Pro­tec­tion wears thin for sa­cred ground

The Weekend Australian - Review - - Books -

The idea that places of cul­tural sig­nif­i­cance to Aus­tralia’s in­dige­nous peo­ple de­serve pro­tec­tion by the state is rel­a­tively re­cent. Leg­is­la­tion to pro­tect Abo­rig­i­nal sa­cred sites was first in­tro­duced un­der West­ern Aus­tralia’s Abo­rig­i­nal Her­itage Act in 1972. There are now more than 20 state and ter­ri­tory acts that provide some form of pro­tec­tion for in­dige­nous her­itage places, yet con­trib­u­tors to this book from the Aus­tralian In­sti­tute of Abo­rig­i­nal and Tor­res Strait Stud­ies high­light many lim­i­ta­tions.

In­dige­nous her­itage leg­is­la­tion is based on the as­sump­tion that the state as­sesses and pre­serves her­itage ‘‘in the in­ter­ests of the wider pub­lic, bal­anc­ing pro­tec­tion against pri­vate prop­erty rights and other pub­lic in­ter­ests’’. In each Aus­tralian ju­ris­dic­tion, the rel­e­vant minis- ter thus retains the le­gal power to per­mit de­struc­tion of Abo­rig­i­nal cul­tural places ‘‘in the pub­lic in­ter­est’’, as con­trib­u­tor Carolyn Tan, a na­tive ti­tle lawyer, puts it.

The ab­sence of an in­dige­nous right of veto over de­vel­op­ment has led to a se­ries of ‘‘her­itage flash­points’’ in which in­dige­nous peo­ple have been pit­ted against pow­er­ful de­vel­op­ment in­ter­ests, of­ten backed up by the same gov­ern­ments that have a leg­isla­tive duty to pro­tect places of sig­nif­i­cance to in­dige­nous peo­ple.

In one mem­o­rable ex­am­ple of po­lit­i­cal machismo, in 1980 the gov­ern­ment of WA’s Charles Court over­rode Abo­rig­i­nal protests and ad­vice from both the WA Museum and the gov­ern­ment’s ex­pert ad­vi­sory body to al­low drilling by US firm Amax at the Pea Hill site on Noonkan­bah Sta­tion in the Kim­ber­ley.

Other no­table her­itage flash­points have oc­curred around sim­i­larly con­tested sites such as South Aus­tralia’s Hindmarsh Is­land, Perth’s Swan Brew­ery and Corona­tion Hill in the North­ern Ter­ri­tory. But it is in WA particularly that in­dige­nous sites have borne the brunt of the min­ing boom in re­cent years.

The Bur­rup Penin­sula (Mu­ru­juga) in the Pil- bara is the world’s largest and old­est out­door rock art gallery, with a con­tin­u­ous record of hu­man ac­tiv­ity over more than 30,000 years recorded in per­haps a mil­lion rock en­grav­ings.

Yet suc­ces­sive WA gov­ern­ments have pro­moted this, per­haps Aus­tralia’s most im­por­tant ar­chae­o­log­i­cal site, as the ideal lo­ca­tion for a ma­jor in­dus­trial node, and in 2007 the Labor gov­ern­ment ap­proved the re­moval of hun­dreds of rock art pan­els to make way for Wood­side’s Pluto liq­ue­fied nat­u­ral gas plant.

Wood­side com­plied with all rel­e­vant state and fed­eral leg­is­la­tion, an in­di­ca­tor per­haps of the in­ad­e­quate pro­tec­tion avail­able even for sites of Bur­rup’s global cul­tural sig­nif­i­cance.

Bur­rup Abo­rig­i­nal cus­to­dian Wil­fred Hicks made an emer­gency ap­pli­ca­tion un­der the fed­eral Abo­rig­i­nal and Tor­res Strait Is­lan­der Her­itage Pro­tec­tion Act, in­tro­duced in 1984 as a ‘‘last re­sort’’ to pro­tect in­dige­nous her­itage where state leg­is­la­tion had failed. But it was to no avail: un­der this in­ef­fec­tive com­mon­wealth leg­is­la­tion, 130 out of 155 such ap­pli­ca­tions be­tween 2007 and 2013 were un­suc­cess­ful. The re­main­ing 25 re­main to be de­ter­mined.

Wood­side later faced stiff op­po­si­tion to an- other LNG project from Abo­rig­i­nal cus­to­di­ans of her­itage sites at James Price Point in the Kim­ber­ley, be­fore opt­ing for a less con­tentious off­shore float­ing LNG fa­cil­ity. In an­other re­cent in­stance, miner FMG has also faced tren­chant op­po­si­tion by the Yind­jibarndi Abo­rig­i­nal Cor­po­ra­tion over land ac­cess and her­itage is­sues at its Solomon Hub project in the Pil­bara.

In an ef­fort to speed up ap­provals for in­dus­try, WA’s De­part­ment of In­dige­nous Af­fairs in­tro­duced a new and nar­rower def­i­ni­tion of ‘‘sa­cred site’’ in 2012. But in a suc­cess­ful le­gal chal­lenge by Abo­rig­i­nal cus­to­di­ans of a dereg­is­tered site in Port Hed­land har­bour, this def­i­ni­tion was ruled in­valid by the WA Supreme Court in 2015. The Bar­nett gov­ern­ment has since failed to pass con­tro­ver­sial amend­ments to the state’s Abo­rig­i­nal Her­itage Act widely seen as weak­en­ing her­itage pro­tec­tion.

In­dige­nous cus­to­di­ans have a right of veto over de­vel­op­ments threat­en­ing cul­tural sites only on Abo­rig­i­nal free­hold land un­der the Abo­rig­i­nal Land Rights (North­ern Ter­ri­tory) Act 1976, which cov­ers about 50 per cent of the Ter­ri­tory. Sa­cred sites in the re­main­ing half are pro­tected un­der the NT Abo­rig­i­nal Sa­cred Sites

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