BY AMY MCQUIRE, MAY 21, 2012
Originally published in Tracker Magazine.
Metropolitan Local Aboriginal Land Council CEO Paul Morris with legal advisor Michael Vassilli at the damaged site at Cromer.
NEW SOUTH WALES: The Office of Environment and Heritage (OEH) has made no decision on whether it will prosecute the state-owned Ausgrid and a subcontractor over the destruction of a significant Aboriginal site on Sydney’s northern beaches over a year ago.
The lack of action has led the Metropolitan Local Aboriginal Land Council to claim the OEH is dragging its feet on the investigation.
It has also questioned the department’s commitment to the protection of Aboriginal culture and heritage in the area, and across the state.
The Department has defended its ongoing investigation of the matter.
In December 2010, workers for Macaya Electrical Services cut through a large carving of a footprint, situated on the side of a road in Cromer while laying electrical cables.
It was one of the most significant Aboriginal sites on the north shore.
It has now been completely destroyed, and the site has not been preserved.
Ausgrid sub-contracted the work to Macaya but has denied any liability over the damage.
If the OEH decides to prosecute, it will be one of the first cases to be tested under amendments made in 2010 to the National Parks and Wildlife Bill 1974 which introduced a new “strict liability” offence.
This enables the department to prosecute over damage to an Aboriginal heritage site, even if the site was damaged unknowingly, and has also substantially penalties for offences under the Act.
An individual can be fined up to $22 000 for damage to an Aboriginal site, while a corporation can be fined up to $1.1 million.
The Chief Executive Officer of the Metropolitan Local Aboriginal Land Council, Mr. Paul Morris, told Tracker the lack of a decision on the Cromer investigation was a disgrace.
The Land Council could find no possible reason for the length of time being taken to make a decision.
“There’s nothing reasonable about this whole thing. (OEH) are just dragging their feet,” he said
“It’s a tactic we see a lot,” he added.
“They’ve sent a clear message to this land council that they’re not going to act.
“That message comes across loud and clear.”
“If they’re trying to build any trust or relationship with Aboriginal land councils or groups, this is the poorest example possible.
“It also highlights another fact…. any funding or any money the OEH receives for protecting culture and heritage should come across to Aboriginal land councils.
“They should be the ones charged with protecting the sites.”
Mr Morris said he believed the protection of Aboriginal culture and heritage should be a key issue in the NSW Government’s current review of the Aboriginal Land Rights Act 1983.
“What I would prefer to see is a whole section in the Act devoted to culture and heritage,” he said.
“The statutory rights of LALC’s should be expanded on massively.
“We should have the funding to actually protect sites.”
Mr Morris said the Metro LALC would now consider launching its own prosecution, but was limited by resources.
An OEH spokesperson told Tracker that the investigation was a “complicated matter.”
It was still under active consideration.
“(It) has taken longer than originally anticipated due to its complexity,” the spokesperson said.
“… Legal investigations of this nature are complicated as they involve multiple parties and questions of culpability and liability.”
The spokesperson refused to give a timeframe for when the investigation will be completed and rejected suggestions the OEH was not serious about penalising offenders who destroy Aboriginal heritage sites.
“The (OEH) works in partnership with the Aboriginal community, the development industry and landowners to protect and manage Aboriginal objects in NSW.
“When damage occurs, either deliberately or through omission, OEH actively undertakes a comprehensive investigation to establish the facts of the matter.
“A decision is then taken to send a warning letter, issue a fine, a remediation direction or prosecute the relevant party.”
Mr Morris told Tracker the case raised wider questions over whether the department was serious about protecting Aboriginal sites.
There were hundreds of sites on Sydney’s north shore, some hidden from view, some out in the open and many vulnerable to damage.
One easily accessible site had already suffered minor damage from vandals and natural causes like erosion.
Mr Morris fears the site, also on the northern beaches, is at danger of damage because it is close to a BMX track, and situated in an area popular with bushwalkers.
He fears there will be no retribution if the site is damaged.
“This all comes back to the issue of what they value. How much do these people value an Aboriginal site,” Mr Morris told Tracker.
“This is Australia’s first history, and if anyone is going to hold any true value to it, it’s got to be Aboriginal people themselves.
“Because of the scale of development and new technology, a lot of these sites are going to be disturbed, and destroyed and we are never going to get these sites back.
“Even the minor damage to this site (on the northern beaches) has a long term impact, with erosion and unsettling natural run off that can heighten damage.”