The history of the Aboriginal Areas Protection Authority is entwined with the Aboriginal Land Rights (Northern Territory) Act 1976.
The Land Rights Act is Commonwealth legislation granting Aboriginal freehold title to land in the Northern Territory and giving traditional owners the power to control activities on their land. It also gives the Northern Territory Legislative Assembly the power to make : Laws providing for the protection of, and the prevention of desecration of, sacred sites in the Northern Territory, including sacred sites in Aboriginal land, and, in particular, laws regulating or authorising the entry of persons on those sites, but so that 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.
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.
It provided a specific, powerful layer of legal protection for sacred sites across all land, including within areas not covered by the Land Rights Act. 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 the late Mr Raphael Apuatimi OAM and Mr Wenten Rubuntja AM, worked hard to bridge this gap by engaging with Government and developers to 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 led 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;
- developers should be encouraged to consult with the Authority on sacred sites at an early stage in their planning processes; and
In the end, negotiations with the Authority and the Land Councils led to the Northern Territory Aboriginal Sacred Sites Act 1989 which was passed on 26 May 1989 and came into force on 15 August 1989.
The broad purpose of the Northern Territory Aboriginal Sacred Sites Act is to:
‘...effect a practical balance between the recognised need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement...’
The new legislation established the Aboriginal Areas Protection Authority, and under the Act, the Authority is recognised as the expert body for identifying and consulting with Aboriginal custodians and for issuing Authority Certificates. All Authority Certificates reflect consultation with custodians about development plans and set out clear conditions under which work can proceed near sacred sites.
The Sacred Sites Act also greatly strengthened the penalty provisions for entering, working on or desecrating a sacred site, and all sites registered by the Authority were now to be considered prima facie sacred sites. The legislation extended protection to sites located within the sea or other bodies of water.
However, it also included a provision for Ministerial appeal and review, including the ability to issue a Minister’s Certificate setting out work conditions, if any, as the Minister thinks fit.
The new Ministerial over-ride power was soon tested when the AAPA would not provide an Authority Certificate to permit the inundation of sacred site Atnyere Arrkelthe as part of the construction of Power and Water Authority dam at Junction Waterhole near Alice Springs.
On 4 March 1992, Max Ortmann, the Minister responsible for the Sacred Sites Act, announced that he had decided to use his powers under s.32 of the Sacred Sites Act and would issue a Minister's Certificate enabling construction of the dam to proceed.
On 20 March 1992, after an appeal by the Central Land Council, the Federal Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, issued an emergency declaration under s.9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to stop work proceeding on the dam during the following 30 days, and on the 16 May 1992, he made a declaration to prevent the construction of the proposed flood mitigation dam.
This is the only time a Minister’s Certificate has been issued, and one of only four times that the work of AAPA has been subject to Ministerial review. In all three other cases, the Authority’s position was upheld.
