Firth, Natasha --- "Prosecution for Damage to an Aboriginal Site" [2005] IndigLawB 60; (2005) 6(15) Indigenous Law Bulletin 2
Prosecution for Damage to an Aboriginal Site
by Natasha Firth
On 19 October 2005, the Registrar of Aboriginal Sites[1] successfully prosecuted a person for damage to an Aboriginal site contrary to s 17(a) of the Aboriginal Heritage Act 1972 (WA) (‘the Act’).[2] The prosecution emphasises the serious consequences of damaging Aboriginal cultural heritage.
Jinawanura Cave
Jinawanura Cave is located near Telfer in the Paterson Range on the southern edge of the Great Sandy Desert in Western Australia (‘WA’) and lies within a deep, narrow rocky gorge. It comprises paintings, engravings, grinding patches and artefacts in a sandstone rock shelter and is one of the most extensive painting sites in the region. The cave is of significance to Nyungumarta people of the Pijikala and Ngulipartu groups.[3] Jinawanura is the Ngulipartu name for the Paterson range. Signs indicate that the area is an Aboriginal site.
In a visit in 1897, Hubert Trotman described the cave as ‘covered with native drawings of lizards, turtle, and bungarras [goannas] drawn in grey, yellow and red ochre’.[4] There are also many non-figurative designs in red, white, yellow, brown, black and purple.
Damage to Jinawanura Cave
The accused worked for an engineering company subcontracted to a mining company with operations at Telfer, a large gold mine. He was seen scratching his name and the date into the cave wall by fellow employees at a company outing in August 2004. In September 2004 the mining company reported the damage to the cave to the WA Department of Indigenous Affairs (‘DIA’).
The Prosecution
At the Magistrates Court on 9 October 2005, the accused pleaded guilty to damaging an Aboriginal site contrary to s 17(a) of the Act. The Magistrate accepted that the accused was remorseful, however, it was ‘clearly his responsibility to ensure that he’s aware of the requirements which allow him to enter such places, places of significance, not only to the Aboriginal community but to the community generally’.[5]
Overview of the Aboriginal Heritage Act 1972 (WA)
At the time of its enactment, the Act was significantly different to other heritage legislation in that it emphasised the importance of Aboriginal heritage to contemporary Aboriginal people and to the community as a whole, rather than as simply matters of anthropological significance.
Section 15 contains an obligation that sites or objects, which may be significant under the Act, be reported to the Registrar of Aboriginal Sites. This obligation is qualified by s 7, which explicitly recognises the rights of Aboriginal people to not disclose information that is confidential or restricted according to Aboriginal tradition.
The Aboriginal Cultural Material Committee (‘the Committee’) has, under s 28, the responsibility to evaluate the significance of places and objects. There are currently almost 23,000 places recorded in the Register of Aboriginal Sites. However, the Act provides protection for all Aboriginal sites in WA, regardless of whether they are registered.[6] Finally, objects and places deemed to be of significance are recorded by the Minister for Indigenous Affairs (s 10).
Offences under the Act
Section 17(a) prescribes offences relating to Aboriginal sites:
A person who —
(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; ...
commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.
Prosecutions must be launched within 12 months of the date on which the offence was allegedly committed.[7]
The penalty for disturbing Aboriginal sites was increased in 2003 to a maximum of $20,000 and/or nine months’ imprisonment for an individual and $50,000 for a body corporate.[8] Officers of a body corporate may be personally liable.[9]
Averments, Onus of Proof and Special defence of lack of knowledge
The Act contains provisions that can assist the prosecution in proceedings including, in s 60(3) a presumption that the act occurred within an Aboriginal site unless there is proof to the contrary; lack of consent or authorisation for an offence is deemed to be proved in the absence of proof to the contrary (s 61); and s 60(2) provides that the accused has the onus of proving that the provisions of the Act do not apply.
Section 62 provides for a special defence of lack of knowledge if the accused can prove that he or she ‘did not know and could not reasonably be expected to have known’ of the existence of an Aboriginal site.
Prosecutions under the Act
Gathering sufficient evidence to support a prosecution can be difficult as the criminal standard of ‘beyond a reasonable doubt’ applies. Also, the remoteness of many Aboriginal sites means that, where a disturbance occurs, there may be some delay before detection and it may be unclear when the damage occurred.
To date all four prosecutions brought under the Act have been successful. In 1986 and 1999 a local government council pleaded guilty to contravening the Act by drilling a water bore at a registered Aboriginal site without first obtaining the permission of the Minister. In 1989 a company and its director were found guilty of knowingly damaging an Aboriginal site without authority.
Conclusion
The prosecution is a reminder of the importance the Act places on protecting Aboriginal cultural heritage. The success of the prosecution was also attributable to early reporting of the incident and cooperation between government agencies, traditional owners and the mining company in gathering evidence.
Natasha Firth is a Legal Project Officer at the Western Australian Department of Indigenous Affairs. The opinions expressed are solely those of the author and do not necessarily reflect the views of the Department or the State of Western Australia.
[1] The Registrar of Aboriginal Sites is appointed under s 37(1) of the Aboriginal Heritage Act 1972 (WA) and is responsible for administering the day-to-day operations of the Aboriginal Cultural Material Committee and maintaining the Register of Aboriginal Sites.
[2] A copy of the Act is available at <http://www.slp.wa.gov.au> at 12 December 2005.
[3] Kingsley Palmer, Aboriginal Sites in the Paterson Range Area, North West of Western Australia (1975).
[4] Eleanor Smith, The Beckoning West: The Story of HS Trotman and the Canning Stock Route (1966) 68.
[5] Transcript of Proceedings, Registrar of Aboriginal Sites v Kaplan (Magistrates Court of Western Australia, Perth, Magistrate Black, 9 October 2005).
[6] See Aboriginal Heritage Act 1972 (WA) s 4 for the definition of ‘Aboriginal site’.
[7] Criminal Procedures Act 2004 (WA) s 21(2).