Maddock, Kenneth --- "The Final Act: The New NT Sacred Sites Act" [1989] AboriginalLawB 38; (1989) 1(39) Aboriginal Law Bulletin 11

• The Final Act: The New Nt Sacred Sites Act

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The Final Act: The New NT Sacred Sites Act

by Kenneth Maddock

Since May, the Northern Territory has had a new law on sacred sites. Ultimate authority for their protection or destruction now rests with the Minister. In most other respects, however, the Aboriginal Sacred Sites (NT) Act 1989 bears little resemblance to the Aboriginal Areas Protection Bill 1989, which would have drastically altered the playing field. Owing to numerous last-minute changes. the Act is rather more favourable to custodians, and closer to the 1978 legislation which it repeals. than anyone had expected, though it is still under fire for undercutting Aboriginal control over sacred sites. (e.g., New law attacks basis of Aboriginal religion Conservation News, July 1989).

In the background to the new Act is the controversy over Coronation Hill, and conflict of interest between economic development and protection of Aboriginal sites. The Territory Government's response to this conflict was to commission a committee under SolicitorGeneral Brian Martin to review the law and practice relating to sacred sites. The Martin report, dated July 1987, was not tabled in Parliament until a year after its completion.

In his tabling speech. the Minister of Lands, Darryl Manzie, attacked the authority for "continuing not to comply with the Act", meaning that it was not putting sites up for declaration. He foreshadowed the early introduction of the legislation to achieve "a balance between the protection of sites of significance to Aborigines and the proper development of the Territory".

The Aboriginal Areas Protection Bill was the result. It proposed to cut membership of the Authority, reduce the Authority's independence, and confer extensive powers on the minister. Had the Bill been passed in its original form, there would have been an extreme shift in the balance of power between custodians and developers in favour of the latter. In the event, the government faced reality and recognized that its proposals would cause far more conflict (with ensuing delays to development) than ever occurred under the old Act; it listened to its critics and rewrote most of the Bill during the May sittings of the Legislative Assembly. But the new Act does secure what I believe were the government's main objectives ultimate Ministerial responsibility; and removal of the Authority's able, dedicated and controversial Director, Bob Ellis, who for a decade was as great an irritant to Territory politicians as Charlie Perkins to their federal counterparts.

The new Act binds the Crown (s.4); establishes an Aboriginal Areas Protection Authority (s.5) in place of the old Authority; provides for a Chief Executive Officer "charged with carrying out the decisions of the Authority" and appointed by the Administrator (s.15) instead of a Director; imposes penalties for entering, working on or desecrating a sacred site (ss.33, 34. 35) which are substantially greater than before; makes registration of a site prima facie evidence that it is sacred (s.45); and empowers the custodian of a site, the Authority or the Minister to allow access to it across other land (s.47).

The new authority, like the old, will consist of twelve members appointed by the administrator (s.6). Ten are to be custodians chosen from twice that number nominated by the Land Councils, with men and women in equal numbers (previously no more than seven were required to be Aboriginal and there were no requirements as to sex or custodianship). The Chief Executive Officer, unlike the Director under the old arrangements, will not be a member of the Authority.

The most contentious change to the Act is that persons wishing to use or carry out work on land on or near which there may be a sacred site have had their position clarified and strengthened.

Section 20 allows such a person to apply to the Authority for an Authority Certificate. The Authority then has sixty days (or longer if approved by the Minister) to "consult with the custodians of sacred sites on or in the vicinity of the land ... which are likely to be affected by the proposed use or work". An applicant may ask the Authority to arrange a conference between the applicant and custodians, either of whom may request that the Authority (or a member or committee of the Authority) be present.

Section 22 requires the Authority to issue a Certificate where it 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.

These provisions had no parallel under the old Act, but it would be wrong to see them simply as an assault on the rights of custodians. To some extent they formalize the practices which the Authority worked out for dealing with developers. In the past, however, there was no time constraint, and nor were developers entitled to a conference with custodians. The former condition will probably be unworkable if too many applications are made, but the latter condition may prove to be a means of putting extra pressure on custodians, especially as an applicant who is aggrieved by the Authority's decision or by its failure to decide within a reasonable time may apply to the Minister for a review under s30.

If the Minister accedes to the application, the Authority must give written notice of the review to the applicant, the custodians where appropriate, and other persons who appear to it to be affected, inviting written representations. Should the Authority be unable to satisfy the applicant's concerns, it must report to the Minister with recommendations and copies of all documents or records likely to be relevant.

In considering the report and recommendations, the Minister is entitled to use any other available information and to "discuss with the applicant, the custodians and any other person or body who or which, in the Minster's opinion, has a legitimate interest in ... any aspect of the report and recommendations" (s31). The Minister is not limited to the material on which the Authority based its decision.

Section 32 gives the Minister a discretion to:

(a) uphold the decision or action of the Authority; or

(b) issue to the applicant ... a certificate in relation to the land or any part of the land comprised in a sacred site or on which a sacred site is situated, setting out conditions, if any, on which work may be carried out on or use made of the land ...

It will be possible, then, for a land use or development decision affecting a sacred site to be made against the wishes of its custodians either by the Authority under s22 or by the Minister under s32. But where the Authority (which has a guaranteed Aboriginal majority) will have to be satisfied that there is no "substantive risk of damage to or interference with" the site, the Minister could, in theory, permit its total destruction. Custodians who feel outrage at the prospect of sites being so dealt with could take political action or apply to the federal government under the Aboriginal and Torres Strait Islander Heritage Protection Act. Opponents of the new legislation have canvassed two other ways of thwarting the Territory government: first, persuading the federal government to set the Act aside for inconsistency with the 1976 Land Rights Act; and second, challenging the Act for contravention of s116 of the Constitution concerning the free exercise of religion. The chances of success of a constitutional challenge are open to debate.

See also The Final Act: The New NT Sacred Sites Act (by Kenneth Maddock) - [1989] AboriginalLB 38; 2(39)pg11