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Aboriginal Law Bulletin (ALB)
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Ritchie, David --- "The New NT Sacred Sites Act: A Perspective from the Sacred Sites Authority" [1989] AboriginalLawB 39; (1989) 1(39) Aboriginal Law Bulletin 11


The New NT Sacred Sites Act:

A Perspective from the Sacred Sites Authority

by David Ritchie

The crux of the debate on Aboriginal site protection in the Northern Territory is who should determine that the protection of a particular site is of such importance to Aboriginal Territorians that it outweighs considerations of economic development. This is closely related to the question, "who should decide whether a particular area is a sacred site?" The debate is constrained by the definition of "sacred site" contained in the Land Rights Act (NT) 1976.

Aboriginal custodians, represented by the Land Councils and the Aboriginal Sacred Sites Authority, have persistently argued that they should decide both these questions. Custodians have been successful in retaining the statutory power to determine what is a sacred site; however, the recently gazetted Aboriginal Sacred Sites (NT) Act 1989 places limitations on custodians' power to protect sacred sites in circumstances where the Government believes there to be benefits from alternative land use. The following discussion expands on issues raised by Dr Maddock in his discussion of the new legislation.

In the Northern Territory the existence of a sacred site is not determined by legislation. The Land Rights (NT) Act 1976 simply acknowledges the prior existence of sacred sites, defining them as:

a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition.

Section 69(1) of the Land Rights Act makes it an offence to "enter or remain on land in the Northern Territory that is a sacred site" and while the Northern Territory Government is empowered under Section 73(1) to make, among other things, laws providing for the protection of sacred sites, the Act specifies that:

any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act...

Accordingly, Territory legislation (including the new Sacred Sites (NT) Act 1989) has retained the above definition of "sacred site" and sought to differentiate between sites on the basis of the level of protection offered.

While the repealed Sacred Sites (NT) Act 1978 contained the above broad definition of sacred site, the Act also contained a series of procedures for the "Declaration of a Sacred Site" (section 26). The intention of this section was that the level of protection offered to particular sites was only to be determined once potential detriment to other land users had been assessed. Notwithstanding this, the offence provisions (section 31) were drafted in such a way as to refer to sacred sites in general, rather than to "Declared sacred sites". The Act therefore gave protection to all sites in the Northern Territory, whether they were declared under section 26 or not. Justice Toohey in his Federal Court judgement on the matter stated that:

Thus the legal status of a sacred site is not dependent upon action by the Authority; indeed the offence created by section 31 of entering or remaining on a sacred site does not require that the site be registered or even under consideration by the Authority Aboriginal Sacred Sites Protection Authority v Maurice & Ors, (1986) 65 ALR 247 at 262.

Under the Aboriginal Sacred Sites (NT) Act 1989, sites will not have to go through a process of `declaration' before they are recognised by a court of law; all sites registered by the Authority will be considered prima facie sacred sites. The new Act also extends protection to sites located in the sea or water.

The Act contains a number of problematic sections, the affect of which will only be fully known once the Act is in operation. Attention has been focussed by Maddock on the power of the Minister, under section 32, to effectively grant permission for works on "a sacred site". In practice, this may not be the most serious deficiency of the legislation as not only is the extent of the Minister's power arguably constrained by section 73 of the Land Rights Act, but also the Minister's decision may be appealed under the full range of administrative law review grounds.

Perhaps the most profound long-term problem with the legislation lies in the operation of section 44 which states that

... the owner of land comprised in a sacred site ... may enter and remain on that land and do anything thereon for the normal enjoyment of the owner's proprietary interest in the land.

The Territory Government has argued that this section is necessary if the legislation is to be consistent with section 50(1) of the Northern Territory (Self-Government) Act 1978 which states that the Territory cannot pass laws that affect an acquisition of property otherwise than on just terms.

The Martin Committee, in their report to the Government in June 1987, argued that where a sacred site exists on privately owned land the repealed Sacred Sites (NT) Act 1978 affected an acquisition of property other than on just terms. The Territory Government, reluctant to leave themselves open to the possibility of compensating land owners, attempted to solve the problem by inserting section 44 which appears to directly contradict the offence provisions of the Act. It seems certain that the operation of this section prevents the Authority from prosecuting a land owner for entering and remaining on a sacred site and casts doubts on the ability of the Authority to prosecute a land owner under any of the new offence provisions.

As one of the stated intentions of the Act is to protect sacred sites on areas where Aboriginal custodians do not have tenure over the land, section 44 remains a fundamental weakness. The constitutional problems raised by this section of the legislation have implications for heritage legislation, both in the Territory and nationally. This section highlights the problems inherent in seeking to simultaneously recognise Aboriginal customary law regarding the protection of sacred sites and the existing property rights enjoyed by land owners, without acknowledging that the two may be mutually exclusive.

See also The New NT Sacred Sites Act: A Perspective from the Sacred Sites Authority (by David Ritchie) - [1989] AboriginalLB 39; 2(39)pg11


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