Chalk, Andrew --- "Briefs: Aboriginal Heritage -- Protecting Burial Sites" [1995] AboriginalLawB 11; (1995) 3(72) Aboriginal Law Bulletin 34

• Briefs Aboriginal Heritage – Protecting Burial Sites

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Briefs

Aboriginal Heritage – Protecting Burial Sites

Andrew Chalk

An area of immense cultural significance is under threat at Lake Victoria.

Lake Victoria, in the far south west corner of New South Wales, contains the largest known Aboriginal burial site in Australia. Archaeologists who examined the site in 1994 estimate that the number of burials at the Lake is likely to be between 6000 and 18,000. Most of these are located in a group of islands along the Lake's southern edge. Naturally, the area is of immense cultural significance to its traditional owners, the Barkandji people, and is also recognised as having international archaeological significance, since it dwarfs even the largest pre-industrial burial sites in Europe, Asia and the Americas.

While it was always known that Lake Victoria was an important burial ground, the true extent of the burials only became apparent when the waters of the Lake, which are artificially held at maximum level, were lowered to enable work on the Lake's regulator. An inspection of the area which occurred when the Lake was empty revealed 268 burials exposed to the surface.

Studies commissioned by both the New South Wales Aboriginal Land Council (NSWALC) and the Murray Darling Basin Commission (MDBC) following the discovery of the burials revealed significant damage to the sites from wind and wave erosion associated with the regulation of Lake Victoria. The level of the Lake is controlled by the MDBC and is integral to the supply of water to South Australia. The land on which the burials occur, although within New South Wales, is vested in the State of South Australia.

In the latter half of 1994, Barkandji elders began campaigning for the protection of the area. They were concerned about both the physical damage occurring to the sites from erosion as well as the desecration of the burials through their artificial inundation. Under the National Parks and Wildlife Act 1974 (Cth), it is an offence for any person to knowingly permit the destruction, defacement or damage of a relic (which is defined to include Aboriginal remains) without first obtaining the consent of the Director-General of National Parks and Wildlife.

While the MDBC recognised the significance of the site and took prompt interim measures to help address some of the erosion problems, the measures were not regarded as sufficient by any of the parties to prevent further damage to the sites. Nor did the interim measures address the Aboriginal community's underlying concern about desecration to the burials through inundation. As the MDBC regarded the return of the Lake to full supply levels as essential, particularly given the drought conditions affecting much of the Basin, it applied to the Director-General on 19 October 1994 for consent to continue its normal operation of the Lake despite the likelihood that it would result in the further destruction of burials.

In late October 1994, the NSWALC commenced proceedings in the Land and Environment Court against the Director-General as well as the MDBC. NSWALC took this action after the Director-General informed the Land Council that she had received legal advice from the Crown Solicitor that she was obliged to grant any application lodged by the MDBC for consent to destroy the burials in connection with its operations under the Murray Darling Basin Agreement. The Agreement is an inter-government agreement between the Commonwealth, New South Wales, South Australia and Victoria (and now also Queensland) to ensure an equitable allocation of the waters from the rivers of the Murray Darling system.

In the proceedings, NSWALC sought declarations that the Director-General was obliged to exercise her independent discretion in deciding any application from the MDBC for a consent to destroy burials and was not duty bound to give her consent to such an application. NSWALC also sought an injunction preventing the MDBC from raising the level of Lake Victoria above a height of 26.5m AHD, which was considered by both the Director-General and NSWALC's geomorphological experts to be the maximum height at .which the Lake could be operated without damage to burials in an area known as Snake Island.

NSWALC's application was granted expedition by the Court on 31 October 1994, and the proceedings for the declarations were heard by His Honour, Mr Justice Bignold, on 25 November 1994. The hearing of the remainder of the application seeking an injunction against the MDBC was deferred by consent to a date in March to allow the MDBC sufficient time to prepare its case and on the basis that the normal operation of the Lake would see the levels fall significantly over the summer months.

On 25 November, His Honour granted the amended declarations sought by NSWALC. In particular, he declared `that it was open at law under section 90 of the National Parks and Wildlife Act 1974 to refuse an application for consent to destroy or damage Aboriginal relics at Lake Victoria notwithstanding Clause 56 of the Murray-Darling Basin Agreement contained in Schedule 1 to the Murray-Darling Basin Act, 1992. His Honour also ordered the Director-General to pay NSWALC's costs.

The hearing of NSWALC's application for an injunction against the MDBC has been deferred to May 1995 following an undertaking to the Court by the MDBC not to raise the level of the lake above 26.5 metres before 30 June 1995. In the interim, the MDBC has lodged a report on the environmental effects of refilling the lake with the Director-General in support of its application for a consent to destroy burials. Outside the litigation, the parties have been involved in discussions aimed at achieving a long-term resolution of this very important and complex matter.

Andrew Chalk is a Sydney lawyer.