Review of Sacred Site Protection in the NT: rhetoric outweighs substance

The NT Minister for Local Government and Community Services, Bess Price, has released a report commissioned from PriceWaterhouse Indigenous Consulting (PIC) into the Northern Territory’s Sacred Sites Protection legislation.

She has also announced that the Government will move to ‘strengthen sacred site protection’ by immediately beginning work on implementation of nine of the report’s recommendations, but failed to indicate which nine recommendation were to be implemented. The reference to “see below” in the media release provides no information on the nine recommendations which have been accepted. Hopefully this is an oversight and will be remedied quickly. The reference in the media release to “my government’ suggests that the release was originally drafted for the Chief Minister (who has responsibility for Indigenous affairs), but that a decision was made to reduce his profile in the issue.

The release of the report now, three months after its finalisation in April 2015, is unfortunate. It seems designed to send a positive message to Indigenous voters in the lead up to the coming NT election while deferring any contentious announcements or decisions till later. The NT election is scheduled for 27 August this year.

The PIC Report appears both comprehensive and thoughtful, and provides a useful summary of the history of Indigenous site protection in the NT (and beyond). It lays out an accessible roadmap to the intricacies in the site protection regime in the NT, involving both Commonwealth and NT legislation, and an inevitable myriad of thorny cross cultural and policy conundrums.

I don’t propose to summarise the report, nor discuss every element, but have picked out three areas which deserve comment.

The first is to reflect on the purpose of the review, as set out in the Terms of Reference (emphasis added):

The purpose of the Sacred Sites Processes and Outcomes Review (the review) is to investigate the extent to which the Northern Territory Aboriginal Sacred Sites Act 1989 (the Act) supports economic development in the Northern Territory. The review will examine the scope and operation of the Act as well as the strategic and day-to-day operations of the Aboriginal Areas Protection Authority (AAPA), the statutory authority set up by the Act to carry out the functions set out within it. The review should provide advice on:

1. Areas in which the Act might be strengthened to improve protections for sacred sites

2. Areas in which the Act might be strengthened to reduce red tape and provide certainty and improved processes for economic development in the Northern Territory

3. Ways in which the Authority can:

a. Become more efficient

b. Balance the need for development with the need for protection of sacred sites.

 

The terms of reference (attached as an Appendix to the PIC report) were clearly designed to facilitate findings which would tilt the playing field to assist commercial proponents to navigate the statutory requirements of the Territory’s heritage protection regime with greater ease.

Governments increasingly see every problem through the lens of economic development and jobs, and while this is a legitimate aspiration for any society and its government, it becomes problematic when it is the only lens through which policy issues are considered and assessed.

The second issue relates to the issue of compensation for damage to sites. The terms of reference identified this as an issue which should be considered, and PIC has recommended in favour of establishing a formal framework for the determination and payment of appropriate compensation to the traditional owners of sacred sites damaged by developers (see pages 34-36 of the Report).

This is an intriguing issue, as there are in my view arguments both for and against the proposal. Indigenous societies (as the report points out) involved customary processes for the punishment of breaches of customary law, and for the payment of compensation as a means of redressing such transgressions. There are more than a few instances of damage to sites by developers, mostly unintended or negligent, but sometimes deliberate. Where this happens, at present, there is no easy way for the owners of sites to be compensated short of litigation with all its risks and costs.

On the other hand, a move to a more flexible system which provides for compensation to be routinely paid will change the cost/benefit equation facing developers, and may have the (unintended?) consequence of increasing activities which place sites at risk of damage or destruction. The mantra “act now, pay later” may become an easier way to operate when profitable developments are facing firm opposition from traditional owners. This ‘moral hazard’ issue is exacerbated by the fact that the costs of compensation will most often be business expenses which are tax deductive for commercial interests.

Perhaps the solution can be found in careful drafting of the relevant provisions. On balance, my own inclination tends to reluctance to change the existing arrangements (contrary to the recommendation in the Review).

The third issue worth a brief comment relates to the recommendations relating to the governance and staffing of the NT Aboriginal Sacred Sites Authority. The report recommends some changes to the Board structure which appear sensible, but goes on to recommend that the CEO be appointed by the Board and not the Minister, and that the current confusion over the public service status of Authority’s staff be fixed by amending the legislation (which currently provides that the staff of the Authority be employed on public service terms and conditions). In effect, the recommendations take the Authority a step further away from Government and its status as a government corporation.

My own perhaps counter-intuitive perspective is that there are benefits to having the Aboriginal Sacred Sites Authority clearly located within the NT Government. Such positioning makes it harder for governments to distance themselves from the decisions of the Authority, and thus will serve as a prophylactic against future marginalisation of the Sites Authority and its important remit. While there is merit in the Authority Board selecting their CEO, there would be merit in providing the relevant Minister with a veto power over the appointment so that there is a shared responsibility. There is certainly precedent for this sort of arrangement in some Commonwealth statutory agencies.

Finally, given the forthcoming NT election, there would be merit in knowing where the Labor Opposition stands on the issues raised by the Sacred Sites review. They will require some time to consider a position, but Territorians deserve to know their position in advance of the election. The same applies to the Government; notwithstanding having had three months to form a view, their ‘announcement’ so far is all rhetoric and no substance.