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by Russell Goldflam
Despite the media and political furores which erupt with depressingly predictable regularity over sacred sites disputes in Australia, there has been surprisingly little judicial activity in this area. Among the more than twenty Commonwealth, State and Territory enactments which purport to protect Aboriginal heritage property, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('ATSIHPA') provides the last and theoretically the strongest legislative bulwark against the desecration of sacred sites, in that it is designed to be invoked only when State or Territory law is unavailing to custodians. This article questions the effectiveness of this Act in the light of the four challenges to ATSIHPA decisions which have been litigated so far.
By s4, the Act's purpose is to protect and preserve from desecration sites and objects of 'particular significance', in a traditional context, to Aboriginal people. To effect this purpose the Act sets out procedures which empower the Commnonwealth Minister for Aboriginal and Torres Strait Islander Affairs to issue short-term (s9) and longterm (s10) declarations prohibiting defined activities within a prescribed area. As is so often the case, the law reports only reveal the tip of an iceberg of conflict: over the years scores if not hundreds of applications for declarations under the Act have been lodged and simply filed away without action, presumably for the most part because regional protective measures have not yet been exhausted.
The first case in which review of an ATSIHPA decision was sought concerned a golf club built against local Aboriginal wishes on a burial site at Swan Hill. The Minister's refusal to issue a s9 declaration was not disturbed by the court.[1] Four years later, in 1993, the full Federal Court upheld a decision of Wilcox J[2] ordering that the Minister's refusal to issue a sl0 declaration over Gooninup, at the foot of King's Park in central Perth, be set aside and reconsidered.[3] (This did not stop the 'development' of the site, as the Minister, on reconsidering the matter, maintained his refusal to invoke ATSIHPA protection.)
The two remaining cases, both of which were decided in February 1995, were brought by developers (joined by their State governments), who successfully challenged s10 declarations to protect, respectively, sites on Kumarangk (Hindmarsh Island)[4] and a Yawuru Initiates' Track across which a crocodile farm near Broome was to be extended.[5] At the time of writing the Commonwealth is appealing both decisions.
This leaves Atniltye,[6] near Alice Springs, as the only site over which an effective sl0 declaration has ever been made.[7] Consequently, a proposed flood mitigation dam/recreation lake on the Todd River was abandoned. The Northern Territory government conspicuously used the dam dispute to garner electoral support, choosing not to challenge the declaration. Instead, at the subsequent election it ran a campaign to 'stop Canberra interference', promoted 'one law for all Territorians', and increased its majority. (As a bonus, the cancellation of the project saved the government $25 million.) But if the Atniltye declaration had been challenged, it too may well have been set aside.
This potted case-history discloses two hard and unpalatable facts: no sib decision (either to issue or not to issue a declaration) has ever successfully withstood judicial review; and ATSIHPA protection has failed to save a single Aboriginal heritage site in the face of determined opposition by a State or Territory government. So on what basis have the courts been knocking down these Ministerial decisions?
The s9 procedure is designed for 'emergencies', and, as distinct from its sl0 counterpart, does not include an investigatory phase. Even so, it was held in Yawuru that given the absence of a clear statutory intent to the contrary, persons 'aggrieved' by a s9 declaration are impliedly entitled by the Act to procedural fairness (as a fortiori, are those affected by a sib declaration), and that under the particular circumstances of the case this had been denied. The urgency of the decision was held here to be outweighed by the duty to provide the adversely affected parties with an opportunity to persuade the Minister that the site was not, as is required tinder the Act, under 'serious and immediate threat'.
In Kunwrangk the sl0 declaration was held to be 'fatally flawed' because the Ministerial reporter had failed to properly notify the public of the precise location of the site prior to the commencement of her statutory inquiry, and had not adequately disclosed the emergence during the inquiry of 'women's business' as a key issue. Whereas the more widely-publicised finding in the case that the Minister had not adequately informed himself of the 'women's business' issue would alone only have led to an order that he reconsider his decision, the breach of procedural fairness had more serious ramifications: the court effectively ordered that the entire inquiry and reporting process be repeated from scratch.
With respect, it appears that these findings in both cases are open to question. The almost palpable sense of unease felt by O'Loughlin J regarding the weight of the 'women's business' evidence in Kumarangk appears to underlie his decision to deliver what is surely a highly technical knockout. And although in the light of subsequent headline-attracting events that unease may appear to have been well-founded, such considerations appear to go to the merits of the Minister's decision, and are thus impermissible for a court engaged in judicial review.[8]
The critical failure to advertise 'women's business' as a particular issue for the inquiry was arguably of no practical consequence anyway: it was conceded at trial that both parties had in fact been aware of the issue during the early stages of the inquiry.
Similarly, in Yawuru the claim (accepted by the court, and crucial to the finding) by the State government that it had no inkling of the Minister's apparently sudden change of heart seems disingenuous when viewed in the context of contemporary developments. Only a few days before the s9 declaration was made, the WA Supreme Court had declined to issue interlocutory injunctions sought to restrain the development, and in addition, the Yawuru had just indicated that they intended to lodge a native title claim over the area. It is suggested that these public events would have clearly signalled to all parties that the dispute was entering a new, more urgent phase.
In Kunmrangk, the court also held that the Minister did not, as required by the Act, consider 'any representations attached to the report' provided to him by his nominated reporter. As Mr Tickner's office had only received these voluminous representations the day before he issued the sib declaration, 'as a matter of probability... [he] did not give any "consideration" to the representations at all ...' A similar finding was made on substantially similar conduct in Yawuru.
Furthermore, as mentioned above the Minister had relied in Kunmrangk on an unsatisfactorily cursory briefing as to the contents of 'secret envelopes' relating to 'women's business' by a female staff member, who had 'only assured the Minister that there was nothing in them that was inconsistent with Professor Saunders' report ... therefore... the Minister was strongly influenced in reaching his decision because of his willingness to accept (without checking or testing) his reporter's advice.'
The courts here appear to have set an unrealistically rigorous standard of personal supervision by the Minister of the exercise of his statutory powers. In particular, the suggestion that the Minister should personally 'check or test' the material in a sl0(4) Report seems onerous. The judiciary has long acknowledged that the complexity of government demands that Ministers rely heavily on advice and delegation. On the other hand, if the Minister's staff had provided him with an accurate and comprehensive precis of the representations, and if the briefing on the 'women's business' had been more ample, perhaps O'Loughlin and Carr J1 would have decided these issues differently.
Since Kumarangk was decided, new material purportedly obtained from senior female custodians has emerged which apparently contradicts the Saunders Report's findings on 'women's business'. If Mr Tickner is indeed required to reconsider his decision (as will occur unless his appeal is wholly successful), he will be faced with a delicate problem: he will be bound to weigh this new material against the contents of the 'secret envelopes', but has effectively disqualified himself from personally doing so, for cultural (and political) reasons. Presumably this was just the sort of problem O'Loughlin J believed could have been averted had Professor Saunders more actively sought representations on this issue. Her failure to do so, as was discussed above, was held to invalidate the entire report. But with respect, it must be doubted that the insertion of a public notice in the local press at the time could have really made a substantial difference to the unravelling of events in such a highly inflamed dispute.
The courts acknowledge the legal 'reality' that the Act is intended to enable the Commonwealth to override State and Territory decisions not to protect heritage sites.[9] The political reality is that Commonwealth Labor governments tend to oppose decisions of non-Labor State or Territory governments (as occurred in the Kumarangk, Yawuru and Atniltye cases), and support those of Labor State governments (as occurred in the Gooninup case). Every decided case conforms to this pattern.[10] Particularly striking in this regard was the Yawuru dispute. For six months no reply was made to Aboriginal appeals to the Commonwealth for intervention in a WA Labor government decision approving development on the site. But it appears that the election of the new WA Coalition government in March 1993 awoke Mr Tickners interest in the matter, because shortly afterwards he responded encouragingly to the Yawunr application.
As Hal Wootten explained in his Atniltye report, ‘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 ... [and] unless ... the release of that knowledge is perceived, ultimately, to be the only way to protect an area.’[11]
Although the widely-publicised Kumarangk 'secret envelopes' controversy subsequently degenerated into an embarrassing and damaging fracas, in the long run it may yet promote the development of a more sensitive approach to the difficult issues of evidence which arise in these cases. A constructive if not wholly satisfactory course was taken by both Carr J and the parties to the Yawuru dispute in this regard.[12]
The need to complete a s10 inquiry, report and decision within 60 days[13] is also critically important: adherence to the stringent procedural requirements now being demanded by the courts may often simply be unachievable within such a tight timeframe.
The role of the court in reviewing ATSIHPA decisions is limited to that of judicial review: 'There still remains, at the end of the day, a residual discretion in the Minister with respect to the making of any declaration.'[14] But while on the one hand the courts acknowledge that conflicts of this kind can be 'almost insoluble, and that ultimately 'it is not for the court to enter into the merits of the dispute ...'[15] in practice their decisions have severely narrowed the scope of the decision-maker's 'residual discretion', possibly to the point of unworkability.
There is also a danger that by facilitating the referral of disputes to the highly formal, time-consuming and above all expensive judicial arena, the courts in these cases actually function as tools of powerful parties able to subvert remedial government intervention by resort to litigation. Aboriginal organisations have been obliged to divert scarce resources to fight these legal battles[16] and no doubt many similar battles were simply never joined for lack of funds.
The two recent cases graphically expose the Act's shortcomings. They encourage developers, supported by regional governments, to exploit a 'red-light' Federal Court by vigorously challenging ATSIHPA declarations. This is no surprise: instead of enacting a comprehensive regime to protect Aboriginal heritage, as then Minister Holding promised in 1984, the government passed interim legislation in that year, which according to legend was devised over a weekend by a committee of lawyers. nd the current Act, dating from 1986, is merely this original 'temporary' measure divested of its sunset clause.
The Commonwealth government will press on with its appeals, hoping to persuade the courts to apply a less over-punctilious approach to their supervisory function. By the same token, one hopes that the Minister and his staff will attempt to be less under-punctilious in the discharge of their powers. But something more is needed. It is time for the Commonwealth government to honour the commitment it made over a decade ago and legislate to entrench substantive rights, rather than mere procedural safeguards, for the protection of sacred sites.
* The author would like to thank Linda Pearson, Valerie Kerruish, Annie Keely and Garth Nettheim for their assistance and encouragement with this article. Where possible, sites (and conflicts over them) are referred to by their original names. This usage is non-standard: in the Yawuru case, for example, the name of the relevant site is not stated even once in a judgment of some 113 pages. The marked practice in the legal literature of avoiding the use of Aboriginal place names may be readily explicable when for example, the name of an archaeological site is unknown, or the name of a ceremonial site is secret. But in other cases it is suggested, with respect, that this practice exemplifies cultural impertinence.
[1] Warnba Wamba Local Aboriginal Land Cmrucil v Minister Administering the Aboriginal and Tones Strait Islander Heritage Protection Act 1984 (1989), 86 ALR 161. (See also 3(41) AboriginalLB 7.
[2] Bropho vTickner [1993] FCA 25; (1993), 40 FCR 165.
[3] Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 193; 114 ALR 409.
[4] Chapman v Tickner (Federal Court) (unreported judgment of O'Loughlin J, No.s SG 57 and 78 of 1994, handed down 15 February 1995).
[5]Douglas v Tickncr (Federal Court) (unreported judgment of Can J, No.s SG 25, 26, 39, 40, 45, 53 and 55 of 1994, handed down 7 February 1995).
[6] The proposed development in this case also affected two other sites, Atnyere Ankelthe and Urewe Aterle. For convenience, however,'Ahiiltye' is used to refer to the area as a whole. (See also 3(56) AboriginalLB 14.)
[7] A s10 declaration was also issued in 1989 to protect Cooninup, but this was withdrawn after less than a month (see Bropho v Tickner [1993] FCA 25; 40 FCR 165, 169).
[8]See Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 ALR 299, 309 per Mason J.
[9] Tickner v Bropla, [1993] FCA 208; 114 ALR 409, 459 per French J, cited with approval in Chapinan v Tickner.
[10] The Warnba Wamba case, supra, is distinctive in that the Victorian Government did not join the action, and from the case report does not appear to have been involved in the conflict. Nevertheless, the State (Labor) government's failure to act to protect the site may have been significant. If so, then this case too conforms to the' pattern'.
[11] See Wootten, H., Significant Aboriginal Sites in Aran of Proposed Junction Waterhole Data, Alice Springs (Report to the Minister for Aboriginal Affairs under slO(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1994, May 1992), 31.
[12] . See Willheim, E.,'Casenotes: Wrslern Australia & Others v Minister for Aboriginal and Torres Strait Islander Affairs', 3(69) AboriginalLB 17-18.
[13] An emergency declaration may be made for up to 30 days (s9(2)), and may be renewed once (59(3)).
[14] Chapman v Tickner, supra.
[15] Warnba Warnba, supra, 172.
[16]See Keely, A., 'Two Laws Meet: The Significance of Junction Waterhole' 2(56) AboriginalLB 16.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1995/39.html