BY AMY MCQUIRE, MAY 10, 2011
Originally published in Tracker Magazine.
How the story broke in the first edition of Tracker magazine (April 2011)….
NEW SOUTH WALES: Ausgrid, formerly known as Energy Australia, has rejected allegations it is liable for the destruction of a significant Aboriginal heritage site on Sydney’s north shore.
The Metropolitan Local Aboriginal Land Council last month toldTracker that it exploring legal action against Ausgrid, over the destruction of an Aboriginal rock carving at Cromer, on Sydney’s north beaches.
The carving was one of the most significant in the area, but there is little left of it after contractors – Macaya Electrical Services – cut directly through the rock while laying underground power lines.
Ausgrid approved Macaya’s work, which was for a private developer.
The site is largely overgrown now, with barely any sign of preservation to prevent it being damaged further.
There is now a stoush over who is liable for the damage, with the land council at first targeting Ausgrid for overseeing the project.
It is understood that the issue of liability is complicating the investigation, with the decision over who to prosecute still pending from the NSW Office of Environment and Heritage (OEH), formerly the Department of Environment, Climate Change and Water (DECCW).
If Ausgrid was found responsible, it could face a $1.1 million penalty under recent amendments to the National Parks and Wildlife Bill 1974.
Under the amendments, a new “strict liability” offence has been created, which enables the OEH to prosecute over the damage of an Aboriginal heritage site, even if the site was damaged unknowingly.
It also increased the penalties. An individual can be fined up to $22,000 and a corporation can be fined up to $1.1 million, if the department decides to prosecute.
If it goes to court, it will be the first case trialled under these new amendments.
But Ausgrid has rejected any suggestion it is liable for the site, telling Tracker that it had simply approved Macaya’s work at the site.
“We don’t oversee (the work),” a spokesperson told Tracker.
“If a local council, for example, tells a land owner not to cut a tree down, the council is not liable if someone illegally does it.
“The only reason we were involved is under the planning laws, if work was being done near the cable, Energy Australia has to ensure that there is an impact statement, or assessment is done properly.”
Ausgrid claims that it made sure Macaya knew about the site.
“We corrected their impact assessment and we told them that that was an important site,” the spokesperson said.
“We actually made them include it on their environmental impact assessment. We told them if they came across any site, either this one or any other site, they had to put down their tools.
“Because we didn’t do the work, or contract anyone to do the work, we are not liable.”
CEO of the Metropolitan Local Aboriginal Land Council Paul Morris told Tracker that it will not let the issue rest.
“We’re going to wait until we hear back from the Environmental Defenders Office, and we’re just going to let that course of action play out and weigh up our options, whether we go it alone or explore other legal avenues,” Mr Morris said.
“But the main thing is our community demands this. Our board and community feel they have been completely disrespected and they demand that action be taken.”
He says who is liable will be a matter played out in the courts.
“From what I understand, and as far as I’m aware, Energy Australia had the knowledge of this known site,” Mr Morris said.
“They should have handed all that information over to any subcontractor, and whether they are directly or indirectly responsible, that’s a matter for the courts, … to be taken up through the legal process.”