Aboriginal
heritage sites and cultural landscapes.
SECTION ‘A’ – SUMMARY OF TOCOMWALL SUBMISSION
Context
12. The focus of the Tocomwall submission [see: Appendix ‘1’]were matters relating to
Aboriginal cultural heritage as described in the report titled: Aboriginal Cultural
Heritage Assessment Report for the Warkworth Continuation 2014 Proposal and
Mount Thorley Operations 2014 Proposal Environmental Impact Statements prepared
by Central Queensland Cultural Heritage Management Pty Ltd (CQCHM) for Rio
Tinto in May 2014. This ACHAR report was included as Appendix ‘M’ of the
Warkworth Continuation 2014 EIS.
13. The Tocomwall submission raised two main concerns with respect to Appendix M
of the Warkworth EIS:
a. That the consultation process as reported in the ACHAR was an inadequate
process that had inhibited the PCWP in giving voice to their Native Title
rights and interests in the cultural heritage values of the Project Area; and
b. That the research confidently relied upon by CQCHM in Section 3.6 of the
ACHAR, to affirm that the location of the BBG was wholly captured within
the WBAHCA, was not as reliable as claimed.
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Key Concerns– Aboriginal Community Consultation
14. The Tocomwall submission sought to bring to the attention of the Department of
Planning and Environment the following issues relating to the Aboriginal
community consultation process adopted as part of the Aboriginal Cultural
Heritage Assessment for the Warkworth Continuation 2014:
a. The ACHA for the Project is reliant on the Coal and Allied Aboriginal Cultural
Heritage Working Group (C&A_ACHWG) as its primary Aboriginal
community consultation mechanism. Hence, any real or perceived
dysfunction of the C&A_ACHWG, likely effects the ability of the ACHA to
meet and maintain the compliance requirements of the Aboriginal Cultural
Heritage Consultation Requirements for Proponents 2010 [ACHCRs] (DECCW,
2010).
b. On behalf of the PCWP the Tocomwall submission expressed the concern
that the C&A_ACHWG did not provide a sufficient platform to enable them,
as Native Title Claimants, to have effective input into the decision making
about the mitigation and management of impacts to Aboriginal cultural
heritage of the Project.
c. The Tocomwall submission further expressed the view that recent
allegations of cartel behaviour in the arrangement of procurement of
Aboriginal cultural heritage services by Mining Companies by and through
the use of Aboriginal Heritage Working Groups (such as the C&A_ACHWG)
were emblematic of the likely ineffective and non-compliant consultation
processes afforded by these working groups.
d. Aboriginal cultural heritage working groups such as the C&A_ACHWG were
understood by the PCWP to foster a remuneration-based consensus
decision-making approach to Aboriginal cultural heritage. This approach
gave the PCWP no confidence that decision making about their specific
Wonnarua heritage was (is) being determined on intrinsic and associated
cultural heritage values (as might be determined using - Burra Charter
Principles) and not by immediate economic expedients and/or inducements.
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Key Concerns– Location of the Bulga Bora Ground
15. The Tocomwall submission also enabled me to express to the Department of
Planning and Environment my professional concerns in relation to the proposed
Aboriginal Cultural Heritage Conservation and Management protocols for the
Warkworth Continuation Project. My focus of concern was the WBACHA , and in
particular whether the highly culturally significant BBG had been conserved within
it as maintained within the ACHAR.
16. I identified that the research relied upon in Section 3.6 of the ACHAR to establish
the probable location of the BBG was unreliable. I provided cursory statements as
to the basis of my reasoning including that I had re-examined the evidence used in
support of this research (i.e. the Brayshaw Report); undertaken a physical site
inspection; and concluded a preliminary assessment of archival materials not
previously examined.
17. In expressing this professional concern I note that I made a written statement to
the effect that:
“From my observations it seems that the Bulga Bora ground was likely
situated somewhat north of its current supposed location. This is further
supported by (a) the concentration of a broader range of site types
including grinding grooves and scarred trees in this more northerly area; and
(b) a vegetation regime more in keeping with the ‘red gum - apple box’
community described for the site in the original reportage of it.”
In re-reading this statement I have since noted it to be in error. It should have read
thus:
“From my observations it seems that the Bulga Bora ground was likely
situated somewhat south of its current supposed location. This is further
supported by (a) the concentration of a broader range of site types
including grinding grooves and scarred trees in this more southerly area;
and (b) a vegetation regime more in keeping with the ‘red gum - apple box’
community described for the site in the original reportage of it.”
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18. In the Tocomwall submission I also expressed the opinion that my analysis of the
evidence relating to the location of the BBG though not categorical, was sufficiently
contrary to the data relied upon at Section 3.6 of the ACHAR to urge that the
precautionary principle be applied. Hence I stated that:
“it is my view that no planning and or management action should be taken
that locks the ‘indicative extent of the Bora ground’ into any position until a
further targeted survey of all other likely locations for it is made.”
19. Lastly I indicated that the nature and extent of any area to be set aside for the
purposes of conservation of Aboriginal cultural heritage values within the
Warkworth Continuation Project Area [and any coincident plans for management
of these values] should not be determined whilst the location of the BBG was not
fully resolved.
SECTION ‘B’ – SUBSTANTIATION OF MATTERS RAISED IN TOCOMWALL
SUBMISSION
INTRODUCTION
20. In the hurried context of the two week period of receipt of the Brief for this report
from NSW EDO on 2nd December 2014 and my preparation of it for consideration by
the PAC on 17th December 2014, I have sought not just to re-iterate the concerns
raised in the Tocomwall submission but to substantiate the basis of these concerns
where necessary. In this regard the concerns raised in regard to Aboriginal
community consultation are not further dealt with here as they were substantiated
in the Tocomwall submission with reference to documentation pertaining to the
Australian Competition and Consumer Commission expression of concern in
preliminary examination into allegations of cartel behaviour in the procurement of
Aboriginal heritage services between Mining Companies and Aboriginal businesses
(see Appendix ‘1’’).
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21. However, the well-recognised cultural significance of the BBG the implications for
management of Aboriginal cultural heritage impacts of the Warkworth
Continuation Project posed by either (a) the potential lack of capture and/or the (b)
potential false capture of the BBG within the WBACHA are serious and likely inter-
generational. For this reason considerable emphasis is placed in this Section on the
examination and analysis of the underlying evidence used in the Warkworth ACHAR
to maintain that the indicative extent of the BBG is wholly captured within the
WBACHA.
LOCATION OF THE BULGA BORA GROUND
BACKGROUND
22. Aboriginal heritage practitioners, local historians and Aboriginal community
members make common reference to the presence of a former Aboriginal
ceremonial ground within the vicinity of the village of Bulga. However it is has been
generally agreed that no physical evidence of this former ceremonial ground
currently exists though it is understood to have been located somewhere in the
vicinity of the ‘Wallaby scrub’ and Warkworth area. For example in a recent self-
published local history, Mr Stewart Mitchell of Bulga wrote:
“In 1852 the people of Bulga witnessed the last recorded Bora held in
the Hunter Valley. The Bora was an aboriginal ceremony which
amongst other rites included the initiation of young males into
manhood…According to the local white settlers as many as six
hundred warriors attended the Bora…The Bora Ground which was
located in the Wallaby Scrub close to the road to Warkworth, was
encircled with an earth mound and symbolically carved trees - sadly
nothing remains of that ceremonial ground today” (Mitchell, 2004:41-
42).
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23. Whether extant or not the BBG remains of traditional, historical and contemporary
cultural importance to the local Aboriginal community. For example in 2012 Native Title
Claimant Mr Scott Franks of the PCWP provided the following statement to the NSW
Land & Environment Court:
“The area is known to have been an important gathering area for the
Wonnarua and neighbouring Aboriginal groups. It was an area where
initiation and marriage ceremonies occurred and where tribal
disputes, trade and social gatherings were conducted. The unique
ecological diversity of the area now known as the “Warkworth sands”
meant that in season there was an abundance of plant and animal
resources including fish within the nearby Wollombi Brook that could
be used to support large gatherings of people. As a boy I was taught
the importance of this area by my Uncle Clyde and his Cousin Ashley
Hedges as he included it in his description of the physical route and
spiritual journey/songline that my family would take from Falbrook
near Ravensworth to Warkworth to attend gatherings and initiation
ceremonies, especially at the “Bulga Bora Ground” (Franks, 2012:1)
24. Despite the common reckoning that the Bulga Bora Ground, no longer
remained extant within the Bulga - Warkworth Area, Dr Helen Brayshaw
conducted research in 2003 as part of the Aboriginal cultural heritage
assessment for the Wambo Development Project EIS in which she concluded
that she had reliably determined the probable location of the BBG (The
Brayshaw Report). This research is relied upon in section 3.6 of the ACHAR
which forms Appendix M of the Warkworth Continuation Project.
25. I have sort to determine the validity of the reliance of the Warkworth ACHAR
upon the research documented in the Brayshaw Report. In doing so I have (a)
examined the primary evidence used by Brayshaw to establish her probable
location of the BBG, (b) subject her analysis of this primary evidence to further
scrutiny (c) conducted field reconnaissance of the pertinent area and (d)
sought additional primary evidence to expand the evidence where necessary.
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In the course of this evaluation I have relied upon the following primary
source materials:
List 4: Primary source materials
a. Site record cards for Registered Aboriginal sites #37-6-0055 and #37-6-0056
as obtained from OEHs Aboriginal Heritage Information Management
System (AHIMS) Registrar. These are the two site cards that the White
Report, the Brayshaw Report and the Warkworth Continuation 2014 EIS
maintains record the same Bora Ground at Bulga. A copy of each site card is
attached to this report as Appendix ‘5’.
b. A digital copy of the Singleton 1:250,000 Topographic Map Sheet (S1 56-1
Edition 1- AAS Series R502, 1981) obtained from the website of Geoscience
Australia. An extract of this map highlighting the Grid Reference provided
on AHIMS site Card # 37-6-0055 (i.e. GR402: 966) is attached to this report
as Appendix ‘6’.
c. Original aerial photographs from the Singleton 1970 Black and White Aerial
Photograph Series including:
1. Run 5 East Sheet #s 97-108 particularly sheet # 109 [shot 5-7-1970];
2. Run 6 Sheet #s 231-278 particularly Sheet #s 264 and 266 [shot 14-7-
1970]; and
3. Run 7 Sheet #s 16-64, particularly Sheet # 50 [shot 16-7-1970].
These aerial photographs are held in the Ellis Thorpe Collection at the
Regional Heritage Centre, University of New England, Armidale NSW. A
copy of sheet #264 of Run 6, of the Singleton 1970, aerial photograph series
is attached to this report as Appendix 7. An annotated extract of this same
aerial photograph is attached to this report as Appendix 8.
d. Digital copies of relevant historical maps obtained from the Historical Land
Records Viewer (HLRV) within the Spatial Information Exchange (SiX) portal
of the NSW Land and Property Information(LPI) website @lpi.nsw.gov.au
including:
1. Map of the Parish of Warkworth Edition 1, July 1891;
2. Map of the Parish of Warkworth Edition 5, October 1912;
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3. Map of the Parish of Wollombi, Edition 1, July 1898;
4. Map of the Parish of Wollombi Edition 4, September 1905;
5. Map of the Parish of Wollombi Edition 5 January, 1919;
6. Map of the Parish of Whybrow Edition 2, April 1892;
7. Map of the Parish of Whybrow Edition 3, April 1915;
8. Map of the Parish of Lemington, Edition 2, April 1892; and
9. Map of the Parish of Lemington, Edition 4, November 1916.
e. Digital copy of an image captioned Bora tree at Bulga (from Mitchell, 2004,
p.42). With permission of Mr Stuart Mitchell a copy of this image is attached
to this report as Appendix ‘9’.
f. Digital copies of documents and images (obtained on my behalf by the EDO
NSW from the Australian Museum) relating to the ethnological excursion
undertaken by staff of the Australian Museum in May 1918 to examine the
Bora ground at Bulga, including:
1. Eight Black and White Photographs [AMS351/V3152-AMS351/V3519]
taken by Australian Museum Photographer, C. Clutton in May 1918. With
permission of the Australian Museum, copies of these photographs are
attached to this report as Appendix ‘10’.
2. Copy of Minute Paper signed by WW Thorpe and written dated 13 April
1918 in which he describes a visit by Mr A.N. Eather to the Australian
Museum. This Minute Paper is attached to this report as Appendix ‘11’.
3. A justification and costing of a trip by Museum Staff Messrs Anderson,
Clutton and Thorpe to Bulga to document the bora ground. The
justification is signed by R. Etheridge on 24-April 1918. With permission
of the Australian Museum a copy of this costing is attached to this
report as Appendix ‘12’.
4. A letter report to Mr Etheridge by W Thorpe Museum Ethnologist dated
18 May 1918 documenting the outcomes of the trip to the Bulga Bora
Ground by the Museum staff. With permission of the Australian
Museum a copy of this document is attached to this report as Appendix
‘13’.
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5. A copy of a sketch, located to the right of the BBG entry within the
Australian Museum Register of archaeological objects, that denotes the
location ‘from memory’ of the BBG. With permission of the Australian
Museum a copy of this sketch is attached to this report as ‘Appendix
‘14’.
RECONNAISSANCE SURVEY
Background to the survey
26. As noted in Paragraph ‘4’ and referenced in Appendix ‘4’, on 10 November 2011 I
conducted a reconnaissance survey of the area described and mapped by Rio Tinto
as the probable location of the BBG [and whose indicative extent occurs within the
WBACHCA]. I did so in the company of: (a) two employees of Wambo Coal including
Mr Lachlan Crawford; (b) Mr Scott Franks of Tocomwall; and (c) Mr Robert Lester
of the PCWP.
27. In the days preceding this inspection a meeting was held at the Peabody Wambo
Coal offices. I recollect that at this meeting were staff from Peabody Wambo Coal
(including Mr Lachlan Crawford and Mr Ian Gray) and Rio Tinto (Mr Dr David
Cameron) as well as myself and Mr Scott Franks from Tocomwall; and Mr Robert
Lester from the PCWP. The purposes of this meeting were twofold:
a. To discuss and review options related to the potential co-management by Rio
Tinto and Peabody Wambo Coal of the probable area of the BBG. The
potential need for co-management had arisen due to the mapping by Rio
Tinto of the ‘indicative extent of the BBG’ as being in an area of land that
extended in to the Wambo Mine Lease area. A copy of two maps provided to
me at this meeting by Dr Cameron of Rio Tinto are attached to this report at
Appendix ‘15’. These maps identify the area described as ‘the indicative extent
of the BBG.’
b. Arrange permission for me to conduct a site inspection of the area. In
particular, the PCWP and Wambo Coal wanted me to confirm, if possible, the
validity of the ‘indicative extent of the Bora Ground’. This was because:
P a g e | 20
1. as explained in paragraphs 24-26, I had alerted Mr Scott Franks and Mr
Robert Lester of a possible error in their interpretation of a document
they had relied upon when undertaking an inspection of the ‘probable
location’ of the BBG earlier in 2011, and
2. This earlier inspection had pointed to the possibility that part of the
Bulga Bora ground should lie in the Wambo Mine Lease area.
28. Prior to my involvement, I was aware that Mr Scott Franks and Mr Robert Lester
had accompanied Mr David Cameron on an earlier inspection of the site. I had been
advised that this inspection had occurred because Mr Franks & Mr Lester had
identified written material that had described in detail an eye witness account of
this bora ground. This written material was supplied to me by Scott Franks on 10
October 2011 (Appendix ‘16’). I subsequently identified that this written material
was in fact a transcript prepared by Gionni Di Gravo, University of Newcastle
Archivist, of an undated Xerox copy of ‘The history of Bulga near Singleton NSW 1820
to 1921 by A.N. Eather and a description of the last combined Bora held on the Family
property in 1852” (The Eather Transcript) (Appendix 17). Mr Di Gravo prefaced his
transcript by stating that:
c. “According to the Eather Family, the bora ceremony was not held
on the Meerea property but at another location. Meerea was a land
grant to Thomas Eather in 1826”.
29. Upon my reading of the Eather Transcript, I alerted Mr Franks and Mr Lester of my
concern that it did not in fact include an eye witness description of the last bora
ceremony at Bulga. Rather, although the document identified that Mr A.N. Eather
had knowledge of the Bora Ceremony, a considerable amount of his information —
including the main description of ‘the Bora’ — had been sourced from individuals
who had observed elements of the Bora ceremony at other locations. It should not
therefore be taken as a literal description of the BBG.
30. In addition, upon comparison of the ‘Eather Transcript’ with the document referred
to in the Brayshaw Report (at para. 5, p.2), as being “an extract entitled The last
P a g e | 21
great Bora Ceremony in the Hunter Valley” authored by Alex Eather and published in
the December 1993 issue of the Singleton Times Newsletter, I determined that the
content of these was the same.
31. On the 18 of November, I was forwarded an email that included information
regarding this previous site inspection as provided to Mr Scott Franks from Mr
David Cameron. This email is attached to this report at Appendix ‘18’ and includes
a Bora Ground inspection map (Appendix ‘18a’) and an extract from the 2003
Wambo EIS including parts of the ‘White Report’; and the ‘Brayshaw Report’.
32. I note that this is the April 2011 site inspection referred to in Section 3.6.5 (para. 3,
p. 31) of Appendix ‘M’ of the Warkworth EIS. I further note that the map attached
(Appendix ‘18a’) relied upon what I believe to be erroneous, but literal, in-field
interpretations made by Mr David Cameron, Mr Scott Franks and Mr Robert Lester
of the Eather Transcript.
Results of the survey
33. My survey revealed no physical evidence that would lead me to categorically
conclude that a Bora ground had existed in the immediate locality. There were no
raised circular or crescent shaped mounds of earth, nor were there any discernible
areas of flat open terrain. There were no discernible pathways into or out of the
locality and there were no defined or marked tracks that linked two areas of cleared
open terrain as is typical of a bora ground.
34. My familiarity with (a) extant bora grounds and (b) the ethnographic,
anthropological and archaeological literature on bora grounds (e.g. Eipper, 1841;
Mathews, 1918; Oxley, 1825; Satterthwait and Heather, 1987; Bowdler, 2001)
provides some confidence that had clear evidence of a bora ground been evident
during this field reconnaissance, it would have been identified. I also note that in
areas not subject to intensive agriculture and cultivation it is possible for these
ground surface features to persist in the landscape such that for example the
Toorbul Point Bora ground, with which I am personally familiar as it lies within my
P a g e | 22
PhD study area (Cotter, 2009) was first documented in 1841 (i.e. Eipper, 1841) yet it
remains visible and extant to the present day.
35. In addition to the lack of material evidence of a Bora ground, during this
reconnaissance survey, I also observed no Aboriginal objects such as stone
artefacts, grinding grooves, freshwater shell middens and hearth sites. I also did
not observe any Aboriginal carved and/or scarred trees during my reconnaissance.
I thus found no material evidence to support a view that past use and occupation
by traditional Aboriginal people had occurred within the immediate vicinity of the
area maintained by Rio Tinto as being the probable location of the BBG. Yet these
are all likely elements of the archaeological record in and near an area
ethnographically reported (i.e. the Eather Transcript) to have supported the
ceremonial activities of some 500 to 600 people.
36. My observations are consistent with the findings of the Brayshaw Report as it too
documents no tangible evidence of carved trees and no substantive evidence of
the BBG within this probable location; and it provides only limited evidence of past
Aboriginal occupation within the immediate vicinity.
37. Despite identifying no actual archaeological evidence of the BBG, the Brayshaw
Report uses a number of secondary lines of evidence to posit a ‘probable location’
for it. I have re-examined the Brayshaw Report and noted a number of possible
errors of fact or logic in the use of this secondary evidence. In concert these errors
of fact and logic are sufficient to conclude that the ‘probable location of the BBG’
posited in the Brayshaw Report is likely wrong.
38. My research into - and evaluation of - the secondary evidence used in the Brayshaw
Report has led me to conclude that the actual location of the BBG is most likely not
within any part of the currently proposed WBAHCA. It is, in my opinion, more
probably located within the area subject to impact by the current Warkworth and
Mt Thorley Continuation Projects.
P a g e | 23
39. Following I provide a detailed critique of the evidence used in the Brayshaw Report
to posit the ‘probable location of the BBG’. In addition I provide the analyses and
reasoning I have applied to the same evidence to determine the credible possibility
that the BBG was situated elsewhere then at this ‘probable’ location.
CRITIQUE OF EVIDENCE
36. In forming her view of the ‘probable location’ of the BBG Brayshaw relied on the
following key pieces of information:
a. The December 1993 issue of the Singleton Times Newsletter which described
the last great bora ceremony within the area as having occurred in 1852. As
noted at paragraph 26 the source of the information within this Newsletter
is the Eather Transcript .
b. A minute paper written by W Thorpe on 13-May1918 in which he noted that
A, N. Eather had visited that morning to deliver an additional parcel of
siliceous flakes, and advise that he had located an old bora ground 17 miles
from Singleton with carved trees, clearings and mound still intact. Thorpe
further noted that this bora ground was situated some 2 miles from his
home ‘Meerea’, which was located at Lot 26 of the Parish of Whybrow near
Bulga. This minute is that shown in Appendix ‘11’ of this report.
c. Key site descriptors of the BBG provided by W. Thorpe ethnologist of the
Australian Museum to Mr Etheridge Museum Curator in a letter report dated
18 May 1918. This report indicated that the BBG was located within a clearing
of vegetation on a plateau of sandy land surrounded by over six scarred
trees with diamond patters, located near a travelling stock route and
located in close proximity to a camp site. It also indicated that the site was
in open forest country and that the carved trees were ‘red gum and apple’.
The Brayshaw Report includes a transcript of this letter report in full at
paragraph 4, page 3. This is the same text shown in Appendix ‘13’ of this
report.
P a g e | 24
d. Photographs of the carved trees that were in proximity to the BBG taken in
May 1918. These photographs are the same shown in Appendix ‘10’ of this
report.
e. A map of the BBG location sketched ‘from memory’ to the right of the BBG
entry within the Australian Museum register of Ethnology E8/1918 (Thorpe
Sketch Map). An enlarged copy of this map is shown as Figure ‘1’ of this
document. Page 4 of the Brayshaw Report included an enlarged
reproduction of this map as Figure 1 and indicated that the original
measured 4 x 3 cm.
f. Map of the Parish of Warkworth, Edition 5, October 1912. An extract of this
image was included as Figure 2 on page 4 of the Brayshaw Report.
g. Recollections and site inspections of Mr Jim Eather a descendant of Mr Alex
Eather (the author of the Eather Manuscript) who in 2003 resided at Bunnan
near Scone. Mr Eather was reportedly the only living person who had
inspected an area of land thought to be the BBG in the 1930s. This was due
to his observations at that time of a burnt tree stump with scar markings
and a number of mounds. Mr Eather failed to identify this area again in the
1980s.
h. The National Parks & Wildlife Service Aboriginal site record cards for site #
37-6-0055 and 37-6-0056 as they obtained at the time of the Brayshaw
investigation in 2003. With respect to these site cards I note the following:
I. As provided by the AHIMS Registrar the current AHIMS Site Card
# 37-6-0055 is an undated site card prepared by Helen Clemens
that provides the following limited details of a ceremonial
ground:
i. Site Name: Wollombi Brook
ii. Grid Ref c.402:966 on the Singleton 1:250,000
topographic map sheet,
iii. Oral informant Mr D.A. Eather of Milgarra,
Bunnan near Scone.
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Figure 1: Sketch map of the location of the BBG drawn from memory by W. Thorpe in 1918. (Source: Enlarged extract from the Australian Museum Register of Ethnology E8/1918, image reproduced with permission of the Australian Museum).
II. The current AHIMS Site Card for AHIMS site #37-6-0056 has the
following three separate recording sheets attached to it:
A. An undated site card prepared by Helen Clemens with the
following limited details:
i. Site Name: Wollombi Brook,
ii. Grid Ref c.401:966 on the Singleton 1:250,000
topographic map sheet,
iii. Oral informant Mr D.A. Eather of Milgarra,
Bunnan near Scone,
iv. Mining has now occurred at the site. The
carved trees have been ringbarked and
destroyed.
P a g e | 26
B. A site card filed by Rex Silcox in 1980 upon recording of
the site by David Bell in January 1979. It provides the
following details of a Ceremonial ground and carved
trees:
i. Site name: Wollombi Brook;
ii. Grid Ref c. 401.968 (NB Grid reference c.
402-968 is crossed out) on the Singleton 1-
AAS-1:250,000 Map sheet;
iii. Grid Reference 140.900 Singleton 1st
Edition 1:25,000 Map sheet;
iv. Site was located about 5km north of Bulga
and on the east side of Wollombi Brook;
v. Site consisted of several carved trees
(about 4);
vi. Environment of area consists of fairly
dense scrub with some cleared areas. The
area is undulating. Land use mixed farming,
vineyards, coal mining;
vii. Oral informants Mr Ian Eather “Meerea”
via Bulga, and D.A. Eather of “Milgarra’’,
Bunnan Near Scone;
viii. Information from local residents that this
site has been destroyed although the exact
location of the site could not be
determined. The area in which the site was
located has been the scene of at least 3
bushfires in recent memory.
ix. The site was of no contemporary
importance to Aborigines.
C. A site card recorded by E. White and Dr Helen Brayshaw in
April 2003 during investigations for the EIS for Wambo
Development Project. This site card references the
P a g e | 27
‘Brayshaw Report’ as the key source of information that it
relies upon: and provides the following further locality
details:
i. AMG Grid reference is 314 030 mE 6389700
mN Singleton 1: 25,000 Map
ii. The landform position of the site is a crest
with a gentle slope and southerly aspect.
iii. The site is situated in a sandy area just off
point of a crest and secluded from creek
below by scrub and angle of slope;
iv. It lies approximately 400m from drinking
water;
v. It lies in an area marked for conservation,
vi. It is a woodland with regenerating casuarina,
ironbark, rough-barked apple, Callitris sp,
bracken, blade grass;
vii. Bracken was an edible plant noted.
As site card record ‘C’ for AHIMS Site # 37-6-0056 is that provided by
Brayshaw herself it is only the prior site records provided by Clemens (i.e.
record ‘A’) and by Silcox (i.e. Record ‘B’ above) that were available to inform
her investigation.
Brayshaw approach to evidence
37. Brayshaw inferred from the 1918 Thorpe Sketch Map (i.e. Figure 1 of this document,
above) that the location of the Bora ground was tied to the stock route. Hence she
compared this sketch map with both the 1912 Warkworth Parish Map (Figure 2 of
this document, below) and the Singleton 1:25,000 topographic map Sheet # 9312-
IV-N First Edition and the adjoining Bulga 1:25,000 topographic map sheet #9312-IV
S First Edition). Whilst noting some immediate discrepancies, such as:
“Thorpe’s map indicates the stock route to run due east from Wollombi
Brook and then turn a right angle to the north. On the 1912 Parish Map the
P a g e | 28
surveyed road has a right angle, although it is not exactly east-west or north
south” (Brayshaw Report, para 4, p.5),
Brayshaw concluded that the comparison bore sufficient similarities such that she
enlarged the Thorpe Sketch Map and overlayed it ‘to scale’ on a composite of the
Singleton and Bulga 1:25,000 topographic map sheets. In doing so she made the
further conclusion that the Bora ground was probably within portion 17 of the
1912 Parish Map (see Figure 2 of this report ). She noted that this was a distance of
3.25 km or 2.03 miles from the property “Meerea”.
Figure 2. Extract from the Map of the Parish of Warkworth 5th Edition, 1912. Note the red square encloses land Portion 17 (Source the Historic Land Records Viewer @lpi.nsw.gov.au).
38. Having determined from this map comparison that Portion 17 was the likely site of
the BBG, Dr Brayshaw then conducted two field investigations of this area. The first
of these was undertaken in the company of Mr Jim Eather and relatives, [including
Mr David Eather, the noted informant on the Site cards prepared by Helen Clemens
P a g e | 29
and Reg Wilcox in c. the late 1970s (i.e. Appendix 10)]. A short time later she
undertook a more detailed examination - of the area identified in the company of
Mr Eather - with members of the local Aboriginal community.
39. In both these field investigations Brayshaw relied heavily on the following five
strands of evidence:
1. Jim Eather’s recollection that on the northern side of the site there
was a post and rail fence; and his 2002 sketch map (i.e. Figure 4 of
the Brayshaw Report) of the arrangement of the site as he
recollected it from his only visit to the site in the late 1930s;
2. Australian Museum Photograph Archive V5314- May 1918 captioned
“C. Clutton photographer Aboriginal Carved tree No 5 from W. 290S”
in which a post and rail fence is shown;
3. Her observations of extant vegetation communities and her
suppositions regarding the vegetation communities exhibited in the
photographs of carved trees taken by Clutton in 1918 and held in the
Australian Museum Archives;
4. Her in field observations of slope, aspect and topography and her
suppositions as to how these might explain the relative positions of
the carved trees depicted in these same photographs; and
5. Her in-field interpretation of the relationship of sand depth and
vegetation community distribution within the probable BBG area.
40. Dr Brayshaw concluded that Thorpe’s sketch map when overlain on the 1:25,000
Singleton/Bulga composite Map sheet established “beyond doubt that the Bora
ground was located in the vicinity…There is no other association of creek and stock
route with Wollombi Brook, as described for which it could be mistaken”(Brayshaw
Report, para 2., p.10).
P a g e | 30
41. Upon reaching this conclusion Dr Brayshaw and E. White submitted a site card for
the BBG (see Appendix ‘10’) and it is this site card that contains the AMG
coordinates used by Rio Tinto to map AHIMS Site #37-6-0056 and to establish the
“indicative extent of the Bulga Bora Ground” within the WBACHCA. To this extent
Section 3.6 of the ACHAR prepared for the Warkworth and Mt Thorley EISs fully
supports the conclusions of the Brayshaw Report.
KEY CONCERNS
Use of the 1912 Warkworth Parish Map
42. There is no explanation provided as to why the Brayshaw Report uses the 1912
Parish of Warkworth Map as the historical reference point for the investigation into
the BBG, and especially, as the historical reference point to determine the existence
of a stock route with any parallel alignment to that displayed in the Thorpe Sketch
Map. It is not the first edition of this historical map but rather the 5th edition of it. A
copy of the earlier 1st edition of this Warkworth Map is available on the NSW land
and Property Information Website (http://lpi.nsw.gov.au). An extract of this earlier
edition is shown at Figure ‘3’ of this document. In this Figure Travelling Stock
Reserve(TSR) 5782 and TSR 21 are shown to be adjoining each other. However
these are TSRs and not stock routes.
43. The Thorpe Sketch Map includes a stock route running approximately north-south
to west of the Wollombi Brook labelled “To Jerry Plains” to the north and “To
Bulga” to the south. The Warkworth Parish Maps of 1891 and 1912 do not include
this stock route. The Brayshaw Report itself notes that:
“Thorpe’s map indicates the stock route to run due east from Wollombi
Brook and then turn a right angle to the north. On the 1912 Parish map the
surveyed road has a right angle, although it is not exactly east-west or north
south” (my emphasis).
Clearly there is no obvious and exact alignment shown between the ‘facts’ of the Parish
Map and the ‘facts’ of the Thorpe Sketch Map.
P a g e | 31
Figure 3: Extract of the Map of the Parish of Warkworth, Edition 1, 1891. (Source Historical Land Records Viewer, NSW Land and Property Information online @http: lpi.nsw.gov.au).
44. It is conceded that the location of the public road crossing is at the southeast east
edge of the Warkworth Parish Map and that it is possible that the road is simply not
displayed in this Map. However, when one reviews contemporaneous maps for the
adjoining Parish of Whybrow (e.g. Figure ‘4’ of this document below) it is clear that
there was no road to the north at this location.
45. The exclusive use of the Warkworth Parish Map of 1912 in the comparative analysis
of the Thorpe Sketch Map is additionally perplexing when it is identified that other
contemporaneous maps of adjoining Parish Maps are readily available) (e.g. see list
5(d) at paragraph 21 of this report). This is especially so as the letter report prepared
by Thorpe to Etheridge on 18 May 1918 (and provided in full on page 3 of the
Brayshaw report) notes the following:
P a g e | 32
Figure 4: Extract of the Map of the Parish of Whybrow, Edition 3, December, 1915. (Source Historical Land Records Viewer, NSW Land and Property Information online @http:lpi.nsw.gov.au).
“The party was duly conducted to the Bora Ground, the position of which will
be fixed later, as the site [is] possibly in another Parish other than that of the
map provided.”
46. In my review of the evidence used in the Brayshaw Report (as outlined in
paragraph 36 of this report) the only apparent driver to the selection and
exclusive use of the Warkworth Parish Map of 1912 for the comparative map
analysis is the oral information recorded on the site card for AHIMS site #37-6-
0056 filed by Reg Silcox in 1980 [see paragraph 36] This information, reportedly
supplied by Jim and Ian Eather, placed the Bora Ground some “5km to the north
of Bulga and to the east of Wollombi Brook.” Problematically this information did
not assist either the informants or the archaeologists to identify any evidence for
the BBG when they searched for it in the early 1980s. Indeed as Mr Jim Eather
P a g e | 33
conceded to Dr Brayshaw in 2002 he was probably looking for the BBG “too far
north” when trying to relocate the site with his brother David at this time
(Brayshaw Report, para. 1, p.3).
Use of Archival documents
47. If we return to the original information held in the Australian Museum Archives of
the 1918 visit, there are only two ‘reliable facts’ identifiable with respect to the
actual location of the BBG. The Thorpe Minute Paper indicates that Mr Alex Eather
described it as being located 2 miles from his property “Meerea” and the Thorpe
Sketch Map identifies it as being situated east of Wollombi Brook. It is worth
therefore examining these two facts in some more detail.
48. In Figure ‘5’ below I have prepared a map composite of the Parish Maps available
to Thorpe and his Museum party when they visited the BBG in 1918. This map
composite takes into account the implication of Thorpe’s preliminary observation
that the area about the BBG was at the intersection of one or more Parish Maps
(i.e. refer to paragraph ‘45’ of this document).
49. In Figure ‘6’ I have annotated this map composite to indicate the facts of the
location of the BBG as identified in the Thorpe Minute Paper. The ‘black square’
encloses Portion 26 of the parish of Whybrow which is the selection taken up by
Thomas Eather in 1826 and named “Meerea”. The five ‘red lines’ radiating out from
a single point within the ‘black square’ are lines of equal length all scaled to
represent a distance of 2 miles. Importantly all of the lines represent a location that
is east of Wollombi Brook. Hence the endpoints of each of these lines arguably
represents a possible location of the BBG relative to the Eather property ‘Meerea.’
This is especially the case if it is remembered that the qualifier ‘north of Bulga’ is
not actually a part of the original evidence provided in The Thorpe Minute Paper.
Thorpe Sketch Map
50. There are at least two ‘facts’ of the Thorpe Sketch Map (i.e. Figure ‘1’ of this
document) that have not been taken into account in the Brayshaw Report,
P a g e | 34
particularly as this sketch map has been reproduced and overlain on the
Singleton/Bulga 1:25,000 topographic Map:
Figure 5: Map Composite comprised of the 1912 Map of the Parish of Warkworth used in the Brayshaw Report and adjoining historical Parish Maps that were current at the time of the Australian Museum party excursion to the BBG in 1918. This includes, clock wise from Bottom Right (a) Map of the Parish of Wollombi, Edition 4, September 1905; (b) Map of the Parish of Whybrow Edition 3, April 1915; and (c) Map of the Parish of Lemington, Edition 4, November 1916 (Source Historical Land Records Viewer (HLRV), NSW Land and Property Information online @ http: lpi.nsw.gov.au).
P a g e | 35
Figure 6: Annotated Map Composite of the 1912 Map of the Parish of Warkworth, used in the Brayshaw Report; and adjoining historical Parish Maps that were current at the time of the Australian Museum party excursion to the BBG in 1918. Note the ‘black square depicts the location of the Thomas Eather property named ‘Meerea”and the five red lines radiating out from a single point within this property are lines of equal length showing an ‘arc of possible locations’ that lie east of Wollombi Brooke and 2 miles distant from the property ‘Meerea’ (Source Historical Land Records Viewer (HLRV), NSW Land and Property Information online @ http: lpi.nsw.gov.au).
P a g e | 36
Thorpe Sketch Map Continued
a. The Thorpe Sketch Map depicts a part of the Wollombi Brook that has a
‘straight reach’ that is oriented largely in a north south direction. In contrast
the reach of Wollombi Brook that is associated with the location favoured
for the BBG in the Brayshaw Report is very obviously curved. Whilst noting
that the Thorpe sketched his map from memory it is difficult to presume
that he and his party would make such a significant observational error.
b. The Thorpe Sketch Map is a map annotated with the words ‘drawn from
memory’. It does not state or purport to be a map of the BBG that is “drawn
to scale”. Indeed the associated preliminary report prepared by Thorpe to
Etheridge on 18 May 1918 indicates that the scale drawing of the bora is still
yet to be drafted, and will be done so by his colleague Dr Anderson (See
Brayshaw Report, p.3).
51. If we accept the proposition that Thorpe’s Sketch Map is a ‘not to scale’ map of the
BBG depicting its location relative to a straight, north - south flowing channel reach
of Wollombi Brook, then two fundamental assumptions of the Brayshaw Report
become suspect. In the first instance it is not possible to make an accurate overlay
onto a scaled topographic map of any drawing that is ‘not to scale’. Thus the
overlay featured as Figure 3 of the Brayshaw Report (and repeated at Figure 5) has
no measured basis. Furthermore, when it is recognised that the overlay is situated
without proximity to a straight, north - south flowing channel reach of Wollombi
Brook, it is also apparent that it has no basis in geographical fact.
1905 Map of the Parish of Wollombi
52. If we move then to orient the Thorpe Sketch Plan not with exclusive reference to
the 1912 Warkworth Parish Map but rather with reference to other of the historical
Parish Maps that comprise the Map Composite shown in Figure 6 of this document,
additional geographical reference points and locational parallels, not noted in the
Brayshaw report, are made apparent. Thus the Public Roads shown in the 1905
Wollombi Parish Map (see Figure 7 of this report) match the stock routes shown in
P a g e | 37
the Thorpe Sketch Map and more closely match the labels applied to the Thorpe
Sketch Map. Specifically:
a. The location of the Public Roads match the layout in the Thorpe Sketch Map,
b. The Public Road to the east is labelled as leading to Singleton, as is the stock
route shown on the Thorpe Sketch Map;
c. The Public Road to the west of Wollombi Brook shows a road going
approximately north-south with the road north labelled “To Jerry Plains’
and the road to the south labelled “To Bulga”, as does the Thorpe Sketch
Map.
d. To the north of the intersection between the ‘Road to Jerry Plains’ and the
‘Road to Bulga’ Wollombi Brook has an extended straight reach that runs in
a north-south direction.
e. The intersection of the Wallaby Scrub Road with the road to Singleton lies
about 2 miles east of Meerea. At this intersection lies a small triangular TSR
(CR 21). The only access to this TSR are these public roads and hence, by
implication, one function of Wallaby Scrub Road at this location was as a
stock route.
f. The evidence outlined in ‘a’ to ‘e’ provides for the possible alternate
interpretation that the BBG was likely situated approximately 2 miles east of
the property Meerea somewhere to the east of Wallaby Scrub Road.
Australian Museum Photographs
53. The eight photographs held in the Australian museum archives of the carved trees
extant in 1918 at the BBG (i.e. Appendix ‘10’) are used to support the conclusions of the
Brayshaw Report. However close examination of these photographs, (complimented
by reconnaissance survey, aerial photographic interpretation and reference to key
historical documents) indicates that information relating to the vegetation and
topography associated with the actual location of the BBG has been omitted or
misinterpreted in the Brayshaw Report.
P a g e | 38
Figure 7: Annotated Extract of the 1905 Wollombi Parish Map depicting the property ‘Meerea’ and features of the public road system at this time that are akin to the mapped stock routes drawn in the Thorpe Sketch Map. The blue arrows radiating east from the property Meerea point to the possible location of the BBG to the east of Wallaby Scrub Road (Source Historical Land Records Viewer (HLRV), NSW Land and Property Information online @ http: lpi.nsw.gov.au).
Vegetation within the vicinity of the BBG
54. The Thorpe Report (Appendix ‘13’) as transcribed in the Brayshaw Report remarks that the
carved trees were of ‘red gum and apple’. Plates ‘2’, ‘3’ ‘5’, ‘6’, ‘7’ & ‘8’ of Appendix ‘10’ confirm
that many of the carved trees are indeed ‘gum’ trees. Moreover they predominantly occur as
single tall trees in areas lacking full vegetation cover. Several of the carved trees are dead and
it can be supposed from their surrounding habit that upon a fire the canopy in which they occur
would become more rather than less open.
55. Forest red gum or Eucalytpus tereticornis is a component of the Hunter Valley vegetation and
in the Hunter Lowland Red Gum Forest (MU 24) as described by Peake (2006) it is co-dominant
with rough barked apple (Angphora floribunda), grey gum (Eucalyptus punctata) and narrow-
leaved ironbark (Eucalyptus crebra). This vegetation community is described as generally
occurring in drainage flats on Permian sediments and is usually associated with relatively minor
creek lines. Plate ‘1’ ‘5’ and ‘6’ depict areas that are akin to drainage flats and creek lines.
‘Meerea’
Stra
igh
t Re
ach
of W
ollo
mb
i Bro
ok
P a g e | 39
56. Forest red gum is also co-dominant with rough-barked apple in the vegetation community
described by Peake (2006) as Wollombi Alluvial Red Gum Apple Forest. This community is
described as being restricted to the alluvial flats along Wollombi Brook and its tributaries.
Bracken fern is abundant in the understorey. This vegetation community thus conforms to the
description provided by Thorpe and also equates with the form of the vegetation communities
shown in most of the Australian Museum Plates of the carved trees.
57. Neither of the two forest red gum - apple box vegetation communities described in paragraphs
55 & 56 are reflected in the descriptions provided of the vegetation observed by Brayshaw in
the area purported to be the probable location of the BBG. Brayshaw describes this vegetation
as being relatively thick and she maintains that there probably has been re-growth occurring
in the area. Her vegetation description is much more akin to that applied to the Warkworth
Sands Woodland (MU 14) of Peake (2006). This community is well documented as occurring
between Wollombi Brook and Wallaby Scrub Road but typically it does not include Eucalyptus
tereticornis in its vegetation mix.
58. If the information in paragraphs 54-58 are considered relative to the annotated 1970s aerial
photograph included as Appendix 7 of this report; and to the 1912 Warkworth Parish Map.
Some additional analyses of the likely vegetation affinities within the area purported to be in
the vicinity of the BBG can be achieved. A key point is to note that the travelling stock reserves
TSR 5782 and TSR 21 recorded on the Warkworth Parish Map are part of the dense canopied
area of ‘remnant vegetation situated to the north and east of Wollombi Brook. By implication
this area has likely not been subject to clearing; and hence cannot be considered to reflect the
increasingly cleared area within which the carved trees are situated. Here it must be recognised
that (a) the complete loss of the carved trees as is suspected by the majority of informants
would make the area more clear of vegetation. Moreover, where firing had reduced the canopy
but allowed for regrowth it would be expected that red gum and apple box juveniles would be
part of the recruitment in this area. Gums are not reported for the area purported to be the
probable location of the BBG.
Ceremonial activities to the east of Wallaby Scrub Road?
59. At paragraph 52 I provide evidence that would likely place the BBG to the east of Wallaby Scrub
Road. Importantly, a location for the BBG to the east of Wallaby Scrub Road better
supports the ability of a large number of Aboriginal people to undertake the activities
P a g e | 40
known to occur at the BBG as described below, and the ability to incorporate a camp
to the west of a stock route and the BBG to the east of a stock route as shown in the
Thorpe Sketch Map.
60. Information outlining the practices likely to be undertaken in and around the BBG is
found variously within the Eather Manuscript; This information suggests:
a. That the BBG was a much larger cultural landscape, whereby those to the
initiated as part of the bora ceremony were taken from one area for a ritual
to another area to learn songs, dances and tool crafting. In this context, the
BBG should be considered to encompass more than simply the Bora Ground
circle itself.
b. Given the number of people attending the Bora ceremony was estimated to
range between 500-600 people in 1852 the area required for public and
private ceremonies associated with the bora ground and the necessary tool-
making and camping requirements ceremony, camping and crafting ground
would be much larger than the area available at the location indicated by
the Brayshaw Report.
c. According to Figure 4 of Appendix M of the EIS, there are a large number of
recorded Aboriginal objects on both sides of Wallaby Scrub Road where the
BBG might well have been located. These objects also include three scarred
trees (Aboriginal Heritage Information Management System reference 37-
6-2307, 37-6-2369 and 37-6-2611). These scarred trees themselves do not
resemble the scarred trees that were recorded in the 1918 expedition,
though they would be associated with the cultural practices associated with
the Bora process.
d. As highlighted in Figure 8 below, within the proximity of the eastern margins
of Wallaby scrub road occur plateau and eminence features like those
reported by Thorpe in 1918 as being a characteristic of the lands about the
bora ground. In addition there is a sufficient distribution of other
artefactual material about these areas to suggest that past Aboriginal
activity in the area was concentrated. There is simply not this distribution of
artefacts in the vicinity of the area posited by Brayshaw as being the
P a g e | 41
probable location of the BBG (also note the distribution of sites shown in
the maps at Appendix 15 of the indicative extent of the BBG within the
WBACHA). Even accounting for the removal of some significant stone
artefacts from the area about the BBG by Mr Eather in the early 1900s, the
complete lack of nearby associated archaeological sites in in the location of
recorded Site #37-6-0056 does not reflect its apparent categorisation as a
ceremonial ground of such cultural significance that neighbouring tribes
gathered to witness and participate.
Summation
61. In paragraphs 36-60 of this report sufficient evidence is provided to demonstrate that
the Brayshaw Report is not the fully reliable body of research into the probable
location of the BBG that is as it is claimed for in Section 3.6 of the Warkworth ACHAR.
Without such reliability, the current record for AHIMS site #36-7-0056 is equally
questionable since the Brayshaw Report is the sole basis for the AMG coordinates used
to map the location of this site within the WBACHA. If there is no other basis for placing
the BBG in the WBACHA then the Brayshaw Report, the WBACHA can no longer be
demonstrated as the mechanism for conservation of this highly culturally significant
site.
SECTION ‘C’ – REVIEW OF RESPONSE TO SUBMISSIONS
62. As per the NSW EDO Brief and within the limited time available I undertook a review
of the Response to Submission (RTS), Secretary’s Environmental Assessment Report
(Secretary’s Report) and recommended Conditions of Consent (Conditions) for both
the Warkworth and Mt Thorley EISs as these relate to Aboriginal cultural heritage. The
focus of this review was to ascertain:
a. Whether or not the matters raised in the Tocomwall
submission have been addressed in the EIS Assessment
Review process and, if addressed:
b. Whether or not, the form and manner by which they have
been addressed provides for adequate and informed decision
P a g e | 42
making about Aboriginal cultural heritage management for
the life of the Warkworth and the Mt Thorley Projects.
63. My review of the listed documents does not require a detailed explanation, its
conclusions are stark but brief:
a. OEH maintained that the A&C_ACHWG enabled a process of consultation
that was compliant with the requirements outlined in the Aboriginal
Community Consultation Requirements for Proponents 2010. No material
discussion of any of the matters raised in the Tocomwall Submission were
brought to bear on this assessment of compliance. Thus the concerns raised
by a registered Native Title Claimant within the Hunter Valley as to the
assessment and subsequent management of their cultural heritage remain
unaddressed. This I would maintain remains contrary to the views expressed
in policy documents from OEH that commend the fact that “Aboriginal
people are the primary determinants of the Aboriginal cultural significance
of their heritage.”
b. The Warkworth ACHAR placed some emphasis on arguing that without any
other credible evidence to the contrary, the Brayshaw Report had achieved
a reliable probable location for the BBG. As a consequence the conservation
measures associated with the apparent capture of the BBG wholly within
the proposed WBACHA were deemed adequate for the life of the mine.
64. A reflection upon the evidence presented in Section ‘B’ of this report and the
summary review of documents described in Section ‘C’ , causes me to conclude
that:
a. in addition to the proved unreliability of the ACHAR assessment process
such that it has not sought to query the veracity of the posed location of the
BBG, an immensely significant cultural heritage place, despite requests to
do so by a registered Native Title Claimant group;
b. The Cumulative impacts to the Aboriginal cultural heritage resource
associated with the Warkworth and Mt Thorley Continuation Projects are
P a g e | 43
likely profound and intergenerational especially as the imposition of a
WBACHA cannot currently be accepted to capture the BBG;
c. The intergenerational equity issues arising from the potential false capture
of such a culturally significant Aboriginal cultural site as the BBG within the
WBACHA warrant the further resolution of this matter. It is better to
conclude that the BBG has already succumbed to mining and other past land
uses than to purport to have captured wholly within a conservation area.
d. The ‘solastalgia’ (sensu Albrecht, 2003) attributable to the local Aboriginal
community (particularly native title claimants such as the PCWP), when
faced with the in-situ destruction of Aboriginal heritage sites and cultural
landscapes is immense; and to date not readily acknowledged. The
implications for distortion and/or compounding of the sense of loss of place
for the Aboriginal community whose cultural knowledge extends to the BBG
that comes from the potential wrong assignation of Aboriginal cultural
heritage conservation areas such as I contend is currently the case for the
WBACHA warrant careful and measured consideration of its purpose and
intent.
P a g e | 44
Figure 8: Annotated map prepared by Elizabeth White as part of the ACHAR for the Wambo Development EIS identifying known Aboriginal sites in the vicinity of #37-6-0056 in 2003.
Plateau
features
P a g e | 45
REFERENCES
Brayshaw, H. 2003. Looking for the Bora Ground in the Wallaby Scrub near Bulga NSW. Unpublished report prepared by Helen Brayshaw Heritage Consultants, Drummoyne NSW. Attachment D1 in White, E. 2003 Aboriginal Heritage Assessment, Wambo Development EIS, Volume, 5.
Bowdler, S. 2001. The Management of Indigenous Ceremonial (“Bora”) sites as components of cultural landscapes. In Cotter, M.M., Boyd, W.E. & Gardiner, J.E. (eds), 2001. Heritage Landscapes: Understanding Place and Communities, Southern Cross University Press, Lismore NSW. Cotter, M.M. 2009. Landscapes of Deception: A multi-modal exploration of the Indigenous Cultural Heritage Values of Deception Bay, Southeast Queensland. (Vols. 1& 2). Unpublished PhD Thesis, School of Environmental Science and Management, Southern Cross University, Lismore NSW. Cotter, M.M. & Boyd, W.E. 2001. The value of cultural heritage in ‘marginal’ landscapes: a southeast Queensland case study. In Cotter, M.M., W.E. Boyd & J.E. Gardiner (eds), Heritage Landscapes: Understanding Place & Communities. Lismore: Southern Cross University Press. DECCW 2010a. Aboriginal cultural heritage consultation requirements for proponents 2010. Part 6 National parks & Wildlife Act, 1974. April, 2010. Department of Environment, Climate Change and Water, Goulburn St, Sydney. DECCW 2010b. Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW 2010. September 2010. Department of Environment, Climate Change and Water, Goulburn St, Sydney. DECCW 2010c. Code of Practice for Archaeological Investigation of Aboriginal Objects in NSW 2010 September 2010. Department of Environment, Climate Change and Water, Goulburn St, Sydney.
Eather, A.N. n.d. The history of Bulga near Singleton N.S.W 1820 to 1921, and a description of the last combined Bora ceremony on the family property in 1852. Transcription of A5410(x) Xerox copy of unpublished manuscript, by Gionni Di Gravio, University Archivist, University of Newcastle, Callaghan, NSW.
Eipper, C. 1841. Observations made on a journey to the natives at Toorbal, Aug. 2 1841. Colonial Observer, 1 (2):10. Etheridge, R. 1918. The denroglyphs or carved trees of New South Wales. Memoirs of the Geological Survey of New South Wales, Ethnological Series No.3. Franks, S.2012a. Further Statement of Mr Scott McCain Franks 24 August 2012, in support of the Plains Clans of the Wonnarua People Native Title Application #2 (NNTT# NC12/4), Federal Court #NSD 1093/12, pp.12. Unpublished Statement to the National Native Title Tribunal, August 2012. Franks, S. 2012b. Summary of Evidence of Mr Scott McCain Franks, Registered Native Title Claimant for the Plains Clan of the Wonnarua People. RE: Land & Environment Court Case # 10224/2012, Bulga Milbrodale Progress Association Inc v Minister for Planning & Infrastructure and Anor. To be given at Singleton Local Court, Elizabeth St Singleton, Wednesday 22 August 2012.
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Oxley, J. 1825. Report of an expedition to survey Port Curtis, Moreton Bay and Port Bowen, with a view to form penal settlements there in pursuance of the recommendations of the Commissioner of Inquiry into the Colony of New South Wales. In Barron Field (ed), Geographical memoirs on New South Wales: by various hands : together with other papers on the Aborigines, the geology, the botany, the timber, the astronomy, and the meteorology of New South Wales and Van Diemen's Land. John Murray, London, pp. 1-26. OEH, 2011a. Guide to investigating, assessing and reporting on Aboriginal cultural heritage in NSW. April, 2011. Office of Environment & Heritage, Department of Premier & Cabinet, Sydney. Peake, T. 2006. The Vegetation of the Central Hunter Valley, New South Wales, Vols. 1 & 2 (Version 2.2). Hunter-Central Rivers Catchment Management Authority, Paterson, NSW. Mathews, R.H. 1918. Description of two Bora grounds of the Kamilaroi Tribe. Journal of Proceedings of the Royal Society of New South Wales, 51: 423: 430. McCarthy, F. 1940. The Carved Trees of New South Wales. Australian Museum Magazine, 7(5): 161-166. McCarthy, F. 1944a. Some unusual cylindro-conical stones from New South Wales and Java. Records of the Australian Museum, 21 (5): 257-260. McCarthy, F. 1944b. The Windang, or edge-ground uniface pebble axe in Eastern Australia. Records of the Australian Museum, 21 (5): 261-263. McCarthy, F. 1944c. Some unusual stone artefacts from Australia and New Guinea. Records of the Australian Museum, 21 (5): 264-266. McCarthy, F. 1944d. Adzes and adze-like implements from eastern Australia. Records of the Australian Museum, 21 (5): 267-271. Mitchell, S. 2004. The Clarks of Bulga: 150 years on Cockfighters’s Creek. Self-published; 29 Inlet Road Bulga NSW)
Satterthwait, L. & Heather, A. 1987. Determinants of earth circle site location in the Moreton region, southeast Queensland, Queensland Archaeological Research, 4: 5-53. Threlkeld, L.E. c. 1828-1846. Unpublished Journal of Lancelot Edward Thelkeld, c. Dec 1828 c. Feb. 1846. Wambo Coal Pty Ltd, 2003; Wambo Development Project: Environmental Impact statement, Vols. 1-3 Main Report + Appendices.
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