Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Graeme Neate
On October 9, 1989, 65 people were arrested on the site of the old Swan Brewery in Perth. Police pushed down the barricades surrounding a protest camp which has been on the site for more than 300 days. (see [1988] AboriginalLB 1; 2(36)pg2) ). The Dowding Government wants to renovate the brewery, against strong opposition from the Aboriginal community, who claim that the site is sacred and want the brewery to be demolished and made into a parkland. In this context, the black community has sought injunctions to prevent the WA Government from implementing its development plans. Graeme Neate explains the operation of the Commonwealth Heritage Act in protecting sites such as Swan Brewery and Swan Hill on the NSW/Victorian border.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the "Act") provides a scheme under which the Federal Minister for Aboriginal Affairs (the "Minister") can make a declaration for the protection of a significant Aboriginal area or object where the area or object is under threat of injury or desecration.
Between 25 June, 1984 and 11 October, 1989, 68 applications were made under the Act for either emergency or permanent declarations in respect of objects or areas. In the majority of cases no declaration has been made, either because the matter has been resolved following discussions between interested parties or because the application has been withdrawn.
In two notable recent instances, however, resolution was not reached. Those cases concerned the development of areas of land on opposite sides of the continent - one at the old Swan brewery site in Perth, Western Australia and one in New South Wales just east of Swan Hill. Each case created a deal of local concern and some litigation. In each case the Minister appointed a person to make an inquiry and prepare a detailed report for him under Section 10(4) of the Act.
The Swan Hill matter concerned Aboriginal skeletal remains which were uncovered in the course of construction works on a golf and country club project. The project land is near the Murray River and is like much of the sand dune country in the River Murray corridor. Skeletal remains were discovered in 8 separate areas on the project land. In some cases the bones were left in situ; in other cases they were re-buried at or near the site where they were originally located. Early in the project, loads of excavated soil containing Aboriginal human remains were dumped some distance from where the excavations had taken place. Those bones were later recovered and reburied.
In February 1989, applications were made to the Minister for emergency declarations under the Act. The Minister declined to make emergency declarations, relying on undertakings given by the developers (the Murray Downs Golf and Country Club) not to carry out further works on those areas where the remains had been discovered. In some instances, parts of the golf course were redesigned to avoid passing through areas where bones were located. At the most contentious area - a proposed bowling green next to the new clubhouse - the Club allowed the reburial of bones and undertook not to use the land as a bowling green. The Minister, however, appointed Mr Graeme Neate (a Sydney solicitor) to prepare a report under section 10(4) of the Act to enable the Minister to consider whether he needed to take action under section 10(1) to ensure that the areas which were the subject of the application "will be protected and preserved on a longer term basis".
Before that report was prepared, a challenge was made in the Federal Court to the Minister's decision not to make emergency declarations. The challenge was brought by the Wamba Wamba Local Aboriginal Land Council and the Murray River Regional Aboriginal Council (both bodies constituted under the Aboriginal Land Rights Act 1984 (NSW)). Mr Justice Lockhart dismissed the application. He decided that the Minister had a discretion whether to make an emergency declaration and that he had acted properly in making his decision.
Mr Justice Lockhart concluded his judgment with the following observations:
The circumstances that arose here are almost insoluble. On the one hand there is the claim of the Aboriginal people requiring that burial places remain peaceful, tranquil and undisturbed by human beings. This observance of Aboriginal tradition is not confined to the formal boundaries of the second respondent's development of bowling greens and club houses but obviously relates to areas of land, in particular the large mound or sand dune being the high point in the land which the second respondent has chosen for the site of its club house, bowling greens and other substantial facilities for use as a golf club and country club.
Aboriginal tradition requires that burial remain peaceful and tranquil and must not be walked upon or otherwise intruded upon by human beings. They are the places which Aboriginals believe are the place of the spirits waiting to be called back, and, if the spirits are disturbed, the Aboriginal people believe that they will suffer because of the failure to care for them. There is no doubt that the Aboriginal community are disturbed and distressed by the actions of the second respondent and will continue to be disturbed if the club house and bowling greens are constructed on their proposed sites even if the northern bowling green is moved to a different site or not constructed at all on any part of the land of the second respondent.[1]
On the other hand, his honour observed, sensitivity of the area to Aboriginal tradition was recognised at least three years ago when an archaeologist had been engaged to undertake an archaeological survey of the proposed development and to provide a report concerning the archaeological significance of the area. That was followed in more recent times by a report by two other archaeologists which was commissioned by the applicant Land Councils and the Club. The Club had placed material before the Minister to establish its concern to ensure that it did its best to respect Aboriginal tradition concerning burial and other places of importance to Aboriginal people; and the Club offered undertakings to the Minister to give effect to its stated attitude. The Minister chose to accept those undertakings.
His Honour concluded that this was "a difficult and delicate situation".
The interests of the various parties were considered in detail in the report under section 10(4) of the Act.[2] The report was prepared in light of detailed written and oral representations and visits to the area. It was sent to the Minister on 20 June 1989.
To date, the Minister has not made a decision under section 10(1). He had, however, written to the NSW Minister for the Environment (Hon Tim Moore MP) sending him a copy of the report and, in effect, inviting him to declare as "Aboriginal places" (under the National Parks and Wildlife Act 1984 (NSW)) those sites known to have contained skeletal material. The Minister has informed the other parties that he has taken this action. For the moment, the responsibility to decide whether further legislative protection will be given to the sites lies with the relevant State Minister.
At approximately the same time as the Swan Hill matter was being considered, an application was made to the Minister by some Western Australian Aboriginals for an emergency declaration over the old Swan brewery site near the Swan River in Perth. That site was said to be the nesting site for the Water Serpent (the Wagyl). The developer in that case is the Western Australian Government.
In litigation to invoke WA legislation to prevent development on the site, the Master of the Western Australian Supreme Court held, among other things, that the State was not bound by the Aboriginal Heritage Act 1972 (WA).[3] On Appeal to the Full Court, the decision of the Master was upheld by a majority of 2:1. The High Court has granted special leave to appeal.
Local Aborigines successfully sought a 30 days emergency declaration which was made by the Minister.[4] That was followed by a further 30 days emergency declaration (the maximum permitted under the Act).[5]
During the period of the second declaration, Dr Clive Senior (a Perth lawyer) was appointed by the Minister and prepared a section 10(4) report.
The land in that case comprised a Reserve, slightly more than two hectares in area, between the limestone cliffs of Mt Eliza and the Swan River. It is divided by Mounts Bay Road, a dual carriageway road.
The land is reserved as "Public Purpose Reserve - Special Uses" and is the responsibility of the State Government. In his report, Dr Senior described the history of dealings with the land, and building activity which resulted in a great deal of ground disturbance including excavation. He looked at historical material concerning the significance to Aboriginals of that land and the surrounding area. He described the beliefs of Aboriginals concerning the Wagyl - a serpent like creature believed to have been responsible for creating many of the natural creatures of the landscape including rivers which were its tracks. Mt Eliza, the Swan River and King's Park are especially important not only to local Aboriginal people but to Nyungars throughout the south west of WA. Certain places in the mythological travels of the Wagyl are important to Aboriginal beliefs because they provide tangible physical evidence of the events which happened during the course of the Wagyl's journeys.
On the evidence available to him. Dr Senior found that "part of the Reserve does comprise a mythological site of significance to a group of Aboriginal people in accordance with Aboriginal tradition".[6] He concluded, however, that the site on the Reserve is not "of particular significance when compared to other sites in the vicinity"[7].
Dr Senior's report was completed during the period of the second interim declaration. He expressly did not recommend that a declaration should be made under the Act, preferring that any action to protect the site be taken under State legislation.[8]
One week after the expiration of the second declaration, the Federal Minister made a permanent declaration that "for the purposes of the protection and preservation of the area from injury or desecration. I declare that during that period any digging of, excavation on or other interference with the surface or any other part of the land in the area is prohibited without my written permission".[9]
The "permanent declaration" was revoked within one month of being made. The Minister accepted written assurances from the Premier of WA (Hon P Dowding) to the Prime Minister that the State Government would:
(a) have the Reserve formally considered under the Aboriginal Heritage Act 1972;
(b) act as if complying with the formal processes of that Act; and
(c) introduce legislation into the WA Parliament to bind the Crown under that Act.
In welcoming the decision by the State Premier, the Federal Minister for Aboriginal Affairs said it was "important that Aboriginal people in WA could apply and receive protection for their sites under their own State legislation".[10]
The precedent, if it he one, can he considered from a number of points of view. Aborigines have reportedly seen the Minister's declaration as an example of the need to take Aboriginal people seriously and consult with them in a proper manner on matters such as this.[11] By making the declaration. the Commonwealth seems to have indicated that State Governments should give Aboriginal views appropriate consideration if they are to avoid the intervention of (and possible conflict with) the Commonwealth. On the other hand, an issue such as this could be seen as politically risky if federal action is characterised as unnecessary and inappropriate in an election context.[12]
In the two recent cases, the Act was invoked in an effort to protect areas which were found to be of "particular significance to Aboriginals in accordance with Aboriginal tradition". In the Swan Hill case, the areas in which Aboriginal remains were found were similar in all material respects to many other areas found to date or likely to be found in the future in the River Murray corridor. Their relative frequency and the unpredictability of their location does not mean that they are insignificant to the local Aboriginal community. The practical problems for land users in that region arise because it is not possible to predict where Aboriginal remains may be located. One sand dune may contain a few burials and the next may contain hundreds. It is in the nature of these sites that it is impossible to predict the likelihood or the extent of burials in Murray Valley sand dunes until they have been extensively disturbed. There is a high probability of disturbing burials somewhere but a low probability of encountering a burial in any specific place. Consequently, it is likely that:
(a) any declaration made in respect of any such area will be a precedent for other applications in respect of similar areas;
(b) potential developers could be thereby deterred from committing themselves to invest in this region.
Similar problems have been raised by, the Swan Brewery matter. The site in question cannot be considered in isolation. It is one of a series of sites relating to the dreamtime activities of the Wagyl. The protection of that site may well be seen as a precedent for the possible protection of other related sites in the Perth area, should any proposed development of those other areas be said to constitute a threat of "injury or desecration" as those terms are defined in the Act.[13]
As was noted earlier, most cases to date have been resolved without the need for a declaration following discussions between the parties. There will be, however, cases in which agreement is not reached. The Act, in effect recognises aspects of Aboriginal customary law and allows the Minister, having considered the competing interests, to resolve the matter in favour of protecting objects and areas of "particular significance to Aboriginals in accordance with Aboriginal traditions".
Greg McIntyre provided the following information regarding latest developments on the Swan Brewery development proposal:
Franklyn J (Supreme Court WA) granted an interim injunction prohibiting the WA Minister for Works from carrying out work which would amount to a breach of the Aboriginal Heritage Act (WA). He found that there are tribally issues concerning:
(a) the delegation of authority to the Aboriginal Cultural Materials Committee of the Museum to make a recommendation to the Minister concerning consent to carry out development on an Aboriginal site.
(b) the legitimate expectation of the Plaintiffs that they would be properly consulted before any development would be consented to.
That action will now proceed to trial. The WA Government has claimed that it was a win for them and they can now proceed with above-ground renovations. If they do, further proceedings may be required. Presently, union bans are halting any work.
Franklyn J (Supreme Court WA) refused to grant an injunction to stop the erection of street lighting pending consultation with the Plaintiffs. An appeal is being prepared against that decision. The Court ruled that to grant the injunction would allow a public traffic hazard to continue and that would be against the balance of convenience. The grounds of appeal related principally to irrelevant considerations being taken into account. In the meantime, the Federal Minister for Aboriginal Affairs has requested that SECWA consult with Aboriginal custodians to devise means of providing lighting without placing at least one pole in the ground which even on the defendant's case is clearly a portion of the site of special significance.
[1] Wamba Wamba Local Aboriginal Land Council & Anor v Minister administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 & Anor (1989) 86 ALR 161, 172-3.
[2] G Neate, The Preservation and Protection of Significant Aboriginal Areas on Murray Downs Golf and Country Club. NSW: Report to the Minister for Aboriginal Affairs under s10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
[3] Bropho v State of Western Australia and Western Australian Development Commission.
[4] Commonwealth Gazette, No. S 133, 14 April 1989.
[5] Commonwealth Gazette. No. S 166, 15 May 1989.
[6] C Senior. Old Swan Brewery Perth: A Report to the Minister for Aboriginal Affairs under s10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. para 2.23
[7]. id. para 2.31.
[8] id, Conclusion para 6.
[9] Commonwealth Gazette, No S203 21 June 1989.
[10] Hon Gerry Hand MP, Media Release, 19 July 1989
[11] The West Australian, 21 June 1989, p 1.
[12] The West Australian. "Hand ruling sets risky precedent" 21 June 1989, p42.
[13] Dr Senior's Report discusses other sites, some of which, in his view, are more significant than the Swan Brewery site: Chapter 2. At least one other has been the subject of an application under the Act. In that case, the applicants were unsuccessful in seeking a declaration to prevent the State Energy Commission laying a natural gas pipeline over Bennett Brook, northeast of Perth.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1989/59.html