Aboriginal Law Bulletin
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by Annie Kelly
On 16 May 1992, Robert Tickner, Minister for Aboriginal Affairs, made a declaration under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the 'Heritage Protection Act) to protect three significant Aboriginal sacred site complexes in the vicinity of junction Waterhole, north of Alice Springs, thereby preventing the construction of a proposed flood mitigation dam for the next 20 years. The declaration was made by the Minister after he received a report from the Hon. Hal Wootten AC, QC. The declaration, the first one of its kind ever made, is hailed as a great victory not only for the Arrernte custodians of the area and other Central Australian Aboriginals who also have a responsibility to protect these sites, but for all Aboriginals. This declaration can be seen as a concrete step by the Federal Government in assisting Aboriginal people to stop the further destruction of their culture and religion.
The protection of Aboriginal sacred sites from various Northern Territory Government proposals for flood mitigation in Alice Springs has a long and bitter history. This article will not attempt to canvas all the issues involved or to give anything other than an overview of the most recent dam proposals and the "successful application to the Federal Minister for a declaration protecting the area. Anyone interested in obtaining more information about the issue is encouraged to obtain a copy of Mr Wootten s 137 page report to the Minister or to contact the Central Land Council in Alice Springs ((089) 516230).
For a variety of reasons a recreation lake and or dam have been considered in the Alice Springs area for over 30 years[1]. From 1978-1989 the Alice Springs Telegraph Station on the Todd River just north of town was the focus of most interest.
In 1989, the Northern territory Government renewed its interest in the Junction Waterhole location and developed plans for a flood mitigation dam. After the introduction of the new Aboriginal Sacred Sites Act 1989 (NT) the Government - Ministers and officials - actively sought the agreement of some Aboriginal custodians of the area to the construction of a dam near Junction Waterhole.
The new Act was vigorously opposed by Aboriginal people and organisations who organised protest camps, rallies and a national tour to fight the erosion of NT legislation protecting sacred sites. One of the important changes under the new Act is that it empowers the minister responsible to override the views of custodians and the decision of the Aboriginal Areas Protection Authority (AAPA) by empowering him/her to issue a Minister's Certificate allowing desecration and destruction of sacred sites.
In September 1989, the Power and Water Authority (PAWA) made an application to AAPA for a certificate enabling the construction of a proposed 'full' flood mitigation dam. In November that year AAPA issued a work certificate enabling the construction of a flood mitigation dam at the currently proposed location near junction Waterhole on the condition that a sacred site - Atnyere Arrkelthe - would not be permanently inundated. PAWA's proposal for a full dam would have permanently inundated that sacred site and could therefore not be constructed. In December 1989, the Chief Minister met with some custodians to seek their consent to amending the AAPA certificate to allow the sacred site to be inundated. At the same meeting, the Chief Minister held a meeting with a small number of custodians in his office at which a document was apparently signed by 22 custodians purporting to allow AAPA to issue a certificate enabling a flood mitigation dam to be built at the same location and which would allow the permanent inundation of Atnyere Arrkelthe. After limited consultations, on 30 January 1990 AAPA issued a replacement authority certificate enabling the construction of the dam and permitting the permanent inundation of the site.
In June 1990, PAWA publicly announced that a $20 million dam would be built near Junction Waterhole and put a model for the proposed dam on public display. Immediately thereafter, custodians instructed the Central Land Council (CLC) to assist them in protecting Aboriginal sacred sites in the vicinity of junction Waterhole. Some of these custodians had signed the Chief Minister's document in January 1990 and said that they did not understand what the proposal meant until they saw the model on display.
On 16 January 1991, preliminary construction work commenced on the site and on 31 January CLC made an application to the Minister for Aboriginal Affairs on behalf of the custodians seeking a declaration under the Heritage Protection Act to protect the significant Aboriginal area which would be destroyed, damaged and desecrated by the construction of the dam.
In March 1991, custodians visited the site and were very distressed to find that substantial earth moving work had already been carried out and that sacred sites were under immediate threat. CLC immediately made an application to the Minister for Aboriginal Affairs for an emergency declaration under s.9 of the Heritage Protection Act. Construction work was halted for 4 days after the Minister for Aboriginal Affairs had discussions with the NT Chief Minister. However, when negotiations broke down and the Chief Minister announced that work would recommence the next day, the Minister for Aboriginal Affairs issued an emergency declaration stopping all work for 30 days. AAPA then convened a meeting with a large group of custodians which was also attended by representatives of the Chief Minister's office, ATSIC and CLC and it became apparent that many custodians had not been consulted in relation to the project; others had not been properly informed or had been deceived; and custodians were opposed to the construction of the proposed dam. Accordingly, AAPA withdrew the certificate enabling construction of the dam.
The NT Government then modified the flood mitigation dam proposal by significantly reducing the amount of water that would be held behind the dam wall which would be at the same location as the original proposal. In May 1991, PAWA lodged a new application with AAPA for a certificate enabling the construction of this redesigned dam. After further consultation with custodians AAPA advised PAWA that it would not issue a certificate enabling the construction of the redesigned dam. In accordance with the Act, PAWA then applied to the Minister for a review of AAPA's decision. The Minister referred the matter to the Authority in accordance with s.30(2). After seeking and receiving submissions and carrying out further consultations with custodians, in January 1992 AAPA wrote to the NT Minister advising that it still would not issue a work certificate enabling construction of the redesigned dam.
On 4 March 1992, Max Ortmann, the Minister responsible for the Sacred Sites Act announced in the NT Legislative Assembly that he had decided to use his powers under s.32 of the Sacred Sites Act and would issue a Minister's certificate enabling construction of the dam to proceed. That certificate was issued on 3 April and the reasons on 9 April. Despite the requirement in the Act that the Minister notify affected parties 'as soon as practicable', parties were not notified until 22 April. This is the first time that a NT Minister has used his discretionary power under s.32 of the Act.
After the Minister's announcement, CLC invited Robert Tickner and Max Ortmann to meet with the custodians at the proposed dam site on 13 March. During the meeting it rapidly became apparent that no meaningful negotiations could take place with the NT Minister and his conduct at the meeting became the subject of national media coverage.
On 20 March 1992, the Minister for Aboriginal and Torres Strait Islander Affairs issued an emergency declaration under s.9 of the Heritage Protection Act to stop work proceeding on the dam during the following 30 days. On 31 March, Hal Wootten agreed to be appointed by the Minister to prepare a report under s.10(4) of the Heritage Protection Act on the application for protection of this significant Aboriginal area. On 15 April, Robert Tickner extended the 30 day declaration for a further 30 day until 18 May. On 16 May, he made a declaration under s.10 of the Heritage Protection Act protecting this area for the following 20 years.
The Heritage Protection Act was initially introduced as interim legislation, to operate for two years, until an amending Act was passed in June 1986 repealing the sunset provisions.
Under the Act, after receiving an application Made by or on behalf of an Aboriginal or a group of Aboriginals seeking the protection of a specified area, the Minister must be satisfied that the area is a significant Aboriginal area and that it is under threat of injury or desecration. A 'significant Aboriginal area' is defined in s.3 of the Act as:
"an area of land in Australia ... being an area of particular significance to Aboriginals in accordance with Aboriginal tradition."
Before making a declaration the Minister must first have received and considered a report on the following matters:
"(a) the particular significance of the area to Aboriginals;
(b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the protection and restrictions to be made with respect to the area;
(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);
(f) the duration of any declaration;
(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;
(h) such other matters (if any) as are prescribed."
Despite the extremely limited time within which Mr Wootten had to receive submissions, consult directly with the people in Alice Springs, and report to the Minister, his report is extremely comprehensive and shows an extraordinary insight into all the issues affecting the proposed dam and problems being confronted by Arrernte custodians.
Some relevant matters that he found were:-
(i) there is substantial agreement between the custodians, AAPA and the NT
Government about the existence of the sacred sites which would be affected by the proposed dam project;[2]
(ii) Aboriginal people are overwhelmingly opposed to the dam. The non-Aboriginal community is divided on the issue, but even supporters of the dam considered the issue had been badly handled;[3]
(iii) no serious attempt has been made to use alternative flood plain management schemes such as enforcing building regulations in the flood prone area, implementation of appropriate town planning restrictions, and improvement of the town's seriously inadequate drainage system;[4]
(iv) the Government had emotively sought to rely on the 7 deaths by drowning from floods over the last 20 years, 6 of whom had been Aboriginal, and to blame all future deaths from drowning on the Aboriginal custodians who would not consent to the construction of the dam.
The dam itself would not necessarily reduce the number of people who drown in the absence of an effective early warning system and the Tangentyere Night Patrol to remove river dwellers before the flood waters reached town;[5]
(v) the custodians, NT Government and residents all wanted the matter resolved now and not merely postponed;[6]
(vi) the comparatively good race relations between the Aboriginal residents and bodies such as the Alice Springs Town Council and local police would be severely damaged by the construction of the proposed dam and the consequent destruction of Aboriginal sacred sites;[7] and
(vii) the exercise by the NT Minister of his power to issue a Minister's Certificate enabling construction of the dam meant that the area is not protected by a law of the NT.[8]
In the end Mr Wootten considered that the seed for this dam did not outweigh the need a protect this significant Aboriginal area.
A matter that Mr Wootten considered at some length was the inappropriate and adequate consultation with some Aboriginal custodians in the early stages of he dam proposal.
"The process of obtaining consent for this particular dam was not initially pursued through normal professional channels and advisers were excluded, many relevant custodians were not consulted, many other Aboriginals with a legitimate interest in the protection of the sites had not had an opportunity to put their views, the consultations leading to consent had been marred by confusion about the exact location of the dam and its nature and size, and some custodians had been given inducements in the form of land and houses."[9]
On the issue of cross-cultural consultations, Mr Wootten quoted from the 1984 Board o f Inquiry Report (on the feasibility of various recreation lake locations):
"The cultural gulf between European and Aboriginal attitudes to the acquisition and spreading of knowledge often makes it difficult for Europeans to appreciate why Aborigines appear loathe to discuss a site until a development proposal appears to be well under way. Aborigines, working under long inherited laws of protection through secrecy, prefer not to mention the existence of the sacred site, let alone its significance, until it is almost on the point of being destroyed. Europeans find this approach to be very frustrating and, because they do not understand it, will claim that Aboriginal people find sites only after the development proposals have been announced. From the Aboriginal point of view this appears to be a surprising attitude since Aborigines know that they must maintain secrecy unless, as in the case of Werlatye-Therre, the release of that knowledge is perceived, ultimately, to be the only way to protect an area."[10]
For many Aboriginal people, proving traditional ownership for a land claim or the significance of a sacred site for a Heritage Protection Act application is a painful and difficult process. Never has that been more apparent to me than in this battle to stop the total destruction - by the construction of this dam - of sacred sites.
This is even more so for Aboriginal women who all too often do not have women anthropologists and lawyers to work for them. It is essential that consultations with women be carried out by women. If it had not been for the role of the female custodians, the outcome of this application may have been very different.
At the meeting called by custodians with Robert Tickner and Max Ortmann on 13 March 1992, both Ministers were asked to bring, their wives or a female member who could listen to the women. Mr Ortmann brought only male advisers. Mr Tickner brought a senior female ATSIC officer and a woman on his personal staff.
During the critical meeting of custodians and Mr Tickner on 12 March, the women met separately with these two women while the minister met with the men. This private meeting of women enabled the custodians to speak more freely and to highlight some of the importance of the area to Aboriginal and non-Aboriginal women. The two women concerned obviously appreciated the privileged position they were in and urged the Minister to take the necessary steps to protect the area. In my opinion that meeting had an enormous impact on the Minister and played a crucial role in the successful outcome of the matter.
In order to establish the significance of the area to Aboriginal people and the nature of the threat of damage to the area, CLC engaged Drs Jeannie Devitt and Peter Sutton to work with local researcher, Jenny Green, to provide an anthropological report. Further, they engaged Dr Steve Webb, of Webb McKeown & Assoc., to provide an impact zone study (on an aerial photo) of the extent of the area that would be damaged by the construction of the proposed dam and a critical examination of the PAWA proposal. These excellent reports were submitted to Mr Wootten along with a legal submission.
In March 1992, CLC had also had to obtain an ex parte order from Angel J in the NT Supreme Court to gain access to the proposed dam site for custodians and their advisers, after they had been illegally denied that access. The financial and human resources of a major Aboriginal organisation like CLC were taxed heavily by the process of this application. It would be more difficult for a smaller body to provide the necessary material to pursue such an application. Consideration should be given by the Federal Minister to providing financial assistance to applicants under this Act.
This application has had advantages other than the obvious. The custodians' time and energy spent with researchers -and at meetings has resulted in renewed learning by some younger people and renewed interest in performing ceremonies. The win is also a great boost to the basically landless Arrente people.
All custodians and other residents of Alice Springs are now waiting to see whether the NT Government will accept the Federal Government's offer of funds for a comprehensive flood, plain management study which should be conducted with broad community consultation in an attempt to overcome some of the division that has developed.
As Mr Wootten wrote:
"If reconciliation is to have meaningful content in the immediate future, it will be in a thousand local accommodations in local communities, as non-Aboriginals show their respect for their Aboriginal neighbours and their willingness to sacrifice some of their own preferences to make room for Aboriginals to realise things that are important to them. Giving up their aspirations for flood mitigation dam on the Todd River; and settling for what they consider to be a second-best solution, would not be a small or easy thing for many in the white community, and there will be those who lack generosity of spirit to accept the decision in good grace. But there will I believe be a substantial and growing majority who can."[11]
[1] Wootten, J.H., Significant Aboriginal Sites in Area of Proposed Junction Waterhole Dam, Alice Springs, Report to the Minister for Aboriginal Affairs, May 1992, p.24.
[2] ibid., p.68.
[3] ibid., p.9.
[4] ibid., pp.111-5.
[5] ibid., p.92.
[6] ibid., p.127.
[7] ibid., p.117.
[8] ibid., p.131.
[9] ibid., pp.77-8.
[10] ibid., p.31.
[11]ibid., p.125.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1992/29.html