The Northern Territory Government recently commissioned a review of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT)(NTASSA). The review report was finalised and submitted to the government on 26 April 2016, though the government released its response to the report only recently, in mid-July.
The report resulted in 39 recommendations, 21 of which will require amendments to the NTASSA. The recommendations are aimed at providing more efficient processes for both custodians of sacred sites and proponents in relation to the use of areas where sacred sites are located, improving the function of the Aboriginal Areas Protection Agency (AAPA) and cementing its independence from government, and giving more power under the NTASSA to the custodians of sacred sites and the AAPA in relation to the use of areas where sacred sites are located.
The recommendations fall into two categories:
- amendments to substantive legislative provisions; and
- changes to administrative and resourcing processes and structures.
The government has committed to implementing nine of the recommendations and has indicated it will consider further the other 30. The nine recommendations that will be implemented immediately will address some of the more pressing problems with the legislation, which have arisen as the Northern Territory has begun to experience significant development and growth and more sophisticated systems are required.
The nine recommendations the government has committed to implement are as follows:
- The NTASSA be amended to require mandatory reporting of damage or desecration of sacred sites, including where proponents hold an Authority Certificate. This will place an obligation on individuals and bodies corporate to report any damage they have caused, which will improve knowledge of harm to sacred sites. The NTASSA currently relies on voluntary disclosure or accidental discovery of damage caused.
- The NTASSA be amended to empower the AAPA to issue stop work orders if a sacred site has been, or is considered to be under threat of being, damaged or desecrated. Amendments should also incorporate a process for stop work orders to be appealed to the Northern Territory Civil and Administrative Tribunal to provide aggrieved parties with an opportunity to object to and have overturned any stop work orders they consider to be unjust.
- The NTASSA be amended to provide custodians of sacred sites with the ability to give ‘standing orders’ to the AAPA regarding the terms on which Authority Certificates can be issued in relation to particular sacred sites. AAPA currently considers itself bound to consult with the custodians of particular sacred sites for each and every Authority Certificate application, even where different proponents seeking Authority Certificates may wish to conduct similar or the same works. The purpose of the amendment is to reduce administration, but the power to decide the terms of standing orders (or whether to issue standing orders at all) will be at the discretion of the custodians of sacred sites.
- Payments to be made to custodians of sacred sites by way of fees for consultation with the AAPA regarding Authority Certificates should be fixed by the Northern Territory Remuneration Tribunal, which will represent an increase on the current rates (such fees have not been increased for many years and are well below the industry average). These fees are currently payable by the AAPA. The recommendation does not specify where the funds for payment of these fees will be sourced, though suggestions include additional appropriations from the government or through charges to parties that seek Authority Certificates.
- The NTASSA be amended to allow for the transfer of Authority Certificates to other parties, provided that the works and conditions contemplated in the Authority Certificate remain the same. The NTASSA as presently enacted treats Authority Certificates as non-transferable, which creates unnecessary administration for the custodians of sacred sites, proponents and AAPA. The NTASSA should also be amended to enable a single Authority Certificate to be granted to multiple proponents for a single proposal that relates to the same area and where a single set of conditions for the entire proposal are appropriate. The NTASSA, as currently enacted and interpreted, requires each proponent involved in a single project to seek an Authority Certificate.
- There is a need for greater alignment between the AAPA and various other regulatory bodies (including the Department of Mines and Energy and the Northern Territory Environment Protection Authority) to ensure the various requirements that proponents must meet for a project under the NTASSA can be met in the most efficient and cost-effective way. Some of the guidelines are not currently consistent with statutory requirements, which causes confusion, and should therefore be amended. The AAPA and other relevant regulatory bodies should review and develop communication materials for proponents, make clear their roles and responsibilities, and streamline regulatory processes.
- The NTASSA be amended so that the timeframe in which landowners are notified that a sacred site is intended to be registered on their property is to be changed from 28 days to 60 days (on the basis that many landowners live remotely and receive mail only intermittently, giving them limited time in which to consider their rights and respond to the proposed sacred site registration). The AAPA will also adopt a policy of contacting landowners prior to issuing a notice, where practical, to verbally advise them that a site is intended to be registered. This will ensure that landowners are aware of their rights and assist to avoid friction between landowners and custodians of sacred sites.
- The fees chargeable by AAPA can be standard and non-standard, which potentially makes the system more difficult to navigate from a proponent’s viewpoint. The fees structure within the NTASSA and the regulations should be replaced with a single fee, including the continued ability for AAPA to waive any fees.
- The AAPA’s database (which contains the Register of Sacred Sites, all information supporting the registration of a sacred site, the location and extent of registered and recorded sacred sites, the Authority Certificate system and the system for calculating fees payable) requires an urgent upgrade as the functionality has become limited and the software is no longer supported by the developer. A new user interface should also be developed.
Other recommendations that the government has not yet responded to that may result in significant change are as follows:
- a proposed increase in maximum penalties to 3,850 penalty units for individuals ($592,900) and 19,240 penalty units for bodies corporate ($2,962,960) for breaching conditions of an Authority Certificate, which would represent a substantial increase on the current penalties;
- amend the definition of ‘body corporate’to include directors and senior officers so that they are also accountable for the actions of the body corporate;
- amend section 36(1) so that the defence of ignorance for damage to a sacred site would only apply to a natural person and bodies corporate that can prove they exercised all due diligence to ensure compliance with the NTASSA;
- addition of new provisions to enable payment of compensation to custodians of sacred sites for damage or desecration to a sacred site.