01 Mar 2014

Legislative shortcomings hindering Aboriginal cultural heritage protection

by Alison Packham

Penalties will remain weak while the determination of the significance of heritage rests upon non-Aboriginal notions of value and significance.

In enacting legislation for increased penalties and a strict liability offence for harming Aboriginal cultural heritage in 2010, the New South Wales Government went some way towards recognising the importance of this heritage to both Aboriginal and non-Aboriginal communities. However, as the recent Land and Environment Court decision in Ausgrid has highlighted, effective protection of Aboriginal cultural heritage necessitates further legislative change that addresses more fundamental deficiencies in the regulatory scheme. This article explores the application of the increased penalty regime in Ausgrid, to suggest additional areas for legislative reform.

Introduction

The recent decision of Pepper J in the Land and Environment Court of New South Wales, Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51[1], is the first decision on an Aboriginal cultural heritage prosecution since the 2010 amendments to the National Parks and Wildlife Act 1974 (NSW) (NPW Act). These amendments increased the penalties for harming an Aboriginal object or place and established a new strict liability offence for harming such an object or place.

There is community sentiment that the penalty imposed in Ausgrid lacked substance and set the bar too low for the new penalty regime established by the 2010 amendments[2], which aimed to bring the penalties for Aboriginal heritage offences in line with other environmental offences. Despite the fact that the potential penalty for harming an Aboriginal object has increased five-fold for the "knowing offence", the facts of Ausgrid did not provide the appropriate vehicle to implement this new armoury. The negligent destruction of an unfenced and unmaintained rock engraving led Pepper J to hand down a mild penalty under the lesser strict liability offence.

The Ausgrid decision does highlight, however, that problems with the regulatory protection of Aboriginal cultural heritage in New South Wales run deeper than the penalty structure of the NPW Act. It is important, both symbolically and as a matter of deterrence, that Parliament has taken steps towards bringing the penalties for Aboriginal cultural heritage offences in line with other environmental offences. However, in order to seriously afford protection for Aboriginal cultural heritage, government must deliver its promise to enact stand-alone legislation and this legislation must tackle the fundamental issues with the current regulatory scheme.

Issues for reform include: revisiting how the significance of Aboriginal objects and places is assessed; investing resources into monitoring, compliance and enforcement procedures; and contributing to Aboriginal self-determination through the vesting of ownership, management and control of Aboriginal cultural heritage in Aboriginal groups. These issues, raised by the Ausgrid decision, are not novel. Review of the New South Wales Aboriginal cultural heritage legislation seems a permanent fixture on the government's agenda[3], but there has been little advance. Perhaps the application of the 2010 reforms in Ausgrid will provide the impetus for government to seriously address these critical issues for the protection of Aboriginal cultural heritage.

After outlining: the legislative framework for the protection of Aboriginal cultural heritage contained in Pt 6 of the NPW Act; the 2010 amendments; and details of the current review of this legislation, this article will synthesise the facts and findings of the Ausgrid judgment, explore its application of the 2010 amendments, and discuss the broader regulatory issues that emerge from Pepper J's decision. While increasing the penalties goes some way toward recognising the significance of Aboriginal cultural objects, this article argues that reform in this area will only provide substantive protection for Aboriginal cultural heritage if it also addresses more fundamental deficiencies in the current legislative regime.

Legislative framework

Australia has a history of missing the mark when it comes to protecting Aboriginal cultural heritage.[4] Protection is largely State based. Accordingly, and like most State environmental laws, there is a lack of integration and uniformity between States and a paucity of national direction. This creates uncertainty about the effective regulation of Aboriginal cultural heritage.[5] This issue was explored in the Evatt Report[6] in its review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which operates to provide a safety net below the divergent laws of the States and Territories. It is now 17 years since Evatt suggested that the Commonwealth establish minimum standards for State and Territory Aboriginal cultural heritage legislation[7], and the Commonwealth is yet to provide this direction.

Stand-alone Aboriginal heritage legislation exists in all Australian States other than New South Wales; the most recent legislative reforms having occurred in Queensland and Victoria.[8] Numerous stakeholders consider it important to implement stand-alone legislation in New South Wales and this concept has general government support.[9] Despite this push towards sui generis legislation, the regulation of Aboriginal cultural heritage, which commenced under the predecessor to the current NPW Act in 1969, remains largely unchanged.

Part 6 of the NPW Act

Aboriginal cultural heritage in New South Wales is primarily regulated by Pt 6 of the NPW Act[10], irreverently alongside the regulation of flora and fauna. This legislation places Aboriginal objects in the ownership and control of the government.[11] The relevant department for the management of Aboriginal cultural heritage is the Office of Environment and Heritage (OEH). The Director-General has the conflicting duties of protecting Aboriginal cultural heritage and issuing Aboriginal heritage impact permits (AHIPs) to destroy such heritage[12], a situation that is "like Dracula being in charge of the blood bank".[13]

The NPW Act provides blanket protection to all Aboriginal objects and listed Aboriginal places.[14] It is an offence to harm an Aboriginal object or place without an AHIP.[15] Some critics dub AHIPs as "permits to destroy".[16] Aboriginal heritage impact permits are issued after a consideration of a range of factors including the likely harm to the Aboriginal object and feedback from consultation with Aboriginal communities.[17]

The NPW Act's definition of "harm" includes physical harm, such as destroying, defacing or damaging an object or place.[18] Its definition of "Aboriginal object" is broad, meaning any deposit, object or material evidence relating to Aboriginal habitation of New South Wales, before or after colonisation.[19] Practically, this includes physical objects such as rock engravings, stone tools, Aboriginal-built fences and stockyards, scarred trees, the remains of fringe camps, middens and ancestral remains.[20] An "Aboriginal place" is one that has been declared by the Minister for its significance to Aboriginal culture.[21]

The NPW Act creates two offences for harming Aboriginal cultural heritage:

  1. for objects only: the "knowing" offence, where the defendant knew of the existence of the Aboriginal object and caused intentional harm to the object;[22] and
  2. for both objects and places: the "strict liability" offence, where knowledge of the existence of the Aboriginal object or place is not an element of the offence.[23]

It is a defence to both offences that the defendant held an AHIP, the conditions of which had not been contravened.[24] It is a defence to the strict liability offence that the defendant undertook satisfactory due diligence[25] prior to harming the Aboriginal object or place, or that the level of environmental harm was trivial.[26] Due diligence in relation to the presence of Aboriginal objects on a development site involves consulting the Aboriginal Heritage Information Management System (AHIMS), which is a register kept by the Director-General of all known Aboriginal objects together with any reports on the significance of these objects to Aboriginal people.[27] The NPW Act contains exemptions for emergency services[28] and Aboriginal cultural activities.[29] It is also an offence for a person who is aware of an Aboriginal object that is not known to the OEH to fail to report it within a reasonable time.[30]

2010 amendments to penalties

Historically, there have been few prosecutions of the offences for harming Aboriginal objects and places. In the last 18 years there have been four prosecutions, including Ausgrid.[31] In 2007, the then named Department of Environment and Climate Change prosecuted two matters: Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 and Plath v O'Neill (2007) 174 A Crim R 336; [2007] NSWLEC 553. At that time, the maximum penalties for the "knowing offence" were $5,500 or six months' imprisonment or both. It was Biscoe J's comments in the latter case concerning the disparity between the penalties for Aboriginal heritage offences and other environmental offences that led to the 2010 reform of Pt 6 of the NPW Act. Biscoe J's reasoning for imposing a mild penalty in that instance was fuelled by this discrepancy, stating "the subject offences have not been placed by the legislature at the top end of the spectrum".[32]

Three years later, this obiter judicial comment was referred to in the second reading speech for the National Parks and Wildlife Amendment Bill 2010 (NSW), in support of the increased penalties for Aboriginal cultural heritage offences.[33] The National Parks and Wildlife Amendment Act 2010 (NSW) commenced on 2 July 2010. In addition to other ancillary measures[34], it raised the maximum penalties for the "knowing offence" to: $275,000 or imprisonment for one year for individuals; $550,000 or imprisonment for two years for an individual in circumstances of aggravation; and $1,100,000 forcorporations.[35] The maximum penalties for the new strict liability offence are: $55,000 for individuals, or $110,000 in circumstances of aggravation; and $220,000 for corporations.[36] The strict liability offence for harming an Aboriginal place carries a maximum penalty of $550,000 or two years' imprisonment or both.[37]

Importantly, the 2010 amendments acknowledged the inequality between Aboriginal cultural heritage offences and other environmental offences. It was an aim of the amendments to "bring the offences and penalties relating to Aboriginal cultural heritage in line with other environment protection legislation".[38] However, Pepper J notes in Ausgrid that this disparity subsists under the 2010 amendments:

"Although inadequately low compared with the maximum penalties enacted for other environmental and planning offences, the increase must nevertheless be taken by the Court as reflecting the legislature's (and therefore, the community's) view that the protection and preservation of Indigenous cultural heritage is to be taken seriously and the Court is "required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner" (R v Slattery (1996) 90 A Crim R 519 at 524 per Hunt CJ at CL; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [155] and Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42 at [72])" [emphasis added].[39]

The table in the Appendix to this article illustrates that the maximum penalties under the Protection of the Environment Operations Act 1997 (NSW), the Environmental Planning and Assessment Act 1979 (NSW) and the Native Vegetation Act 2003 (NSW) are all in excess of $1 million for individuals. The government should take heed of the above comment of Pepper J in the finalisation of the current review and reassess the maximum penalties for Aboriginal cultural heritage offences to bring true equality to the penalties for environmental offences.

Current review

With the 2010 reform of the NPW Act came the government's commitment to develop stand-alone legislation for New South Wales Aboriginal cultural heritage. The government promised this legislative reform within two years of the announcement in June 2010 and established the Aboriginal Culture and Heritage Reform Working Party to contribute to the review process.[40] Phase one of the review is complete. The government is behind schedule with the further four phases of the review and has made no commitment as to a likely date for the submission of the final report.[41] It is in this legislative climate that the first decision implementing the 2010 amendments, Ausgrid, was handed down.

Ausgrid

Destruction of "footprint" rock engraving

Excavation works to install underground cables carried out by a contractor engaged by Ausgrid[42] as part of an electrical substation development in Cromer on Sydney's northern beaches destroyed an Aboriginal rock engraving. The rock engraving depicted a footprint motif that was approximately 10 by five inches in size. It was located on a sandstone outcrop that had been jack-hammered away to build the kerb and guttering for the nearby road.

The contractor was unaware of the presence of the rock engraving because Ausgrid's environmental impact assessment (EIA) stated that the development would not impact any Aboriginal object. This view was formed on the mistaken belief of a junior Ausgrid employee that the development was to occur on the opposite side of the road. Ausgrid's management had inappropriately and negligently delegated the responsibility of both preparing and verifying the EIA for the development to this employee.

The damage to the Aboriginal object was substantial. The excavation destroyed approximately 40% to 60% of the rock engraving and this damage was not remediable.[43]

The Office of Environment and Heritage charged Ausgrid under the new strict liability offence for harming an Aboriginal object,[44] to which Ausgrid entered an early plea of guilty. Pepper J handed down the decision on the appropriate sentence in the Land and Environment Court of New South Wales on 24 April 2013, over two years after the commission of the offence.

Sentencing decisions are made on the basis of a determination of the objective and subjective elements of the offence.[45] The court must identify and weigh the significance of the relevant factors[46] and use the instinctive synthesis method to arrive at the appropriate sentence.[47]

The objective elements of an offence include factors such as the significance of the environmental harm, the maximum penalty, the foreseeability of the harm and the practical measures available to avoid the harm. Pepper J found that the offence committed in this instance was of low to moderate objective gravity,[48] and that the prosecution had failed to prove the particular significance of the specific rock engraving in question,[49] an issue which is discussed in detail below.

The subjective elements of the offence in this instance included: consideration of the early plea of guilty; Ausgrid's good character; Ausgrid's cooperation with the OEH; the likelihood of Ausgrid reoffending; payment of OEH's costs; Ausgrid's remorse and contrition demonstrated by the internal procedural changes implemented as a result of the destruction of the rock engraving; and Ausgrid's general support of the Aboriginal community in providing employment and community services. These subjective factors mitigated the severity of the penalty that would otherwise have been imposed based on the objective factors of the offence.

Pepper J ordered that Ausgrid be fined $4,690 for harming the rock engraving, pay the prosecutor's costs of the proceedings that amounted to $36,000 and publish notice of the details of the offence and penalty in both the Sydney Morning Herald and the Koori Mail.[50] In reaching this decision, Pepper J concluded that the environmental harm to the rock engraving in question was of "moderate" gravity. The Metropolitan Local Aboriginal Land Council (MLALC) is investigating avenues of appeal.[51]

Among the issues raised by this decision are: the appropriateness of the court's determination of the significance of the rock engraving, noting the consequential effect of this decision on the severity of the penalty imposed; as well as whether the penalty imposed in Ausgrid achieves the aims of the 2010 amendments, ie. to echo the severity of other environmental offences in the penalties for harming Aboriginal cultural heritage.

Significance of environmental harm

The footprint rock engraving

Pepper J heard evidence from representatives of both the MLALC and the New South Wales Aboriginal Land Council (NSWALC) as to the significance of the footprint rock engraving to the Aboriginal community. The court also undertook a site inspection of the damaged rock engraving.[52]

The subject rock engraving was one of 113 in the Northern Beaches area,[53] and one of 1,632 Aboriginal objects registered on the AHIMS.[54] Rock engravings have cultural value for Aboriginal people because of their spiritual significance. They are evidence of information exchange and pre-contact Indigenous occupation and use of the area, and they are a record of cultural heritage prior to colonisation.[55]

The prosecution evidence submitted that the rock engraving was particularly significant because of the high rate of destruction of Aboriginal cultural heritage and that it was a rare example of an intact engraving that could not be replaced. Further, it was a marker of the cultural route between the site of the engraving and Narrabeen Lake. It was part of the story of the landscape as a whole and its significance could not be viewed in isolation.[56]

Pepper J found that in harming the rock engraving, Ausgrid had caused harm to the local Aboriginal community as well as the national Aboriginal and non-Aboriginal communities.[57] Despite this evidence and this finding, Pepper J found that the prosecution had not presented sufficient evidence on the significance of the particular rock engraving in question to warrant a finding that the environmental harm was "substantial" and held instead that it was "moderate".

In making this finding, Pepper J took into consideration the presentation of the rock engraving, being unprotected by a fence or signpost, unmaintained and covered in dirt and leaves. Also of relevance was that other rock engravings nearby had been vandalised,[58] that the rock engraving was registered on the AHIMS in 1979 with no annotated photographs or description of its significance to Aboriginal people,[59] and that the rock engraving had not been completely destroyed.[60]

Pepper J reiterated a comment that was made by Preston CJ in Garrett v Williams, that the finding that the destruction of the footprint rock engraving did not amount to "substantial" harm "is not meant in any way to diminish the significance of the engraving to the Aboriginal people of the area".[61] In both cases the prosecution evidence had failed to prove "substantial harm" to the requisite criminal standard: beyond reasonable doubt. Nonetheless, both judges acknowledged the significance of Aboriginal cultural heritage generally and, to both Australian Aboriginal and non-Aboriginal people. In this case, the Australian legal system failed to protect a rock engraving, whose very existence had value to Aboriginal people. Aboriginal heritage "has been shattered to pieces" so any record of presence is important "to put the pieces back together again".[62]

Importance of protecting Aboriginal cultural heritage

Protecting Aboriginal cultural heritage is important from a historical, archaeological perspective, but, more importantly, it is central to the identity and culture of the current and future generations of Aboriginal people. Given that the past regulatory focus of Aboriginal heritage legislation was to protect the value to the profession of archaeologists rather than its value to Aboriginal people,[63] it is particularly important that today's regulation emphasises the importance of Aboriginal cultural heritage to the living culture of Aboriginal people.[64]

Aboriginal people continue to keep their cultures alive by the handing down of knowledge, tradition, language, arts and rituals.[65] The destruction of Aboriginal cultural heritage objects and places seriously affects Aboriginal people's ability to participate in cultural activities.[66] Its destruction also undermines the ability of the present generation to pass on the cultural and spiritual practices to the next generation.[67] The principles of ecologically sustainable development (ESD), in particular that of intergenerational equity, are not an object or a required consideration for decisions made under the NPW Act. Ecologically sustainable development should be a mandatory consideration for decision-makers dealing with Aboriginal cultural heritage matters, including in sentencing procedures.[68]

Pepper J noted that harming objects of social, cultural and historic value to Aboriginal people, intentionally or not, has the "tendency to perpetuate the 'national legacy of unutterable shame' caused by the dispossession of Aboriginal persons from their lands as a consequence of colonisation".[69] The inability of the current laws to provide adequate protection of Aboriginal cultural heritage is simply perpetuating this legacy. Australia's history of denying Aboriginal law, appropriating Aboriginal lands and adopting assimilation policies, has not only led to Aboriginal deaths, but to a loss of Aboriginal language, stories, law and culture.[70] Adequately addressing the protection of the remaining Aboriginal cultural heritage could go some way towards mitigating this loss.

Proving significance

The inability of the NPW Act to adequately protect Aboriginal cultural heritage is in part due to the evidentiary burden of proving the significance of an Aboriginal object. The finding that Ausgrid's offence was of "moderate" environmental harm was a direct result of the inability of the prosecution to lead evidence as to the significance of the particular rock engraving and to prove this significance beyond reasonable doubt. The evidence led by the NSWALC and MLALC failed to indicate why this specific rock engraving was culturally important. It focused on the general importance of rock engravings and the high rate of destruction of Aboriginal cultural heritage. This evidentiary issue ultimately led to the imposition of the relatively mild penalty of $4,690.

In order to effectively protect Aboriginal cultural heritage for Aboriginal people, Aboriginal people should have responsibility for determining the significance of an object or area.[71] This determination should not be hindered by the values, preferences or attitudes of people who are external to the Aboriginal culture.[72] Aboriginal heritage is bound up with belief, law, community, cultural practice and identity. Its protection thus requires a holistic approach and should acknowledge the inability to separate notions of tangible and intangible heritage for Aboriginal people.[73]

Currently, in the context of AHIP decisions, OEH requires statements of significance as proof of the significance of an Aboriginal object to an Aboriginal community. This statement must address four of the five values incorporated into the Burra Charter definition of "cultural significance":[74] social, historical, scientific and aesthetic values.[75] The Burra Charter is considered the best practice standard for cultural heritage management in Australia.[76]

This approach demands that Aboriginal values be explained and dissected in a manner that fits a traditional Western analysis. For example, Pepper J considered the rarity of the rock engraving and the level of maintenance, care and attention it and the surrounding rock engravings had received as indicative of the value ascribed to the rock engraving by Aboriginal people.[77] In doing so she imposed Western values of how significant sites should be maintained.

The danger in this approach is that the intricacies of the connection between culture and landscape and how individual objects and places relate to this story are lost. Issues such as rarity, research potential, representativeness and educational potential are relevant to a Western notion of significance; however, they do not necessarily transfer to the Aboriginal value system. As Sullivan argues, Aboriginal concepts of value include the additional Burra Charter value of spiritual value.[78] Further, and as Taubman argues, the problem of expressing significance in terms of the categories of the Burra Charter is that it can emphasise certain values over others and a rock engraving with outstanding aesthetic value may attract greater protection than a sacred site that lacks obvious signs of human activity.[79] This criticism is evident in the decision in Ausgrid.

A further issue with Pepper J's finding on the significance of the footprint rock engraving was that she failed to consider the cumulative effect of the destruction of Aboriginal cultural heritage. The destruction of one of many rock engravings, viewed in isolation, may be considered to have "moderate" environmental harm. However, viewed cumulatively, there is a danger that the overall landscape value made up of these individual objects will be lost to "death by a thousand cuts". Aboriginal perspective involves looking at an individual object as forming part of a greater whole, from a "landscape perspective".[80] Measuring degrees of strength of significance is "counterintuitive and perhaps counterproductive" and a more integrated approach that protects cultural landscapes, or "Country", is required.[81]

Hayward presents an opposing viewpoint to argue that legislative reform in the area of Aboriginal cultural heritage protection should reconsider the blanket protection of Aboriginal objects under the NPW Act, as it adds unreasonable cost and delay to developers' timelines.[82] He suggests that only those objects that reach certain significance criteria should be afforded protection, stating that "it is important to note there is a distinction between heritage that is significant and heritage that is not".[83] He advocates a "significant impact" test.[84] However, the values and thresholds he proposes such as rarity and representativeness are based on the Burra Charter and, as discussed above, these may not equate to "value" from an Aboriginal perspective. Ultimately, any significance test must acknowledge significance to the people who identify with the heritage object or place.[85] For regulation to effectively protect Aboriginal cultural heritage, decisions on what constitutes significant heritage must not only involve Aboriginal people, but must also be based on Aboriginal concepts of value.

Adequacy of the penalty imposed

Pepper J's finding that the environmental harm of Ausgrid's offence was "moderate" limited the quantum of the fine she was able to impose. Given the status of the case as being the first sentencing decision following the commencement of the 2010 amendments, and the context of the parliamentary intention to bring equality to the fines for environmental offences, the quantum of this fine is of particular interest.

The table in the Appendix to this article details the fines imposed by the Land and Environment Court of New South Wales for various recent environmental offences. Although distinct sentencing considerations make direct comparison of the penalties difficult, it is clear from the quantum of the fines and the available maximum penalties, that fines for Aboriginal heritage still sit below those for other offences. The facts in Ausgrid did not enable Pepper J to impose the maximum penalty. She did, however, impose the increased penalties available to her. In circumstances of similar environmental harm, the culpability of Ausgrid was less than that of the defendants in Garrett v Williams and Plath v O'Neill and the fine imposed was substantially higher ($4,690 as opposed to $1,350 and $1,600 respectively).[86]

Preston CJ has expounded the purposes for which a sentence may be imposed to include adequately punishing the defendant, denouncing the defendant's conduct, deterrence, and recognising the harm done to the community, particularly the Aboriginal community.[87] Some additional aims of penalties are to promote the respect of Aboriginal culture, and to encourage developers to apply for an AHIP and to engage in negotiations with Aboriginal groups and government about the best way to balance competing interests on a development site.

In Ausgrid, Pepper J found that there was little need for specific deterrence, as Ausgrid was unlikely to reoffend. There was, however, a need for general deterrence due to the "potential for irreparable harm to such finite objects … and to the cultural heritage of Indigenous and non-Indigenous persons".[88] The MLALC has responded to Pepper J's sentence by expressing concern that the judgment signalled to developers that they would only receive a "slap on the wrist" for destroying Aboriginal heritage.[89]

Economic interests that favour damage to heritage in the pursuit of financial gains are a concern.[90] The NPW Act deals with this by making it an aggravating element of the offence if the person was carrying out a commercial activity when the Aboriginal object or place was harmed.[91] However, critics argue that imposing fines does little to achieve the overarching aim of conserving "places, objects and features of significance to Aboriginal people",[92] as expressed in the objects to the NPW Act, by deterring offensive behaviour. Fines ignore the offence's objectives and assume that destruction of Aboriginal heritage is "a purchasable commodity which can be discounted as an additional licence fee".[93] The deterrent effect is particularly low if the fine is not considered onerous in the context of other development costs.

The danger of having penalties too low is that developers can decide that it is worth paying the fine to avoid the arduous and lengthy process of obtaining an AHIP. This was the case in Plath v O'Neill, where the landowners were aware of the quantum of the fine when they intentionally harmed a midden located on their land.[94]

Ultimately, a broader conception of sentencing options is required to provide effective protection for Aboriginal cultural heritage. The Land and Environment Court has acknowledged that alternative dispute resolution methods such as restorative justice conferences have their place where the relationship between the Aboriginal community and the offender is ongoing.[95] However, this is an isolated example of the use of alternative sentencing options in the area of Aboriginal cultural heritage offences. Alternative orders for these offences might include an order: to participate in community education about the significance of Aboriginal cultural heritage, Aboriginal concepts of harm and duty of care obligations;[96] to promote Aboriginal employment; or to engage in social work within Aboriginal communities. Where penalties are imposed, they should be paid to the Aboriginal communities to assist in their involvement in cultural heritage protection programs and the general maintenance of known Aboriginal objects, such as the footprint rock engraving in Ausgrid.

Bolstering protection for Aboriginal cultural heritage

Ausgrid has demonstrated that achieving adequate protection of Aboriginal cultural heritage requires a legislative overhaul that addresses more than just the deterrent effect of a fine. This discussion has already addressed the importance of acknowledging that the application of the traditional Western notion of the "significance" or "value" of an Aboriginal cultural object misses the mark in assessing the significance of these objects for Aboriginal communities. Further measures for reform towards meaningful protection of Aboriginal cultural heritage should involve implementing adequate OEH monitoring and enforcement procedures, addressing the issue of contractor liability and recognising the necessity of self-determination.

The review of Aboriginal cultural heritage regulation in New South Wales to date has only released general documents recording the wide-ranging views of diverse stakeholders.[97] Unfortunately, despite repeated calls for Aboriginal self-determination in the management and ownership of heritage objects and places, and the recognition of Aboriginal perceptions of value and significance, it is likely that any new legislation will reflect the New South Wales political culture that has structurally and historically held a pro-development bias.[98]

Compliance and enforcement

There have been four Aboriginal cultural heritage offences prosecuted since 1995: Director of National Parks and Wildlife Service v Histollo Pty Ltd [1995] NSWLEC 132 and [1995] NSWLEC 240, Garrett v Williams, Plath v O'Neill and Ausgrid.[99] The New South Wales Government has explained the low rate of prosecutions prior to 2010 on the basis that it is difficult to enforce the "knowing offence" because it is difficult to prove the necessary intention contained in the offence.[100] However, the prosecution rate has not increased since the 2010 amendments commenced to include the "strict liability" offence.[101]

According to the Minister's Second Reading Speech, the 2010 amendments were "designed to improve the enforcement and operation of the NPW Act".[102] However, simply increasing the quantum of the fine does not ensure that the Act is enforced. Enforcement depends on the ability of the government to monitor compliance with permit conditions and development activities in areas rich in Aboriginal cultural heritage. Some States have a system of inspectors that report back to Ministers. The New South Wales Government does not have this system in place, nor does it undertake routine monitoring or auditing of development activities.[103] The system in New South Wales currently relies on self-reporting or incidental observations. In the case of Ausgrid, a council officer observed the damage to the rock engraving and ordered the contractors to report the damage to OEH.[104]

Offences and penalties for breach are toothless without adequate monitoring and enforcement procedures. Allen makes this point about the penalties under the Heritage Act 1977 (NSW); although she also argues that high penalties provide an important deterrent factor, particularly where enforcement levels are low.[105] Ultimately, in practice, compliance with cultural heritage laws is the real test of their effectiveness;[106] and compliance is promoted by the enforcement, not merely the threat of penalties. Initiating routine inspections and giving OEH the ability to issue on-the-spot fines could increase compliance levels and address these concerns.

Initiating alternatives to formal prosecution, such as through the imposition of on-the-spot fines or through alternative dispute resolution mechanisms like negotiation and mediation, would increase the effectiveness of the penalty regime and would also avoid lengthy and costly prosecutions in the Land and Environment Court. The offence in Ausgrid was committed on 2 December 2010 and the judgment was handed down on 24 April 2013, with no explanation given as to the delay.

Increasing public awareness through education campaigns for private landowners and developers would also bolster compliance levels. Knowledge of the importance, rights, obligations and expectations relating to Aboriginal cultural heritage in the planning and development sphere is the first step towards ensuring compliance with Aboriginal cultural heritage laws.[107]

Contractor liability and EIA procedure

In Ausgrid, a private company, 123 Signs Pty Ltd, organised to carry out the excavation works, with approval from Ausgrid. 123 Signs engaged contractors, who in turn engaged two further independent contractors to carry out the works.[108] None of these contractors were aware of the presence of the rock engraving on the development site, because their knowledge was based on the flawed EIA.

The circumstances in Ausgrid highlight the importance of the accuracy of the EIA process to Aboriginal cultural heritage protection, as this is the key document which is used to communicate with contractors involved in development projects. Checks and balances should be in place to verify the contents of these important documents. Ausgrid has since implemented a range of internal procedures, including the requirement that a senior employee preside over the EIA process, in acknowledgment of the unsatisfactory situation that in this case responsibility for the EIA had been placed with a very junior "work experience" employee.[109]

The reality of the strict liability offence for harming Aboriginal cultural heritage is that the contractor who physically caused the harm to the rock engraving could have been charged with the offence. A possible defence is the due diligence process, for which contractors rely on their principal. Contractors should apply precautionary procedures to ensure that errors are identified and rectified and should consider, in the context of being retained for their expertise, making an independent assessment of any EIA they rely upon.

Aboriginal self-determination

Appropriately severe penalties are only one branch of the regulatory system required to adequately protect Aboriginal cultural heritage. The issue of self-determination will be critical to the strength of the pending stand-alone Aboriginal cultural heritage legislation. The vesting of management responsibility and control of Aboriginal objects and places in Aboriginal people is a central platform for reform of Aboriginal groups and academic critics alike.[110] The Aboriginal Land Rights Act 1983 (NSW) established the NSWALC and the Local Aboriginal Land Councils, requiring them to take action to protect Aboriginal culture and heritage and to promote awareness of this heritage. However, they are not given ownership or management responsibilities under the NPW Act. New South Wales needs to follow the footsteps of the relatively recent reforms in Queensland and Victoria, which have recognised Aboriginal people as the primary authority for Aboriginal heritage.[111]

Practically, this involves determining who will speak for Aboriginal communities. This raises the difficulty that there is no one unified Aboriginal voice.[112] Aboriginal land councils, Aboriginal Elders or those with the prerequisite initiation requirements are all possible candidates.[113] Ultimately, giving Aboriginal people responsibility for the maintenance and management of Aboriginal cultural sites and allowing them to decide on the significance of individual sites, will remove many of the problems involved in the present situation under the NPW Act, where the participation of Aboriginal people through consultation is minimal and inadequate.

Resources must be directed to identifying, assessing the significance of and establishing maintenance procedures for the protection of specific Aboriginal objects, such as the footprint rock engraving. This might involve ongoing audits of public and private land and discourse with Aboriginal people about the significance of objects uncovered as well as those already listed on the AHIMS.

Conclusion

The decision in Ausgrid shows that the government needs to do more than increase the penalties to effectively protect Aboriginal cultural heritage. Penalties are toothless if they remain unenforced and rely on traditional Western assessments of the significance of Aboriginal objects and places. Regardless of the maximum penalties available for an offence against Aboriginal cultural heritage, the penalties imposed will remain weak while the determination of the significance of heritage rests upon non-Aboriginal notions of value and significance.

Ausgrid demonstrates how negligent management of the EIA process can lead to the destruction of important, irreplaceable Aboriginal cultural heritage. Bolstering the effectiveness of Aboriginal cultural heritage regulation therefore demands the enactment of stand-alone legislation that invests in enforcement procedures, demands accuracy of the EIA practices and vests ownership and elements of control of Aboriginal cultural heritage in Aboriginal people, as well as supporting them in its ongoing management.

 

This article was first published in Environmental and Planning Law Journal, Vol 31 (2014).This article originated from a paper submitted for the subject Heritage Law as part of the Master of Laws (LLM) in Environmental Law at Macquarie University, Sydney, Australia convened by Robert Stokes and Sara Kiyork.

 

 


[1] Judgment was handed down on 24 April 2013.back

[2] McQuire A, "Aboriginal Heritage: Between a Rock and a Hard Place", Tracker (1 May 2013); McKenny L, "Mix-up Causes Ausgrid Employee to Destroy Aboriginal Carving, Court Told", Sydney Morning Herald (16 April 2013); McKenny L, "Facing a $220,000 Fine, Ausgrid Hit with $4,690 Penalty Plus Costs", The Age (23 April 2013).back

[4] Chapman T, "Corroboree Shield: A Comparative Historical Analysis of (the Lack of) International, National and State Level Indigenous Cultural Heritage Protection" (2008) 5 Macquarie Journal of International and Comparative Environmental Law 81.back

[5] Shearing S, "One Step Forward? Recent Developments in Australian State and Territory Indigenous Cultural Heritage Laws" (2006) 3 Macquarie Journal of International and Comparative Environmental Law 36.back

[6] Evatt E, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Office of the Minister for Aboriginal and Torres Strait Island Affairs, 1996).back

[7] Evatt E, "Overview of State and Territory Aboriginal Heritage Legislation" (1998) 16(4) Indigenous Law Bulletin 4.back

[8] Aboriginal Heritage Act 2006 (Vic); Aboriginal Cultural Heritage Act 2003 (Qld); Aboriginal Heritage Act 1972 (WA); Aboriginal Relics Act 1975 (Tas) and Aboriginal Heritage Act 1988 (SA).back

[10] Part 3A of the Heritage Act 1977 (NSW) allows for Aboriginal places to be nominated to the New South Wales Heritage Register on the recommendation of the Minister if they are considered of high significance to the cultural heritage values of the community or to the Aboriginal peoples of New South Wales.back

[11] National Parks and Wildlife Act 1974 (NSW), ss 83 and 85.back

[12] Bignold J comments on this duality of the Director-General's role in section C of Director of National Parks and Wildlife Service v Histollo Pty Ltd (1995) 88 LGERA 214; [1995] NSWLEC 132 and (1995) 89 LGERA 116; [1995] NSWLEC 240.back

[13] Kevin Humphries MP, quoted in NSWALC, n 9.back

[14] National Parks and Wildlife Act 1974 (NSW), s 86.back

[15] National Parks and Wildlife Act 1974 (NSW), ss 86 and 90.back

[16] Clover Moore's response to the Second Reading Speech on the National Parks and Wildlife Bill 2010, quoted in National Native Title Tribunal (NNTT), Commonwealth, State and Territory Heritage Regimes: Summary of Provisions for Aboriginal Consultation (December 2010), p 76; Kennedy J, "Operative Protection or Regulation of Destruction? The Validity of Permits to Destroy Indigenous Cultural Heritage Sites" (2005) 6(14) Indigenous Law Bulletin 20; Ruddock K, "Bankruptcy – The Price for Seeking to Protect Indigenous Rights?" (2009) 26 EPLJ 81.back

[17] The policy supporting cl 80C of the National Parks and Wildlife Regulation 2009 (NSW) consultation requirements is contained in Department of Environment, Climate Change and Water, Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 (April 2010).back

[18] National Parks and Wildlife Act 1974 (NSW), s 5(1).back

[19] National Parks and Wildlife Act 1974 (NSW), s 5(1).back

[20] Office of Environment and Heritage (OEH), Webpage: Regulation of Aboriginal Cultural Heritage.back

[21] National Parks and Wildlife Act 1974 (NSW), ss 5(1) and 84.back

[22] National Parks and Wildlife Act 1974 (NSW), s 86(1).back

[23] National Parks and Wildlife Act 1974 (NSW), ss 86(2) and (4).back

[24] National Parks and Wildlife Act 1974 (NSW), s 87(1).back

[25] Department of Environment, Climate Change and Water, Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales (13 September 2010).back

[26] National Parks and Wildlife Act 1974 (NSW), ss 87(2) and (4).back

[27] National Parks and Wildlife Act 1974 (NSW), s 90Q.back

[28] National Parks and Wildlife Act 1974 (NSW), s 87A.back

[29] National Parks and Wildlife Act 1974 (NSW), s 87B.back

[30] National Parks and Wildlife Act 1974 (NSW), s 89A.back

[31] See the Aboriginal heritage offences cases listed in the Appendix to this article. See also Prosecution/Civil Enforcement Proceedings Relating to the Destruction of a Heritage Item, Aboriginal Object or Place.back

[32] Plath v O'Neill (2007) 174 A Crim R 336; [2007] NSWLEC 553 at [73].back

[33] Veitch, n 9. This speech is a duplication of the "Agreement in Principle" speech given by Frank Sartor to the Legislative Assembly on 25 February 2010.back

[34] Aside from the new strict liability offence and the increased penalties, the 2010 amendments also implemented alternative orders and sentencing options, such as remediation directions, order for restraint of breaches from the Land and Environment Court, interim protection orders and stop work orders. See National Parks and Wildlife Act 1974 (NSW), Pt 6.back

[35] National Parks and Wildlife Act 1974 (NSW), s 86(1).back

[36] National Parks and Wildlife Act 1974 (NSW), s 86(2).back

[37] National Parks and Wildlife Act 1974 (NSW), s 86(4).back

[38] Veitch, n 9.back

[39] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [46].back

[40] Veitch, n 9.back

[42] Ausgrid, previously known as EnergyAustralia, is a State-owned electricity corporation.back

[43] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [26].back

[44] National Parks and Wildlife Act 1974 (NSW), s 86(2).back

[45] Veen v The Queen [1979] HCA 7, quoted in Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [37]back

[46] The relevant considerations for sentencing decisions are found in the Crimes (Sentencing Procedure) Act 1999, ss 3A and 21A and the National Parks and Wildlife Act 1974 (NSW), s 194.back

[47] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [39].back

[48] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [71].back

[49] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [58].back

[50] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [112]. The details of the publication order received minor amendment in Chief Executive, Office of Environment and Heritage v Ausgrid (No 2) [2013] NSWLEC 63.back

[51] McKenny, n 2.back

[52] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [10].back

[53] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [29].back

[54] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [51].back

[55] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [30].back

[56] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [49]-[56].back

[57] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [49].back

[58] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [59].back

[59] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [15].back

[60] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [60].back

[61] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [61]; Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 at [83].back

[62] Veitch, n 9, p 5.back

[63] NNTT, n 16, p 3.back

[64] NSWALC, n 9.back

[66] Pain J in Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43 at [64].back

[67] Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43 at [199]-[200].back

[68] Note that there is no requirement for ESD as a mandatory consideration under the new planning framework for New South Wales, currently articulated in the Planning Bill 2013.back

[69] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [43] quoting Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.back

[70] Caon N, "Does the Aboriginal Heritage Act Adequately Recognise Aboriginal Custodianship of Culture and Heritage?" (2011) 33(9) Bulletin (Law Society of SA) 24.back

[71] Evatt, n 6, p 5.back

[72] Stobbs N, "What Can We Do For You? Naive Conceptions of the Value of Indigenous Cultures and Communities" (2005) 6(10) Indigenous Law Bulletin 19.back

[73] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; Evatt, n 71 at 1.back

[74] The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance 2013, Art 1.2.back

[76] Australia ICOMOS, Charters.back

[77] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [59].back

[78] Sullivan S, "More Unconsidered Trifles? Aboriginal and Archaeological Heritage Values: Integration and Disjuncture in Cultural Heritage Management Practice" (2008) 67 Australian Archaeology 107.back

[79] Taubman A, "Protecting Aboriginal Sacred Sites: The Aftermath of the Hindmarsh Island Dispute" (2002) 19 EPLJ 140 at 154.back

[80] Memmott P and Long S, "The Significance of Indigenous Place Knowledge to Australian Cultural Heritage" (1998) 4(16) Indigenous Law Bulletin 13.back

[81] Bowdler, quoted in Sullivan, n 78 at 114.back

[82] Hayward B, "Towards Standalone Aboriginal Heritage Legislation in New South Wales: A Critical Analysis and Proposals for an Alternative Plan" (2012) 29 EPLJ 529.back

[83] Hayward, n 82 at 533.back

[84] Hayward, n 82 at 530.back

[85] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; Sullivan, n 78 at 108.back

[86] In each case the defendants paid the prosecutor's costs.back

[87] Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 at [116].back

[88] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [92]-[93].back

[89] McKenny, n 2.back

[90] Clover Moore's response to the Second Reading Speech on the National Parks and Wildlife Bill 2010, quoted in NNTT, n 16, p 76.back

[91] National Parks and Wildlife Act 1974 (NSW), s 86(3)(a).back

[92] National Parks and Wildlife Act 1974 (NSW), s 2A.back

[93] Lipman Z and Roots L, "Protecting the Environment through Criminal Sanctions: The Environmental Offences and Penalties Act 1989 (NSW)" (1995) 12 EPLJ 16 at 31, as quoted in Seiver A, "Defining the Offence of Unlawfully Destroying Aboriginal Heritage" (2005) 6(9) Indigenous Law Bulletin 8.back

[94] Plath v O'Neill (2007) 174 A Crim R 336; [2007] NSWLEC 553 at [32].back

[95] The benefits of the restorative justice technique in the context of an Aboriginal cultural heritage offence is explored in McDonald J, "Restorative Justice Process in Case Law" (2008) 33(1) Alternative Law Journal 41 and Hayward, n 82 at 515.back

[96] Seiver, n 93 at 10.back

[97] Veitch n 9.back

[98] Robinson D, "Strategic Planning for Biodiversity in New South Wales" (2009) 26 EPLJ 215, referencing Farrier, Kelly and Langdon.back

[99] See table in Appendix.back

[100] OEH, How the Aboriginal Heritage System Works (May 2012), p 17.back

[101] Ausgrid is the first prosecution since the 2010 amendments commenced. See Department of Premier and Cabinet, Annual Report 2010-2011, p 247, and Department of Premier and Cabinet, Annual Report 2011-12, p 182.back

[102] Veitch, n 9.back

[104] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [23].back

[105] Allen C, "New South Wales Heritage Act – Lion or Mouse?" (2005) 2 LGLJ 88.back

[106] NSWALC, n 9, p 57.back

[107] ACHAC, n 9, p 6.back

[108] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [21].back

[109] Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [32].back

[110] See for example, Taubman, n 79; ACHAC, n 9, p 3; NSWALC, n 3, p 12.back

[111] See Aboriginal Heritage Act 2006 (Vic) and Aboriginal Cultural Heritage Act 2003 (Qld).back

[112] This issue has arisen in numerous Aboriginal cultural heritage cases, such as the Hindmarsh Island Dispute of 1994 (for a discussion of this dispute see Taubman, n 79) and Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132; [2008] NSWLEC 272 at [30].back

[113] ACHAC, n 9, pp 2 and 4.back

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.