The Northern Territory Aboriginal Sacred Sites Act is the culmination of a long period of social and legislative development over the past 50 years.
From the 1960s onwards Commonwealth and State legislators came to appreciate the importance of sacred sites, and legislation began to be put in place to protect ‘cultural relics’ such as rock art, burials and artefacts. Much of this legislation was based on the desire to preserve historical evidence of Aboriginal peoples’ long occupation of Australia, yet there was little or no acknowledgment of Aboriginal peoples’ continuing connection to land and culture.
With the landmark Gove Land Rights case in the early 1970s and the election of the Whitlam Government in 1972 serious efforts were made to acknowledge Aboriginal peoples’ ongoing land and cultural rights. This eventually resulted in the passage of the Commonwealth’s Aboriginal Land Rights (Northern Territory) Act 1976.
The Aboriginal Lands and Sacred Sites Bill (NT) 1977 was the first Bill implemented to protect sacred sites in the Northern Territory. It was drafted under the terms of Section 73(1) of the Land Rights Act, creating two categories of sacred site – sites on Aboriginal land trusts or Aboriginal freehold land, and sites not on Aboriginal land trusts or Aboriginal freehold land. Limited powers were granted to Aboriginal custodians to safeguard sites on Aboriginal land trusts and Aboriginal freehold land but there was little custodians could do to protect sites outside these areas, other than request the Administrator to protect them.
The shortcomings in this legislation led to an inquiry by a Parliamentary Joint Select Committee, which produced a report (the Bonner Report) setting out draft guidelines for reformed sacred sites legislation in the Northern Territory.
When the Northern Territory achieved self-government in 1978, one of the first pieces of legislation to be introduced into the new Legislative Assembly was the Aboriginal Sacred Sites (NT) Bill 1978. This became law in November 1978 and led to the establishment of a permanent Aboriginal Sacred Sites Authority a year later, which was the precursor to today’s Aboriginal Areas Protection Authority.
With the new law it became an offence to enter, remain, carry out works on or desecrate a sacred site anywhere in the Northern Territory. Other enduring aspects of today’s legal protections for Northern Territory sacred sites were also established, such as a board largely made up of Aboriginal custodians nominated by the Northern Territory’s Aboriginal Land Councils, and a clear definition of a sacred site.
The early years brought some controversy between the Authority, the Government and proponents of development. The notion of sacred sites and their meaning and importance to Aboriginal people were poorly understood by the broader community. The Authority, under the strong leadership of senior Aboriginal Chairmen including Mr Raphael Apuatimi OAM and Mr Wenten Rubuntja AM, worked hard to bridge this gap by engaging with Government and developers and negotiate workable solutions.
Throughout the 1980s there were numerous proposals to amend the Act. In August 1986 the then chief minister Mr Stephen Hatton appointed a committee lead by then solicitor-general Mr Brian Martin to review legislation relating to sites of significance to Aboriginal people. These included the Aboriginal Sacred Sites Act, the Aboriginal Land Act and the Native and Historical Objects and Areas Preservation Act. The review was completed in June 1987 and tabled in Parliament on 25 August 1988. Key recommendations from the review included:
- establishing a statutory authority to coordinate requests for protection and initiate prosecutions;
- giving power to the Authority to grant access and/or carry out work on sacred sites, only after taking into account the wishes of Aboriginal people;
- accept in principle that sites of significance to Aboriginal women should be dealt with by Aboriginal women; and
- developers should be encouraged to consult with the Authority on sacred sites at an early stage in their planning processes.
On 12 October 1988 the Northern Territory Government introduced the Aboriginal Areas Protection Bill (NT) to the Assembly. The Bill was an attempt to strike a more effective balance between the protection of sacred sites and the development of the Territory, its people and resources. The Bill did not proceed as there were concerns that it, and in particular the protection it extended to sacred sites, was incompatible with Section 73(1) of the Land Rights Act. This particular section of the Land Rights Act states:
S73(1) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extends to the making of:
(a) 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 those sites, but so that any such laws shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected;
The Government continued negotiations with the Authority and Aboriginal Land Councils over amendments to the sacred sites legislation. The Authority’s independence was seen as important in the resolution of difficult issues in relation to sacred sites and any proposed development in and around sites. These were difficult negotiations, and in the end the final product was the Northern Territory Aboriginal Sacred Sites Act 1989 which was passed on 26 May 1989 and came into force on 15 August 1989.
The new legislation established the Aboriginal Areas Protection Authority. It was a framework legislation for balancing the protection of sacred sites with the economic, social and cultural development aspirations of all Territorians. In addition, penalty provisions in the legislation for entering, working on or desecrating a sacred site were greatly strengthened. All sites registered by the Authority were now to be considered prima facie sacred sites and the new Act extended to protecting sites located within the sea or other bodies of water.
The Act increased Aboriginal membership on the Authority Board to twelve members, with the specification that men and women be equally represented. As recognised in the Martin Review there was a need to include women on the Board so that the Board could consider sites specifically significant to women. In accordance with traditional law it would be culturally inappropriate for men to consider women’s sites as it would be inappropriate for women to consider men’s sites. Since the new Sacred Sites Act a significant amount of women’s sites have been registered by the Authority.
The new Act prescribed new functions for the Authority which significantly altered the nature of its work and expanded its operations. The Authority, where requested was now required to carry out surveys and consultations with custodians to determine the constraints imposed by the existence of sacred sites to work on land and waters anywhere in the Northern Territory. An Authority Certificate specifying the conditions under which work may be undertaken in the vicinity of a sacred site would then be issued. A time limit was placed on the commencement of consultations.
A significant change under the new Act was the introduction of a range of accountability measures. These included a review of the 600-plus sites previously registered; a process of land owner notification for the registration of sacred sites; and the introduction of a process of Ministerial review of the Authority’s decisions.