Resolving disputes over Aboriginal sacred sites: Some experiences in the 1990s

Hal Wootten

Table of Contents

Sacredness and significance
Comparing the incommensurable
The role of the rapporteur
The Alice Springs Dam Case
Mining at Iron Knob
Boobera Lagoon
Mining in ‘blackfella country’
Some reflections

The material in this chapter arises out of some practical experiences of the way the Australian state has negotiated claims for the protection of Indigenous ‘sacred’ places that were threatened by private or public claims to exploit or remake the landscape in pursuit of wealth or public safety or amenity. For many readers this topic will bring to mind the unhappy experience of the Hindmarsh Bridge affair, where such a conflict dragged out through inquiries and litigation over some seven years and left behind bitter recrimination about the genuineness of Indigenous claims, the appropriateness of processes for evaluating them, and the proper role of experts such as anthropologists in those processes.[1] It is unfortunate that this particular dispute is so dominant in public perceptions of such conflicts, and continues to frustrate the development of more appropriate procedures for their resolution, because it is not typical of the outcomes of Australian Government intervention, as my experiences will show.

In early April 1992 I was asked by the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, to prepare a report for him in relation to an application by some Alice Springs Aboriginals seeking the protection, under the Aboriginal and Torres Strait Islander Heritage Protection Act, 1984, of some sites that would be destroyed by the construction of a dam, which the Northern Territory Government was planning in the Todd River above the town. For me it was to be the start of nearly a decade’s involvement in ‘the negotiation of the sacred’ in a quite literal sense: the endeavour to find terms and conditions for resolving conflicts between Aboriginal claims for respect of the special significance that certain areas of land had for them, and claims to exploit those areas for private gain or public utility.

The first application referred to me arose out of a dispute between some Alice Springs Aboriginals, represented by the Central Land Council, and the Northern Territory Government, which was proposing to build a major dam for flood mitigation purposes on land that had particular significance for the Aboriginals, or, as was said in common parlance, contained sacred sites. The Territory Government claimed that a major benefit of the dam would be to save the lives of Aboriginals who might otherwise drown in the Todd River when a flood reached town. Undoubtedly some of the Alice Springs townspeople saw the dam as a potential site for water-based recreation, but the Territory Government strongly resisted the suggestion that it would be so used.

My report was to be the principal basis of the Minister’s decision whether or not to protect the site, and under the legislation he could not act until he had received and considered my report. Because a lot of time had been used up in fruitless attempts to get an agreed settlement, the last interim declaration the Minister could make would expire in a little over a month, and the Northern Territory Government’s bulldozers were ready to commence work immediately it expired. So I, a secular non-Aboriginal lawyer, had about a month to come to an understanding of the Act; the nature of the significance Aboriginals attached to land and, in particular, that Aboriginal women in Alice Springs attached to parts of the upper Todd River; the reasons why the NT Government had decided to build a flood mitigation dam at this particular place; and everything relevant to the Minister’s weighing the desirability of the dam against the desirability of protecting the sites. There was no standing machinery for the implementation of the Act, and I made inquiries and wrote the report unassisted by any staff.

As it turned out, this was to be the first of four appointments as a rapporteur to the Minister. Later I dealt with challenges to BHP’s mining of a site at Iron Knob in South Australia, to the recreational and pastoral use of Boobera Lagoon in northern NSW, and to some of the mining proposed in the Century Mine project in the Queensland Gulf. In each case my first task was to see if there was a possibility of an agreed solution that would relieve the Minister of the need to make an invidious decision, and then, if no settlement was possible, to collate the materials and considerations relevant to a wise decision. Mercifully in the other three cases I did not face such an acute time constraint as I did at Alice Springs.

That such conflicts involved the ‘sacred’ on one side at least is acknowledged in the common designation of such areas as ‘sacred sites’, although a community that seems willing enough to acknowledge the sacredness of sites at an abstract level may become sceptical of their genuineness when particular claims are advanced, or reluctant to concede that their protection should override the pursuit of wealth or projects conceived in the public interest. Recognition of the need to provide legal protection for Indigenous heritage came late to Australia, and initially was often conceived as underpinned by the requirements of archaeological and anthropological scholarship rather than by respect for Indigenous values, beliefs and feelings. In other words it was directed to the concerns of non-Aboriginal, rather than Aboriginal people, about the preservation of sites and relics.[2]

The Aboriginal and Torres Strait Islander Heritage Protection Act, 1984, was framed as a last resort measure, enabling Aboriginals to seek Commonwealth protection only if State or Territory law did not provide effective protection for a significant Aboriginal area, that is, ‘an area of particular significance to Aboriginals in accordance with Aboriginal tradition’. This is the terminology of the Act, which does not use the word ‘sacred’.

Sacredness and significance

The category of the ‘sacred’, and the items assigned to the category, are constructs of the culture that uses the term. One could not expect that it would translate with ready equivalence between cultures as different as the modern, capitalist, predominantly secular culture of mainstream Australia (which itself would contain many differences of interpretation), and the cultures of Aboriginal groups or individuals.[3] Had the Aboriginal heritage legislation followed popular terminology and required decisions as to whether sites were ‘sacred’, it would have been very difficult to apply. However the problem has always been avoided. Although the early legislation did use the term 'sacred site', it defined it to mean ‘a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition’.[4] The Aboriginal and Torres Strait Islander Heritage Protection Act, 1984 drops the word ‘sacred’ entirely, but retains the requirement that the particular significance arise out of ‘Aboriginal tradition’, which is defined to mean ‘the body of traditions, observances, customs and beliefs of Aboriginals[5] generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships’.

As a result there has been no need to debate whether sites are ‘sacred’, and the phrase ‘particular significance’, while susceptible to a number of different interpretations, has not, so far as I am aware, given rise to any difficulties. In my Boobera Lagoon report, for example, I noted that the phrase had been discussed by some members of the High Court in the Tasmanian Dam case (Commonwealth v Tasmania (1983) 46 ALR 625), and went on to say that

the remarks of the judges support the view that 'particular' is directed only to the existence of a distinguishing characteristic, not to a particular level of significance.

In seeking a distinguishing characteristic, two possibilities have been pointed out. The area might have particular significance for Aboriginal people in contrast to its significance to other people, or it might have particular significance in contrast to the significance which all land or waters have for Aboriginals. On either view, it is clear that Boobera Lagoon has particular significance at least to the Aboriginal people associated with the Toomelah Boggabilla area.