Aboriginal heritage: between a rock and a hard place

By Amy McQuire, March 1, 2013, Tracker Magazine.

NSW: NSW’s state-owned energy company – Ausgrid- destroyed a significant rock engraving on Sydney’s north shore in late 2010. The company entered a guilty plea but have only been slapped with a $4690 fine, dodging the maximum penalty in a case that illustrates the vulnerability of the state’s priceless Aboriginal heritage, writes AMY MCQUIRE.

Former CEO of the Metropolitan Local Aboriginal Land Council Paul Morris at the heritage site in Cromer in 2011.
Former CEO of the Metropolitan Local Aboriginal Land Council Paul Morris at the heritage site in Cromer in 2011.

“This is not an offense of harming an Aboriginal community. We harmed the engraving. We accept we harmed the engraving…”

“… This is an offense of low criminality and it remains so.”

Those were the words of Ausgrid’s defense lawyer in the NSW Land and Environment Court after pleading guilty to the charge that it had harmed an Aboriginal rock engraving in Cromer, on Sydney’s north shore.

The sandstone rock engraving – depicting a footstep – had little protection or signposting, and was on the side of a busy semi-industrial road.

The site is now overgrown and there is only a small etching of where the art used to be. There are no pictures of the original engraving, which is believed to have represented the site’s proximity to water. The evidence of other engravings nearby hint to its significance.

A short walk down the road, there are other engravings on a large rock, covered in graffiti, hidden behind an ugly property billboard – a depressing symbol of how Australia views its ancient heritage.

According to Metropolitan Local Aboriginal Land Council Acting CEO Clare McHugh, “generally it is understood rock engravings sites were like classrooms for children and young people to learn, like how to live in society, about food sources and their Dreamtime stories.

“Rock engravings are also understood to have been used as indicators, such as a meeting point for visitors from other clan groups or tribes wanting to cross over another country.”

NSW Aboriginal Land Council CEO Les Turner said in an affidavit tendered to the court that it was a “rare example of an intact surviving occupation site in a highly urbanized setting”.

But what could have produced a library of knowledge about the original inhabitants of the area is now lost. This physical reminder of Aboriginal occupation before invasion is gone – stripped form both black and white Australia – by a negligent company who claim it was simply an honest mistake.

In December 2010, contractors for Ausgrid, then known as EnergyAustralia, cut straight through the rock whilst laying power cables.

According to the then CEO of the Metropolitan LALC Paul Morris he was “pretty emotional to see a site like this, that’s thousands of years old and is completely disregarded by contractors for a multi-million dollar company”.

The case was particularly significant because it is the first time a prosecution has been pursued since the 2010 amendments to the National Park and Wildlife Act came into effect – designed to strengthen penalties for the destruction of Aboriginal heritage.

Under the new “strict liability” amendment, a company could be charged for damaging an Aboriginal site unknowingly – with the maximum fine for a corporation being $220,000, and up to $1.1 million for knowingly harming or desecrating an Aboriginal object – a penalty designed to deter companies from destroying our precious culture and heritage.

Prior to the amendment, it was necessary to prove that the person or corporation knew they were damaging an Aboriginal site.

But when Tracker first broke the story in April 2011, Ausgrid aggressively claimed it was not liable for prosecution.

According to a spokesperson in May 2011, “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”.

“We corrected their impact assessment and we told (the subcontractors) 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.”

Ausgrid was forced to change its tune in the Land and Environment Court late last month, when it expressed remorse and apologised for the destruction.

In December last year it pleaded guilty to the lesser charge of harming an Aboriginal object.

A junior employee with little experience had made a “mistake” in reviewing the Environmental IMpact Assessment (EIA), believing work would be carried out on the other side of the road – the northern side – and determined it would not impact any Aboriginal sites.

The subcontractors – Macaya Electrical – originally blamed by Ausgrid for the destruction – apparently had no knowledge of the site until it had been destroyed.

Ausgrid Chief Operating Officer Trevor Armstrong told the court that since the incident it had changed its processes, requiring EIA verifiers to have 3-4 years postgraduate experience.
But he said while the “issue of experience minimises risk”, there is still “a chance potentially (an experienced person) could make a mistake in picking he wrong side of the road”.

“It would reduce the potential of it happening rather than it be absolute.”

Ausgrid’s defence lawyer Mr Ian Llyod QC told the court Ausgrid had offered an apology and acknowledgement of the harm caused to the Aboriginal community, but that a penalty of $22,000, or 10 percent of the maximum penalty, would be more than enough for what he described as an offence of “low criminality”. He said it was a “human error” by a young employee who had followed the right processes.

He said being publicly shamed through the publication of advertisements in three newspapers was worse than any fine.

It was up the judge, he said, to determine how significant the rock art was on the spectrum.

That judgment was handed down by Justice Rachel Pepper earlier this month, who handed down a penalty of $4,690, ordering Ausgrid to pay the prosecutor’s costs of $36,000 and publish details of the offence in the Sydney Morning Herald, Koori Mail and its next Annual Report.

Justice Pepper found the “offence committed is one of low to moderate objective gravity” and found “Ausgrid to be a corporate person of good character”.

Justice Pepper also found the remorse shown by Ausgrid was a mitigating factor and that the company was unlikely to reoffend.

A $4,690 fine for the destruction of a significant Aboriginal heritage site illustrates just how vulnerable Aboriginal culture and heritage still is in this state, almost three years following the amendments to impose harsher penalties.

Not only has the OEH come under fire for the delays in prosecuting, but also for the fact it chose to prosecute under a lesser charge.

The OEH frustrated both the Metropolitan Local Aboriginal Land Council and the NSW Aboriginal Land Council (publisher of Tracker) for over a year while it dragged out its investigation.

It continually claimed that the issue of liability had complicated it, prompting continual concerns from the Metropolitan Local Aboriginal Land Council about whether the window of opportunity was closed for a successful prosecution.

Finally, it was revealed in a budgets estimate hearing that Ausgrid would be charged under the lesser offence of harming an Aboriginal ‘object’.

The maximum penalty would be $220,000, a far cry from the $1.1 million deterrence.

NSWALC CEO Geoff Scott wrote to OEH CEO Sally Barnes last year requesting an urgent review of the decision, calling on the charge to be urgently upgraded to the more serious charge.

Ms Barnes responded by telling NSWALC the lesser prosecution best reflected the nature of the destruction, stating the site had been “innocently” destroyed.

Mr Scott said it made a mockery of the amendments.

“You make a law but if the relevant authority refuses to enforce it, it does not count. The message is that Aboriginal culture and heritage does not matter” Mr Scott said.

Metropolitan Local Aboriginal Land Council chair Ricky Lyon’s said in his affidavit to the court that the “approach by OEH was tardy, and did not at any time seriously consider the repeated and substantial concerns raised by us in respect to the seriousness of the offence”.

That included a long series of correspondence between the land council and the OEH over the course of a year.

Greens MLA David Shoebridge also put the boot in, stating that “one of the reasons Aboriginal cultural heritage continues to be undervalued in NSW is the failure to adequately prosecute even in the face of wanton destruction like this”.

Metropolitan Local Aboriginal Land Council Acting CEO Clare McHugh told Tracker that whether it “was human error or an honest mistake, in my opinion is irrelevant”.

“When the government announced the 2010 amendments to the National Parks and Wildlife Act, it highlighted that the new ‘strict liability’ offence would meant that even when an Aboriginal heritage item is unknowingly damaged or destroyed, that those responsible would be held accountable.

“If the court rules that making a ‘mistake’ is a reasonable defense to damaging an Aboriginal heritage item, then it will render the ‘strict liability’ offence meaningless and send a strong message to proponents and developers that the court has set the bar extremely low when it comes to interpreting the amended laws for the protection of Aboriginal heritage in NSW.

“I do not think many people would like to see everyday Australians and home owners prosecuted heavily for making an honest mistake, but when large corporations that understand clearly what their responsibilities are and what the laws require of them make a mistake, they should be held to a much higher standard to ensure a strong message is sent regarding protecting Aboriginal heritage.”
But this is only one site – thousands of registered Aboriginal heritage sites are vulnerable to destruction, Ms McHugh says.

“There are numerous examples of vandalism to Aboriginal heritage items which are well known, fenced and clearly marked; all you need to do is visit any number of National Parks in the Sydney Metropolitan area to see this. This is why Aboriginal communities are sometimes hesitant to list Aboriginal heritage items on a public register, instead choosing to conceal a site as the best means of protecting it.”

There has been a continual push from Aboriginal communities and the NSWALC for standalone culture and heritage legislation, which the O’Farrell government has publicly promised. New South Wales is the only state in the country that does not have standalone culture and heritage legislation. Instead it is lumped under the flora and fauna laws.

But the report of a working party into culture and heritage had still not been made public.

It is obvious from the Cromer case that the current system does not adequately protect Aboriginal culture and heritage, and there are now concerns any new standalone heritage legislation would not enact desperately needed reforms.

“Any new stand-alone legislation must recognise and respect the rights of Aboriginal peoples and communities to control and manage their culture and heritage how they see fit, that must include providing Aboriginal peoples with the tools and means to provide appropriate levels of protection to Aboriginal sites and heritage items, and to also prosecute when those protections are ignored,” Ms McHugh says.

“I firmly believe that once in the hands of Aboriginal peoples to determine, prosecutions against illegal destruction of Aboriginal heritage will be thoroughly pursued and greater investment will be made to raising the awareness of all Australians as to the importance of Aboriginal heritage items and sites.

“When this happens, protections against harm to Aboriginal culture and heritage will vastly improve. “

It’s obvious that time is running out to protect this precious heritage.

The Aboriginal community around Cromer will never recover the destroyed rock engraving.

But it’s clear that harming an engraving has harmed the rights of a community to protect its cultural heritage.

“To see (the engraving) with a trench put through the middle of it is deeply offensive to me as an Aboriginal person, as it is emblematic for the scant regard, and low value non-Aboriginal people and organisations place on our history,” Mr Lyons says.

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