Aboriginal sites

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

Aboriginal Heritage Act 1972 (WA)

The provisions of the Aboriginal Heritage Act 1972 (WA) (“the AHA”) are dealt with below. They are particularly relevant to controlling mining upon sites of importance to Aboriginal people. The AHA applies to:

The duty of the State Minister for Aboriginal Affairs under the AHA is to ensure that Aboriginal sites and cultural material are recorded and their relative importance evaluated so that resources available for their preservation and protection may be coordinated and made effective (AHA Section10). He or she is obliged to have regard to the recommendations of the Aboriginal Cultural Materials Committee (“ACMC”) and the Registrar of Aboriginal Sites but is not bound to give effect to them (AHA Section 11A). The ACMC is made up of persons appointed because of special knowledge, experience or responsibility related to the cultural significance of matters coming before them, together with a person appointed by the Director of the WA Museum, a person responsible to the Minister, and an authorised land officer under the LAA (AHA Sections 28; 29).

The Registrar of Aboriginal Sites is the principal executive officer of the ACMC (AHA Section 37). The Registrar’s function is to maintain, in the manner and form determined by the Minister, a register of all protected areas, all Aboriginal cultural material, and all other places and objects to which the AHA applies, whether within the State or elsewhere (AHA Section 38).

The AHA does not restrict access to places or objects by persons of Aboriginal descent who have a customary interest in a place or an object of traditional or current importance: AHA Section 8.

Any person knowing of the existence of any place or thing to which the AHA applies is obliged to report its existence. The right to excavate or remove anything from an Aboriginal site is reserved to the ACMC and it is an offence to excavate, destroy, damage, conceal or in any way alter an Aboriginal site or any object under an Aboriginal site, except with the authorisation of the Minister.

Under Section 17 of the AHA it is an offence to:

Section 18 of the AHA allows the owner of any land (which includes a Crown lessee and the holder of a mining tenement or petroleum licence) to give notice that it requires the land for a purpose which would be likely to cause a breach of Section 17. The ACMC must form an opinion as to whether there is an Aboriginal site on the land, evaluate its significance and importance and make a recommendation to the Minister as to whether consent should be given to the proposed use of the land. The Minister must either consent to the use, subject to any specified conditions, or decline to consent.

An aggrieved owner has a right to apply for a review of a decision under Section 18 of the AHA by the State Administrative Tribunal. The Aboriginal custodians of the site concerned have no similar right.

A person breaching the provisions of the AHA is liable to summary conviction (AHA Section 57):

• For individuals - penalty for the first offence of $20,000 or imprisonment for 9 months, or both. For subsequent offences the penalty increases to $40,000 or years imprisonment, or both. For continuing offences the penalty is $400 per day.
• For corporations - penalty for the first offence of $50,000 and for subsequent offences the penalty increases to $100,000. For continuing offences the penalty is $1000 per day.

Further conviction may result in the forfeiture of a right, title or interest in the land if the offence was committed knowingly for the purposes of gain and with the intent to defeat the purposes of the AHA.

The ACMC may recommend to the Minister that an Aboriginal site of outstanding importance be declared by the Government to be a protected area. The Minister must then give written notice of the recommendation to any interested person (AHA Section 19(1)). If that person is aggrieved by the declaration of an Aboriginal site as a protected area he or she may object in writing to the Minister (AHA Section 21). The Minister may direct the ACMC to take the objector’s interest into account (AHA Section 21). The Minister may take into account the report of the ACMC on the objection and other information and, if it appears that it is in the general interests of the community, may recommend to the Governor that the declaration of the protected area be varied or revoked (AHA Section 21). A site may be declared a protected area whether or not it is on land which is in private ownership or possession or reserved for any public purpose (AHA Section 19(6)). The holder of any previous interest is entitled to reasonable compensation to the extent to which his interest is pre- judicially affected (AHA Section 22(2)).

Temporary protected areas may also be declared by the Governor for archaeological or other investigations (AHA Section 20). The order has effect for 6 months, and may be revoked or varied at any time (AHA Section 20(2)). Protected areas are vested in the Minister on behalf of the Crown (AHA Section 22(1)).

Once a site has been declared a protected area there may be restrictions or conditions imposed on:

• persons entering the area;
• the use of vehicles, explosives, tools and equipment in the area;
• damage to the physical environment; and
• entry of livestock.(AHA Section 26)

A person holding an interest in such land may also agree with the Minister that the land be held subject to a covenant in favour of the Minister, prohibiting, or imposing conditions on, any development or use of that land which would have a deleterious effect on the preservation of the site (AHA Section 27).

The AHA places restrictions on the sale, exchange, removal from the State or wilful damage of Aboriginal cultural material unless the person involved is a person of Aboriginal descent acting in accordance with Aboriginal custom, or unless expressly authorised (AHA Section 43).

Prosecutions under the AHA cannot be brought by a private citizen, and must be brought by the Department of Indigenous Affairs on behalf of the State. (AHA Section 50; 53).

There have been few successful prosecutions brought by the Department of Aboriginal Affairs (and its predecessors) under Section 18 of the AHA. However, decisions by the Minister to consent to a use under Section 18 have been the subject of much litigation. Between 1989 and 1992 an Aboriginal group, led by the Fringedwellers of the Swan Valley (Inc) ran a campaign to prevent the development of the Old Swan Brewery in Perth. It included camping at the site and taking legal proceedings to challenge decisions of the State Minister to grant consent to the development under Section 18 of the AHA. One result of this challenge was a High Court decision confirming that the WA State Government is bound by the AHA: Bropho v State of WA & WADC [1990] HCA 24; (1990) 171 CLR 1.

Litigation under the AHA has also been mounted in relation to a gas pipeline and a housing development at Bennett Brook in the Swan Valley, a development of the Rottnest Island Lodge (a former Aboriginal prison where Aboriginal remains are buried): Van Leeuwin v Dallhold Investments (1990) 71 LGPR 348, Supreme Court WA, (1989) LGPR SC WA Lib No 8542 SCWA Lib No 7811 (30.8.89, Ipp J.) SCWA Lib No 8609 (20.11.90, Ipp J); the development of an iron ore mine at Yakabindie in the Eastern Goldfields: Ngalia Heritage Research Council v Minister for Aboriginal Affairs and Dominion Mining (1991) Supreme Court of WA Lib No 9147; Wonyabong v Minister Aboriginal Affairs & Dominion Mining (1991-1992) unreported, Supreme Court of WA (Anderson J)and the development of a port and associated infrastructure in Port Hedland: Robinson v Fielding [2015] WASC 108.

Aboriginal and Torres Strait Islander Protection Act 1986 (Cth)

The Aboriginal and Torres Strait Islander Heritage Protection Act 1986 (Cth) (“ATSIHP Act”) provides in Section 10 that an application to the Federal Minister for Aboriginal Affairs can be made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration. Where the Minister is satisfied, having received specified information regarding the area sought to be protected:

• that the area is a significant Aboriginal area; and
• that it is under threat of injury or desecration, he or she may make a declaration in relation to the protection and preservation of the area from injury or desecration.

Section 9 of the ATSIHP Act makes provision for an emergency declaration for up to 30 days (which may be extended to 60 days) in relation to “a significant Aboriginal area… that is under serious and immediate threat of injury or desecration”.

The provisions of the ATSIHP Act which enable a declaration can only be used as a last resort after all other heritage protection mechanisms at State or Territory level have been exhausted. A declaration must be revoked if the Minister becomes satisfied that the relevant State law provides effective protection.

The ATSIHP Act also provides for a local Aboriginal community to enter an Aboriginal cultural heritage agreement with the owner of Aboriginal cultural property (including land) covering such things as the preservation, maintenance, exhibition, sale and use of the property.

In Bropho v Tickner & Bluegate Nominees Pty Ltd [1993] FCA 24; (1993) 40 FCR 165 Wilcox J held that the State did not provide effective protection of an Aboriginal site and that the Commonwealth Minister was thus entitled to make a declaration under s.10 of the ATSIHP Act.

There was considerable litigation under the ATSIHP Act in relation to the development of a bridge to Hindmarsh Island in South Australia. Nyarrinjerri women opposed the development on the basis that it would destroy a secret women’s site. An application was made to the Minister for Aboriginal Affairs under the ATSIHP Act to protect the site. The Minister, Robert Tickner, granted a declaration after obtaining a report, as required under the ATSIHP Act, from a female anthropologist. Because he believed it would be a breach of Aboriginal law for him (being a man) to read the report, he acted on advice from a female staff member as to the content of the report. In Norvill v Chapman [1995] FCAFC 1726; (1995) 133 ALR 226, the Minister’s decision was challenged. The court found that the Minister for Aboriginal Affairs was obliged to personally read material, which Aboriginal customary law dictated should be revealed only to women, in order to exercise his discretion under the ATSIHP Act. The court found that his strategy of delegating his task to a female staffer who reported to him was not in compliance with the ATSIHP Act.