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378 Federal Law Review [VOLUME 19

PROTECTION OF ABORIGINAL SACRED SITES IN THENORTHERN TERRITORY - A LEGAL EXPERIMENT

JAMES RENwICK·

1 INTRODUCTION

The Australian legal system in the last fifteen to twenty years has increasinglyrecognised and accommodated traditional Aboriginal rights, customs, practicesand beliefs. The Commonwealth Parliament has been particularly active in thisarea, as illustrated by its enactment of the Aboriginal Land Rights (NorthernTerritory) Act 1976 (Cth), (the "Land Rights Act"), the Aboriginal and TorresStrait Islander Heritage Protection Act 1984 (Cth), and the Aboriginal and TorresStrait Islander Commission Act 1989 (Cth). While there is no general treaty or"makarrata" between the Commonwealth or any State or Territory on the onehand and Australian Aboriginals either generally, or at a tribal or regional levelon the other, this has been seriously considered by the Commonwealthl and isregularly called for by Aboriginal leaders, see, for example the BarungaStatement of 12 June 1988.2

The Australian legal system does not currently recognise that any antecedentnative title is held by Aboriginals, as sovereignty over the Australian continentis considered to have been gained by settlement over terra nullius rather than byconquest, see for example Milirrpum v Nabalco Ply Ltd3; there are indicationshowever that the current members of the High Court may be prepared to reviewthose fundamental legal assumptions provided a suitable legal vehicle can befound.4

For over a decade there have been legislative experiments on Aboriginalmatters in the Northern Territory of Australia. The choice of the NorthernTerritory as the laboratory is not surprising as the Commonwealth possesseslegislative power in relation to Territories under s 122 of the Constitution,

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Deputy Director of Research, Administrative Review Council, Canberra, fonnerly ofthe Northern Territory Department of Law. Solicitor (NSW), Legal Practitioner (NT).The views expressed are mine and are not necessarily held by the Commonwealth,the Northern Territory or their agencies. I have attempted to state the law as atNovember, 1990.Report by the Senate Standing Committee on Constitutional and Legal Mfairs on theFeasibility of a Compact or "Makarrata" between the Commonwealth and theAboriginal People: Two Hundred Years Later (1983). See also Final Report of theConstitutional Commission, (1988) Vol 2, paras 10.412-10.460.The Barunga Statement comprises a Statement by Aboriginal leaders making anumber of demands on the Commonwealth and a rather general response by thePrime Minister Mr R J L Hawke. The statement is reproduced as an appendix inJ Crawford, "The Aboriginal Legal Heritage : Aboriginal Public Law and the TreatyProposal" (1989) 63 AU 392, 402-403.(1971) 17 FLR 141.See Mabo v State of Queensland (1988) 166 CLR 186 and the determination of factsin that case by Moynihan J of the Supreme Court of Queensland upon remitter fromthe High Court, dated 16 November, 1990. However there are important distinctionsbetween Aboriginals and Miriams (the Plaintiffs in the case), so that this case maynot be of much assistance in determining whether mainland Aboriginals have anyenforceable antecedent native title to any particular area of land. See also NorthernLand Council v Commonwealth (1986) 161 ClR. 1.

1990] Protection ofAboriginal Sacred Sites in the Northern Territory 379

which is "plenary in quality and unlimited and unqualified in point of subjectmatter".5 The Northern Territory is sparsely populated, but one quarter of thatpopulation is Aboriginal, some of whom live on their traditional land or'country'. The Land Rights Act is the best known of these experiments. Itsenactment shortly before the grant by the Commonwealth to the NorthernTerritory of responsible government and the creation of a new body politic underthe Crown by the Northern Territory (Self-Government) Act 1978 (Cth), hasresulted in competition for land in the Northern Territory and the resources thatland contains, particularly minerals. The Land Rights Act has to date led to some38 per cent of the Northern Territory (although rarely the most arable land)becoming Aboriginal land. A further 11 per cent is currently under claim. Thelimitations on Northern Territory legislative and executive power and authorityon and in relation to Aboriginal land and land subject to traditional land claim,6the residual power of the Governor-General to disallow Northern Territory laws?and the powers and rights vested in the traditional Aboriginal owners ofAboriginalland8 has led, perhaps inevitably, to disputes between various groupswith quite different views regarding what should be done with and on Aboriginalland. As part of the general debate about Aboriginal land rights there has beenmuch discussion about areas which are of significance to or held to be sacred byAboriginals. These areas are referred to in this article as "sacred sites". Questionssuch as what makes a site sacred, its extent, and restrictions which should applyto activity on such sites, have given rise to much controversy, and may perplexand even astonish the traditional property lawyer.

Sacred sites are given specific statutory protection in Australia in a number ofways. First under laws which protect archaeological sites and relics9; secondly bylaws which protect the general Australian heritage,10 and thirdly, in statuteswhich protect sites only because they are of significance to Aboriginals)1 Thethird category, which is the focus of this paper, is much less common.

These enactments can be subdivided into statutes which provide automaticprotection to all areas on objects which fall within a statutory definition, andthose which permit the executive government to take action (whether interim orpermanent) to declare or register a site, and do not protect the area unless this has

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Teori Tau y Commonwealth (1969) 119 CLR 564, 570. Confinned in relation to theNorthern Territory in Northern Land Council v Commonwealth (1986) 161 CLR I, 6.Infra text at n 55 ff.Section 9(1) of the Northern Territory (Self-Government) Act 1978 (Cth) allows theGovernor-General to disallow any Northern Territory statute within 6 months of itsenactment. This power has only been exercised once, and then at the request of theNorthern Territory.Eg Part IV of the Land Rights Act prescribes a regime for mining on Aboriginalland. See also ss 19, 20(3), 67, 68, 70, 71 and 77A.Eg Native and Historical Objects and Areas Preservation Act 1955 (NT),Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), Aboriginal RelicsAct 1975 (Tas); see G K Ward "Archaeology and Legislation in Australia" inG Connah (ed), Australian Field Archaeology, A Guide to Techniques (3rd ed 1983).Eg Australian Heritage Commission Act, 1975 (Cth), World Heritage PropertiesConservation Act 1983 (Cth), Cultural Record (Landscapes Queensland andQueensland Estate) Act 1987 (Qld), Heritage Act 1977 (NSW). Various environmentalplanning and assessment statues are also capable of being used to protect sites. Theyare beyond the scope of this paper.Eg Northern Territory Aboriginal Sacred Sites Act 1989 (NT), Aboriginal HeritageAct 1988 (SA).


been done; the Northern Territory Aboriginal Sacred Sites Act 1989 (N1) is anexample of the former, the Aboriginal and Torres Strait Islander HeritageProtection Act 1984 (Cth) an example of the latter.

The registration of a sacred site under the Aboriginal Sacred Sites Act 1979(N1) over about 250 square kilometres of apparently prospective gold, palladiumand platinum country at Coronation Hill within the Kakadu Conservation Zonein the Northern Territory has brought Aboriginal sacred sites to nationalprominence again)2 The request by certain Jawoyn Aboriginals to protect thatsite under the Aboriginal and Torres Stmit Islander Heritage Protection Act 1984(eth) together with the enquiry into the use of resources in the Kakaduconservation zone by the Resource Assessment Commission, will keep it there.

This paper will analyse the rationale for protection of sites in the light ofAboriginals' concerns for those sites, the recent history of legislation protectingsites in the Northern Territory, and some aspects of the practical and legaldifficulties involved in enacting and administering laws aimed at protectingsacred sites while making allowance for other rights and interests in land onwhich they are located.

2 THE ABORIGINAL RELATIONSHIP TO LAND AND SITES ON LAND

The Aboriginal relationship to land and sites on land is so different from thatof common law rights in and ownership of land that it requires explanation. AsBlackburn J in Milirrpum v Nabalco Pty Ltd13 said, "[a]s I understand it, thefundamental truth about aboriginals' relationship to the land is that whatever elseit is, it is a religious relationship")4 ("Aboriginals" in this context are thosewho may be regarded as the traditional owners or custodians of a particular areaof land).

Although the Australian common law has failed to recognise that suchreligious links to particular areas of land give enforceable legal rights to thoseAboriginals, there have been legislative attempts to define these traditionalAboriginal rights and obligations for the purpose of establishing statutoryrights. One description of the elements of traditional Aboriginal links to land isthe definition of "Tmditional Aboriginal Owners" in s 3 of the Land Rights Act

a local descent group of Aboriginals who:

(a) have common spiritual affiliations to a site on the land, being affiliationsthat place the group under a primary spiritual responsibility for that siteand for the land; and

(b) are entitled by Aboriginal tradition to forage as of right over that land.15

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131415

Eg P Vincent "Noonkanbah", in N Peterson, M Langton (eds), AborigilUs, Land andLand Rights (1983), 327.(1971) 17 FLR 141.Ibid 167.For a critical discussion of the definition of "traditional Aboriginal owners" in theLand Rights Act, see e g M Gumben "Paradigm Lost : An Analysis ofAnthropological Models and their effect on Aboriginal Land Rights" Oceania Vol 52No 2 1981, M Gumbert, Neither JIIStice Nor Reason: a legal alld anthropologicala1Ullysis 01 aboriginal land rights, (1984); Mr Justice Toohey, Seven Years On(1984); K Maddock, "'Owners', 'Managers' and the choice of statutory traditionalowners by anthropologists and lawyers" in AborigilUs, Lalld and Land Rights, supran 12, 211; Report on the Waromungu Land Claim para 19.1.2; Report on the Lake


That definition was explained by Brennan J in R v Toohey; ex parte MenelingStation Pty Limited16 as follows:

Foraging rights apart, the connexion of the group with the land does notconsist in the communal holding of rights with respect to the land, but in thegroup's spiritual affiliations to the site on the land and the group's spiritualresponsibility for the site and for the land. Aboriginal ownership is primarily aspiritual affair rather than a bundle of rights.! 7

The spiritual relationship of Aboriginals to sites on their traditional land or"country" has been described as follows:

certain features of the land and seascape are permanent reminders of theactivities of their ancestors and the law which they established. At some sitesthey performed significant acts and rites, at others their essence entered into theground. Desecration of such sites brings sorrow and tragedy into the lives ofthose responsible for them ... burial sites and other sites of historicalimportance stand as testimony to their presence and relationship to the land.! 8

Sites also have contemporary importance in Aboriginal society. Mr JusticeMaurice, formerly an Aboriginal Land Commissioner, has commented that:

... a feature of Aboriginal society in the Northern Territory is systems ofintellectual property upon which social relationships and political life arefounded. Part of the currency of this system is the mythology relating to sites.Whilst the belief system of which this mythology is a part may be one sharedby the whole group, details of the mythology are not. Within that group onlysome will have been admitted to information concerning the mythology of aparticular site and then, possibly, only to part of it. The possession of suchinformation brings with it esteem, power and influence and is therefore soughtafter, but it can only be achieved by degrees over a long period of time, and inseemingly undefinable ways involving some sort of group acceptance. Toacknowledge having information of this kind without being recognised asentitled to it may lead to the imposition of extreme sanctions. And, whilstbeing entitled to have knowledge according to such systems is one thing,having the right to tell others about it is quite another. Those who possess andcontrol the flow of information about Aboriginal mythology control thecountry and in particular, control the ability of people to move about it freelyand to exploit its natural resources. Being without the knowledge yet believingin the spirits and other supernatural forces that inhabit the landscape, placesone at the lower end of the socio-political order ...;

thus the secrecy of Aboriginals "about their religious life in general and theirsacred sites in particular".l9

3 A "SITE"

A Definitional ProblemsThe Land Rights Act defmes a sacred site to mean:

Amadeus Land Cairn, paras 99-100 and Justice Toohey "Aboriginal Land" (1985) 15FL Rev 159, 160-164.

16 (1984) 158 CLR 327.17 Ibid 357-358.18 Aboriginal Sacred Sites Protection Authority, "What is a Sacred Site?" (Darwin).

Undated pamphlet.19 Wammungu Land Claim, Reasons for Decision of Mr Justice Maurice, Aboriginal

Land Commissioner's Office, 1 October 1985, 77-78.


a site that is sacred to Aboriginals or is otherwise of significance according toAboriginal tradition, and includes any land that, under a law of the NorthernTerritory, is declared to be sacred to Aboriginals or of significance according toAboriginal tradition (emphasis added).20

"Aboriginal tradition" is defined in that Act to mean:the body of traditions, observances, customs and beliefs of Aboriginals or of acommunity or group of Aboriginals and includes those traditions, observances,customs and beliefs as applied in relation to particular persons, sites, areas ofland, things or relationships.21

There are both inherent contradictions and practical difficulties with thedistinction between "land" and a "site" in this definition contained as it is inlegislation that, in part, singles out sites for special protection.

The contradictions are illustrated by the following passage from the SecondReport of the Aboriginal Land Rights Commission22 where the Commissioner,Woodward J, commented that:

517. In referring to places which are said to be 'sacred' to Aborigines, it isimportant to remember that no clear dividing line can be drawn betweenthose which are sacred and those which are not. I mean by this that,although some sites clearly fit the description, there will be many othersabout which different views could be taken.

518. Land generally has spiritual significance for Aborigines but, because of theform and content of the myths relating to it, some land is more importantthan other land. Certain places are particularly important, usually becauseof their mythological significance, but sometimes because of their use as aburial ground or important meeting place for ceremonies.

519. For this reason it is often better to refer to 'sites of special significance';but this description omits the important fact that the significance is notonly social and historical, but also spiritual or religious.

520. I have therefore elected to use the expression 'sacred sites' as the simplestand most convenient for my purpose. It must be remembered, though, thatother places not so designated are still important to Aborigines in aspiritual sense. It is not possible merely to protect sacred sites and treatother land as unimportant.

521. Nevertheless such sites must be protected [as] ... [b]ecause of theAboriginal's personal identification with his land, such places are evenmore important to him than are places of worship to members of otherreligions.23

In 1985 Woodward I, in an address to the 23rd Australian Legal Convention24

said:Apart from questions of drafting convenience, I can see no sufficient reasonwhy, once the direct spiritual links are lost, Aboriginal sites should not beprotected under the same legislation which preserves other parts of our nationalheritage because of its history, its beauty, or both.2S

2021222324

2S

Section 3(1).Ill.Aboriginal Land Rights Commission, Second Report (1974).Ibid 96.A E Woodward "Land Rights and Land Use: A View from the Sidelines" (1985) 59AU 413.Ibid 421.


In a similar vein, R M Berndt in his paper "Traditional Concepts of AboriginalLand" wrote that

"in so far as sites are concerned, it must be remembered that not all of them aresacred, except iR so far as the whole land has a sacred quality".26

These passages illustrate a logical contradiction: "site" implies a discreteportion of land, so, for example, the entire Northern Territory could not be asingle "site", and yet all land from the Aboriginal viewpoint has somesacredness. The words "otherwise of significance" are an alternative determinantof whether land comprises a "sacred site", but have little work to do (from alogical point of view) as "sacredness" has covered the field. In contrast theAboriginal and Torres Strait Islander Heritage Protection Act 1984 protects"significant Aboriginal Areas" which are defined in s 3 of that Act to mean areasof land or water being "an area of particular significance to Aboriginals inaccordance with Aboriginal tradition". "Area" is defined to include a "site". Thisapproach is more logical when legislation is seeking to precisely delineate anarea with a view to giving it special protection.

Mr Justice Toohey wrote in his Report on the Warlpiri and KartangarurruKurintji Land Claim that "the words 'otherwise of significance' [in the definitionof 'sacred site'] are worth noting; the emphasis is on importance as much asholiness".Z1 Those comments by Toohey J were in the context of conducting aninquiry under s 50(1)(a) of the Land Rights Act, which is an inquiry to identifytraditional Aboriginal owners of areas of land and in so doing to identify sites onthe land, but which is not an inquiry to identify the boundaries of sites orspecifically to protect sites. His Honour went on to say that the word "site":

may mislead by generating a tendency to think of sites as particular features ofthe landscape occupying relatively little space and rendering unimportant thecountry around them ... Whatever justification there may be for giving the worda narrow meaning in legislation aimed at identifying and protecting places ofsignificance there is none within the framework of the Land Rights Act. In myopinion sites should be thought of as places usually possessing some particularfeature such as a hill, creek or waterhole, but not delimited by the preciseamount of space occupied by a feature (emphasis added).28

B Types of SitesAppendix K of the Report to the Chief Minister of the Northern Territory of a

Committee Established to Review Legislation Relating to Sites of Significanceto Aboriginals,29 listed the following categories of sacred sites:

1 . A Story Place - a named place with an explanation or story. The story mayexplain the physical appearance and situation of the place and relate it toother natural features providing a link to the dreamtime ...;

2. A Taboo Place - a story place in which the traditional story placessanctions on behaviour;

3. Secret Places - places which no-one other than custodians should enter;

26 R M Berndt (ed), Aboriginal Sites, Rights and Resource DevelopIMnt (1982) 7. Seealso K Maddock, Your Land is Our Land: aboriginal land rights (1983) Ch 7.

27 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairsand the Minister for the Northern Territory: The Warlpiri and Kartangarurru-KurintjiLand Claim (1979) para 68.

28 Ibid paras 69-70.29 Report to the Chief Minister of the Northern TerritoI)' of the Committee to Review

Legislation Relating to Sites of Significance to Aboriginals (1987).


4. Ceremonyllnitiatory Areas (which may be included in categories 1 to 3above).

In addition sites which might be considered as "places of significance" includerock art sites, archeological sites, burial sites and "historical sites" that isplaces where a particular historical incident is remembered.30

R M Berndt has written that sites:... are in many cases graded according to their mytho-ritual importance. Theyrange, for instance, from secret-sacred (with limited access) to open-sacred.Some are of direct ritual concern; others may not be. Moreover the concept of'secret-sacred' is not an absolute one with regard to ritual matters and gradationsof knowledge. And there are other relevant categories of site - for instance,places of danger, places of historical relevance, ritual grounds ...31

4 HISTORY OF LEGISLAnON PROTECTING SITES

A Relics LegislationSpecific legislation protecting sites in the Northern Territory dates back to

1955. The Native and Historical Objects and Areas Preservation Act 1955 (N1),(The "NHOAP Act") offered very limited protection for sites and was principallyconcerned with the protection of historical objects-including aboriginal artefacts.This Act is still in force in the Northern Territory. It concentrates on theunlawful acquisition of or damage to sensitive aboriginal objects (ss 6 and 8) andinterference with or damage to both aboriginal burial grounds or remains (s 9H)and any areas declared under s 9A to be prohibited areas. The NHOAP Act is tobe enforced by rangers appointed for that purpose.

A report by a select committee of the Northern Territory Legislative Councilon the NHOAP Act in 196532 criticised its administration as, ten years afterenactment there were no prescribed areas nor were there any rangers appointed toenforce the law. After this report the Northern Territory Museum commencedrecording Aboriginal Sites, and by 1977 fourteen sites (of 1400 recorded by theMuseum) had been proclaimed under s 9A33 however, prescribed areas were notcompletely protected as there was no general prohibition on trespassing in thoseareas. The NHOAP Act provides that a ranger may demand the name and addressof the person and require that person to leave the area when requested (ss 9C-E)with a penalty of up to $200 or three months imprisonment for failure tocomply with that request (s 9F).

B The Bonner Committee ReportThe NHOAP Act was examined and criticised by the Commonwealth

Parliament's Joint Select Committee on Aboriginal Land Rights in the Northern

3031

32

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Ibid 228-229.R M Berndt, supra n 26, 7.Repon of the Select Committee of the Northern Territory Legislative Council on theNative and Historical Objects Preservation Ordinance 1965 (1965); seeE P Milliken, "Protection and Preservation of Aboriginal Sites" and C Jack-Hinton,"Existing and Proposed New Legislation for the Protection of Antiquities andCultural Material" in R Edwards (ed), The Preservation of Australia's AboriginalHeritage (1975) 19, 23.Commonwealth Parliament: Report of the Joint Select Committee on AboriginalLand Rights in the Northern Territory ("The Bonner Committee Report") (1978) para91.


Territory ("the Bonner Committee") which was appointed inter alia, to examineand report on "the adequacy of provisions of the laws of the Northern Territoryrelating to ... the protection of sites of significance..:'.34

The Bonner Committee Report found that the NHOAP Act was unsatisfactory,inter alia, because it embraced more than Aboriginal sites and objects, wasunenforceable, and because there were insufficient personnel to efficientlyidentify sites and ensure their protection.35

C The Land Rights Movement and the Woodward Commission ReportsIn Milirrpum v Nabalco Pty Ltd,36 Aboriginal claims to traditional land and

sites on that land came before Blackburn J of the Supreme Court of the NorthernTerritory when the Commonwealth granted certain mining leases to a miningjoint venture on land on the Gove Peninsula in North East Arnhem land. Achallenge to the grant of these mining leases, inter alia, by relying upon thedoctrine of antecedent native title, failed and there was no appeal from thedecision at first instance. However, soon afterwards the former Senior Counselfor the Aboriginal plaintiffs in the case, by then Mr Justice Woodward, wasgiven a commission by the Governor-General to enquire into and report upon"[T]he appropriate means to recognise and establish the traditional rights andinterests of Aborigines in and in relation to land ..."37

The Commissioner made certain assumptions following the stated intentionby the Commonwealth in the Commissioner's Letters Patent to recognise landrights:

3. In order to achieve recognition of land rights for Aborigines in the bestpossible form, it is necessary first to be clear as to the aims underlying suchrecognition. I have assumed these to be:

(i) the doing of simple justice to a people who have been deprived of theirland without their consent and without compensation,

(ii) the promotion of social harmony and stability within the wider Australiancommunity by removing, so far as possible, the legitimate causes ofcomplaint of an important minority group within that community,

(iii) the provision of land holdings as a first essential for people who areeconomically depressed and who have at present no real opportunity ofachieving a normal Australian standard of living,

(iv) the preservation, where possible, of the spiritual link with his own landwhich gives each Aboriginal his sense of identity and which lies at theheart of his spiritual beliefs, and

(v) the maintenance and, perhaps, improvement of Australia's standing amongthe nations of the world by demonstrably fair treatment of an ethnicminority.

4 . I believe that these aims can be best achieved by:

(a) preserving and strengthening all Aboriginal interests in land and rightsover land which exist today, particularly all those having spiritualimportance;

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Ibid iv.Ibid paras 99-103.(1971) 17 FLR 141.Aboriginal Land Rights Commission, First Report (1973) iii. Sir Gerard Brennanwas counsel assisting the Commission.


(b) ensuring that none of those interests or rights are further whittled awaywithout consent, except in those cases where the national interestpositively demands it - and then only on terms of just compensation....38

In summary the Commissioner recommended in relation to Aboriginal sites that:(i) An official, legally-recognized register should be compiled of all sacred

sites which their custodians are willing to declare.

(ii) Warning notices, fences and other protective steps should be entirely at thediscretion of the custodians of each site.

(iii) All necessary precautions should be taken to safeguard sacred sites in thecourse of activities such as road-making and mining.

(iv) It may be appropriate to place some sacred sites out of bounds to all nonAborigines unless they are accompanied by an authorized guide.

(v) It should be an offence knowingly to damage or desecrate a sacred site.

(vi) Policy for the protection of artistic and historic sites no longer of specialreligious significance to living Aborigines, should be worked out inconsultation between regional and national Aboriginal organizations andothers interested in their preservation.39

Clause 44 of the Commission's drafting instructions for an Aboriginal Land(Northern Territory) Act provided that :

1 . Any person who knowingly damages or desecrates a site of significance toAboriginal custom and belief shall be guilty of an offence.

2. A site of significance shall be deemed to have been desecrated by an actdone by a person at or near the site if that act would in law amount tosacrilege or offensive behaviour if performed in a church.

3 . Where a site is proclaimed as a prescribed site or is within aprescribed areaunder the Native and Historical Objects and Areas Preservation Ordinancethat shall be conclusive evidence that the site was of significance withinthe meaning of this section.

4. It is a defence to a charge under this section to prove that

(a) the doing of the act that damaged or desecrated the site was accidental; or

(b) the defendant had no reasonable grounds for suspecting that the site was ofsignificance to Aboriginal custom and belief.

5 . In order to be entitled to the benefit of the provisions of sub-section 4(b),any person who was, when the site was damaged or desecrated, engaged inroad construction or mining operations or any activity involving the useof bulldozers or other earthmoving equipment, on Aboriginal Land mustprove that he had sought the services of a guide from the traditional ownersof the country in which the site is situated and the guide had not beenprovided or failed to identify the site as sacred..."40

The Bill did not attempt to define a "site" and it should be noted that clause44(1) only refers to "a site of significance to Aboriginal custom and belief'.

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39

40

Report, supra n 22, 2.Ibid 98. Cf Parliament of NSW, First Report of the Select Committee of theLegislative Assembly upon Aborigines (1980) Div II; P Seaman, TM AboriginalLand Enquiry (1984) Ch 8, Appendices 36, 37.Report, supra n 22, 172.


5 LAND RIGHTS LEGISLATION

A The 1975 BillIn 1975 the Commonwealth Labor Government introduced an Aboriginal Land

(Northern Territory) Bill. Clause 72 of the Bill provided that it would be anoffence to desecrate land that was Ita site of significance according to Aboriginaltradition", but that :

...a person shall be deemed to have desecrated a site if, on or near the site, hedoes an act, or causes damage, of such a nature that the doing of the act or thecausing of the damage as the case may be, would, if witnessed by Aboriginals towhom the site is significant, be offensive to them by reason of the Aboriginaltradition in respect of that site.41

41 Aboriginal Land (Nonhern Territory) Bill, clause 72. In full this read:"72.(1) A person shall not desecrate land in the Northern Territory that is a site ofsignificance according to Aboriginal tradition.Penalty: $1,000.(2) Without limiting the generality of sub-section (1), a person shall be deemed tohave desecrated a site if, on or near the site, he does an act, or causes damage, ofsuch a nature that the doing of the act or the causing of the same, as the case maybe, would, if witnessed by Aboriginals to whom the site is significant, be offensiveto them by reason of the Aboriginal tradition in respect of that site.(3) It is a defence to a charge under sub-section (1) if the person charged proves

(a) that the doing of the act, or the causing of the damage, as set out in thecharge was accidental;(b) where the site was not on Aboriginal land - that the person charged had noreasonable grounds for suspecting that the site was of significance according toAboriginal tradition; or(c) where the site was on Aboriginal land - that -(i) the person charged was lawfully on the land and sought the services of aguide from the Land Council for the area in which the site was situated; and(ii) a guide was not provided within a reasonable time or the guide providedfailed to identify the site as one of significance according to Aboriginaltradition.

(4) The regulations may declare areas of land in the Northern Territory to be sites ofsignificance according to Aboriginal tradition for the purposes of this section.(5) In proceedings for an offence against sub-section (1) in relation to an areadeclared under sub-section (4) -

(a) the declaration is conclusive proof that the area to which it relates is a siteof significance according to Aboriginal tradition; and(b) the defences set out in paragraphs 3(b) and (c) do not apply.

(6) This section does not apply in relation to an act done in relation to land if -(a) the Land Council for the area in which the land is situated has given consentin writing to that act; or(b) that act is done in the course of, or in connexion with, mining operationsauthorized by a law of the Northern Territory or by the Atomic Energy Act 19531975 or any other Act authorizing mining for minerals and the Minister hasauthorized, in writing, the doing of that Act.

(I) A Land Council may agree with an applicant for a consent referred to inparagraph (6)(a) for the giving of that consent by the Land Council in considerationof the payment to the Land Council by the applicant of an amount specified in theagreement.(8) The Minister shall not grant an authorization under paragraph (6)(b) unless he issatisfied that the applicant for the authorization had sought the consent of therelevant Land Council to the doing of the act to which the proposed authorization


This provision departs from the Woodward Commission concept of desecrationof a site being akin to sacrilege in a church. Furthermore the provision onlyseeks to protect sites "of significance", and then only from acts contrary toAboriginal tradition. Thus, on an Aboriginal site where entry by nonAboriginals was not contrary to Aboriginal tradition, trespass would not be anoffence. Admittedly there would have been difficulties in prosecution underclause 72 as the prosecutor would have needed to prove not only the fact of theact or damage complained of but also, (and perhaps on a strict application of therules of evidence this could only be proved by evidence led from appropriateAboriginals) that the area was a site; and the content of the Aboriginal traditionwhich had allegedly been infringed. This would have had the potential to turn aprosecution into a lengthy inquiry and might also have forced Aboriginals tospeak of sensitive matters in a public forum. Similar evidentiary difficulties withsacred site prosecutions are discussed below.

B The 1976 BillWith the change of Federal Government in 1975 an amended Aboriginal Land

Rights (Northern Territory) Bill was re-introduced; this eventually resulted in thecoming into force of the Aboriginal Land Rights (Northern Territory) Act on 26January 1977.42

Section 69 of the Act remains in its original form and provides :Sacred Sites

1. Except in the performance of functions under this Act or otherwise inaccordance with this Act or a law of the Northern Territory, a person shallnot enter or remain on land in the Northern Territory that is a sacred site.Penalty: $1,000

2. Sub-section (1) does not prevent an Aboriginal from entering or remainingon a sacred site in accordance with Aboriginal tradition.

3. Subject to sub-section (4) in proceedings for an offence against subsection(1), it is a defence if the person charged proves that he had no reasonablegrounds for suspecting that the land concerned was a sacred site.

4. Where the charge relates to a sacred site on Aboriginal land, the defenceprovided by subsection (3) shall not be taken to have been established bya person unless he proves that:

(a) his presence on the land would not have been unlawful if the land had notbeen a sacred site; and

(b) he had taken all reasonable steps to ascertain the location and extent of thesacred sites on any part of that Aboriginal land likely to be visited byhim.

42

relates and that consent has been refused or has not, within 60 days after applicationfor it was made, been granted, and, in deciding whether to grant or refuse such anauthorization, he shall have regard to -

(a) the extent of the hardship that the proposed act would cause to thetraditional Aboriginal owners of the land concerned if the authorization wasgranted;(b) the extent of the loss to persons interested in the mining operationsconcerned if the authorization were not granted; and(c) the extent to which the national interest would be affected by granting orrefusing to grant the authorization.

Section 2, except for s 70 which commenced on 1 February 1979.


In introducing the Bill, the Minister (Mr Viner) said:... some relevant matters [are] ... to be covered by the Northern TerritoryLegislative Assembly in complementary legislation: The protection of sacredsites ... It is now intended to spell out in the Bill, however, guidelinesstipulating the kind of laws which should be made by the Legislative Assembly,and to guarantee recognition in those laws of traditional rights. For example, anoffence will be written into the Bill for unlawful entry onto a sacred site;Ordinances dealing with sacred sites will have to protect traditional interests inaccordance with Aboriginal wishes ...43

The debates reveal a strong feeling by the Federal Opposition of the time thatthe Commonwealth Government alone should legislate to protect sacred sitesrather than allow the Northern Territory legislature, (then a merely representativerather than a responsible parliament) to enact more detailed legislation providingfor the administration and protection of sites.44 One opposition member said:

[t]he declaration of sites is a highly political activity. A site declared where anopen cut mine is about to be dug could prejudice the mining operation. This isthe real reason to fear the [Northern Territory Legislative] Assembly controllingthe declaration of sites.In any event, Assembly men have shown that they believe sites are tinypatches of land around which one can place a fence. They have nocomprehension of the real meaning to Aborigines of sacred sites.45

The Opposition then sought, unsuccessfully, to substitute the 1975 clauserelating to sacred sites.46 That clause permitted mining over sacred sites withLand Council consent or as authorised by the Commonwealth Minister, provided .that if Land Council consent to the mining was not forthcoming, the Ministercould only authorise mining after having regard to the hardship to traditionalAboriginal owners, the loss to any miners and the national interest.47

C The Scheme of the Land Rights Act and Judicial Approaches to itsInterpretation.

The Land Rights Act was at the time of its enactment and remains today, aremarkable legislative experiment. Its long title states that it is "[a]n Actproviding for the granting of Traditional Aboriginal Land in the NorthernTerritory for the benefit of Aboriginals, and for other purposes".

That purpose was to be achieved by :-(a) the granting as Aboriginal land of the existing Aboriginal Reserves as a

matter of course;48 and

(b) permitting claims to be made to an Aboriginal Land Commissioner by oron behalf of Aboriginals over certain land, which, broadly speaking, wasto be land in which no-one, other than Aboriginals or the Crown, had aproprietary interest.49 If the Commissioner found the land claimed to have"traditional Aboriginal owners" then, subject to certain other matters

4344

4546

47

4849

H Reps Deb 1976, Vol 102, 2780-2781 (17 November 1976).H Reps Deb 1976, Vol 102, 2782-2789, 3077 (17 November 1976); Sen Deb 1976,Vol 70, 2740, 2795, 2906 (7-9 December 1976).Ibid H Reps Deb 2807 (Mr Innes).Ibid 3077.Supra n 41, sub-ell (6) and (8).Sections 10 and 12 and Sch 1 of the Land Rights Act; cf s 13.See the definition of "alienated Crown land". "Crown land'" "town" and "unalienatedCrown land" in s 3(1) of the Land Rights Aet, and also ss 3(6), 3A, 3B and 50(1)(a).


prescribed by s SO, he was to prepare a report recommending to theCommonwealth Minister for Aboriginal Affairs that the grant of the land asAboriginal land be made by the Governor-General in fee simple to anAboriginal Land Trust. The Commonwealth Minister's decision whether torecommend the grant of the land is a political one; Minister for AboriginalAffairs v Peko Wallsend Ltd.50

Non-Aboriginal estates and interests in land recommended for grant aregenerally, prior to the grant, either extinguished, (usually with compensationpaid to the estate holder by the Commonwealth) or, if regarded as compatiblewith the grant of Aboriginal land, permitted to continue. (The latter categoryincludes existing mining interests.)51

Section 67 of the Land Rights Act prohibits Aboriginal Land from beingcompulsorily acquired, resumed or forfeited by a law of the Northern Territory.Aboriginal Land was described by Toohey J in Murray Meats (NT) Pty Ltd vNorthern Territory Planning Authority a "inalienable fee simple, subject tovarious prohibitions and controls on dealing".52

By s 74 of the Land Rights Act, Northern Territory laws only operate onAboriginal land to the "extent that the law is capable of operating concurrently"with the Land Rights Act;53 and the grant of new estates and interests (includingmining interests), are ultimately subject to the wishes of the Aboriginalowners.54 Since 8 May 1986 the Crown both in right of the Territory and theCommonwealth, has been expressly precluded by s 67A of the Land Rights Actfrom either granting an estate or interest over or reserving dedicating or settingaside any land under claim, pending "rmal disposal" of the claim.55

In construing the Act, High Court Justices, no doubt guided by ss 15AA and15AB of the Acts Interpretation Act 1901 (Cth)56 have on occasion stated that

50

51

5253

545S

56

(1986) 66 ALR 299; see also the comments of Beaumont] at first instance (1984)53 ALR 711, 724, and R v Toohey; ex parte Meneling Station Ply Ltd (1983) 158CLR 327, 334. 362.This policy is achieved by the differing definitions of "estate or interest in land" tobe found in different parts of the Land Rights Act eg ss 3(2), 11(1)(d), 19, 66, 67A,70(2) and 71(2), see Attorney General (NT) v Kearney (1990) 94 ALR 488. 493.Further, the right of the Crown or an Authority to continue to occupy or useAboriginal land is provided for in s 14, subject to making payments (ss 15-17)where this is not for a "community purpose": see Attorney-General (NT) v Ministerfor Aboriginal Affairs (1989) 91 ALR 125. Missions which occupy land with thelicence or permission of the Crown, may by s 18 continue that occupation whenland becomes Aboriginal land, subject to a Land Council tenninating the occupationor use or the Land Trust issuing a lease. There are special provisions relating to theAlligator Rivers Region: ss 12A, 12B, 12C, 18A, 18B, 18C, and to the issue ofleases on Aboriginal land in compliance with Commonwealth obligations: s 20.(1982) 18 NTR 13. 15-16.Eg R v Kearney; ex parte Northern Land Council (1984) 158 CLR 365, 387, 392393; Report on WarumWlgu Land Claim, supra n IS, Chs 43. 47.Eg s 19 and Part IV of the Land Rights Act; cf s 3(4).In Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 it washeld that the limitation on creation of estates and interests under s 67A of the LandRights Act existed in any event prior to enactment of the section. by implication.Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:(I) In the interpretation of a provision of an Act, a constlUction that would promotethe purpose or object underlying the Act (whether that purpose or object is expresslystated in the Act or not) shall be preferred to a constlUction that would not promotethat purpose or object.


particular sections of the Land Rights Act57 or the Act generally58 should bebeneficially construed. For example, s 50 should be "given a broad construction,so as to effectuate the beneficial purpose which it is intended to serve...".S9

Mr Justice Wilson has said of the Land Rights Act that:The close physical and spiritual affinity of many Aboriginal groups to theirtraditional lands is now well documented and the objects of this legislationreflect a growing appreciation within Australia of the justice of the claim ofthese groups to legal rights over so much of their lands as can reasonably bemade available. The qualification with which I have concluded the last sentenceis not intended to diminish regard to the basic justice of the claim but simply torecognize that the objective must be pursuant [sic] having regard to presentrealities and the demands of peace, order and good government for allAustralians in the twenty-first century and the years leading up to it. The courseof history in Australia over the past 200 years cannot be ignored. That historynourishes the moral imperative to acknowledge past injustices in a tangible wayat the same time as it calls for a realistic appreciation of the challenge to createin Australia a sense of true community based on mutual respect for the dignityand well-being of all its citizens.60

D Northern Territory Executive and Legislative Power and AuthorityThe Northern Territory was granted responsible government by the

Commonwealth on 1 July 1978. The new body politic created by the SelfGovernment Act, has by s 6 of that Act, plenary legislative power subject tothat Act.

Section 31 of that Act provides:The duties, powers, functions and authorities of the Administrator, the ExecutiveCouncil and the Ministers of the Territory imposed or conferred by or under thisPart extend to the execution and maintenance of this Act and the laws of theTerritory and to the exercise of the prerogatives of the Crown so far as theyrelate to those duties, powers, functions and authorities.

Section 35 which like s 31 is within Part IV provides that "[t]he regulationsmay specify the matters in respect of which the Ministers of the Territory are tohave executive authority".

Northern Territory Self-Government regulation 4(1) provides for NorthernTerritory Ministers to have authority for "Mining and Minerals, ... Land, publicand private (including internal waters), Land use, planning and development ...".

Regulation 4(2)(b) provides that these matters shall not be construed asextending or relating to "rights in respect of Aboriginal Land" under the LandRight Act, however that exception does not apply, (because of regulation 4(6))to "matters under an enactment ... made for the purposes of, and to the extentprovided by, such another Act that expressly provides for the making of such anenactment".61

Such "another Act" is sub-s 73(1)(a) of the Land Rights Act which declaresthat the power of the Legislative Assembly under the Northern Territory (SelfGovernment) Act in relation to the making of laws extends to the making of:

57 R v Toohey; ex parte Meneling Station (1983) 158 CLR 327, 349.S8 R v Kearney; ex parte Northern Land Council (1983) 158 CLR 365, 376.59 R v Kearney; ex parte Jurlama (1983) 158 CLR 426, 433.60 R v Kearney; ex parte Northern Land Council (1983) 158 CLR 365, 383.61 Northern Territory Self Government Regulations 4(5)(c). See also Regs 4(5)(g) and

(h).

392 FederallAw Review [VOLUME 19

laws providing for the protection of, and the prevention of the desecration of,sacred sites in the Northern Territory, including sacred sites on Aboriginal land,and, in particular, laws regulating or authorizing the entry of persons on thosesites, but so that any such laws shall provide for the right of Aboriginals tohave access to those sites in accordance with Aboriginal tradition and shall takeinto account the wishes of Aboriginals relating to the extent to which thosesites should be protected.

(The Land Rights Act binds the Crown in right of the Commonwealth and theNorthern Territory).62

6 NORTHERN TERRITORY SACRED SITES ACTS AND BILLS

A The 1977 BillThe first attempt by the Northern Territory legislature to enact a Bill in

reliance on sub-s 73(1)(a) of the Land Rights Act was withdrawn after criticismby the Bonner Committee Report.63 The Aboriginal Lands and Sacred Sites Billdid however contain some interesting features:

(a) Clause 19 (which related only to Aboriginal land), allowed "authorisedAboriginals" to erect signs indicating that an area contained a sacred siteand to approach the Administrator in Council to prescribe the area byregulation as an area containing a site, (after survey of the boundaries ofthe site).

(b) Only prescribed areas gained the protection of cl 29(1) which prohibitedentering or remaining upon such an area. In addition, cl 29(2) provided adefence to a prosecution under cl 29(1) if the area of the site was notsignposted or did not have its boundaries marked.

(c) On non-Aboriginal land, cl 23 provided "a person who in accordance withAboriginal tradition, may control the entry of persons upon that area ofland may ask the Administrator in Council to take steps to protect thatsite". The Administrator in Council had then to ascertain the importanceof the site under Aboriginal tradition, the attitude of the owners of theland, whether other persons would be disadvantaged and the appropriateprotection for that site (cl 24).

(d) If after further discussion the Aboriginal applicant wished to proceed, theAdministrator in Council was to adjudicate on the request to gazette the areaas a site. The Administrator could recommend acquiring or reserving thesite or the making of protective by-laws. The Aboriginal custodian wouldthen be required to maintain warning signs.

(e) Clause 29 operated in the same manner for sites upon Aboriginal land.Clause 30 made it an offence to knowingly desecrate a sacred site.

The Bonner Committee received many submissions critical of this Bill. TheCommittee recommended that Northern Territory legislation leave the initiativeof protection of sites with Aboriginals, and that a new statutory authority becreated with responsibility for protection of sites and prosecution for infringingthe statute. Signposting was to be avoided and earthworks or the clearing of theland had to involve prior consultation with the individual custodian and theappropriate Land Council.64

626364

Land Rights Act s 3D; see also s 3A.Report, supra n 33.Id.


B The 1978 ActOf this criticism was born the Aboriginal Sacred Sites Act 1978 (NT). The

Aboriginal Sacred Sites Act 1978 established the Aboriginal Sacred SitesProtection Authority which consisted of a Chairman and eleven other members,at least seven of whom were to be Aboriginals nominated by Land Councils.The functions of the Authority were:

(a) to establish and maintain a register of sacred sites;

(b) to examine and evaluate all claims for sacred sites made to it byAboriginals;

(c) to record sacred sites, with full details of the significance to the traditionalAboriginals, including any story, of each sacred site and any relevantfactors including custodianship of the sacred site....65

This investigation was to be carried out by anthropologists retained by theAuthority.

The Authority was required to record in the register of sacred sites theparticulars of a site if it was satisfied that the site was a sacred site.66 TheAuthority could also, at the request of Aboriginal custodians of the site, apply tohave a site declared (by notice in the Gazette by the Administrator) and in thatevent the Administrator was obliged to cause an investigation, which could bereferred to the Aboriginal Land Commissioner, to ascertain:

(a) the importance of that site to Aboriginal tradition;

(b) the views of the owners of the land and other interested persons;

(c) the disadvantage to any person if the site was protected; and

(d) means of protection for the site.67

In a similar manner to the Aboriginal Lands and Sacred Sites Bill, s 28allowed the Administrator to protect the site by acquiring the land, vesting theland in the Authority, enacting by-laws, or, "where a person has an estate orinterest in the land, recommending, and assisting with the funding of, specialmeasures for the protection of the site".68

In taking any of these steps, s 28A required that the "wishes of Aboriginalsrelating to the extent to which the sacred site should be protected" be taken intoaccount, (a prescription made necessary by s 73(1)(a) of the Land Rights Act).

There were no declarations made under s 27 during the life of the AboriginalSacred Sites Act although a single unheard application (to a site near TennantCreek) was made shortly before the Act was repealed early in 1989.69

An interesting feature of the Act was the introduction of the concept of a"custodian" of a site; defined to mean the traditional Aboriginal owner or "otherAboriginal to whom the protection of a sacred site is entrusted by and inaccordance with Aboriginal tradition".70

65 Aboriginal Sacred Sites Act 1978 (NT) s 13.66 Ibid ss 24, 25.67 Ibid ss 26-27.68 Ibid s 28(1)(e).69 Request to the Administrator of the Northern Territory to declare Marla

MarlalKanttaji (Mount Samuel) as a sacred site (12 October 1988).70 Ibid s 3.


(1) OffencesFour specific offences were created by the Aboriginal Sacred Sites Act 1978:(a) unauthorised entry or remaining on a sacred site;71

(b) knowingly desecrating a site;72

(c) carrying out works on a site unauthorised by the Aboriginal Sacred SitesProtection Authority;73

(d) failing to obey reasonable directions relating to the protection of a sacredsite given by an honorary warden of that site.'4

The right of Aboriginals to have traditional access to sites was preserved.7S

(2) Declaration and RegistrationA practice known as "sites avoidance" developed under the Aboriginal Sacred

Sites Act 1978 whereby those who wished to develop or work on land couldsearch the register maintained by the Aboriginal Sacred Sites Authority in orderto ascertain if the area was a site. Sub-section 31(6) of the Sacred Sites Act(which mirrors sub-s 69(4) of the Land Rights Act), provides a defence to acharge under either of those sections if the accused could establish that "he hadno reasonable grounds for suspecting that the land concerned was a sacred site".

Mr Justice Toohey explained why registering a site might be a logical but nota necessary precursor to declaration in Aboriginal Sacred Sites ProtectionAuthority v Maurice:76

The Act imposes an obligation on the Authority, in the circumstancesmentioned, to register a sacred site. It empowers but does not oblige theAuthority to take steps to have a sacred site so declared by the Administrator.The declaration of a sacred site is necessarily attendant with publicity, for theAdministrator must cause an investigation to be carried out (s 26) and thenotice in the Gazette, declaring an area to be a sacred site, must include a mapindicating an area that contains the sacred site or indicate where such a map maybe inspected (s 27). Where a sacred site is so declared, s 28 provides varioussteps that may be taken for the protection of that site. It appears that during itsexistence the Authority has not sought to have any sacred site so declared, thereason being that the publicity necessarily attendant on such a step has madeAborigines reluctant to initiate requests to the Authority to do so.

Where a sacred site is registered but not declared, no consequences followautomatically. By reason of s 34 of the Act, a certificate under the common sealof the Authority or the hand of its director certifying that an area of land isrecorded in the register as a sacred site 'shall be accepted as proof that it isrecorded as a sacred site by the Authority, by all courts, judges and personsacting judicially without further proof being required'. Presumably the sectionmeans what it says viz that a certificate is proof of recording. It is not proofthat there is a sacred site within the definition of that term in s 3 for, in theabsence of a declaration, it must be shown that a site is 'sacred to Aboriginalsor is otherwise of significance according to Aboriginal tradition'.

717273747S76

Ibid s 31(1).Ibid s 31(3).Ibid s 31(4).Ibid s 31(5).Ibid s 31A.(1986) 65 ALR 247.


What then is the point of recording a site in the Register but taking no step tohave the site declared? In part it is because recording reflects an evaluation bythe Authority, and the material reflected in the evaluation is available asevidence if the Authority wishes to control access to a sacred site or decides toprosecute for an offence. In part it lies in s 31(7) of the Act. Section 31 makesit an offence to enter or remain on a sacred site. Sub-section (6) makes it adefence 'if the person charged proves that he had no reasonable grounds forsuspecting that the land concerned was a sacred site'. By reason of sub-s (7),such a defence cannot be established unless the defendant proves, inter alia,that:

'(b) he had taken all reasonable steps to ascertain the location and extent of thesacred sites on any part of that Aboriginal land likely to be visited byhim.'77

(3) Difficulties in prosecutionA number of difficult practical and legal issues might have arisen in a

prosecution under the Aboriginal Sacred Sites Act 1978 for knowinglydesecrating a registered but undeclared site, particularly one on non-Aboriginalland. As Toohey J said in Maurice78 in the absence of a declaration, the site mustbe proved to be a "sacred site" as defined. Evidentiary problems might then arise.Evidence would need to be given of the fact and content of the Aboriginaltradition relating to the site so the court could assess whether desecration hadoccurred. That might be given by anthropologists or aboriginals themselves.

(a) Evidence ofAnthropologistsIt seems that expert opinion evidence by an anthropologist of a general nature

based on his observations and what he is told by Aboriginal informants isadmissible notwithstanding it is hearsay, but that particular evidence about sitesmay be objectionable.79 Thus such general evidence may corroborate directevidence of the matters referred to in the previous paragraph but could not itselffound a conviction. This may create a real problem as Aboriginal custodians mayhave been prepared to disclose sufficient information (in confidence) to justifyregistration, but may not be prepared to give evidence in a prosecution.

(b) Aboriginal Evidence - is it compellable?Mr Justice Maurice enunciated the rationale for obligating Aboriginals to give

evidence in a prosecution under the Aboriginal Sacred Sites Act 1976 as follows:In broad terms ... the purpose of the register is for the information of thegovernment and its agencies and for the public at large, in so far as theyestablish some legitimate interest in knowing the location and existence ofsites about which they enquire. However, unlike the procedure which must befollowed in order to have a site declared under the Act, the evaluative processeswhich must be undertaken before a site is registered do not entail consultingwith persons who may have an interest in the question of whether an area isrecognised as a sacred site or not : for example, the owner of the land. The ideathat a person who may have a real interest in gaining access to an area of landis obliged to accept the bold assertion that it is a sacred site or face the

77 Ibid 265-266.78 Supra n 76.79 These issues are discussed by Maurice J in his Warumungu Decision, supra n 19, 8

13.


prospect of prosecution is not one with which many people could livecomfortably.

4.... If Aboriginal people choose to use the registration process as a means ofwarning others off entry upon particular areas of land, they ought to bealso prepared to back up their claims with the evidence Mcessary tosupport a prosecution if needs be, otherwise the potenlial to abuse thelegislation and use it for intimidatory purposes are considerable (emphasisadded).80

(c) The Manner ofGiving EvidenceSometimes Aboriginals might choose not to give evidence regarding sacred,

religious or ceremonial matters and a prosecution might well founder as a result.Their willingness to do so could be tempered by a number of factors to whichthe courts may be unfamiliar and unsympathetic.8t Aboriginals may, forexample, not wish to give evidence of this type in the presence of unsuitablepersons, for example uninitiated Aboriginals or women.

There is a powerful presumption that justice should be administered publicly:Attorney-General v Leveller Magazine Ply Ltd.82 This may however be rebuttedif it can be shown that the evidence to be adduced can be effectively broughtbefore the Court in no other fashion, so that to hear it publicly would be a denialof justice: Scott v Scott.83

The power to hear evidence privately is not in doubt. Power to close the courtis expressly provided for by s 107 of the Justices Act (NT). In addition the courtmay prohibit publication of evidence under s 57 of the Evidence Act (NT).

These matters were considered by the Australian Law Reform Commission inits Report on the Recognition of Aboriginal Customary Laws.84 The Reportnotes that in R v Gudabi,8S by consent of the Crown, women were entirelyexcluded from both the court and the jury in a case involving an Aboriginaldefendant - and sensitive evidence. Persuading the court to do this in another casein the face of an objection by the defendant might prove more difficult

Another novel facet of Aboriginal evidence that might arise on a prosecutionis the need to give group evidence. Aboriginal custom may limit the ability ofan Aboriginal to speak alone on a matter, but he or she may have authority tospeak as part of a group. Indeed, group evidence is a frequent occurrence inenquiries under s 50(1)(a) of the Land Rights Act, however the Aboriginal LandCommissioner in conducting an inquiry is more able to set his own evidentiaryrules than a criminal COurt.86

There appears to be no express statutory prohibition against the giving ofjoint evidence, and the Report on the Recognition of Aboriginal Customary Lawnotes that in a criminal case in 1983 at Tennant Creek, counsel for the defence

80

81

8283

84

8586

Ibid 85-86.For a general discussion see G Neate, Aboriginal Land Rights Law in tM NortMrnTerritory (1989) Vol 1, Ch 8.[1979] AC 440.[1913] AC 417, 438 per Lord Haldane LC.Australian Law Reform Commission Report No 31: The Recognition of AboriginalCusto1Mry Laws (1986).Northern Territory Supreme Court, 30 May 1981, unreported decision of Forster cr.See generally G Neate, "Legal Language Across Cultures: Finding the TraditionalAboriginal owners of land" (1981) 12 F L Rev 187.


was able to call four Aboriginal women to give joint evidence on an aspect ofAboriginal customary law.87

Another novel evidentiary problem might be the limited ability of anAustralian Court to assess matters of Aboriginal custom, particularly if evidencewas called on behalf of the defendant in a prosecution with a view to establishingthat a site was not significant or sacred. Unfamiliarity with the complexities andsubtleties of Aboriginal custom may make a court (the offences are summary innature) reluctant to find that a charge has been made out beyond reasonabledoubt

(d) Public Interest Immunityfor Secret/Sacred Aboriginal Beliefs?It seems clear that an Aboriginal witness cannot invoke public interest

immunity as a ground for refusing to give evidence about secret or sacred mattersrelating to sacred sites, although in the Warumungu Land Claim the AboriginalSacred Sites Authority itself was able to rely on that head of privilege to limitthe persons to whom material supplied by Aboriginals to it in confidence couldbe produced and disclosed during an inquiry under s 50(1)(a) of the Land RightsAct. In Aboriginal Sacred Sites Protection Authority v Maurice88 Woodward J,alone of the Full Federal Court, considered that as the categories of publicinterest are not closed, and must alter from time to time, whether by restrictionor extension, as social conditions and social legislation develop: (citing LordHailsham in D v National Society for Prevention ofCruelty to Children),89 then,accordingly, the rights of Aboriginals should be accorded a special degree ofprotection and respect in Australian courts such that a new category of publicinterest immunity should be recognised, covering secret and sacred Aboriginalinformation and beliefs.9o

(e) Hearsay?Aboriginals' evidence about their religious beliefs is not hearsay, but

statements by aboriginal witnesses about what their deceased ancestors said tothem concerning their right to use, or to speak with authority about, a sacred siteis hearsay. In Milirrpum v Nabalco Pty Ltd,91 Blackburn J found that statementsby deceased Aboriginal ancestors of traditional rights to land came within theexception to the hearsay rule which allows into evidence statements by deceasedpersons as to matters of public and general rights as it is reputation evidence.However, the secrecy surrounding sacred sites may mean that evidence cannot becharacterised as concerning "public or general" rights (as a secret right willclearly not be "public", and it may not be "general" if it does not affect a class ofpersons); and so this evidence may be inadmissible on a strict application of thelaw of evidence.92

The annual Reports of the Aboriginal Sacred Sites Protection Authorityindicate that there were never any successful prosecutions under the Aboriginal

87

88

899091

92

ALRC Report, supra n 84, Vol 1t 648.Aboriginal Sacred Sites Authority v Maurice (1986) 65 ALR 247.[1978] AC 171, 225.Supra n 88, 255-256.(1971) 17 FLR 141.Ibid 151-158; see also Cross on Evidence (2nd ed 1979) paras 18.31-18.41.


Sacred Sites Act 1978 nor apparently have there been any successfulprosecutions under s 69 of the Land Rights Act.93

(4) Just Terms?One of the real difficulties which arose under the Aboriginal Sacred Sites Act

1978 was that it was quite possible for an owner of private land to be informedat any time by an Aboriginal custodian or the Aboriginal Sacred Sites ProtectionAuthority that the owner's land included an area which comprised a sacred site. Inthat event, the owner of that property or any person authorised by him could not(because of sub-s 31(1) of the Sacred Sites Act and sub-s 69(1) of the LandRights Act) enter or remain upon that land without the permission of theAboriginal custodian or the Aboriginal Sacred Sites Authority.

Sub-section 50(1) of the Northern Territory (Self-Government) Act 1978provides that the power of the Northern Territory to make laws "does not extendto laws with respect to the acquisition of property otherwise than on just terms".

This of course mirrors section 51(31) of the Constitution and so theconsiderable body of law relating to the Commonwealth provision is directlyapplicable. It stands for a number of propositions: frrst, that the obligation toprovide just terms extends to any acquisition under Commonwealth law ratherthan simply an acquisition by the Commonwealth for its own purposes: TradePractices Commission v Tooth & Co Ltd.94 Secondly, the decision of the HighCourt in Minister ofState for the Army v Dalziel9s has been said to mean that

... s.51 (xxxi) is not to be confined pedantically to the taking of title by theCommonwealth to some specific estate or interest in land recognized at law orin equity ... it extends to innominate and anomalous interests and includes theassumption and indefinite continuance of exclusive possession and control forthe purposes of the Commonwealth of any subject of property.96

In Commonwealth v Tasmania ("the Tasmanian Dams case")97 High Courthad to determine, inter alia, the validity of certain provisions of the WorldHeritage Properties Conservation Act 1983 (Cth) and certain regulations madeunder that Act.

Section 11 of that Act, for example, precluded a wide variety and range ofactivities on certain declared Aboriginal sites without the permission of therelevant Commonwealth Minister.

Section 11 was held to be invalid, however only Mason, Murphy, Brennan andDeane JJ found it necessary to consider whether this was by virtue of section51(31).

Mr Justice Mason considered there was no acquisition of property simplybecause a Commonwealth Minister had acquired a right to veto any developmentor activity and that the owner's previous enjoyment of these rights had beencorrespondingly curtailed. In his view:

... it is not enough that legislation adversely affects or terminates a preexisting right that an owner enjoys in relation to his property; there must be an

93

94959697

Report by Mr Iustice Toohey to the Minister for Aboriginal Affairs on theAboriginal Land Rights (Northern Territory) Act 1976 and Related Matters: Sevenyears On (1984) para 838.(1979) 142 CLR 397 per Barwick CI. Gibbs. Mason and Aickin II.(1943) 68 CLR 261.Bank of NSW v Commonwealth. (1948) 76 CLR 1. 349 per Dixon I.Commonwealth v TastnlJnia (1983) 158 CLR 1.


acquisition whereby the Commonwealth or another acquires an interest inproperty, however slight or insubstantial it may be.98

(See in a similar vein Brennan and Murphy JJ).99Mr Justice Deane said:The mere extinguishment or deprivation of rights in relation to property doesnot involve acquisition.

Difficult questions can arise when one passes from the area of mere prohibitionand regulation into the area where one can identify some benefit flowing to theCommonwealth or elsewhere as a result of the prohibition ... [w]here ... theeffect of prohibition ... is to confer upon the Commonwealth or another anidentifiable and measurable advantage or is akin to applying the property ... fora purpose of the Commonwealth, it is possible that an acquisition for thepurposes of s.51(xxxi) is involved. The benefit of land can, in certaincircumstances, be enjoyed without any active right in relation to the land beingacquired or exercised ... Thus, if the Parliament were to make a law prohibitingany presence upon land within a radius of 1 kilometre of any point on theboundary of a particular defence establishment and thereby obtain the benefit ofa buffer zone, there would, in my view, be an effective confiscation oracquisition of the benefit or use of the land in its unoccupied statenotwithstanding that neither the owner nor the Commonwealth, possessed anyright to go upon or actively use the land affected.100

Thus, in the view of Deane J the Commonwealth had acquired the benefit of theprohibition (of the exercise by the land owner of its rights of use anddevelopment of land), under the World Heritage Properties Conservation Act

The limitations on an owner's use of land under the Aboriginal Sacred SitesAct 1978 were closer to an "acquisition of property" than those arising on thefacts in Tasmanian Dams. It is strongly arguable that the simple prohibition in s31(1) of the Sacred Sites Act of entry or remaining upon land (which extends tothe owner of an estate or interest in the land) constituted an acquisition from thatowner of his proprietary right to have access onto and quiet enjoyment of hisland. Section 31A of the Sacred Sites Act gave certain Aborigines a new andexclusive right of access to that site. It is at least arguable that this new rightwas an acquisition by the Aboriginals of at least some of the rights taken fromthe owner. There is some doubt as to whether what was acquired in this case was"property" because of Blackburn J's comments in Milirrpum that rights oftraditional ownership to land under Aboriginal law were not "property" .101

However even if Blackburn J's observations do not extend to "property" in siteson land, it may be that

(a) the right of access to sites was a new form of property statutorilyrecognised by the Land Rights Act as an enforceable right in land; or

(b) the beneficial nature of sub-s 50(1) of the Northern Territory (SelfGovernment) Act encourages a wide reading of the word "property".

Thus sub-s 31(1) of the Aboriginal Sacred Sites Act, 1978 might have beeninvalidated or read down102 as being contrary to sub-s 50(1) unless a statutory

98 Ibid 145.99 Ibid 181, 247.100 Ibid 283-284.101 Milirrpum "Nabalco Pty Ltd (1971) 17 FLR 141,273-274.102 See s 59 of the Interpretation Act 1978 (NT) which provides :

59. ACT TO BE CONS1RUED SUBJECf TO POWER


right of compensation could have been implied: see for example Clissold vPerry.un

(5) Section 51(31) and Section 69The problems with Territory legislation and "just terms" provisions would not

appear to arise with s 69 of the Land Rights Act, as at the time that section wasenacted (that is pre- Self-Government) it was clear law that the just termsprovision in the Constitution did not apply to Commonwealth laws made unders 122 of the Constitution.l04 Sub-section 50(2) of the Self-Government Actprovides:

Subject to section 70 [which allowed the Commonwealth to re-acquire anyproperty vested in the Territory upon Self-Government, within 12 months of thedate of Self-Government] the acquisition of any property in the Territory which,if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than onjust terms.

This is a voluntary assumption by the Commonwealth of an obligation to payjust terms, but only applies prospectively from the time the Self-GovernmentAct was passed, leaving s 69 of the Land Rights Act unaffected as a section in aprior enactment. Sub-section 50(2) of the Self-Government Act can and has beenoverridden by subsequent Commonwealth statutes.los

(6) Review of the 1978 Act - "Seven Years On"In 1983, Toohey J at the request of the Minister for Aboriginal Affairs,

reviewed the operation of the Land Rights Act and published a report entitled"Seven Years On" in December of that year.1 06 He summarised hisrecommendations on sacred site protection as follows:

(a) the definition of 'sacred site' in the Land Rights Act and Aboriginal SacredSites Act remain unchanged;

(b) the Land Rights Act not legislate for a comprehensive system for therecording and protection of sites unless the Territory legislation isdemonstrably inadequate or is not working effectively;

(c) the Land Rights Act and the Aboriginal Sacred Sites Act should each makeclear that, in the case of the former, it binds the Crown in right of theCommonwealth and Northern Territory, and, in the case of the latter, that itbinds the Crown in right of the Northern Territory;

(d) section 69 of the Land Rights Act be amended to make it an offenceknowingly to desecrate a sacred site;

103104lOS

106

Every Act shall be read and construed subject to the Northern Territory (SelfGovernment) Act 1978 and any other Act of the Commonwealth relating to thepower of the Legislative Assembly to make laws in respect of particular matters, andso as not to exceed the legislative power of the Legislative Assembly, to the intentthat where any Act would, but for this section, have been constroed as being inexcess of that power it shall nevertheless be a valid Act to the extent to which it isnot in excess of that power.(1904) 1 CLR 363.Teori Tau v Commonwealth (1969) 119 crn 564, 570.Aboriginal Land Rights (Northern Territory) Act 1976 s 3A; Petennann AboriginalLand Trust (Boundaries) Act 1985 (Qh) s 5.Report, supra n 93.


(e) the penalty for knowingly desecrating a sacred site be increased, that therebe a higher penalty where the offence is committed by a body corporateand that there be a daily penalty as well;

(f) Northern Territory Planning laws require notice to be given to theAboriginal Sacred Sites Protection Authority and to the relevant LandCouncil where development of land is proposed;

(g) section 23 of the Land Rights Act be amended to give a Land Council anexpress function to assist Aboriginals in protecting sacred sites on an areaof land within the area of the Land Council;

(h) the Land Rights Act and the Sacred Sites Act each expressly recognise theright of a Land Council to prosecute for an offence relating to sacred sitesin its area; and

(i) where registration or declaration of a site diminishes the value of the landthat is privately owned, the owner should be entitled to compensation fromthe Territory Government.! 07

(7) The Martin Committee ReportOn 18 August 1986 a Committee chaired by Mr B F Martin QC, Solicitor

General (NT), (now Martin J of the Northern Territory Supreme Court) ("theMartin Committee) was established to inquire inter alia into:

(a) the philosophy and policy regarding laws designed to appropriately protectareas which are sacred or otherwise of significance to Aboriginals;

(b) the laws and effect of the laws of the Northern Territory of Australiarelating to the protection of, and prevention of desecration of, sites in theNorthern Territory of Australia that are sacred to Aboriginals or otherwiseof significance according to Aboriginals, including sites on AboriginalLand.

The Martin Committee report of June 1987 and "Seven Years On" wereimportant references for preparation of the Aboriginal Areas Protection Bill,which was eventually enacted as the Northern Territory Aboriginal Sacred SitesAct 1989 (N1).

C The 1989 ActOn 12 October 1988, the Aboriginal Areas Protection Bill was introduced into

the Northern Territory Parliament as a measure to entirely replace the AboriginalSacred Sites Act 1978. This Bill with many amendments, was later enacted asthe Northern Territory Aboriginal Sacred Sites Act 1989 ("the NT AboriginalSacred Sites Act, 1989"). There was considerable opposition to the passage ofthe Bill by a number of Aboriginal groupS.lOS

The Northern Territory Aboriginal Sacred Sites Act 1989 makes a number ofimportant changes to the scheme of the Aboriginal Sacred Sites Act 1978:

(a) the Northern Territory Crown is bound by the Act (s 4), including theprovisions ensuring continued secrecy of traditional information;l09

1071~

109

Ibid para 868.See for example Aboriginal Law Bulletin Vol 2, No 39.Northern Territory Aboriginal Sacred Sites Act 1989 (NT), s 4.

402 Federal lAw Review [VOLUME 19

(b) the Aboriginal Sacred Sites Authority is replaced by the Aboriginal AreasProtection Authority ("AAPA"). Half of the Authority's members are tobe women (s 6);110

(c) production of the Register or a certificate issued by the Authority or theChief Executive Officer is prima facie evidence in all courts that an areaof land referred to in the Register or the certificate is a sacred site,III thusovercoming many of the evidentiary problems involved in prosecutions,referred to previously;

(d) sites registered under s 24 of the former Aboriginal Sacred Sites Act 1978are, for three years after the new statute came into force, deemed to be partof the new Register created by the Northern Territory Aboriginal SacredSites Act 1989 pending a determination by the AAPA as to whether thesite should be entered in the new Register;112

(e) the Act creates offences for

- desecration of a site;113

- unauthorised work on or use of a sacred site;114

- unauthorised entry or remaining upon a sacred site.115

In each case, defences mirroring sub-ss 69(3) and (4) of the Land Rights Act areavailable to an accused.

(1) RegistrationSection 27(2) of the Northern Territory Aboriginal Sacred Sites Act 1989,

provides that following an application by an Aboriginal custodian to register asite in the Register kept under the Act, the AAPA is to consult with theapplicant and any custodians to detennine and record

(a) the basis on and extent to which the applicant and other custodians, ifany, are entrusted with responsibility for the site according to Aboriginaltradition;

(b) the name or names and addresses of the custodian or custodians;

(c) the story of the site according to Aboriginal tradition;

(d) the location and extent of the site;

(e) the restrictions, if any, according to Aboriginal tradition, on activitiesthat may be carried out on or in the vicinity of the site;

(t) the physical features that constitute the site;

(g) whether, and if so to what extent, the period of the registration should belimited; and

(h) the restrictions, if any, that should be applied to infonnation aboutmatters referred to in paragraph (c) or (f) divulged by the custodian orcustodians.

110 Ibid s 6.III Ibid s 45.112 Ibid s 51.113 Ibid s 35.114 Ibid s 34.115 Ibid s 33.


Section 28 of this Act requires the AAPA to consult with the owner of landcomprised in a site or on which a site is situated, and to invite the owner tomake written representations, to record the AAPA's findings as to the possibledetrimental effect of the fact that the site is a sacred site may have on the owner'sproprietary interest in the land.

Finally, although s 29 of the Act provides that the AAPA is to examine andevaluate the information provided by custodians and the land owners, togetherwith any other relevant information, if the AAPA is satisfied that the site thesubject of the application is a sacred site it must register the site in the registerkept under the Act

Section 44 provides :-44. PROPRIETARY RIGHTS OF OWNERS OF LAND PRESERVED(1) Subject to subsection (2) and the conditions, if any, of an Authority

Certificate or a Minister's Certificate, the owner of land comprised in asacred site, or a person with the express permission of the owner, mayenter and remain on that land and do anything thereon for the normalenjoyment of the owner's proprietary interest in the land.

(2) Nothing in subsection (1) shall be taken to give a person a greater rightwith the permission of the owner than that possessed by the owner himselfor herself.

Section 3 provides that "owner", "in relation to land, means a person having alegal or equitable proprietary interest in the land, including a mining tenement asdefmed in the Mining Act".

Entry and remaining on the land is clearly within the express exceptions tos 33 of the Northern Territory Aboriginal Sacred Sites Act 1989 Act and s 69 ofthe Land Rights Act (the action being in accordance with "this Act" and a "lawof the Northern Territory" respectively). By implication, it may be that thewords "do anything thereon for the nonnal enjoyment of the owner's proprietaryinterest in the land" in s 44 allow work on the land notwithstanding s 34,provided the work does not amount to desecration under s 35.


This would appear to remove the "just terms" problem created by s 31 of theAboriginal Sacred Sites Act 1978,116 however s 44 may, on non-Aboriginalland, undermine the effectiveness of the right of Aboriginal traditional accesswhich is guaranteed under s 46.

Contentious matters in drafting the Northern Territory Aboriginal Sacred SitesAct 1989 included the issues:

(i) when must Aboriginal custodians be consulted; and(ii) who has the ultimate concrol over Aboriginal sites, and activity on those

sites?In the debates during 1989 in the Northern Territory Legislative Assembly on

the Northern Territory Aboriginal Sacred Sites Bill, the Chief Minister discussedthe major difference between the wishes of the Government and the wishes ofAborigines represented by Land Councils in the Northern Territory to the contentof the legislation. The Land Councils had required that:

the Act must require all persons intending to carry out any "work" on any landto first obtain a sacred site clearance from the Authority. The Authority mustthen consult the traditional owners of that site and must act in accordance withtheir instructions. It will, therefore, no longer be a defence for the person toclaim that they had no reasonable ground for suspecting the area was a sacredsite when they commenced work. In this context "work" must have the widestpossible definition including mining and exploration, road building andpipeline construction activities)17

The Chief Minister in declining to include such provisions responded:-Mr Speaker, can you imagine the bureaucracy that would be required if, everytime anybody wanted to do anything on land in the Northern Territory, whetherit be private land, pastoral land, Aboriginal land or any other land they had toask the permission of the Authority which had to go and consult certainpersons? It is clearly an impossible requirement that has been put forward andthe Government has rejected it)18

The Scheme of the Northern Territory Aboriginal Sacred Sites Act 1989 is toprohibit desecration, and unauthorised entry, occupation or work on any area thatcomprises a "sacred site". Innocent transgressors, such as bushwalkers unawarethat an area was a sacred site, are protected by the defence of ignorance availableunder s 36 of this Act or sub-ss 69(3) and (4) of the Land Rights Act. Leavingaside s 44 of the Northern Territory Aboriginal Sacred Sites Act 1989, a prudentdeveloper, for example would be well advised to seek protection from thepossibility of prosecution by seeking a certificate under the Act permitting thatproposed activity.

(2) CertificatesA person ("the applicant") may apply to the AAPA for an Authority

Certificate authorising him to enter on and use or carry out work on land, on ornear a sacred site. The AAPA then has sixty days119 in which to consult withAboriginal custodians. The applicant may request a meeting with the custodians

116

117118119

Supra text at on 94-10S.Undated document "Central and Northern Land Councils Sacred Sites Position".Northern Territory Parliamentary Record, Sth Assembly, 1st session, part I, 6293.The Territory Minister may extend the period: s 20(2).


and the AAPA (or its representative). That meeting must then generally be heldwithin sixty days of the request120

An Authority Certificate authorising identified work on or use of an area ofland, is to be issued either when the applicant or custodians agree on its terms,or if the AAPA is satisfied that the work or use could proceed "without therebeing a substantive risk of damage to or interference with a sacred site on or inthe vicinity of the land".1 21

The applicant may apply once to vary the Certificate122 but if the Certificate isrefused the applicant cannot re-apply for an Authority Certificate in relation tothe land (except with Ministerial permission)123 but he may seek a review if:-

(a) the AAPA refused to issue a Certificate; or(b) there was unreasonable delay by the AAPA in deciding whether to issue

the Certificate.l24

The Minister must then refer the matter to the AAPA for an internal review andreport, and for its recommendations on the matter. The AAPA is to give noticeto all affected persons (including both applicant and custodians) of its review.125

The Minister after considering the matter and discussing itl26 may either(i) uphold the decision or action of the AAPA; or(ii) issue to the applicant for the review a certificate in relation to the land or

any part of the land comprised in a sacred site or on which a sacred site issituated, setting out conditions, if any, on which work may be carried outon or use made of the land as the Minister thinks fit.127 That Certificateoverrides any inconsistent Authority certificate.128 The Minister mustthen notify persons affected and provide them with his reasons and a copyof the Certificate129 and he must table those documents in Parliament.130

Thus the Northern Territory Aboriginal Sacred Sites Act 1989 envisages thatthe relevant Northern Territory Minister may ultimately permit entry or work onor use of a sacred site which is contrary to the wishes of the Aboriginalcustodians. That decision would, subject to sub-s 73(1)(a) of the Land RightsAct appear to be "in accordance with a law of the Northern Territory" under sub-s69(1) of the Land Rights Act, so the prohibition in that sub-section would notprevent the conduct authorised by the certificate.

It is possible, that in a particular case, an Aboriginal custodian may challengethe legal validity of the Minister's Certificate.

7 THE MINISTER'S CERTIFICATE - IS IT VALID?

Possible grounds for challenging the issue of a Minister's Certificate include:

12D121122123124125126127128129130

Ibid s 21.Ibid sub-s 22(1).Ibid s 23.Ibid s 24.Ibid s 30.Ibid sub-s 30(3).Ibid s 31.Ibid sub-s 32(1)(b).Ibid sub-s 32(2).Ibid sub-s 32(3).Ibid sub-s 32(5).


(a) Section 116 of the Constitution;(b) The Racial Discrimination Act 1975 (Cth);(c) The doctrine of antecedent native title;(d) Sub-section 73(1)(a) of the Land Rights Act.

A Section 116

(1) Prohibiting the Free Exercise ofReligionSection 116 of the Constitution provides, inter alia, that: "the Commonwealth

shall not make any law ... for prohibiting the free exercise of any religion ...".Section 116 appears in Chapter V of the Constitution which is headed "The

States", however, the provision has, almost without judicial dissent, beeninterpreted as limiting Commonwealth but not State power.!' 31Mr Justice Gibbs in Attorney-General (Vic); ex rel Black v Commonwealth (the"DOGS case")132 thought that s 116 might not apply to laws made under theTerritories power in s 122 of the Constitution,133 however, the preponderance ofauthority seems to be that, although in other respects the s 122 power is"plenary in quality and unlimited and unqualified in point of subject matter" ,134 itdoes apply to an exercise of Commonwealth power under s 122; the obiter dictaof the High Court in its joint judgment in Teori Tau v Commonwealth13S thatthe Constitution must be read as a whole and accordingly "s 122 be subject toother appropriate provisions of it as, for example, s 116",136 would seem torequire this result.

It would follow that if the Commonwealth was itself limited in the exercise ofits powers under s 122 of the Constitution by s 116, it could not, in delegatingpower and authority to the Northern Territory under s 122 in the NorthernTerritory (Self Government) Act 1978, grant the Northern Territory powersunfettered by s 116. Accordingly, the powers and authority granted to theNorthern Territory under the Northern Territory (Self Government) Act arerequired to be exercised consistently with s 116 of the Constitution.

(2) Is there a Religion?As a matter of fact a court in a particular case would need to be satisfied that

Aboriginal beliefs about sacred sites constituted a religion or formed part of areligion. A number of tests were propounded by the High Court on the meaningof religion in the Scientology Case.I37 In that case, Murphy J expressly assumedthat Aboriginals have religions.138 Acting Chief Justice Mason and Brennan J

131

132133134135136

137138

The anomalous position of s 116 in Chapter V is explained in J Quick andR Garran, The Annotated Constitution of the Australian Commonwealth (1976) 952953. It does not apply to state laws: Grace Bible Church v Reedman (1984) 54 ALR571; although see the curious comments of Griffith CJ to the contrary in Baxter vCommissioner of Taxation (NSW) (1907) 4 CLR 1087, 1128.(1980) 146 CLR 559.Ibid 593.Teori Tau v Commonwealth, (1969) 119 CLR 564, 570.Id.Id; see also Athlaide Company of Jehovah's Witnesses Inc v Commonwealth (1943)67 CLR 116, 123, 156 and Attorney General (Vic); ex reI Black v Commonwealth,(1980) 146 CLR 559, 621, 649.Church of the New Faith v Commissioner of Payroll Tax (Vic) (1982) 154 CLR 120.Ibid 151.


said that a religion required a "belief in a supernatural Being, Thing or Principle;and the acceptance of canons of conduct in order to give effect to thatbelief ".139 Justices Wilson and Deane said that indicia relevant to determiningwhether a particular religion existed, included whether:

(a) the ideas or practices of a group involved a belief in the supernatural andrelated to man's nature and place in the universe, and to things requiring orencouraging him to observe particular standards or codes of conduct, or toparticipate in specific practices having supernatural significance;

(b) the adherents to the beliefs or practices constituted an identifiable group orgroups;

(c) the adherents themselves saw the collection of ideas or practicesconstituting a religion.140

Aboriginal religion and the variety of Aboriginal ceremonies, practices beliefsand customs relating to sacred sites are beyond the scope of this paper,141however it is certainly arguable that Aboriginal practices and beliefs relating tosacred sites constitute a "religion" within the meaning of s 116 of theConstitution. Indeed, the protection of sacred sites, in part because of their"sacredness" by s 69 of the Land Rights Act and the Northern TerritoryAboriginal Sacred Sites Act 1989 is implicit statutory recognition of this.

(3) "Prohibiting" and the purposive nature ofSection 116As it was put in the Final Report of the Constitutional Commission:142In order to come within ... section 116, the law must be 'for' ... 'prohibiting'.This has raised the problem as to what Barwick CJ has called [in the DOGScase] 'the purposive content' of the provision and whether the purpose may bedetermined from its effect or result. 143

A recent case which discussed this aspect of s 116 of the Constitution was thedecision of the Full Court of the Federal Court in Minister for Immigration andEthnic Affairs v Lebanese Moslem Association.l44 In that case, the relevantMinister had refused to grant permanent resident status and had ordered thedeportation of the Imam of the Lakemba mosque pursuant to the Migration Act1958 (Cth). In upholding the Minister's decision the Full Court found althoughthere would be some resulting disruption to religious worship, the decisionswere not made with the intention of prohibiting the free exercise of religion norwere they designed to prohibit the free exercise of religion - accordingly therewas no infringement of s 116 of the Constitution.

Mr Justice Jackson said that he was not:... prepared to find that the decisions in question were made with the intention,if intention be relevant, of prohibiting the free exercise of religion. Nor, ifdesign be relevant, would I be prepared to find that the decisions made weredesigned to prohibit the free exercise of their religion by the members of therust respondent and others. I have referred to the concepts conveyed by thenotion of 'intended' and 'designed' in the light of the use of those terms byBarwick CJ in Attorney-General (Vic) (ex reI Black) v Commonwealth (33 ALR)

139140141142143144

Ibid 136.Ibid 172-176.Eg W E H Stanner. On Aboriginal Religion (1964) 36.Constitutional Commission, Final Report of the Constitutional Commission (1988).Ibid Vol 1. para 9.805.(1987) 71 ALR 578.


at 330; (146 CLR) at 583, as synonyms for the word 'for' used in s 116. Seealso the observations of Wilson J in the same case at 386/653 where he saidthat the words 'for establishing' in s 116 speak 'of the purpose of the law interms of the end to be achieved'. I would not be prepared to fmd that, applyinghis Honour's dictum to a case of administrative action, the appellant had anypurpose of achieving the end of prohibiting the free exercise of their religionby members of the first respondent and others. On the other hand in the samecase as apparent synonyms for 'for' in s 116 Gibbs J (at 346/604) refers to'purpose or effect', and Mason J (at 355/615) refers to 'purpose or result'.Assuming that the 'purpose' of such a law is to be gathered from its 'effect' orthe 'result' which it achieves, and that if the law has the effect proscribed by s116, it would be impossible to deny that the 'purpose' of it was otherwise (thatis to say that it was not a law 'for prohibiting the free exercise of anyreligion'), it is necessary to see what effect the decisions in question have inthis case.14S

There does seem to be some uncertainty as to the correct test, however, if it isassumed that the evidence in a particular case established that the religiousbeliefs of an Aboriginal custodian required that an area of land comprising asacred site remain unaltered and that he could only effectively practice hisreligion (the site being unique) if he had unimpeded access to the site, then aMinister's certificate issued under the Northern Territory Aboriginal Sacred SitesAct 1989 might result in considerable disruption to and perhaps permanentlyprevent the practice of the Aboriginal custodians religion. If it further assumedthat this is the "effect" referred to by Jackson J,146 then the question ariseswhether the "purpose" of the law is to prohibit the free exercise of religion orwhether its "purpose" is to resolve competing uses for land.

Alternatively, could it really be said that the intent or design of a statute whichgives extensive (although not unqualified) protection to Aboriginal sacred sitescontravenes s 116 of the Constitution?

Whatever the answer to these questions, the likelihood of the issue of aMinister's certificate contravening s 116 is further limited by two matters.

First, the "freedom" guaranteed by s 116 of the Constitution is not absolute. Itdoes not protect "canons of conduct which offend against the ordinary law"147 nor"actions ... prejudicial to the ... community".t48

Secondly, the Minister's certificate cannot authorise desecration as this wouldcontravene sub-s 73(1)(a) of the Land Rights Act which is the qualified source ofpower for the Northern Territory Aboriginal Sacred Sites Act 1989. This mustprevent some conduct which might otherwise offend s 116 of the Constitution,although the extent of overlap cannot be detennined in the abstract.

In Lyng v Northwest Indian Cemetery Protective Association149 a majority ofthe United States Supreme Court held that the United States Government wasnot prevented by the free exercise of religion clause in the First Amendment of

145146147

148

149

Ibid 593.It!Church of the New Faith v Commissioner of Payroll Tax (Vic) (1982) 154 CI.R 120,136.Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR116, 131, sec also 149-150, 154-155, 157, 160-161.99 L Ed 2d 534 (1988).


the United States Constitution,lSO from constructing a road through a NationalForest, even if that action caused serious and irreparable harm to the sanctity ofthe area in the view of certain Indian tribes, who said that they required privacy,silence and an undisturbed natural setting to effectively practice their religion inthe area.

The majority151 found that the First Amendment:(i) was not directed against simply any form of Government action that

frustrates or inhibits religious practices;(ii) did not give the Court jurisdiction to balance competing demands for

public lands and government programs on these lands; and(iii) did not require the Government to put forward compelling justification for

its otherwise lawful actions, particularly if those actions had no tendencyto coerce individuals into acting contrary to their religious beliefs.

Finally the Court held that no Indian rights to the use of the area divested theGovernment of its right to use its own land.

The evidence disclosed that the Government had taken all reasonable measuresto identify areas sensitive to the Indians in question and to minimise the impactthe roadbuilding would have had on those areas. The fact that the Governmentactivities were not on land owned by those who sought to invoke the FirstAmendment appears central to the reasoning of the majority.152

Subject to what follows below, it may well be said that a Northern TerritoryMinister who issues a Minister's certificate, having followed the proceduresunder the Northern Territory Aboriginal Sacred Sites Act 1989, is exercising apower frequently vested in Ministers under the Australian federal system, and in amanner contemplated by the Land Rights Act itself, to resolve matters ofcompeting land use; his decision may only incidentally affect the actions ofothers, including the Aboriginal practice of religion on sites.

B The Racial Discrimination Act. 1975 (eth)Section 10 of the Racial Discrimination Act provides:1 . If by reason of, or of a provision of, a law of ... a Territory, persons of a

particular race, colour or national or ethnic origin do not enjoy a right thatis enjoyed by persons of another race, ... or enjoy a right to a morelimited extent than persons of another race, ... then, notwithstandinganything in that law, persons of the first-mentioned race ... shall, by forceof this section, enjoy that right to the same extent as persons of that otherrace ...

2. A reference in sub-section (1) to a right includes a reference to a right ofthe kind referred to in Article 5 of the Convention.

3 . Where a law contains a provision that-

(a) authorizes property owned by an Aboriginal to be managed by anotherperson without the consent of the Aboriginal . ; or

(b) prevents or restricts an Aboriginal ... from terminating the management byanother person of property owned by the Aboriginal ...;

150

151152

The First Amendment provides inter alia,: "Congress shall make no lawprohibiting the free exercise [of religion]". See generally The Constitution of theUSA - Analysis and Interpretation (1987) 963-967, 989-999.Rehnquist CIt White, Stevens. O'Conner and Scalia II.99 L Ed 2d 534, 542-552.

410 Federal LawReview [VOLUME 19

not being a provision that applies to persons generally without regard to theirrace ... that provision shall be deemed to be a provision in relation to whichsub-section (1) applies and a reference in that sub-section to a right includes areference to a right of a person to manage property owned by the person.

Rights referred to in Article 5 of the International Convention on theElimination of All Forms of Racial Discrimination (which appears in theSchedule to the Act) include

5. the right to own property alone as well as in association with others;

6 . the right to inherit;

7. the right to freedom of thought, conscience and religion ...

(1) Characterising the "right"It might be thought that as the interests of Aboriginals in sacred sites,

(whether they are "property" or a statutory right of access to a site) are not rightsheld by non-Aboriginals, that s 10 of the Racial Discrimination Act could haveno operation. However the decision of the High Court in the case of Mabo vState ofQueenslandls3 would cast doubt upon this approach. In that case Miriampeople living on the Murray Islands, off the East coast of Queensland claimedcertain rights in and to land based on local custom and traditional native title,notwithstanding the annexation of the islands to the Crown in right ofQueensland in 1879.

The Queensland Parliament passed the Queensland Coast Islands DeclaratoryAct 1985 which would have had the effect of extinguishing the rights asserted bythe Miriams even if these were later shown to exist as a matter of fact.

On a demurrer the High Court was prepared to have regard to the practicaloperation and effect of the challenged law and to assume for the purposes of thedemurrer that the rights in land alleged did exist. Justices Brennan, Toohey andGaudron characterised the relevant human right under the Racial DiscriminationAct as the "immunity from arbitrary deprivation of legal rights in or over theMurray Islandstt1S4 and found that

By extinguishing the traditional legal rights characteristically vested in theMiriam people, the 1985 Act abrogated the immunity of the Miriam peoplefrom arbitrary deprivation of their legal rights in and over the Murray Islands.The Act thus impaired their human rights while leaving unimpaired thecorresponding human rights of those whose rights in and over the MurrayIslands did not take their origin from the laws and customs of the Miriampeople. If we accord to the traditional rights of the Miriam people the status ofrecognized legal rights under Queensland law ..., the 1985 Act has the effect ofprecluding the Miriam people from enjoying some, if not all, of their legalrights in and over the Murray Islands while leaving all other persons unaffectedin the enjoyment of their legal rights in and over the Murray Islands.Accordingly the Miriam people enjoy their human right of ownership andinheritance of property to a 'more limited' extent than others who enjoy thesame human rights.l SS

Thus in their view sub-s 10(1) of the Racial Discrimination Act was offendedby the Queensland Coast Islands Declaratory Act and so, by operation of s 109

IS3 (1988) 166 CLR 186.154 Ibid 218.ISS Id


of the Constitution, the inconsistent parts of the Queensland Act had no validoperation on the facts of the case.

The reasoning of Deane J was similar,156 however Wilson J took a differentapproach and concluded that there was nothing to attract sub-s 10(1) of theRacial Discrimination Act. He said ttthere is no suggestion in the statement ofclaim that there are any persons of another race who enjoy the same rights ofwhich the plaintiffs have been deprived by the Queensland Acttt.l57

A crucial question in applying sub-s 10(1) is tthow is the relevant right is tobe characterised?tt On the Wilson J test in Mabo 158 Aboriginal rights of entry toa site or to ensure that no work is done or use made of a site contrary toAboriginal wishes, (whether these be a right to property or of freedom ofreligion), are rights unique to particular Aboriginals and are not rights enjoyed atall by any other person of another race, national or ethnic origin. Sub-section10(1) simply does not arise.

Even adopting the view of Brennan, Toohey and Gaudron JJ in relation to nonAboriginal land, it would be difficult to characterise the right to own property orto freedom of religion of Aboriginals as being more limited than say, nonAboriginals ttby reason of' the Northern Territory Aboriginal Sacred Site Act1989, a law which guarantees novel rights of access to and protection of sites.However, on Aboriginal land the Minister's Certificate might operate tott[authorise] property owned by an Aboriginal ... to be managed by another ...without the consent of the Aboriginal tt within the meaning of s 10(3) to agreater extent than property of a non-Aboriginal because of the NorthernTerritory Aboriginal Sacred Sites Act 1989, and so "by reason of that law",offend s 10 of the Racial Discrimination ACt.159

The argument would be difficult to sustain, and the result difficult to predict;but the Mabo case shows that the judicial characterisation can be crucial.

(2) Invalidating the Territory lawIn Mabo l60 sub-s 10(1) of the Racial Discrimination Act was given efficacy by

s 109 of the Constitution, which applies to States but not Territories. Thettrepugnancytt principle, that a law of an inferior legislature cannot impair theoperation of a law of a superior legislature, would appear to provide the sameresult as s 109; as Brennan J put it in R v Kearney; ex parte Japanangka: 161

It is beyond the capacity of a law of the Northern Territory or of the exercise ofany power which such a law confers to affect the operation of a law of theCommonwealth or to destroy or to detract from a right thereby conferred unlessa law of the Commonwealth so provides, expressly or by implication.l 62

156 Ibid 228-233.157 Ibid 205-206.158 Id159 This is in practice less likely as the activities that may take place on Aboriginal

land without the consent of the traditional Aboriginal owners is strictly limited: seesupra n 9.

100 (1988) 166 CLR 186.161 (1984) 158 CLR 395.162 Ibid 418; adopted by Mason] in University of Wollongong v Mohamed Naguib

Fawzi Ahmed Metwally (1984) 158 CLR 447, 464. For a recent discussion see thejudgment of Lockhart J in Attorney General (NT) v Minister for Aboriginal Affairs(1989) 90 ALR 59,70-71.


C Traditional Possessory Title

(1) Ownership ofland in the Northern Territory.In the Northern Territory the radical or underlying title to all land within the

geographical limits of the Territory, has been vested in a non-Aboriginalsovereign, at least since the Royal Letters Patent of 19 February 1836 whichestablished the province of South Australia and which included the land which isnow the Northern Territory.t63 Until alienated, all land remained vested in theCrown in fee simple.l64 Section 69 of the Northern Territory (Self-Government)Act vested ownership of the underlying title to all land (subject to certainexceptions) within the geographical boundaries of the Northern Territory in thatTerritory on 1 July 1978.

(2) Terra Nullius?To date the Australian legal system has assumed that the Australian continent

was settled over "a territory which by European standards, had no civilisedinhabitants or settled law".l65 Australia is regarded as a "settled nation" and so itis assumed at law that no native rights or systems of native law existed at thedate of settlement by the British Crown. In Coe v Commonwealthl66 a statutorymajority of the High Court (Gibbs and Aickin JJ) regarded the assumption thatAustralia became a British colony by settlement not conquest as"unchallengeable".167 However, Murphy J said

The plaintiff is entitled to endeavour to prove that the concept of terra nulliushad no application to Australia, that the lands were acquired by conquest, and torely upon the legal consequences that follow ... Whether the territory is treatedas having been acquired by conquest or peaceful settlement, the plaintiff isentitled to argue that the sovereignty acquired by the British Crown did notextinguish 'ownership rights' in the aborigines and that they have certainproprietary rights (at least in some lands) and are entitled to declaration andenjoyment of their rights or compensation.168

None of these authorities are binding on the High Court. Coe's case169 was aninterlocutory application, and Milirrpum v Nabalco Pty Ltd,170 while a carefuland scholarly judgment, is a decision of a single Supreme Court judge nowtwenty years old, so the decisions are ripe for reconsideration. Nevertheless theconsequences of recognising such prior rights would be profound. If, forexample, the High Court recognised that proven antecedent native title to an areaof land amounted to "property" at law, then the Commonwealth, the NorthernTerritory and the Australian Capital Territory could not acquire that property,otherwise than on just terms,171 and if the States purported to abolish these

163

164165

166167168169170

171

4 and 5 Will IV, c 95.Williams v Attorney General (NSW) (1913) 16 CLR 404, 428, 439.Cooper v Sluarl (1889) 14 App Cas 286, 291. See also Milirrpum v Nabalco Ply Ltd(1971) 17 FLR 141.(1979) 24 ALR 118.Ibid 128.Ibid 138.Supra n 166.(1971) 17 FLR 141.Constitution s 51(31); Northern Territory (Self-Government) Act 1978 (Cth) s 50;Australian Capital Territory (Self-Government) Act sub-s 23(1)(a).


rights by statute, the case of Mabo v Queensland172 suggests that this wouldcontravene s 10 of the Racial Discrimination Act.

As a practical matter, even if the High Court was prepared to accept thatAustralia became a colony by conquest, Aboriginals would still need to prove inrelation to particular areas of land, the fact and nature of the rights involved.Indeed in Milirrpum v Nabalco Pty Ltd,173 while Blackburn J found that theevidence revealed a system of law174 (although the relationship that the plaintiffsclaimed to have with the land in question was not proprietary),175 he held that theplaintiffs had not established that the rights existing prior to European arrivalwere the same as those alleged to exist in 1971.

So, even if the High Court was prepared to now regard Australia as aconquered nation, an Aboriginal custodian would still face the onerousevidentiary task of proving:

(a) that he had rights, whether proprietary or merely personal or usufructuary t

over a particular site;

(b) that those rights were inherited from and were the same as his forebears atthe time the area was annexed to the Crown; and

(c) that the rights had not been lawfully extinguished prior to theproceedings.

Space does not permit a longer discussion on these complex matters butclearly they present substantial evidentiary and constitutional hurdles for aplaintiff. However, if these matters could be established the grant of a Minister'sCertificate under the Northern Territory Aboriginal Sacred Sites Act 1989 mightperhaps be challenged on either of two grounds:

(a) if the rights proved to be "property" within the meaning of sub-s 50(1) ofthe Self Government Act, the issue of the Certificate may well have hadthe effect of acquiring the custodian's property in the sacred site otherwisethan on the just terms guaranteed by that sub-section;

(b) depending upon the characterisation of the right by any court, the findingof ownership might provide an evidentiary basis for the application ofsub-ss 10(1) or (3) of the Racial Discrimination Act.

D Sub-section 73(1)(a) of the Land Rights ActThis sub-section, set out in full above, is facultative. It both confirms and

circumscribes the legislative power of the Northern Territory. Sub-section73(1)(a) only authorises

laws providing for the protection of, and the prevention of the desecration of,sacred sites ... and, in particular, laws regulating or authorizing the entry ofpersons on those sites....

The Northern Territory Aboriginal Sacred Sites Act 1989 does provide "for theright of Aboriginals to have access to those sites in accordance with Aboriginaltradition"176 although it may be argued that the practical effect of the Minister's

172173

174175176

(1988) 166 CLR 186.(1971) 17 FLR 141.Ibid 268.Ibid 273.Eg s 47 provides:47. ACCESS TO SACRED STIES ACROSS OTHER LAND

414 Federal lAw Review [VOLUME 19

Certificate is to deny this right of access either because access is physicallyprevented for example because of authorised worles t or because the site ismaterially altered by work and an effective right of traditional access is thus lostSub-section 73(1)(a) also requires that the legislation it authorises "shall takeinto account the wishes of Aboriginals relating to the extent to which those sitesshould be protected".

Clearly "taking into account" t a phrase well known in administrative law, isquite different from being bound by those wishes or treating them as conclusive;there is no suggestion that those words alone prevent the Northern Territoryfrom authorising a Minister of the Territory to make a decision authorising work(short of desecration) on a site contrary to the wishes of Aboriginal custodians.Sub-section 73(1)(a) also provides that the Northern Territory law only has effect"to the extent that it is capable of operating concurrently with the laws of theCommonwealth ... ". The question of how the Northern Territory AboriginalSacred Sites Act 1989 operates with the Aboriginal and Torres Strait IslanderHeritage Protection Act (1984) (Cth) (the "ATSIHP Act") is the next topic ofthis paper.

8 THE ABORIGINAL HERITAGE PROTECTION ACT - PARALLELPROTECTION?

The ATSIHP Act was enacted by the Commonwealth Parliament as an interimmeasure in 1984. It has since been made permanent. The Act is made to apply inall parts of Australia primarily by reliance on the "race power" in s 51(26) of theConstitution. Section 4 of the Act provides that

[t]he purposes of this Act are the preservation and protection from injury ordesecration of areas and objects in Australia and in Australian waters, being

(1) Notwithstanding any Act or rule of law to the contrary, a person with theexpress approval of the custodian of a sacred site, the Authority or the Ministermay, for a purpose -

(a) pennitted by Aboriginal tradition;(b) reasonably necessary for or in connection with the performance of afunction or the exercising a power under this Act; or(c) reasonably necessary for or in connection with the preparation of anapplication under this Act or the Aboriginal and Torres Strait Islander HeritageProtection Act 1984 of the Commonwealth or the preparation or hearing of aclaim under the Land Rights Act,

by reasonable means and by the most direct practical route between a place of publicaccess and the sacred site (or between sacred sites), after giving reasonable notice tothe owner of the land he or she proposes to cross, but subject to subsection (2),cross any land to that sacred site or between sacred sites.(2) Where the owner of land given notice under subsection (1) requests that analternative route across the land be taken so as not to obstruct the owner's normalactivities on the land, a person to whom subsection (1) applies shall not cross theland except by that alternative route.(3) Nothing in subsection (1) shall be taken to authorize a person to whom itapplies to camp or otherwise reside on the land which under that subsection he orshe may cross.(4) A person who prevents a person from or obstructs a person exercising a rightunder subsection (1) is guilty of an offence.Penalty: Where the guilty person is a natural person - $5,000 or imprisonment for12 months.


areas and objects that are of particular significance to Aboriginals in accordancewith Aboriginal tradition.!77

The Second Reading Speech stated that the Act aimed to:fill a gap in the law of Australia which can allow sites of significance to bedamaged, destroyed or desecrated ... Time and again the Commonwealth has beenpowerless to take legal action where state or territory laws were inadequate, notenforced, or non existent'!7S

However, it went on to say:... this is not interim land rights legislation, nor is it intended to be analternative to land claim procedures. The Minister will not be makingdeclarations with respect to vast areas of land in de facto recognition of a claimwhich Aboriginals may wish to make later under another law....t79

In practice the Commonwealth sees this as legislation to be used as a lastresort.1so

Section 3(1) of the Act provides that a "significant Aboriginal area" means anarea of land in Australia or in or beneath Australian waters "being an area ofparticular significance to Aboriginals in accordance with Aboriginal tradition"."Aboriginal tradition" follows the definition in the Land Rights Act and

means the body of traditions, observances, customs and beliefs of Aboriginalsgenerally or of a particular community or group of Aboriginals, and includesany such traditions, observances, customs or beliefs relating to particularpersons, areas, objects or relationships.

"Area" is defined to include a site.The scheme of the Act is that the Minister may by declaration restrict the use

of an area of land following the making of an application by or on behalf ofAboriginals to him in order to preserve or protect a significant Aboriginal areaunder threat of injury or desecration. This can be done as an emergency measurefor up to sixty days under s 9, or, in the normal situation, after the Minister hasreceived a report dealing with

(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 prohibitions and restrictions to be made in respect to the area;

(e) the effects the making of a declaration may have on the proprietary orpecuniary interests of persons other than the ... Aboriginals ... [who havemade the application to the Minister];

(f) the duration of any declaration; and

(g) the extent to which the area is or may be protected by or under a law of aState or Territory, and the effectiveness of any remedies available undersuch law.

177 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 s 4. For a fulldiscussion of the pUJPose and manner of enactment of this Act see G Neate: "Power,Policy, Politics and Persuasion - Protecting Aboriginal Heritage under Federal Laws"(1989) 6 EPU 214.

178 Sen Deb 1984, Vol 104, 2587 (6 June 1984).179 Ibid 2587.180 Ibid 2588.


as well as any other prescribed matters.181

By s 13 the Minister may not make a declaration unless he has consulted thelocal State or Territory Minister as to "whether there is, under a law of that Stateor Territory, effective protection of the area, ... from the threat of injury ordesecration [complained of]". Sub-section 7(1) provides that the Act "is notintended to exclude or limit the operation of a law of a State or Territory that iscapable of operating concurrently with this Act".

Declarations made by the Minister shall:(a) describe the area with sufficient particulars to enable the area to be

identified; and

(b) contain provisions for and in relation to the protection and preservation ofthe area from injury or desecration.182

There are substantial penalties provided in Part III for contravention of adeclaration. Where the operation of the Act and in particular a declaration wouldhave operated as an acquisition of property otherwise than on just terms,compensation is payable by the Commonwealth as agreed with the personaffected or as detennined by the Federal COurt.183

In a similar manner to Commonwealth regulations, declarations may bedisallowed by either House of Parliament under ss 48-50 of the ActsInterpretation Act (Cth).184

The best known example of the operation of the ATSIHP Act concerns TheSwan Brewery Site and the "Wagyl'·. The Western Australian Governmentwished to develop a valuable site on the Swan River. Certain Aboriginals allegedthat the land was a nesting site for a water serpent known as the Wagyl. TheAboriginal custodians successfully obtained an emergency declaration under s 9of the ATSIHP Act as it was then thought that the Aboriginal Heritage Act1972 (WA) did not bind the State Crown)85 During the period when the s 9declarations were in force a report under sub-s 10(4) was prepared. The report wasfirmly of the view that the Commonwealth legislation was indeed one of lastresort. It also found that "part of the reserve does comprise a mythological site ofsignificance to a group of Aboriginal people in accordance with Aboriginaltradition ..... however the site was not "of particular significance when comparedwith other sites in the vicinity" - a pre-requisite to the Minister making adeclaration under s 11.186 Accordingly, the report did not recommend that adeclaration be made under the Act, preferring that any action to protect the site betaken under the State legislation. The Federal Minister nevertheless made adeclaration, but after receiving written assurances from the Premier that WestAustralia would

(a) have the site fonnally considered under the West Australian legislation;

(b) act as if it were bound by the West Australian Act; and

(c) amend the Act to bind the Crown;

181182

183184

185

186

Sub-s 10(4).Section 11.Section 28.Section 15.The High Court has since declared that the Crown in right of Western Australia isbound by that Act: Bropho v Western Australia (1990) 93 ALR 207.Section 10(I)(b)(i).


the Minister revoked his declaration.

9 A CURRENT DILEMMA - CORONATION HILL

A current situation which may prove the Northern Territory Aboriginal SacredSites Act 1989 to be rather stronger than originally thought in protecting sacredsites arises through the proposal to mine Coronation Hill in the NorthernTerritory.

The proposed mine is within a conservation zone, inside the boundaries of, butnot yet part of Kakadu National Park. The land and the minerals proposed to bemined are owned by the Commonwealth.187 The land is the subject of atraditional land claim under s 50(1)(a) of the Land Rights Act. This is yet to beheard. The Resource Assessment Commission is conducting an exhaustiveenquiry into the merits of the mine, including "the interests of Aboriginalsaffected by any potential mining development" .1 88 Mr Justice Stewart isconducting a parallel inquiry under s 10(4) of the ATSIHP Act.

It seems quite clear that mining may not take place unless the Commonwealthand its instrumentalities so permit,189 however the area largely comprises asacred site registered under the Northern Territory Aboriginal Sacred Sites Act1989. The submission of the Aboriginal Areas Protection Authority identifiesthe custodians and notes that they are opposed to the mine.19o That being thecase the Authority may not issue an Authority certificate.! 91 If the NorthernTerritory Minister does not issue a Minister's certificate to permit the work, themine could not go ahead, for the authority to mine under s 124 of the LandsAcquisition Act (1989) (Cth) would not appear to permit mining on a sacredsite, as it does not oust s 69 of the Land Rights Act which prohibits entry onsuch a site "except in accordance with a law of the Northern Territory", hence therequirement for an Authority or Minister's certificate.

A new and specific Commonwealth law exempting the project from theoperation of s 69 of the Land Rights Act and the Northern Territory AboriginalSacred Sites Act would appear to be needed to permit mining in the instancespostulated.

10 CONCLUSION

An amicable resolution of conflict between permitted and desirable Aboriginaland non-Aboriginal uses of land comprising a sacred site may well beimpossible. While Aboriginal tradition may be quite firm that non-Aboriginal

187

188

189

190

191

They were acquired upon self-government pursuant to s 70 of the Northern Territory(Self-Government) Act. see Commonwealth Government Gazette No Sl16. 29 June1978.Resources Assessment Commission: Terms of Reference for Kakadu ConservationZone Inquiry (1990). The Draft Report of the Commission was released on 8February 1991. the Final Report is due by 26 April 1991. as is the report under subs 10(4) of the ATSIHP Act.See s 124 of Lands Acquisition Act 1989 (Cth); National Parks and WildlifeConservation Act 1975 (Cth) ss 8A, 8B and generally, the regulations made underthis Act.Aboriginal Areas Protection Authority. Submission to Resources AssessmentCommission: Kakadu Conservation Zone Inquiry (September 1989) 5.It seems clear that s 22(1)(a) of the Northern Territory Aboriginal Sacred Sites Act isinapplicable.


access to, let alone destruction of, a site is contrary to Aboriginal tradition andthat those actions would operate in a way to destroy Aboriginal culture,nevertheless the wish by non-Aboriginals to develop and use land can beexpected to continue. Aboriginal customs, practices and beliefs relating to sacredsites are complex and generally unfamiliar to Australian Parliaments, Courts andexecutive Governments. It would be wrong to suggest otherwise. As Deane J putit in Gerhardy vBrown192

One cannot but be conscious of the diversity of the views that have beenexpressed about the identification, extent and resolution of the problemsinvolved in the mitigation of the effects which almost two centuries of aliensettlement have had on the lives and culture of the Australian Aboriginals. Evenamong men and women of goodwill there is no obvious consensus aboutultimate objectives. At most, there is a degree of consensus about some abstractgeneralized propositions: that, within limits, the Aboriginals are entitled tojustice in respect of their homelands; that, within limits, those Aboriginals whowish to be assimilated within the ordinary community should be assisted intheir pursuit of that wish; that, within limits, those Aboriginals who desireseparately to pursue and develop their traditional culture and lifestyle upon theirancestral homelands should be encouraged, assisted and protected in that pursuitand development. It is in the identification and resolution of the problemsinvolved in determining 'the limits' that consensus breaks down and that thegreatest difficulties lie. The cause of the Aboriginal peoples will not beadvanced if those difficulties are ignored. To the contrary, the difficulties willonly be exacerbated.193

A striking example of the difficulties is given by K Maddock: l94

... the increased respect for Aboriginal sentiments together with the growingability of Aborigines to assert themselves (through their land rights, forexample) is resulting in strenuous efforts to avoid desecrating 'sacred sites' - insome parts of Australia at least. In mineral exploration and extraction theattempt may be made to find out from traditional owners the dimensions of theirsites. How wide is a sacred site? How deep does it go? How close to it may aseismic line be cut? What will happen if the whole site is mined? It is unlikelythat Aboriginal communities had ever before to face questions of this sort. Yet,unless they can be answered, how can it be known whether a place has beendesecrated? In times past a few elders of an Aranda clan may have made andexecuted an on-the-spot decision after finding a woman's tracks too near a ritualstorehouse. This does not seem an adequate approach for a mining company or agovernment department. 195

The measure of Aboriginal autonomy on Aboriginal land in the NorthernTerritory, where the traditional Aboriginal owners can within limits regulateaccess to and work on their land, particularly mining, means that thewhereabouts or other details of sacred sites generally need not be disclosed tothose who are not traditionally entitled to know of those matters and thepotential for dispute is accordingly diminished.

On non-Aboriginal land, increasing competition for legal recognition ofAboriginal, tourist, environmental and mining interests, (to name the mostfrequent protagonists) fosters an imperative need for those who make, administer

192193194

195

(1985) 159 CLR 70.Ibid 151.K Maddock, "Aboriginal Customary Law" in P Hanks, B Keon-Cohen (eds),Aborigines and the Law: Essays in Memory of Elizabeth Eggleston (1984).Ibid 236.


or interpret the laws to fonnulate "the limits" referred to by Deane J, in Gerhardyv Brown;196 the approach of the Courts to this task will be of great interest and achallenge to our jwisprudence in a field where judge made law has stood still.

196 (1985) 159 CLR 70. 151.

protection of aboriginal sacred sites in …prime minister mr r j l hawke. the statement is...

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