Protection wears thin for sacred ground
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