The report, dated May 1, 2020, was received by Bathurst Regional Council and other stakeholders a week after the minister's March 31 statement, which said she was considering a declaration for protection under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection (ATSIHP) Act and had drafted a potential declaration.

READ MORE: Environment Minister Sussan Ley to take draft Section 10 declaration to track stakeholders

The Western Advocate understands the applicant for the section 10 declaration, the Wiradyuri Traditional Owners Central West Aboriginal Corporation, received a copy of the independent report in December.

Should Ms Ley proceed with the protection order, it would stop council from building a go-kart track at the site it approved in 2015.

The Western Advocate has obtained a copy of the report, written by Terry Bailey of O&G-Rosedale, an environment, heritage and public policy consultancy business.

Mr Bailey, referred to in the document as "the reporter", concludes that a section 10 declaration should not be placed on the site.

"In consideration of the material in the application, the material provided through the representations, the reporter's own investigations, and the requirements of the ATSIHP Act, the reporter recommends that the minister does not make a declaration under the ATSIHP Act in relation to the specified area," he said.

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Mr Bailey's justification is that there is "insufficient evidence of tangible Wiradyuri cultural heritage within the specified area" and that there is "insufficient evidence to determine that the specified area is of particular significance".

The term "particular significance" appears to be a crucial part of the findings.

The report notes that under section 10(4)(a) of the Act, each element of the phrase "particular significance of the area to Aboriginals" requires "some consideration".

The significance of the area "must exceed the ordinary" to be considered of "particular significance", and that particular significance must be to Aboriginals plural, not singular.

Finally, the particular significance to Aboriginals must be "in accordance with Aboriginal tradition".

The report concludes: "Based on the information provided, that there is insufficient evidence of Wiradyuri tangible cultural heritage within the specified area to meet the criteria of particular significance under the ATSIHP Act".

Although citing insufficient evidence, the report acknowledges that tangible cultural heritage has been lost or destroyed over time, and that Mount Panorama - Wahluu has intangible significance to Wiradyuri people that is "neither minimal nor ephemeral".

After speaking with members of the Wiradyuri Traditional Owners group, Mr Bailey noted that they had a "high level of integrity".

Should the minister not accept his advice and recommendation that a protection order not be placed, Mr Bailey writes that any declaration should be limited to a particular area, and not be placed on the whole of the specified area.

The Western Advocate approached the minister's office for comment on the report and its findings.

A spokesperson for the minister confirmed the report is in response to an application made by the Traditional Owners under the Act.

"The council and all stakeholders were consulted in the compilation of the report," they said.

"The minister considered all information in the report and visited the site to meet directly with several of the parties. The minister will make an announcement in due course."

The spokesperson did not address a question asking why the Wiradyuri Traditional Owners group received its copy of the report months before other stakeholders, and did not comment on the cost of the report.

In her statement in March, Ms Ley said she would make a determination on the matter before May 4, 2021.

The declaration she is considering "would prevent the construction of any buildings, or the undertaking of bulk earthworks".

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