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4-1994

A conspiracy of silence - the NSW National Parks and Wildlife Service and Aboriginal Cultural Heritage Sites

Michael K. Organ University of Wollongong, [email protected]

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Recommended Citation Organ, Michael K.: A conspiracy of silence - the NSW National Parks and Wildlife Service and Aboriginal Cultural Heritage Sites 1994. https://ro.uow.edu.au/asdpapers/94

Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] A conspiracy of silence - the NSW National Parks and Wildlife Service and Aboriginal Cultural Heritage Sites

Abstract The New South Wales National Parks and Wildlife Service (NP&WS), under the National Parks and Wildlife Act 1974 (NSW) ('the Act'), is responsible for the 'care, control. and management' of Aboriginal cultural hentage sites (middens, burial sites, rock art sites, etc.) throughout NSW.2 Section 90 of the Act states that it is an offence to destroy, deface or disturb an Aboriginal site, and that consent to do so must be sought from the Director of the Service. It is questionable not only whether it is appropriate that the Service should wield such power, but also if it is adequately carrying out its statutory duty, when the system under which it operates is leading to the silent, unseen destruction of sites on a daily basis throughout NSW. Whilst the Service, in collaboration with local Aboriginal communities, has achieved much in the preservation an~ protection of significant Aboriginal cultural heritage sites since 1974, it is not above criticism, and areas such as public education programs and identification of sites outside of national parks and reserves have been severely neglected. Part of the problem is the system itself, which, by default, has allocated to the NP&WS the central role of manager, and destroyer, of Aboriginal cultural heritage sites, as opposed to a more regional or community based approach with direct Aboriginal control. Furthermore, the Service, whose primary responsibility is the management of the State's national parks, has limited resources with which to carry out its duty in this area, allocating individual officersast v tracts of the State for which they must bear responsibility for site management. In many cases, ongoing involvement by local Aboriginal communities is limited, voluntary and under-resourced.

Disciplines Arts and Humanities | Social and Behavioral Sciences

Publication Details This article was originally published as Organ, M, A conspiracy of silence - the NSW National Parks and Wildlife Service and Aboriginal Cultural Heritage Sites, Aboriginal Law Bulletin, 3 ALB 67, April 1994, 4-7.

This journal article is available at Research Online: https://ro.uow.edu.au/asdpapers/94 C<>nSplrocY <>f Silence The NSW National ParkS and Wildlife Service~ and Aboriginal Cultural Heritage Sites by Michael Organ

Government Inaction The NP&WS has had responsibility for also recently established an Aboriginal The New South Wales National Parks and the 'protection and management' of Aboriginal cultural heritage sites since Cultural Heritage Working Group to Wildlife Service (NP&WS), under the National look into the implementation of the 1989 Parks and Wildlife Act 1974 (NSW) ('the Act'), is 1969. The 1974 Act formalised this responsibility, however there was no Ministerial Task Force recommendations. responsible for the 'care, control. and specific role for the Aboriginal community However, despite this activity, the management' of Aboriginal cultural hentage system of site management remains sites (middens, burial sites, rock art sites, etc.) set out within the original legislative framework. The Act called for the creation largely unchanged from that which came throughout NSW. 2 Section 90 of the Act states of an Aboriginal Relics Advisory into operation in 1975. that it is an offence to destroy, deface or disturb Committee which would 'consider' reports an Aboriginal site, and that consent to do so Protector of Sites and advise the relevant Minister and must be sought from the Director of the The mechanisms of the 1974 Act are such Director of the NP&WS "on any matter Service. that when a site is 'discovered' and the relating to the preservation, control of It is questionable not only whether it is NP&WS notified, a professional archaeologist, excavation, removal and custody of relics appropriate that the Service should wield such in collaboration with a representative of a local l or Aboriginal places." (528) No reference power, but also if it is adequately carrying out Land Councilor other Aboriginal group, . was made to destruction of sites. its statutory duty, when the system under carries out an investigation. A report is Unfortunately the committee was which it operates is leading to the silent, unseen prepared, assessment made, and the site is composed largely of non-Aboriginal destruction of sites on a daily basis throughout listed on the Service's Site Register, if 4 archaeologists, anthropologists and NSW. Whilst the Service, in collaboration with warranted. This investigative and consultative , bureaucrats, and, as the title suggests, it local Aboriginal communities, has achieved process leads to recommendations for the had an advisory role only, with no direct future control and management of the site. much in the preservation an~ protection of involvement in the day to day significant Aboriginal cultural heritage sites However the Service is ultimately the official management of sites. since 1974, it is not above criticism, and areas 'protector' of such sites, with powers (and a The Committee went into recess in such as public education programs and duty) to police breaches of the Act. 1979 and in 1980 a Parliamentary Select identification of sites outside of national parks Whilst this process may have seemed an Committee produced a rather and reserves have been severely neglected. Part efficient way in which to manage Aboriginal enlightened report entitled Aboriginal of the problem is the system itself, which, by cultural heritage sites back in 1974, it is no Land Rights and Sacred and Significant default, has allocated to the NP&WS the central longer appropriate, having led to the Sites, which recommended the role of manager, and destroyer, of Aboriginal institutionalisation, fragmenta tion and establishment of an Aboriginal Heritage cultural heritage sites, as opposed to a more alienation referred to above. Decentralisation of Commission, taking responsibility for regional or community based approach with cultural heritage collections and information, site management away from the direct Aboriginal control. Furthermore, the and an emphasis on local community Service, whose primary responsibility is the NP&WS.s Unfortunately this proposal involvement and responsibility for individual management of the State's national parks, has was not taken up by government or the sites is the preferred option. The present system limited resources with which to carry out its Service. In its stead an Interim Aboriginal has inherent flaws and is failing to protect sites Sites Advisory Committee was created, duty in this area, allocating individual officers from the ever encroaching pressures of vast tracts of the State for which they must bear with approximately half comprised of development, especially along the east coast of responsibility for site management. In many Aboriginal regional representatives. The NSW, the area which also happens to contain committee first met on 8 December 1980, cases, ongoing involvement by local Aboriginal the highest density of such sites. Furthermore, communities is limited, voluntary and under­ and thereafter infrequently (bimonthly or the whole process of enforcing the Act is, in Ule quarterly) until 1986, when reference to it opinion of the author, surrounded by a resourced.3 disappears from the NP&WS Annual bureaucratic veil of secrecy which makes access Just as questions have recently been Reports. In 1989 the report of the difficult for those not part of a system which raised concerning the role of bodies such Ministerial Task Force on Aboriginal involves the staff of NP&WS, professional as the Australian Museum and Australian Heritage and Culture once again archaeologists and anthropologists, and the few Institute of Aboriginal and Torres Strait recommended the establishment of a individual Aboriginal representatives Islander Studies in "the institutionalisation, commission to administer the responsible for such matters. fragmentation and aliena tion of our conservation of cultural heritage sites Whilst giving the NP&WS widespread cuI tural heritage"4 by their policies of independently of the Service.6 A 1992 powers, the 1974 Act also allows it to playa centralised collection of Aboriginal cultural amendment to the National Parks and merely reactive role in site management, heritage items, so also the NP&WS must be Wildlife Act (affecting ss27 and 28 and ra ther than actively working with local open to criticism and public accountability Schedule 9) reconstituted an Aboriginal communities in identifying and defending over its dealings with Aboriginal heritage Cultural Heritage (Interim) AdVisory cultural heritage sites, especially those in sites and the 'collection' it administers Committee (ACHIAC), with an 4rban areas. It appears the Service only through reports and information contained Aboriginal majority of 8 members plus becomes involved when it is notified of a within its Sites Register. Deficiencies in this chair. It held its first meeting in 1993. The site, and this usually occurs when there is area are addressed further. NSW Office of Aboriginal Affairs has an imminent threat of destruction as part of

4 Aboriginal Law Bulletin Vol.S No. 67 April 1994 a development proposal. The Service does development proceeds. This pressure is also non-Aboriginal community must raise doubts not, as a general rule, undertake upon its brought to bear upon the NP&WS, and as a as to how far we have come over the last few own initiative broad regional surveys in result it is able to talk of 'sites which must be decades in understanding and appreciating non-National Park areas to identify destroyed' whilst at the same time Australia's Aboriginal heritage, and how significant sites and therefore build up a proclaiming its responsibility for 'the care, successful we have been in spreading the database upon which assessments of protection and preservation of all Aboriginal message to those largely set in their ways. relative values can be made on a local or sites and relics'.' A conflict of interest Discoveries By Chance regional basis. It largely relies on its Site between the 'independent' consultant The present National Parks & Wildlife Act does Register, which consists of information (archaeologist) and employer (developer) not specifically call on the NP&WS to actively supplied by archaeologists and interested may arise in which 'consent to destroy' is a seek out and identify items of Aboriginal members of the public. Though an preferred option in a majority of cases. cultural significance, though such a role is important resource, this has its limitations. There is no reM opportunity for public desirable, if not by the Service, then by some As an example, let us suppose that in an critical analysis of reports prepared by or for other organisation.s It would be unwieldy to unspecified urbanised and coastal local the Service. Liaison with the local Aboriginal suggest that an archaeological survey be carried government area the Service has a total of 3 community in this whole process is not out on all land subdivisions and developments burial and 2 midden sites listed. Locals may be mandatory according to the Act, though such processed by local and state government. aware of many more such sites which have involvement is a mailer of policy by the Service, However a balance must be achieved. More never been fully investigated or placed upon and the ACHIAC does exist as an avenue for archaeological investigations need to be carried the NP&WS Site Register. Therefore the 2 policy input. Most archaeologists make out and their results disseminated amongst the midden sites so registered may not be concerted efforts to inform the local people of public rather than just the NP&WS, planners, representative of the middens still extant in the their work and findings, involving them in digs archaeologists and a few Aboriginal area. They may also contain as yet and distributing copies of reports. However the representatives. Unfortunately at the moment undiscovered burials, or may not be the most process is far from a true collaboration. More precious little development is subject to such significant middens in the area in terms of age, active involvement between archaeologists, scrutiny, and Aboriginal sites are unknowingly content, and condition. Additional burial and Service officers and members of the local (or knowingly) being destroyed as a result. rock art sites most likely exist elsewhere in the community is needed if individual sites are to For example, when excavations were begun region. Therefore the NP&WS Sites Register be adequately recorded, interpreted and last year on a residential development site at may present a totally erroneous picture of the preserved for future generations. Wollongong Harbour, a passer-by happened true extent of Aboriginal cultural heritage sites Unknown Destruction to notice shell fragments and evidence of a still present in the designated local government It is a harsh reality that at present midden recently uncovered by a backhoe. He area. It will also reinforce the assumption that developers or landowners are free to destroy informed the author, who notified the few sites survive in urban and built-up areas. unregistered Aboriginal cultural heritage sites NP&WS. Appropriate action was taken. Work This is not necessarily the case, however it is an - whether middens, ceremonial grounds, rock was immediately stopped and an attractive viewpoint for developers and art or engraving sites - if they are not found archaeologist employed to investigate the site. government bodies not wishing to see out, though the 1974 Acllegally obliges them A large, undisturbed, regionally significant development stifled by heritage issues. to notify the NP&WS upon discovering such a midden was found and the developer was Furthermore, when archaeologists are site. Unfortunately the majority of landowners forced to work around it and alter his called on to carry out a study of a specific site and developers in NSW (into which category development proposal accordingly.9 Another in the municipality as a result of a could also be placed local and sta te study was carried out in February 1994 prior development application or stop-work order, government instrumentalities) are not so to the commencement of work. they usually undertake a literature search and virtuous, or knowledgeable of Aboriginal In hindsight it was only fortuitous that such check the site register to obtain a broad cultural heritage issues and interested in Koori an important site was discovered and perspective of the items or sites most likely to culture to a degree where they would temporarily saved. It is extremely doubtful as to be found. If this information is lacking, and jeopardise their development plans by whether the developer or backhoe driver would the NP&WS Register is deficient, the informing the Service and/or local Aboriginal have notified the NP&WS of this midden, as the archaeologist ma y be led to pronounce community of such a discovery. They usually Act requires. Their defence could have been that (erroneously) that few Aboriginal cultural only do so when forced. they did not know it was an Aboriginal midden. heritage sites remain extant in the area. Site The recent hysteria over the Mabo decision And there's the rub. As development occurs up reports usually contain value judgements clearly shows the level of ignorance and fear and down the coast, hundreds, perhaps made by the archaeologist regarding regional within the community regarding Aboriginal thousands of unregistered Aboriginal cultural or local significance. For the NP& WS to claims to land. Such claims are often associated heritage sites are being destroyed annually, subsequently issue a 'consent to destroy' with cultural heritage and sacred sites, therefore with few brought to the notice of the NP&WS or order or recommend other management the potential for conflict in NSW is significant if local Aboriginal communities. It could be options based on often limi ted and a comprehensive survey of such sites were to be argu ed tha t those which are discovered in questionable information is of serious conc~m. carried out. Most non-Aboriginal landowners urban areas deserve special consideration. Finally, many of these archaeologIcal would not welcome the idea of finding a In the above case, the author was made to feel reports, often produced in haste under midden or heritage site on their land, fearing tha t his action in notifying the Service was pressure from developers or local that it would compromise their ownership threatening development and jobs in government, are academic and technical in rights. They see all Aboriginal sites as 'sacred Wollongong, all for the sake of an Aboriginal style, and fail to adequately incorporate sites' and react accordingly. ethno-historical and anthropological 'rubbish dump'.tO Subsequent to the As an example, I was told recently of a Lake information of specific interest to the locality notification, the Service tried to accommodate Illawarra man who in 1991, upon digging up an or region. Much can be missed as the the developer as much as possible. The outcome ancient stone axe in his backyard, destroyed it archaeologist focuses solely on the precise site was that permission was granted for the for fear that the local Land Council would stake described in the brief, with the landowner's midden to be partially destroyed and buried a claim on his land. No official report was ever boundaries. As a large number of reports are underneath a carpark and 7 storey building, made, and the information was supplied to the commissioned by developers, there is obvious and the development application was approved author strictly 'off the record', though there was ll pressure for archaeologists to recommend site by Council, with minor alterations. Such is the no reason to doubt its authenticity. Such ill­ destruction wherever possible, to ensure outcome of a process which aims to 'preserve conceived misconceptions by members of the Aboriginal Law Bulletin Vol.S No.67 April 1994 5 and protect' Aboriginal cultural heritage sites. studies or site discoveries in their region. All community but also the various levels of During this whole episode the author was never this research and archaeological investigation government. The NP&WS has failed to force officially informed by the NP&WS of their comes to nought, with the suspicion that they local government to accept its responsibilities actions or recommendations for the midden, are largely reports prepared by archaeologists in this matter, despite providing advice and despite the fact that he had initia ted its for fellow archaeologists. The general issuing official guidelines such as the 1986 intervention. At the end of the day it appeared community is not considered to have a role to Planning for Aboriginal Site Management: a that the only one to benefit was the play in this process, while the jargon of the Handbook for Local Government Planners. 16 Of archaeologist who was paid to prepare a report various reports could make it difficult for course, local government is also to blame for on the site, said report now buried in the Aboriginal people in the future to reclaim their not having taken the issue up earlier. archives of the NP&WS and Wollongong City heritage. TIle whole system is outdated, with It is twenty years since the National Parks and Council, and the developer, although the latter the majority of archaeologists being non-Koori Wildlife Act came into force, yet it could be was temporarily inconvenienced and Council and the NP&WS keeping a tight rein over argued that during the intervening period was forced to carry out extra paperwork. Whilst intellectual and physical access to this material. there has been minimal increase in community this process did secure the preservation of the Secondly, the Service argues that by keeping awareness of Aboriginal cultural heritage majority of the midden, and some local media such site localities secret they are protecting issues, especially in urban areas of the State publicity, access will be severely limited once them from unwarranted use and abuse. This is where there is most likelihood of destruction the concrete is poured, as will further a strong defence, yet it too is flawed. This due to development. investigations of the site or its use by the local secretiveness has meant that not only is the Local Government's Role Aboriginal community. public and much of the local Aboriginal With the NP&WS taking a reactive but major The following questions need to be asked: community unaware of such sites, but also role in the protection and management of how has the community benefited from the bodies such as local councils and State Aboriginal cultural heritage sites in developed, discovery of this regionally significant midden, government departments remain in the dark. urbanised areas of the State, and Aboriginal and the Service's management of it as Ignorance is Widespread, and a common Land Councils often distracted by internal prescribed by the Act? Is the NP&WS fulfilling defence of inaction. Aboriginal cultural politics from the role of active site identification its duty of preserving and protecting heritage is at the bottom of the list when it and protection, it could fall upon local Aboriginal cultural heritage sites such as comes to matters to be considered by such government to assume some responsibility for coastal middens by allowing their partial or institutions with regards to development and identification and protection of sites. As yet this complete destruction? Is it aware, in each case, planning. It is obvious that less concern will be has not happened on a widespread scale, of the full extent or regional scarcity of sites to shown for such issues if they remain largely although in light of the Bicentennial and more which it issues 'consent to destroy' notices? unknown. Therefore this policy is working recent Mabo deba te, some Councils are Another recent case in the lllawarra involved against the preservation of such sites. addressing the problem. A good example is a coastal midden which was under investigation It is a fact that the majority of archaeological Wyong City Council which, since 1987, has by archaeologists at Wollongong University reports prepared for Aboriginal heritage sites implemented an Aboriginal Heritage Policy as with regards to carbon dating and structure. It are carried out under the terms of the National part of its general planning structure, such that was regionally significant and a known burial Parks and Wildlife Act and Environmental cultural heritage sites are now regularly site, having had a skull removed from it by local Planning and Assessment Act 1979 (NSW) identified, classified and incorporated within police in 1974 (present whereabouts unknown). ('EP&A Act'), as part of specific development its geographical database17 Nevertheless, it was chosen as the site for a car proposals and at the instigation of local As an example of past neglect, on the South park by consultants engaged in a Local government Councils. According to the EP&A Coast we have Shoalhaven City Council's Environment Study prepared for Wollongong Act, any such reports are public documents construction of a toilet block on an Aboriginal City Council during 1993.12 The consultants available for assessment and copying by any burial ground during 1974, despite much were aware of the Aboriginal significance of the individual interested in the specific vehement opposition from the local site, but in the author's opinion they failed to development and acting according to the community,1S and Wollongong Council's record show due regard to this in preparing their tenets of the Act.14 The legal right of the in this field is one, at best, of doing the least recommendations for future development. It is NP&WS to withhold any such report from amount as required by the various Acts. hoped that a more sensitive use of the midden public access is questionable, although the Wollongong's specific failings in this area were and burial site will be achieved, though the argument of access to information versus brought to light during the recent attack by the recent construction nearby of a cycle-way is protection of individual sites complicates the Minister for the Environment, Chris Hartcher, placing further stress on the area. situation. Also of concern are the procedures put in place limiting access to informa tion on and the NP&WS, in relation to the alleged 'Conspiracy of Silence' destruction of part of an Aboriginal midden at specific cultural heritage sites. In order for a The underlying rationale behind the NP&WS member of the public to use the NP&WS Site Lake lllawarra in the furtherance of construction role in the management of Aboriginal cultural Register, or unpublished archaeological of a cycleway.19 Whilst Council proclaimed its heritage sites is the identification, investigation, reports held by them, they must first obtain innocence in this specific issue,20 and the matter and 'protection' from the community at large permission from the relevant local Land is now before the Courts, it, like many other and acts of vandalism. Aboriginal cultural Council, and thereafter from the Service local government bodies, is nevertheless guilty values regarding secrecy and sacredness are also and/or author. This can be a bureaucratic of neglect in not actively seeking to identify considered. As a result, the Service is secretive nightmare for both Aboriginal and non­ items of Aboriginal cultural heritage over the regarding such sites and any associated Aboriginal people, and is not easily achieved, years and incorporating their conservation information including archaeological reports for a variety of political and logistic reasons.IS within various planning instruments. For these which describe their contents. It is usually only failings local government can be called to task. when these investigations are written up in Another criticism of the Service is its failure scholarly journals or books such as Josephine to develop a public profile on cultural heritage Solutions Flood's Archaeology of the Dreamtime that the mallers, or enforce a presence in local Whilst the problems of .site identification community at large is made aware of this work. government bureaucracy such that Aboriginal and management in New South Wales are This is unacceptable, for a number of reasons. issues are an everyday (or at least annual) obvious, the solutions are not so simple. Two Firstly, many members of the local consideration by local planning department Parliamentary Committees, in 1980 and 1989, Aboriginal community, plus those non-Kooris staff and those responsible for development have recommended the establishment of an in teres ted in protecting and promoting application approvals. This 'conspiracy of Aboriginal Heritage Commission, yet Aboriginal culture, are never made aware of silence' therefore affects not only the general governments have baulked at taking this up. 6 Aboriginal Law Bulletin Vol.S No. 67 April 1994 There is no doubt that a dedicated, the presentation of the Natiorwl Parks and Wildlife (Aboriginlll lllawarra cultural heritage sites, although they care deeply independent, adequately resourced Ownership) Amendment Bill 1992, however this has its for their fate. Such management is usually in the hands of a limitations. Refer Lipman, Z., & Don, K., "Aboriginal Joint few individuals on the Land Council. The person who organisation, with Aboriginal control, needs to Management Of National Parks: Why New South Wales Still performed such a task in IlIawarra for almost twenty years, be created to more appropriately deal with Has A Long Way ToGo", ALB 2/60, p~8. and who had local Aboriginal rommunity support, having , 4. Fourmile, H., NThe Need for an Independent National been delegated the responsibility by his father, once told me cultural heritage sites on a State-wide basis Inquiry into State Collections of Aboriginal and Torres Strait that he had few of the final archaeological reports prepared and raise the level of public awareness on Islander Cultural Heritage", ALB 2/56, pp3-4. during the period for which he was responsible. He alone such issues. Aboriginal groups, local 5. Parliament of NSW, Aborigillal Lmd Rights and Saaed and was the local storehouse of such information for all sections govemment, and other interested parties need Signifiaml SItes - First Report from the Seled Commitlee of the of the community. Unfortunately he no longer carries out to become more involved, at a local level, in Legislalive Assembly Upcm Aborigines, Part I - Report and this role. Minutes of Proceedings, Part 2 - Minutes of Evidence, AGPS, 16. Ross, A., (ed), Planning for AborigilUll Site Management: A preserving sites for future generations. Sydney, 1980. Handbook for Government Planners, NP&WS, Sydney, 1986. In the in terim, a program of regional 6. Report of Ihe NSW Ministerilll Task Force on Aborlgtnal 17. Smith, D., "Aboriginal Sites - A System for Planning and surveys of urban areas of NSW should be Heritage alld Cullure, NP&~S, Sydney, 1989. Management", Allslraliall Plallller, December 1993, pp7S-78; 7. Annual Report of the NP&WS for 1982-83, AGPS, Syd""y, Dallas, M., Menses, P., and Rala-Wojciechowski, Aboriginlll undertaken, involving the NP&WS, local 1983, p40. Resources Planning Study for Wyong Council, NSW, Wyong government and Aboriginal communities. 8. Volunteer and NP&WS sponsored bodies do exist which Council, 1987. Such a program should be funded by the three partially fulfil this role. One such example is the IlIawarra 18. Stockes, I., and Strewe, 0., "Pissing on the Burial tiers of Govemment and aim to identify extant Prehistory Group which, under the leadership of Ground", The Living Daylights, 12-18 March 1974. professional archaeologist Caryll Sefton, has for more than a 19. "Koori site 'destroyed' - Probe may lead to council being Aboriginal cultural heritage sites. ATSIC and decade systematically surveyed the catchment area south prosecuted", Illawarra Mercury, 4 June 1993. The Minister, in the NSW Land Council could perhaps also west of Sydney and prepared detailed reports for the a press release, claimed "Council had a long history of apportion some of their respective budgets to Service's Sites Register. However such groups are not breaches of the Aboriginal provisions of the National Parks common, and their work is not necessarily geographically and Wildlife Act and had shown total disregard over the programs which identify, on a local and romprehensive due to lack of funding and resources. years, damaging Aboriginal sites at Windang Surf Club regional level, cultural heritage sites. Input 9. Navin, K., "Belmore Basin Midden, Wollongong, (985), Judbooley Park (1988), Windang Caravan Park could be sought not only from trained Archaeological Investigation", unpublished report to Saxon (990), Windang foreshore (1990 and 1992) and archaeologists, but also local elders, historians, Building Projects, December 1992; Failes, Geoff, "Luxury Wollongong's North Beach (1993) while undertaking Villas Work Ban - Koori Relics Found at Site", Illawarra works". Quoted from an editorial by journalist, Geoff Failes, anthropologists and the general community. Mercury, 26 November 1992. This particular development IIlawarra Mercury, 9June 1993. Previous studies could be collected and made site had during 1991-2 been the subject of an action by local 20. "State Govt 'cowardly in Koori site row' - [Lord Mayorl accessible. With such a database of information residents in the Land and Environment Court, and on Campbell slams Minister", IIlawarra Mercury, 7 June 1993; appeal to the Supreme Court, against Wollongong City "Koori Midden Not Significant- Expert", Illawarra Mercury, 8 available, sites could be prioritized with the Council's development approval (75 LGRA 112), however June 1993. Council was eventually summoned by the aim of affording appropriate levels of the presence of an Aboriginal midden on site was as yet NP&WS to appear in Wollongong Court on 17 September on protection and management, and eventual unknown. a charge of knowingly damaging an Aboriginal midden at incorporation into local government 10. Based on romments made to the author by the 'passer­ Windang between 19 February and 10 March 1992. by' who informed him of the midden's presence, after development control plans. In the short term, haVing spent a number of days on site fossicking for old specific geographical areas most under threat bottles and speaking to the workers there. of development, and/or of most significance to 11. Refer report to Wollongong City Council's Development and Planning Committee, 'll April 1993. , the Aboriginal community, should receive 12. Gutteridge, Haskins & Davey, Sandon Point Local priority. Environment Study, Sydney, May 1993. Prepared for The NP&WS would better serve the Wollongong City Council. This contains a copy of K. Navin's community by reassessing its role of official Assessn"",t of AborigilUll Archaeologual Resource, Sandon Point, Wollongong, NSW, Acton, October 1992, 25p. See also Navin, protector of Aboriginal cultural heritage sites, K., and Officer, K., Furiller Arc!weologicallnvestigotiolls, and work towards transferring its powers and Damioll Poinl, Wollongong, NS W, Acton, November 1993. responsibilities to the proposed Aboriginal 13. Sullivan,s., op cit. 14. According to s77(9) of the Environmental Planning and Heritage Commission outlined in the 1989 Assessment Act 1979 (NSW), which deals with I Ministerial Task Force Report. Whatever the documentation accompanying Development Applications, it eventual outcome, the right to issue 'Consent is clearly stated that: "Upon an application being made to destroy' permits, if it is to exist at all, should under this section the applicant, not being entitled to ropyright, shall be deemed to have indemnified all persons be taken from the Director and handed back to using the application and documents in acrordance with this the Aboriginal community. At the very least Act, against any claim or action in respect of breach of the NP&WS should expand its role in raising ropyright". This section thereby indemnifies a local Council or interested member of the public against any copyright public awareness of Aboriginal cultural breaches which may take place in the course of using heritage issues on a local and regional level. At material such as archaeological reports prepared in the moment it could be argued that its present accordance with the Act. This "use" will usually be to study policy is leading to the destruction of more in detail the information proVided in such reports in order to assess the effects of a proposed development on an sites than are being protected, especially in Aboriginal cultural heritage site. Also applicable is s86 of the coastal areas around centres of population. The Act, which states: "At the places [Council Offices] and fact that this destruction of known significant during the period specified in a notice under s84(1), any person may inspect the development application referred to sites occurs with the approval of the Service in the notice and documents acrompanying that application seriously compromises its position, and raises and may make extracts from or ropies thereof'. Therefore, the question as to whether it should continue the taking of copies of archaeological and environmental to exercise such power. reports is accounted for and acceptable under the Act. Moreover, upon lodging a Development Application (which • Michael Organ would like to thank Carol may be accompanied by such reports, along with detailed Speechley of Wollongong University's Aboriginal maps and plans) a developer automatically indemnifies any Education Unit for her ongoing support and advice. person against a charge of breach of copyright in copying this material, where the copied material will be used in Endnotes: making a valued assessment of the specific development 1. S. Sullivan of the Australian Heritage Commission, in a proposal. In other words, such material is on the public review of Stanbury, P., and Clegg, J., "A field guide to record. Artwork Aboriginal rock engravings with special reference to those 15. For example, within the IIlawarra region, the Land around Sydney", (Sydney University Press, 1990), in Council, acrording to the opinion of some elders, is run by by Mundara Koorang, Archneology in Oceanill, 'll, 1 April 1992, 47. 'out-of-towners' and individuals with tenuous local ties, if from the EORA Centre, 2. National Parks mId Wildlife Ad 1974 (NSW), Part 6 - Relus any. As such, political and family tensions resuli in the and Almiginlll Places. See also ss62-4, 72-82, 85, 89-90, 157-161. descendants of the original tribal groups - the Wodi Wodi Chippendale, Sydney. 3. Efforts are being made to involve Aboriginal people in people - not being represented on the local Land Council, joint management of National Parks with the NP&WS via and therefore not having a say in the management of

Aboriginal Law Bulletin Vol.3 NO.67 April 1994 7