Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 211-223
It's like setting fire to white fellas' libraries. Or your museums and churches. There will be nothing left to show our children.
Aboriginal leader Galarrwuy Yunupingu
on the Northern Territory Government's
Aboriginal Sacred Sites Protection Act 1989
In 1788, at the beginning of European settlement in Australia, the Aboriginal population was an estimated 325,000. By the early 1930s there were only 70,000 (Australia 1984, p. 2). This trend has been reversed, but black Australians continue to experience extreme deprivation.
In the Northern Territory of Australia, Aborigines were the subject of government-condoned punitive killings as late as the 1920s (Cribbin 1984). Whilst such incidents are now part of Australia's grim history, the living conditions of contemporary Territory Aborigines are no better than those of their counterparts elsewhere in Australia. The Aboriginal infant mortality rate is three times higher than the Territory average. The life expectancy of Territory Aborigines is twenty years less than that of white Australians (Australia 1984, pp. 10-11). The threat to Aboriginal culture is further reflected in widespread diabetes, obesity, alcoholism, petrol sniffing and venereal disease. Aborigines, who constitute a quarter of the Territory's population, comprise 64 per cent of its prisoners.
With the increased mineral exploration and economic development of the Territory in the 1970s, there arose concern that the disintegration of Aboriginal society would accelerate. In the aftermath of the Gove case of 1971, which established that Aborigines had no recognisable title to land by reason of traditional tenure, the Whitlam government sought to confer land rights on Territory Aborigines. Following the dismissal of the Whitlam government in 1975, the new coalition government enacted the Aboriginal Land Rights (Northern Territory) Act 1976. Complementary legislation, the Aboriginal Sacred Sites Ordinance 1978 provided for the preservation of places which held spiritual significance to Aboriginal people (Gumbert 1984; Bell 1983).
In the thousands of years before European settlement, Aboriginal cultures developed a rich spiritual foundation. The formation of the earth and the creation of life have explanations in Aboriginal legend, as they have in Western religious mythology. Various features of the natural environment have religious significance to Aboriginal people, and serve as the basis for rituals, songs and ceremonies. More than the functional equivalent of a place of worship for Europeans, certain sites are regarded as places where important religious events had actually taken place. Many Aboriginals believe that desecration of some sites would bring severe consequences, including sickness or even death. Desecration is perceived as a threat to social order and an adverse reflection on the custodians of the site (Bell 1983, p. 282).
The unwillingness or inability of many white Australians to appreciate Aboriginal culture, combined with the economic imperatives of Western culture, rendered Aboriginal sacred places particularly vulnerable to desecration, whether through nonchalance or intent.
It was to reduce the threat to places of traditional significance to Aboriginal Australians that the Aboriginal Sacred Sites Ordinance was enacted by the Northern Territory government. Responsibility for funding the Aboriginal Sacred Sites Authority (which the legislation created) was undertaken by the federal government until 1 July 1981 when financial responsibility for the Authority was transferred to the Territory government.
The responsibility of the Sacred Sites Authority is to examine and to evaluate all claims by Aboriginal people regarding the significance of sites in question, and to establish and maintain a register of sacred sites in the Northern Territory including details of their spiritual significance. The Authority also assists custodians of registered sites in consulting with developers, mining companies, and other governmental authorities regarding matters of access. Given the mood and temper of many white Territorians, conflict with the Authority was perhaps inevitable.
The city of Alice Springs, close to the geographic centre of Australia, is one of the more rapidly developing parts of the Territory. Established in the 19th century as the site of a remote telegraph station, it now boasts of a casino, and it has become an increasingly popular tourist attraction for Australians and foreigners alike. The secret United States intelligence facility at Pine Gap is located only 22 km away.
By the early 1980s Alice Springs was prospering, but the town and its environs had a rich cultural heritage, a fact which began to cause some anxiety on the part of the Territory government. In 1981, the Minister for Lands was quoted as saying:
The town of Alice Springs had been 'ring barked' with land claims and claims of sacred sites ... We can't build the planned light industrial sub-division on the east side because of some supposed more sacred sites ... The town is sick of the strategy by the Aboriginal organizations - and so am I ... The Government will not buckle (quoted in Bell 1983, p. 288).
A new residential subdivision had been approved for development next to the golf course, across the Todd River from the centre of town. Following consultation with local Aboriginal representatives, the company which designed the new development had revised its plans in several locations to avoid disturbing sites in the area which local Aboriginal people regarded as sacred. Likewise, in a conscious act of cooperation and conciliation, Aboriginal custodians had accepted compromises in the delineation of those traditional sites. Similarly satisfactory agreements were reached with the Northern Territory government over the siting of sewerage facilities and a gas pipeline. Nevertheless, one sacred site, the soakage Ilpeye Ilpeye, was bulldozed in March 1981 (Bell 1983, p. 290).
The road between the new development and the East bank of the Todd River, known as Barrett Drive, was earmarked for upgrading by the Territory Department of Transport and Works. Between the road and the river bank was a rocky formation known as Injalkajanama (Ntyalkaltyaname). This, together with a stand of eucalypts across the road were part of the Caterpillar Dreaming Track, and constituted a site of some significance to local Aboriginal people. The trees in question were some of the largest trees in Alice Springs.
A consultant to the Aboriginal Sacred Sites Authority informed the Department of Transport and Works, which was to oversee the development, that discussions with the traditional owners had yet to be held. The Department replied that the design for the work was already 90 per cent completed. Tenders were called in May 1982, and it appeared that the government sought to expedite the project.
Concerned that the urban development of Alice Springs might jeopardise the Injalka sites, the local custodians sought to register them with the Sacred Sites Authority. The rocky outcrop was first registered on 13 May 1982, the stand of trees some two months later on 28 July. Signs were posted indicating the significance of the sites and stating that unauthorised entry on the sites was a violation of Territory law.
As the time approached for works to commence on the upgrading of Barrett Drive, the government began negotiations with the Rice, Stevens and Golders families, the traditional custodians of the Injalka sites. Original plans called for the, road to run straight through the outcrop. Several alternative options were under consideration, including minor diversion of the road or the construction of a bridge over the outcrop. In proposing the slight curve in the road, the custodians indicated that they were prepared to sacrifice some of the trees which comprised the site. The Department of Lands regarded any deviation of the road as unacceptable.
Negotiations proceeded slowly, and the government grew increasingly impatient about the delay in development. Nevertheless, the Roads Division of the Territory Department of Transport and Works reassured the Aboriginal Sacred Sites Authority that
This department will not proceed with the reconstruction until the Department of Lands has resolved the sacred sites issue (correspondence, Department of Transport and Works to Aboriginal Sacred Sites Authority, 9 September 1982).
Earlier, the Department had advised the Sacred Sites Authority that until there was a clearance from traditional owners, the Department would not let contracts for the project. In September, the Chief Minister advised a local member of the Territory parliament that there were outstanding clearances relating to sacred sites that had to be made before contracts were proceeded with. The reassurances proved to be unwarranted. In early December 1982 the Injalka outcrop was blasted by a company in receivership and levelled by bulldozers of Dussin Constructions Pty. Ltd. of Alice Springs, under contract to the Territory government. Days later, the stand of eucalypts was also destroyed.
According to a senior official of the Department of Transport and Works, the destruction of the Injalka site was authorised by the Territory's Minister for Lands, Marshall Perron. Claiming an obligation to complete the road improvements as a matter of urgency, the Minister was quoted as saying:
I was fully aware that negotiations with an Aboriginal group which claims that there is a sacred site in the area had broken down completely as far as alternative courses of action were concerned, and the Government had no option at all but to fulfil its obligation and build the road as originally planned (quoted in The Centralian Advocate 4 February 1983, p. 3).
Whether the negotiations had broken down completely, as the Minister had been led to believe, is open to question. The Sacred Sites Authority understood the issue to be still amenable to a compromise agreement.
A wider motive was suggested for the government's course of action, however. A senior official of the Department of Transport and Works alleged that the government had ordered the sites destroyed in order to challenge the validity of the sacred sites legislation (Ellis 1983).
Whatever factors underlay the destruction of the Injalka site, one imagines that it did little to reinforce the legitimacy of white man's law in the eyes of black Territorians. In the words of one non-Aboriginal member of the Sacred Sites Authority, his Aboriginal colleagues
have conveyed to me their disappointment that a contractor employed by a government department should have desecrated a registered site without warning or ultimatum and at a time when negotiations were ongoing. These men, and those they represent, had been led to believe that they could rely on the Government's law for the protection of their sacred places. Their acceptance of the law was an act of faith in the Government, since most could not read the details of the Act and understand it. The importance of these places is demonstrated by the severity of the Aboriginal law which would exact the extreme penalty for such desecration.
The result of this action, which has implicated the Government in breaking its own law, has been to leave this group confused, and concerned to question whether those responsible believe in the rule of law. As a non-Aborigine who can read the Act, I am personally appalled (Ford, K. 1983, pers. comm. to R. W. Ellis, 10 June).
The economic viability of the Northern Territory has always been fragile. For years, it was dependent upon the massive infusion of subsidies from the federal government, and upon the spending power of Commonwealth public servants. Nevertheless, Territorians (the vast majority of whom have recently arrived in the Territory from southern states) have tended to regard themselves as rugged frontiersmen, and have deeply resented their dependence on the distant Federal capital. With the advent of Territory self government in 1978, those in power realised that true independence from Canberra could only be achieved through economic development. The discovery of rich mineral resources inspired a tempting vision of the economic promised land; anything which might conceivably impede the exploitation of these riches was anathema.
Resentment of Canberra's concern with the environmental impact of mining was one matter. Through its power to grant or refuse export licences and its power to regulate activities in world heritage areas such as Kakadu National Park, the federal government still exercises considerable power over the mining industry in the Territory. In addition, the virulent racism which characterised 19th and early 20th century Australia is by no means a thing of the past. Many Territorians hold Aborigines in contempt and are deeply resentful of Canberra's concern for Aboriginal Australians.
From the perspective of the Territory government, therefore, not only does the existence of federally inspired land rights and sacred sites protection legislation constitute an unwarranted federal intrusion on Territory autonomy, it also impedes the Territory's economic development.
In addition to the inevitable tensions of federalism, certain aspects of the legislation governing sacred sites protection were regarded as imperfect, and may thereby have invited the government's defiance. Under the Act, the Sacred Sites Protection Authority may, in addition to registering a sacred site, recommend a site to the Administrator of the Territory, the Queen's representative and equivalent of a state governor, for declaration as a sacred site. Both the Northern Territory Aboriginal Lands Commissioner, Mr Justice Maurice, and the full bench of the Federal Court of Australia have held that the law extends as much protection to a registered site as it does to one which has been declared. In the event of desecration, declaration does assist in prosecution by providing prima facie evidence that the area is a sacred site. But a Cabinet so possessed with the imperative of economic development would be disinclined to recommend formal declaration to the Administrator.
Governments should be aware that many details of spiritually significant places in the Northern Territory have long been identified to white Australians (Spencer & Gillen 1899; 1904). Nevertheless, traditional custodians of sacred sites in Central Australia are normally reluctant to disclose the existence of a site and to publicise its spiritual significance. Such disclosure tends to occur only when a direct threat to a site is perceived; details tend to be limited to only as much information as thought necessary to impress the outside with the significance of the site. Governments and developers therefore often gain the cynical impression that only when a site acquires economic significance to white Australians does it take on spiritual significance to Aboriginal people.
The procedures involved in declaring a sacred site, moreover, require the disclosure of details of the site's spiritual significance, details which may be of utmost secrecy under customary law. Despite the willingness of custodians in some areas to present documentation to the government if they could be assured personally by the Chief Minister that improper release of secret/sacred information would not occur, such undertakings have never been given. In view of the lack of respect with which Aboriginals and their culture are regarded by many Territorians, the threat of sacred secrets coming into ridicule are sufficient to discourage most from proceeding with the formalities of declaration. On the other hand, as happened in the Injalka case, this lack of formal declaration may be seized upon by antagonistic Territorians as detracting from the legitimacy of a claim despite its earlier acknowledgment in preliminary negotiations.
Following the destruction of the Injalka sites, the Aboriginal custodians protested to the Sacred Sites Authority. At a meeting with the Authority on 22 April 1983, the thirty-six Aboriginal custodians of the Injalka site unanimously recommended that those who desecrated the site be prosecuted. At the request of the custodians, the Authority formally instructed the Director of the Authority to lay a complaint under the Northern Territory Sacred Sites Act.
On 31 May 1983 a summons was issued in Darwin alleging that Dussin Constructions committed three offences under the Act including entering and remaining on a site (31(1)), carrying out works on a site without written permission (31(4)), and knowingly desecrating a site (31(3)). An additional summons was issued against Marshall Perron, the Minister responsible, alleging that he aided and abetted the construction company in the commission of the alleged offences. Each charge carried a maximum penalty of a $2,000 fine, or imprisonment for twelve months, or both.
The problems faced by the Authority in assembling evidence were substantial. On several previous occasions it had sought the assistance of the Northern Territory Police in obtaining evidence through enquiries and interviews. In one case, it provided police with copies of materials assembled, together with an exposed film regarded as illustrative of the matters in question. The evidence was lost by police, who later advised that they did not consider the matter worthy of followup.
Among the evidentiary burdens confronting the Authority in its prosecution was proof that the area in question was indeed a sacred site, since it had not been formally declared as such. This would involve having to obtain detailed statements from local Aboriginal custodians, supported by anthropological evidence. This was difficult, not because such information was not available but because the site in question had different levels of significance, some of which could only be discussed in particular situations and with particular people present. Full disclosure of the significance of the site could not occur in open court.
In addition, successful prosecution of the company would require either eye-witness testimony, or admissions made by the company and its employees that they engaged in the acts alleged. It was also incumbent upon the prosecution to rebut the defence that the contractor was unaware of the significance of the site. (A sign identifying the site had been removed by government employees days before the contractor was to begin work). Successful prosecution of the Minister would require evidence that he personally aided and abetted the offences in question by directly communicating instructions to the contractors or explicitly to the contractors through members of his Department.
The Minister in question did not deny his role in the destruction without warning of the Injalka site. In a statement on 8 November 1984, he stated:
I considered it the responsibility of the Government to proceed with the works.
I appreciate that my decision may have caused anguish to some, which of course is regrettable.
However, I am of the view that there was no practicable alternate route for the road and therefore that my decision was the proper one in the circumstances (Perron 1984).
He gave an undertaking that in future, if he decided that works were to be carried out which could cause damage to a registered sacred site, he would give the Sacred Sites Authority reasonable prior notice of the activity.
On 14 November 1984 the Authority sought leave in the Alice Springs Magistrates Court to withdraw all charges against both Perron and Dussin Constructions. The Authority's legal advisers had discovered a technicality which meant that the government was not bound by the Sacred Sites legislation. Thus, it was unlikely that Dussin, as agent for the Department of Transport and Works, and Perron, as responsible minister, could be found guilty of the offences charged. For similar reasons, the Authority announced that it would not proceed against the Department for damage done to sacred sites at Billy Goat Hill and Dunlop Corner during construction on the Stuart Highway.
The Authority's decision was as much political as it was based on legal grounds. Under the Everingham government, antipathy to Aboriginal interests was so great that all available legal avenues were used to thwart Aboriginal land claims including, in one case, expanding Darwin town boundaries to four times the size of Greater London in order to pre-empt the Kenbi Land Claim (Mowbray 1986, p. 41). With the departure of former Chief Minister Paul Everingham for federal politics, hopes arose that more co-operative relations could be established with the new Chief Minister Ian Tuxworth and the new Minister for Lands and Sacred Sites (Mr S. Hatton). Indeed, partly as a consequence, custodians were granted a residential lease for a town camp as a sign of government goodwill. Successful sacred sites clearance of the Northern Territory gas pipeline in 1985 was another encouraging development.
But optimism in the new Chief Minister proved to have been misplaced. The new Chief Minister announced the government's intention to establish a toxic waste dump at a location subject to a land claim by local Aboriginals (The Centralian Advocate 1 March 1985). At the end of 1985, he refused to attend a ceremony at Uluru (Ayers Rock) at which title to the Rock was returned to its Aboriginal custodians. He likewise instructed civil servants, including staff of the Authority, that they too should boycott the ceremony. Tuxworth, who was soon forced to leave office following disclosures of irregularities relating to his travel allowance, was succeeded as Chief Minister by Steve Hatton, who proved to be no more sympathetic to Territory Aboriginals, but somewhat more pragmatic in his dealings with them.
Under Ian Tuxworth the government had amended the Sacred Sites Act to enable the Minister for Lands to dismiss the Director of the Sacred Sites Authority. In November 1985, after criticising a decision of the Land Commissioner, Mr Justice Maurice, the Director, Bob Ellis, was given a week's notice by Mr Hatton to show cause why he should not be sacked. Ellis sought and obtained an injunction in the Northern Territory Supreme Court to prevent his dismissal. The Chief Justice of the Northern Territory subsequently ruled that the Amendment to the Sacred Sites Act could not be retrospective - that is Ellis' employment could only be terminated under the conditions of his original contract, which specified that he could only be dismissed by the Authority, not the minister.
The Territory government would not relent. Officials of BHP and members of the Jarwon community had, with Authority assistance, begun negotiations over access to potentially rich gold and platinum deposits at Coronation Hill in the Alligator Rivers region. When negotiations became protracted and the Murdoch press in Darwin began an anti-land rights campaign based upon no negotiations, the government grew impatient and announced a review of the Sacred Sites Authority and its operations. Those appointed to conduct the review included the Territory Solicitor General (who had earlier been involved in the suspension of the Authority Director), the Secretary of the Lands Department, and a senior official from the Chief Minister's Department (himself a ministerial appointee to the Sacred Sites Authority).
With the Hawke government's repudiation of ALP policy on Aboriginal land rights, the issue had become distinctly unfashionable in Canberra. The future of Sacred Sites protection in the Northern Territory did not appear favourable. Toward the end of 1986 the Opposition in the Territory Legislative Assembly introduced an amendment to the Sacred Sites Authority Act which would bind the crown. The Bill was defeated on party lines. Marshall Perron referred to many sacred sites as imaginary.
In the Territory, hostility toward Aboriginals remained intense. The Hatton government was returned by a comfortable majority in the March 1987 elections. Media (particularly newspaper) coverage of land rights and sacred sites was cynical and patronising. With 60 per cent of Australia's newspapers under the control of Rupert Murdoch, there seemed little likelihood that portrayals of Aborigines and their threatened culture would be any more sensitive than that depicted on the front page of Murdoch's Australian flagship, The Australian in April 1985. A cartoon showed an accumulating pile of empty beer cans next to a sign which read 'No Entry to Whites: Aboriginal Sacred Site Being Erected on This Spot' (The Australian 6 April 1985, p. 1).
Ironically, at about this time, Dussin Constructions employees were damaging a further site in central Australia. But prosecutions were again unsuccessful. Charges against a bulldozer driver were dismissed on the grounds that doubt existed whether the accused had been instructed by his employer to avoid the site. A subsequent prosecution against the company failed when the magistrate found that the company had adequately instructed the bulldozer driver. Aboriginal people could perhaps be forgiven for being confused about the operation of Northern Territory law.
As Australia approached the 200th Anniversary of its settlement by Europeans, there was understandably little inclination by its Aboriginal citizens to join in the celebrations.
In May 1989 the government led by Chief Minister Marshall Perron passed legislation which abolished the position of Director of the Sacred Sites Authority, and provided for ministerial responsibility for sacred sites registration.
- Australia 1984, Department of Aboriginal Affairs, Aboriginal Social Indicators, Australian Government Publishing Service, Canberra.
- The Australian 6 April 1985.
- Bell, Diane 1983, 'Sacred Sites: The Politics of Protection', in Aborigines, Land and Land Rights, eds. Nicholas Peterson & Marcia L-angton, Australian Institute of Aboriginal Studies, Canberra, pp. 278-93.
- The Centralian Advocate 4 February 1983, p. 3.
- ibid. 1 March 1985.
- Cribbin, John 1984, The Killing Times, Fontana Collins, Sydney.
- Ellis, J. 1983, 'Sites Go For Roads', Northern Territory News 31 January, p. 1.
- Gumbert, M. 1984, Neither Justice nor Reason : A Legal and Anthropological Analysis of Aboriginal Land Rights, University of Queensland Press, St. Lucia.
- Mowbray, Martin 1986, Black and White Councils: Aborigines and Local Govemment in the NT, School of Social Work, University of NSW, Kensington.
- Perron, Marshall 1984, Ministerial Statement, 8 November.
- Spencer, B. & Gillen, F. 1899, The Native Tribes of Central Australia, Macmillan, London.
- ------------ 1904, The Northern Tribes of Central Australia, Macmillan, London.