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Kennedy, Joseph --- "Operative Protection or Regulation of Destruction? The Validity of Permits to Destroy Indigenous Cultural Heritage Sites" [2005] IndigLawB 57; (2005) 6(14) Indigenous Law Bulletin 20


Operative Protection or Regulation of Destruction? The Validity of Permits to Destroy Indigenous Cultural Heritage Sites

by Joseph Kennedy

If only the white man would ask first and let Aborigines know what he was doing then things would be alright.[1]

The protection of Indigenous cultural heritage sites throughout Australia is a critical task for environmental law regulators and litigators alike. In NSW especially, the current level of protection afforded to such sites is both manifestly anomalous and impractical; the fact that the Department of Environment and Conservation (‘DEC’) is actually able to consent to the destruction of these sites under s 90 of the National Parks and Wildlife Act 1974 (NSW) (‘NPW Act’) directly displays this point. Although the recent cases of Carriage v Stockland Development Pty Limited (No 4)[2] (‘Carriage’) and Williams v The Director-General of the Department of Environment and Conservation[3] (‘Williams’) may be considered a positive development in the area, they do highlight the inadequacies of the legislation. In a sense the decisions inserted a requirement of consultation between the Department and the members of Indigenous communities who may challenge the validity of permits to destroy; but such obligations remain difficult to enforce. Essentially, the inadequacies of the legislation need to be addressed in order to afford the protection that Aboriginal sacred sites deserve.

Aboriginal Cultural Heritage

There are few issues of greater importance to Indigenous people than the protection of Indigenous cultural heritage. The fact that the significance of these sites may not be obvious to landowners and developers makes the regime protecting them incredibly important. One would reasonably expect a proactive, practical regime to be in operation in direct consultation with Indigenous communities. However as is highlighted by litigation in the area, the reality is that in NSW, places of significant cultural heritage importance to Aboriginal people are not given much protection at all.

The DEC, in charge of the area, essentially has the role of protecting these sites. Peculiarly however, it is also vested with the power to give consents to destroy them under s 90 of the NPW Act. Additionally, it could also be said that the inclusion of matters of Koori cultural heritage in flora and fauna legislation is itself outdated and paternalistic. Many commentators argue that this categorically displays how ‘NSW Parliament has itself inherited the 200 years plus legacy of past acts of genocide and cultural genocide against Australia's First Peoples.’[4]

The National Parks and Wildlife Act and Section 90

Basically, the mechanisms under the NPW Act are such that if an Aboriginal object or place is discovered, an investigation has to be made prior to a decision on consent to destroy.[5]

An ‘Aboriginal object’ is defined in the NPW Act to mean ‘any deposit, object or material evidence... relating to the Aboriginal habitation of the area that comprises New South Wales.’ An ‘Aboriginal place’ is a place which, in the opinion of the Minister for the Environment, is or was of special significance for Aboriginal culture. All Aboriginal objects are deemed to be property of the Crown and only the Director-General has the power and duty to protect those objects.[6]

Unfortunately, the way s 90 operates means that the DEC plays ‘merely a reactive role in site management, rather than actively working with local communities in identifying and defending cultural heritage sites, especially those in urban areas.’[7] From January 2002 to January 2003 only four of the 108 ss 87[8] and 90 applications applied for that year were refused or withdrawn.[9] The Act does not regulate Aboriginal access to sites in NSW, nor provide for the establishment of Aboriginal heritage bodies. Consequently, the regime of ‘protection’ established by the Act is particularly arbitrary. The only real avenue for Indigenous peoples opposing a decision by the Department is litigation, and in more recent times Indigenous groups have mounted legal actions against the validity of several consents to destroy, with interesting outcomes.

Allan Carriage and Sandon Point

Allan Carriage is an elder of the Wadi Wadi nation, the original inhabitants of Sandon Point. Stockland (Constructors) Pty Ltd (as the company was then known) sought to develop Sandon Point and was granted a s 90 consent in 2002, containing provision for the establishment of a keeping place for the artefacts collected before and during the development. In March 2004 the DEC issued three fresh consents and these were immediately challenged by Mr Carriage in the Land and Environment Court. These consents did not contain a ‘condition requiring ... a Keeping Place...’[10]

Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553

In these proceedings the applicant submitted that the Director General of the DEC failed to afford procedural fairness and take into account proper considerations.[11] This involved an assertion that although not explicitly required by the Act, the policies and practice of the DEC, as well as specific representations made in relation to s 90 consents at Sandon Point, created a ‘legitimate expectation’ that the applicant would be consulted prior to the issue of any new consents.[12]

In his decision, Justice Cowdroy found that the DEC had an express policy of consulting with Aboriginal persons prior to exercising its powers under s 90 of the Act, evidenced by a number of publications and the Department’s website.[13] It was also held that the Applicant had a special interest in the Aboriginal objects.[14] These factors were sufficient to demonstrate a ‘legitimate expectation’ of consultation.[15] After examining existing authorities,[16] Cowdroy J held that, consistent with the applicant’s legitimate expectation, a denial of natural justice had resulted from DECs failure to engage in consultation in respect of these issues. The Court upheld the applicant’s claim.[17]

Neville Williams and Lake Cowal

‘Lake Cowal is the largest inland lake in NSW and [for] the Wiradjuri’[18] it is the ‘sacred heartland of the Wiradjuri Nation.’[19] As a part of contributory work in August 2004 for a proposed mine in the area - including the ‘construction of an electricity transmission line’[20] (‘ETL’) - the respondents had received approval under both s 87 and s 90 to carry out the destruction of Aboriginal objects within the ETL corridor.[21] Wiradjuri Elder Neville Williams, with support from the Coalition to Protect Lake Cowal and Friends of the Earth (‘FoE’) immediately sought a declaration that both consents were invalid on the basis that he had been denied natural justice and procedural fairness in not being consulted.[22]

Williams v The Director General of the Department of Environment and Conservation v (2) Ors [2004] NSWLEC 613

Justice Lloyd found that Neville Williams had been denied procedural fairness and that he had a legitimate expectation that he would be consulted during the assessment and identification of Aboriginal objects on the ETL. The s 90 consent was consequently made invalid. His Honour held that the National Parks and Wildlife Service Cultural Heritage Community Consultation Policy and the Statement of Reconciliation[23] provided for a legitimate expectation of consultation that had not been undertaken. Although a failure to meet the applicant’s legitimate expectation would not ‘necessarily amount to a denial of procedural fairness’,[24] other factors, including detriment suffered, made the denial ‘unfair in the particular circumstances’.[25] The detriment suffered in this case meant that Mr Williams could not make constructive contributions as a representative of the Indigenous group that the site was significant to.[26]

Implications of these decisions

Both of these recent decisions by the Land and Environment Court seem to establish a duty to consult for the DEC; and that a breach of this duty can result in procedural unfairness and a quashing of the consent. In terms of the larger picture, however, the protection of sites remains thin. The fact that the Department may arbitrarily consult the relevant Indigenous group and still consent to heritage destruction seems difficult to justify.

Mandatory consultation?

The National Parks and Wildlife Service Cultural Heritage Community Consultation Policy provides for the involvement of Aboriginal people in the assessment of the significance of a relic or Aboriginal place. Recently the DEC published interim guidelines which state that involvement of the Indigenous group is an ‘essential part of assessing the significance of those Aboriginal objects likely to be impacted by an activity.’[27] The guidelines specify a requirement of registration and notice of interests. On a practical level this requires the affected group to constantly check available sources in order to comply with the requirement of registering an interest within 10 days of publication.[28]

Operative Protection?

Currently, any protection for Indigenous cultural heritage sites under s 90 of the NPW Act depends on the activeness of the local Indigenous community and the goodwill of the relevant developer. As Organ points out, ‘the majority of landowners and developers in NSW ... are not so virtuous or knowledgeable of Aboriginal cultural heritage issues and interested in Koori culture to a degree where they would jeopardise their development plans by informing the Service ... of ... a discovery.’[29] The offences themselves are ineffective, because it is difficult to prove the necessary intention.[30] If sites are to be sufficiently protected, the regime needs to be changed.

Uniform Legislation

Currently the protection of Indigenous heritage sites in Australia is governed by multiple pieces of legislation varying from state to state. As Evatt asserts, there are ‘wide differences in the laws and procedures and in the level of protection provided under the various State and Territory legislative regimes’.[31] It is arguable that a uniform piece of legislation needs to be enacted to eliminate ambiguity and inconsistency. Basing the system broadly on the principle of self-determination, including the ‘right and duty of Indigenous peoples to develop their own cultures and knowledge systems’,[32] is a useful way to start.

A comprehensive register of the entire State, including mapping, needs to be established to provide effective notice of important Indigenous cultural heritage sites to developers and councils. Consultation with Indigenous communities needs to be made mandatory by reforming the NPW Act itself. Ultimately, this will ensure that Indigenous communities can determine the significance of places subjectively, in accordance with their own culture.[33] Sites could be assessed by appropriately constituted Aboriginal heritage bodies, established nationwide with appropriate resources.

A way forward

Although the two outlined challenges initiated by Indigenous groups were successful, they also show the failures of the system. As Taubman highlights, ‘by using the highly formal, time consuming and expensive jurisdiction of the courts... Aboriginal organisations are required to divert scarce resources for litigation, and frequently cannot participate for lack of funds.’[34] Ultimately, if more a more comprehensive and uniform regime was introduced, then the practical protection of Aboriginal sites could improve, rather than a system which currently seems to regulate their destruction.[35]

Joseph Kennedy is a Law Student at the University of NSW.


[1] A Taubman, ‘Protecting Aboriginal Sacred Sites: the Aftermath of the Hindmarsh Island Dispute’ (2002) 19(2) Environmental and Planning Law Journal 140 citing A Barunga, ‘Sacred Sites and their Protection’ in L Edwards (ed), The Preservation of Australia’s Aboriginal Heritage (1975) 76.

[2] Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553.

[3] Williams v The Director-General of the Department of Environment and Conservation [2005] NSWLEC 613.

[4] Web posting from Bruce to Songlines, ‘Call to end NSW ''right to destroy'' Aboriginal relics laws’, 27 June 2002, <http://jargonless.com/~songline/modules.php?name=News & file=article & sid=16> at 11 July 2005.

[5] Ibid 2.

[6] Sam Pillay, ‘Gold mine threatens sacred Lake Cowal (2004) Green Left Weekly 30 June <http://www.greenleft.org.au/back/2004/587/587p10b.htm> at 11 July 2005.

[7] Organ, above n 7, 4.

[8] S 87: Permits relating to Aboriginal objects (ie permitting or refusing permission to do acts outlined in s 86 such as excavate a site containing an Aboriginal object, remove such object, etc).

[9] National Parks and Wildlife figures cited on Save Lake Cowal website, <www.savelakecowal.org/LAKECOWAL/DOWNLOADS/legal.htm> at 11 July 2005.

[10] Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553, [20].

[11] Ibid [30].

[12] Ibid [31].

[13] Ibid [52]-[53].

[14] Ibid [51].

[15] Ibid, [54].

[16] His Honour examined several authorities, including Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1994-1995) 183 CLR 273, 291 (Mason CJ and Deane J); Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah (2001) 206 CLR 57, 83 (Gaudron J); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 34.

[17] Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553, [66].

[18] Pillay, above n 9.

[19] Ibid, citing FoE National Liaison Officer, Binnie O’Dwyer.

[20] Ibid.

[21] Williams v The Director General of the Department of Environment and Conservation v (2) Ors [2004] NSWLEC 613, [1]-[3].

[22] Ibid, [4].

[23] Ibid, [51].

[24] Ibid, [57].

[25] Ibid, [60] following observations in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 13-14 (Gleeson CJ).

[26] Ibid, [60].

[27] Department of Environment and Conservation (NSW), Interim Community Consultation Requirements for Applicants (2004) 2.

[28] Ridge and Seiver, above n 12, 6.

[29] Organ, above n 7, 5.

[30] E Evatt, ‘Overview of State and Territory Aboriginal Heritage Legislation’ [1998] IndigLawB 82; (1998) 4(16) Indigenous Law Bulletin 4.

[31] Ibid 4.

[32] Taubman, above n 1, 144.

[33] Ibid, 142.

[34] Taubman, above n 1, 156.

[35] Ridge and Seiver, above n 12, 6.

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