CHAPTER 8
Current Best Practice: The Northern Territory
8.1 Evidence provided to the Committee has suggested a number of changes
to improve the operation of the Act. Several witnesses have suggested
that the approach taken in the Northern Territory may be the current best
practice:
One would be hard pressed to find a better successful working model
than the NT Aboriginal Land Commissioner process under the Aboriginal
Land Rights (Northern Territory) Act.
...
I believe that process to be a good process, and that federal heritage
processes should be similar. [1]
8.2 The Central Land Council has presented a contrary view. It considers
that:
- The NT Act does not contain a general provision that the Aboriginal
Areas Protection Authority must carry out its functions in a way that
respects Aboriginal Law. Although it appears that current administrative
arrangements aim to achieve culturally appropriate procedures, such
a provision in the Act is a necessary safeguard.
- The NT Act does not require land use proponents to seek a site clearance
before proceeding with a project.
- The effectiveness of the remedies available under the Act are far
from complete or certain. For example, by providing a defence that the
person did not know that an area was a site, the Act removes the incentive
for developers to obtain clearance certificates before commencing work.
- The Aboriginal Areas Protection Authority is not sufficiently independent
of Government. The NT Minister for Lands has wide discretionary powers
to override the decisions of custodians and authorise work on sites,
and the Minister's decision is not subject to statutory review. [2]
The Northern Territory Legislation
8.3 The protection of indigenous heritage in the Northern Territory is
based on two statutes, the Aboriginal Land Rights (Northern Territory)
Act 1976 (the Land Rights Act) and the Northern Territory Aboriginal Sacred
Sites Act 1989 (the Sacred Sites Act).
The Land Rights Act
8.4 In July 1996 a review of the 1976 Land Rights Act was announced by
the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs.
That review has yet to be finalised.
The Sacred Sites Act
8.5 The purpose of the Sacred Sites Act is given in the preamble:
An Act to effect a practical balance between the recognized need to
preserve and enhance Aboriginal cultural tradition in relation to certain
land in the Territory and the aspirations of the Aboriginal and all
other peoples of the Territory for their economic, cultural and social
advancement, by establishing a procedure for the protection and registration
of sacred sites, providing for entry onto sacred sites and the conditions
to which such entry is subject, establishing a procedure for the avoidance
of sacred sites in the development and use of land and establishing
an Authority for the purposes of the Act and a procedure for the review
of decisions of the Authority by the Minister, and for related purposes.
8.6 The Sacred Sites Act is binding upon the Northern Territory Government
under section 4.
The Aboriginal Areas Protection Authority
8.7 Section 5 of the Sacred Sites Act establishes the Aboriginal Areas
Protection Authority (the Authority). The Authority is composed of 12
members, of which 10 are custodians of sacred sites appointed by the Northern
Territory Land Councils. Membership must be composed equally of males
and females, with the Deputy Chairman being of the opposite sex to the
Chairman. The functions of the Authority under section 10 include:
- facilitating discussions between the custodians of sacred sites and
persons proposing to carry out work on or to use land or waters in the
vicinity of a sacred site;
- carrying out research, keeping records and establishing executive
and regional committees;
- considering applications for 'authority certificates' for developments
in the vicinity of a sacred site; and
- establishing and maintaining the 'Register of Sacred Sites'
Determining Significance
8.8 Unlike the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984, the Sacred Sites Act does not require that a site be either
declared or registered in order to attract interim or permanent protection.
Instead the Sacred Sites Act provides that it is an offence for a person
to enter upon, conduct work on or to desecrate a sacred site without the
permission of either the Authority or the Northern Territory Minister.
8.9 The definition of a sacred site under the Sacred Sites Act refers
to the definition provided in the Aboriginal Land Rights (Northern Territory)
Act 1976:
"sacred site" means a site that is sacred to Aboriginals
or is otherwise of significance according to Aboriginal tradition, and
includes any land that, under a law of the Northern Territory, is declared
to be sacred to Aboriginals or of significance according to Aboriginal
tradition; [emphasis in original]
This definition is similar to that provided under the Heritage Protection
Act 1984 for "significant Aboriginal area":
(a) an area of land in Australia or in or beneath Australian waters;
(b) an area of water in Australia; or
(c) an area of Australian waters;
being an area of particular significance to Aboriginals in accordance
with Aboriginal tradition ...
8.10 The question of identifying a sacred site is left largely to Aborigines
who may apply to the Authority under ss 27, 28 and 29 of the Sacred Sites
Act for a particular site to be designated. Nevertheless, registration
is not a requirement for protection.
Registration
8.11 Upon receiving an application for registration the Authority investigates
the matter, paying consideration to the representations of landowners
on which the site is located as well as any other information made available.
If the Authority is satisfied with the evidence, it records the site on
the Register which then constitutes prima facie evidence for judicial
purposes that the area described is a sacred site.
8.12 Now, in considering current best practice concerning indigenous
heritage protection, it is notable that the Northern Territory regime
includes the convenience of this Register, allowing the location of significant
sites to be recorded:
...the scheme of the Northern Territory Aboriginal Sacred Sites Act
sets out a mechanism for companies - or anybody wishing to carry out
works - to find out in advance where there are any sacred sites. Basically,
the scheme is they can make an application to a statutory body set up
for that purpose, which is the Aboriginal Areas Protection Authority.
[3]
Difficulties
8.13 The Committee is aware of the difficulties that some indigenous
people have with the notion of a register of sites. Concern has been expressed
about the public availability of such information in that vandalism could
result, or inadvertent damage through heavy visitation. Nevertheless,
it is possible to maintain registers of significant sites while minimising
these potential difficulties. Confidential registers can be maintained
with access on a strict need-to-know basis. The indigenous custodians
of sites can have a role in the release of information, and the extent
of the information that is given.
Other Registers
8.14 Notably, this approach is already being practised. The Committee
was advised by the Giru Dala Council of Elders Aboriginal Corporation
of the way in which it has developed a register of significant sites.
This matter has already been considered in Chapter 7.
Ensuring Protection
8.15 Under section 20 of the Northern Territory's Sacred Sites Act a
person seeking to use or to carry out work on land may (but not must)
apply to the Authority for a certificate. Once the application for certification
is received, the Authority will arrange consultations between the applicant
and the custodians of the relevant sites within sixty days (or longer
if the Territory Minister approves).
8.16 Section 22 requires the Authority to issue a certificate in relation
to an application brought under section 20 where the Authority is satisfied
that:
(a) the work or use of the land could proceed or be made without there
being a substantive risk of damage to or interference with a sacred
site on or in the vicinity of the land; or
(b) an agreement has been reached between the custodians and the applicant.
8.17 Where the Authority either refuses to issue a certificate or fails
to make a decision in relation to an application for a certificate within
a reasonable time, the applicant may apply to the Minister for a review
of the matter under section 30. The Minister may either refuse to conduct
a review, or else request the Authority to review the matter. If the Minister
agrees to a review, the Authority must give written notice of the review
to and invite submissions from the applicant, the custodians and any other
persons who appear to be affected within 28 to 60 days. On the basis of
the submissions received, the Authority must either satisfy the concerns
of the applicant or else make a report to the Minister with recommendations
and copies of all relevant documents and records.
8.18 Under section 31 of the Sacred Sites Act the Minister must consider
the report, the recommendations and the attached documents and may also
discuss the matter with any person or body who in the opinion of the Minister
has an interest in the matter. Under section 32 the Minister has a discretion
to either uphold the decision of the Authority not to issue a certificate,
or else to issue a certificate subject to any conditions which the Minister
may place upon the work going ahead. It is noteworthy that while the Authority
has to be satisfied that there is no substantive risk of damage to the
site under section 22, the Minister is under no such obligation and could
arguably agree to the complete demolition of the site.
8.19 The 'blanket' protection for sacred sites under the Sacred Sites
Act is, then, subject to three important limitations depending on the
circumstances. First, there is a Ministerial discretion to override the
initial findings or the Authority as described above. Second, where there
is an owner of the land upon which the site is located, section 44 provides
that the owner is entitled to enter and carry out any activity that is
consistent with the normal enjoyment of the owner's proprietary interest.
This provision was intended to prevent the recognition of a sacred site
from affecting the property rights of land owners; otherwise, site recognition
could be considered an acquisition of property, requiring the payment
of just terms compensation. [4]
8.20 (The operation of section 44 has been criticised as permitting the
destruction of a sacred site even where the land owner is aware of its
existence. A home owner could presumably build extensions on top of a
sacred site, relying on the protection of section 44. Where the proprietary
interest of the owner extends to exclusive possession, section 44 could
conceivably lead to the exclusion of Aborigines from the sacred site,
despite the preservation of access rights under section 46 of the Sacred
Sites Act.)
8.21 Third, pursuant to section 36 it is a defence to the charges of
entering, working on or desecrating a sacred site that the defendant had
no reasonable grounds for suspecting that the sacred site was a sacred
site. This defence is not available where the sacred site is situated
on Aboriginal land, being land which is held by a Land Trust or an Aboriginal
Council, and the defendant had taken reasonable steps to ascertain the
extent of sacred sites on the land that the defendant was likely to visit.
The criticism of this defence is that a developer who chooses not to make
enquiries about the existence of sacred sites prior to commencing work
could be better placed than one who seeks a certificate from the Authority
and is either refused a certificate or else is issued one subject to conditions
that the developer may not want. In other words, as there is no positive
obligation placed upon a developer to obtain a certificate, deliberate
ignorance is being rewarded.
8.22 Other provisions within the Sacred Sites Act concern the organisation
of the Authority, protecting confidential information and accessing the
register. There is a lack of judicial consideration of how the Act operates,
there being only one (unreported) case dealing with the specific provisions
of the Act.
Conclusion
8.23 The Central Land Council [5] considers
that although the Northern Territory regime is more effective than those
in place in other States and Territories, the Northern Territory legislation
should not be the benchmark for other State and Territory legislation.
Nevertheless, the Committee recognises that the regime at present in place
in the Northern Territory represents best practice. Elements of current
best practice that should be adopted in all State and Territory indigenous
heritage protection legislation are:
- `blanket' or presumptive protection; and
- the maintenance of site registers.
Footnotes
[1] Evidence, p.NT 15.
[2] Submission No HA35.
[3] Evidence, pp.NT 946, 947.
[4] Goldflam R, ALJ 22(2) April 1997.
[5] Submission No HA35.
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