For generations, Wailwan and Worimi woman Melinda Brown and her family have been visiting a sacred place for Aboriginal women.
The site sits on privately owned land allotted for a growing housing estate, and Ms Brown said having to navigate red tape for access had become traumatic.
“I feel really heartbroken,” Ms Brown said.
“It rips my heart out to try to get answers: [We’ve been told] ‘No, you can’t do this. No, you can’t go in there. You have to ask for permission’.
“Why?” Ms Brown asked.
For more than a decade, women have been fighting to protect the sacred Awabakal Butterfly Cave, in West Wallsend outside of Newcastle.
The site is of major cultural significance and is traditionally used by First Nations women during birthing practices.
In 2019, the Butterfly Cave was declared a protected site under the Federal Aboriginal and Torres Strait Islander Heritage Protection (ATSIHP) Act and was recognised as a New South Wales ‘Aboriginal Place’ in 2013.
But land immediately around the site — including the access path which the women say is also culturally significant — is owned and earmarked for development by Hammersmith Management, which is owned by the Roche Group.
Currently, the women must seek permission to cross the Roche Group’s land, to legally access the site.
“Painstaking and very humiliating to find [that] women have to get permission [to access the site] after all these years,” Guringai woman and advocate Anne Andrews said.
The Awabakal Butterfly Cave was used as a case study in the Juukan Gorge inquiry, which found new laws were needed to protect Aboriginal sacred sites.
The committee’s final report made eight recommendations, including to co-design national Aboriginal heritage law that all states and territories would need to adhere to.
The women’s group hope these findings will ultimately help their cause.
“It just feels like every time we try, we just get kicked in the guts,” Ms Brown said.
According to the women, access to the site for cultural and educational purposes is usually permitted by the Roche Group. The company did not respond to the ABC’s questions about how that approval process works.
While the women in New South Wales hope to be part of a potential co-design process, traditional owners in Western Australia said recently amended legislation has failed in this respect.
Traditional owners ‘locked out’ of WA process
Two weeks ago, the WA Government revealed its updated cultural heritage bill which was designed to prevent another Juukan Gorge disaster.
The state legislation replaced previous Aboriginal protection laws from 1972 and removed the section 18 clause that allowed the legal destruction of the ancient caves.
It was described by state government as the “most progressive cultural heritage legislation in the country”.
Kimberley Land Council chief executive, Tyronne Garstone, said the bill “ignored” the Juukan Gorge report’s recommendations.
“The co-design process that’s been outlined hasn’t listened to the actual concerns of those people,” he said.
“In every stage of the way, traditional owners are being locked out and not having the final say on the management and protection of their cultural heritage.”
An open letter to the West Australian Premier has been signed by 146 people, including Mr Garstone, to have the bill withdrawn.
In the Kimberley, which covers more than 400,000 square kilometres of Western Australia, more than 80 per cent of land and sea areas have been determined under native title.
Mr Garstone is also part of a group of Indigenous people who have written to the United Nations Committee on the Elimination of Racial Discrimination to review the bill.
While the final decision on heritage disputes between mining companies and traditional owners remains with the government, the complainants claim there is insufficient protection of the right to culture.
Stakeholder groups on the east coast are concerned the West Australian co-design process could foreshadow their own legislative journey.
Many sites remain at risk
Since 2018, advocates in Victoria have campaigned to protect culturally-significant trees of the Djab Wurrung peoples.
After multiple legal battles to stop a highway duplication expected to endanger the sites, the Supreme Court last week dismissed a claim made by a Djab Wurrung woman.
According to the Victorian government, works will not be able to re-commence until a new Cultural Heritage Management Plan has been compiled and approved.
As a state election looms in Victoria, the body representing traditional owners is demanding a commitment from candidates to fully implement the recommendations made by the federal inquiry.
“There is a real opportunity here to be able to ensure that we don’t continually fail to recognise the rights of Indigenous people,” chief executive of the Federation of Victorian Traditional Owner Corporations Paul Paton said.
The body is also adamant that state legislation in Victoria must fall in line with international standards for the management of cultural heritage, and in particular, the United Nations Declaration on the Rights of Indigenous peoples, which ensures a right to self-determination.
In recent years, many significant sites in Victoria have been damaged or destroyed, Mr Paton said.
In April, a Lake Bolac resident unknowingly moved stones on his property, known as the Kooyang Stone Arrangement, that were placed in the shape of an eel by Aboriginal people more than 1,500 years ago.
Given significant sites are not just at threat by mining or commercial development, but by human error too, Mr Paton said there is a need for stronger, consistent protection.
“Traditional owners should have the right to be able to protect and preserve their cultural heritage,” Mr Paton said.
“There needs to be recognition that cultural heritage is important to all Australians.”
Mr Garstone said it needed to be understood by policymakers and the public alike that cultural sites, like the Kooyang Stone Arrangement or the Butterfly Cave, were not simply marked out areas on a map, but cultural experiences.
“We need the recognition that Aboriginal cultural and heritage sites aren’t just geographical spaces,” he said.
“We have songlines, we have Dreaming and these are intangible cultural heritage sites.”
Continuing the culture
Despite concerns that the recommendations of the Juukan Gorge inquiry will not be fully implemented, traditional owners maintain they will continue to uphold their cultural responsibilities and fight to preserve their significant sites.
On Monday, a national network was established to work with federal government to safeguard Aboriginal heritage.
The “First Nations Heritage Protection Alliance” is made up of 30 representatives from across the country and will partner with the Commonwealth to develop options to improve laws, policies and processes.
“I want to fight for most of our land and Aboriginal sites — they’re there for us,” Ms Brown said.
The women’s group hopes to protect the cultural experience of the Butterfly Cave to share with the next generation.
A program is currently being run through the Department of Education for young Aboriginal students, taking girls to the site and teaching them how their ancestors practised and used the caves for thousands of years.
“I think they walk away feeling proud and confident learning something in their culture,” Ms Brown said.
“They learn about our fight for the cave and what the cave means to Aboriginal women.”
The ‘Save the Butterfly Cave’ group has written to the federal Department of Agriculture, Water and the Environment regarding access to the site.