A government spokesperson told InDaily it was awaiting legal advice on the implications of a “long and complex” judgement handed down yesterday by Chief Justice Chris Kourakis.

The judgement overturned former Premier Steven Marshall’s decision to allow mineral exploration company Kelaray – a subsidiary of Argonaut Resources – to drill more than 1000 holes at Lake Torrens in the state’s outback.

Marshall, in his role as then Aboriginal Affairs Minister, signed off on Kelaray’s application under Section 23 of the Aboriginal Heritage Act in December 2020, at the time over-ruling a recommendation from his department, which advised that drilling at the Aboriginal heritage site could cause “potential risk to archaeological heritage” and “hurt, sorrow and sickness” to Traditional Owners.

His approval was a continuation of an authorisation previously granted by the Weatherill Government in February 2018 to allow Kelaray and Straits Exploration Australia to drill up to 70 deep diamond drill holes at Lake Torrens.

The Barngarla Determination Aboriginal Corporation (BDAC) yesterday won their Supreme Court bid to stop the drilling, with Kourakis finding Kelaray’s heritage plan and “chance find procedure” would “subvert” the state’s Aboriginal heritage laws.

Kourakis stated the plan would have allowed Kelaray to damage or interfere with Aboriginal objects in accordance with advice from anthropologists or Aboriginal representatives of the company’s choosing, before having to notify the Aboriginal Affairs Minister.

“Allowing Kelaray to remove, and interfere with, an item of Aboriginal heritage without first complying with… (section 20 of the Aboriginal Heritage Act) substantially diminishes the power of oversight and review by the Minister and puts items of Aboriginal heritage at risk,” he wrote.

In response, Argonaut issued an ASX announcement claiming Kourakis’ judgement had “the potential to disrupt several major South Australian construction projects with similar authorisations including the new Women’s and Children’s Hospital project”.

Aboriginal Affairs Minister Kyam Maher, who signed off on a drilling project at Lake Torrens in February 2018 under the Weatherill Government, told InDaily this morning that the Malinauskas Government was currently considering Kourakis’ judgement.

“We’ll have to consider what it says and its implications,” he said.

“I’m just taking legal advice on what it means in terms of the judgement, in terms of the decisions previously made and any future decisions.”

In its ASX announcement yesterday, Argonaut Resources said BDAC’s judicial review “succeeded only on a very limited basis”.

It said its initial interpretation of the judgement suggested that new development approvals granted by the state government could be impacted by Kourakis’ ruling, citing the new Women’s and Children’s Hospital as an example.

The hospital is slated to be built next to the Royal Adelaide Hospital near the River Torrens, but the proposed location is currently under review.

CityMag last year reported that Kaurna elder Jeffrey Newchurch was concerned about proposed new developments along the Riverbank, which he described as “significant, culturally and spiritually, to the Kaurna community and other Aboriginal people”.

At the time, he said rezoning changes brought in by the Marshall Government to allow the new Women’s and Children’s Hospital development meant “all the sites are at risk”.

Argonaut said it would contact the government “as a matter of urgency” to determine its position about reissuing authorisation to drill at Lake Torrens.

“Counsel for Kelaray is considering the judgement and will advise the company on the merits of an appeal,” it said.

InDaily contacted Argonaut’s director Lindsay Owler for comment.

Lake Torrens is Australia’s second largest salt lake and plays a significant role in Adnyamathanha, Pitjantjatjara, Yankunytjatjara, Arabana, Barngarla, Kokatha and Kuyani beliefs and songlines.

It is listed as an Aboriginal heritage place and the government believes ancestral remains are likely to be buried around the lake’s perimeter and islands.