Environment Law in the Northern Territory

Protection of Aboriginal sacred sites

What are Aboriginal sacred sites?

Aboriginal sacred sites are sites that are sacred to Aboriginal people or which have significance according to Aboriginal tradition.  Aboriginal people have a right to access sacred sites in accordance with Aboriginal tradition.  There are criminal offences under Commonwealth and Northern Territory laws that make it an offence for other people to enter or remain on land in the Northern Territory, which is a sacred site.

How are Aboriginal sacred sites protected?

All Aboriginal sacred sites on land and in water in the Northern Territory are protected by law under the Northern Territory Aboriginal Sacred Sites Act.

This law creates a system for protecting Aboriginal sacred sites by:

  • Having a Register of Sacred Sites on which Aboriginal sacred sites can be listed
  • Requiring people or companies who want to use or carry out works on land on which there is a sacred site to obtain an approval from the Northern Territory Aboriginal Areas Protection Authority (called an Authority Certificate) or from the Minister for Indigenous Advancement (called a Certificate) before they can use or do works to that land.
  • Creating criminal offences for using or carrying out works on land on which there is an Aboriginal sacred site without a Certificate

Which government agency is responsible for protecting sacred sites?

The Aboriginal Areas Protection Authority is the independent authority in the Northern Territory responsible for protection of Aboriginal sacred sites.   It is responsible for:

  • Registering Aboriginal sacred sites on the Register of Sacred Sites
  • Granting and refusing approvals for people to use or carry out works to land on which there are Aboriginal sacred sites
  • Prosecuting criminal offences under the Northern Territory Aboriginal Sacred Sites Act.

One of the functions of the Aboriginal Areas Protection Authority is to facilitate discussions between custodians of sacred sites and people performing or proposing to perform work, or using or proposing to use land, with a view to reaching agreement on how to avoid and protect sacred sites.

The Administrator of the Northern Territory also has powers to take steps to protect sacred sites.  For example, the Administrator may:

  • Acquire land
  • Reserve Crown land
  • Vest Crown land to the Aboriginal Areas Protection Authority
  • Recommend that a statutory corporation takes special measures to protect a sacred site
  • Recommend that a person with an estate or interest in land takes special measures to protect a sacred site and by assisting with funding of this

Land use or development that affects Aboriginal sacred sites

All Aboriginal sacred sites are unique.  They may include obvious features, such as ochre deposits, rock art galleries, or spectacular natural features.  However, some sacred sites may be unremarkable to an outside observer. They can range in size from a single stone or plant, to an entire mountain range.  This means that before using or carrying out work on land in the Northern Territory, all people (and companies) should contact the Aboriginal Areas Protection Authority to check the Register of Sacred Sites and the other records held by the Authority for known information about sacred sites, including information about sites that are not yet on the Register.

Urban and industrial development, construction projects, ground disturbing works or native vegetation clearing can cause significant harm to Aboriginal sacred sites.

People (and companies) are only allowed to enter onto, do work on, or use a sacred site if they hold a certificate from the Aboriginal Areas Protection Authority (called an Authority Certificate) or the Minister for Minister for Indigenous Advancement (called a Certificate).

The Aboriginal Areas Protection Authority must take into account the wishes of Aboriginals relating to the extent that a sacred site should be protected. When a person (or company) makes an application for an Authority Certificate, the Aboriginal Areas Protection Authority must consult with the custodians of sacred sites on or in the vicinity of the land in the application within 60 days.  An applicant for an Authority Certificate can also ask the Aboriginal Areas Protection Authority to arrange a meeting between the applicant and any custodians.  The custodians or the applicant can request that a representative of the Authority attend the meeting.

The Aboriginal Areas Protection Authority can only grant an Authority Certificate in two situations.

  1. if it is satisfied that the work or the use of the land could proceed without there being a real risk of damage or interference with a sacred site on or in the vicinity of the land; or
  2. the custodians of the sacred site have made an agreement with the person (or company) that wants to use the land or carry out works and the Authority Certificate is in accordance with the agreement.

The Aboriginal Areas Protection Authority can decide to grant or refuse an Authority Certificate.

There is no public notification of an application for an Authority Certificate.  There are no rights to object to the grant of an Authority Certificate.

If an Authority Certificate is granted, it must include a description of the land and state what works or use is allowed or not allowed on the land.  It must also include any conditions on how the works can be carried out or the land can be used in accordance with the wishes of the custodians.

If the Aboriginal Areas Protection Authority refuses to issue an Authority Certificate, the person who has applied for the Authority Certificate can apply to the Minister for Indigenous Advancement for a review of the decision.  If this happens, the Minister for Indigenous Advancement has to tell the custodians and any other person who appears to be affected that they have a right to make written representations within the time stated on the notice. The Minister for Indigenous Advancement can issue or refuse to issue a Certificate.

Criminal offences

There are four main criminal offences relating to harm to sacred sites under the Northern Territory Aboriginal Sacred Sites Act.  These are for:

  • desecrating a sacred site
  • using or carry on work at a sacred site
  • entering onto sacred sites without a Certificate or a right under the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976
  • failing to comply with a condition of a Certificate which causes damage to a sacred site or distress to a custodian of a sacred site

There is a defence to a prosecution for an offence of desecrating a sacred site; using or carry on work at a sacred site; and entering onto sacred sites, if the defendant proves that he or she had no reasonable grounds for suspecting that the sacred site was a sacred site.  On Aboriginal land under the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976, this defence can only be used if it is also proved that the defendant was allowed to go onto the land and that the defendant had taken reasonable steps to ascertain the location and extent of sacred sites on the land.

Who is responsible for enforcing the law?

 The Aboriginal Areas Protection Authority is the regulator responsible for enforcing breaches of the Northern Territory Aboriginal Sacred Sites Act.  If a person or a company commits a criminal offence, only the Aboriginal Areas Protection Authority can bring a prosecution.  Prosecutions must usually be started within 2 years of the Aboriginal Areas Protection Authority becoming aware of the alleged offence.

Penalties

The two most serious offences are:

  1. desecrating a sacred site; and
  2. using or carry on work at a sacred site.

On conviction, these offences have a penalty of 2000 penalty units for a body corporate or 400 penalty units or two years imprisonment for a person.  For information about what penalty units are, read our Fact Sheet on Penalties.

The offences of entering a sacred site or failing to comply with a condition of a Certificate have a lower penalty.  On conviction, the penalty is 12 months imprisonment or 200 penalty units for a person, or 1000 penalty units for a body corporate.

How do I get an Aboriginal sacred site included on the Register of Sacred Sites?

All Aboriginal sacred sites are protected by law, whether or not they are listed on the Register of Sacred Sites.  However, it can be advantageous to have a site listed on the Register of Sacred Sites as this makes it very clear to everyone the details of the location and importance of the site.

The Aboriginal Areas Protection Authority is the government body which is responsible for making decisions about whether or not Aboriginal sacred sites should be registered in the Register of Sacred Sites.

To get an Aboriginal sacred site registered on the Register of Sacred Sites, the custodian of the site has to make an application to have the site registered in the Register of Sacred Sites.  The custodian of an Aboriginal sacred site is an Aboriginal person who by Aboriginal tradition has responsibility for that site.

A custodian can apply to have a site registered by contacting the Aboriginal Areas Protection Authority.  The Authority has a special sacred sites registration application form which is available to download from its website.  The Authority recommends that you use the application form, because it has a lot of information about the site that will help in the registration process.  However, it is not necessary to use the form.

As soon as possible after an application is received by the Aboriginal Areas Protection Authority, the Authority must consult with the custodian who applied for the site to be registered and any other custodians of the site.   The Authority has to decide:

  • the location and extent of the site
  • the physical features of the site
  • the story of the site according to Aboriginal tradition
  • the basis on which the custodian who applied for the site to be registered, and any other custodians, are entrusted with responsibility for the site according to Aboriginal tradition
  • the extent to which the custodian who applied for the site to be registered, and any other custodians, are entrusted with responsibility for the site according to Aboriginal tradition
  • the names and addresses of the custodian or custodians
  • the restrictions, if any, on activities that may be carried on at the site or in the vicinity of the site according to Aboriginal tradition
  • whether or not the site should be registered for a set period of time and if so, for how long
  • whether the information about the story of the site or physical features of the site should be restricted from being told to other people.

Before the Aboriginal Areas Protection Authority can put an Aboriginal sacred site on the register, it is required to tell the owners of land on which the sacred site is located that an application to register the sacred site has been made. No other people get told about the application.

The Aboriginal Areas Protection Authority has to evaluate the information it receives from consultations with the custodian or custodians of the site.  It also has to evaluate any representations from land owners. The owner of land on which the sacred site is located has a right to make a written representation to the Aboriginal Areas Protection Authority. But a written representation about how the land owner’s intended use or work on the site might be constrained by the registration of the site is not grounds for the Authority to refuse the application for the sacred site to be registered.  If a land owner is concerned about his or her future use of the site, he or she must apply to the Authority for a certificate.

If the Aboriginal Areas Protection Authority is satisfied that the site is a sacred site it shall register the site in the Register of Sacred Sites.

How can I find out information about Aboriginal sacred sites?

People who want to know what sacred sites are on land can make a request to the Aboriginal Areas Protection Authority for information about a specific area.  There is a fee of $24 to obtain information about a specific area from the Register. The Aboriginal Areas Protection Authority has to make the Register of Sacred Sites publicly available.

The Register of Sacred Sites has to include:

  • information about the site that has been obtained during consultation with the custodians unless the Authority determines that this should not be included in the register
  • any findings that are made in relation to whether there will be a detrimental effect on the owner of the land if the sacred site is registered

The Aboriginal Areas Protection Authority also has to make publicly available copies of:

  • all Certificates granted by the Aboriginal Areas Protection Authority and the Minister for Indigenous Advancement, which grant a person or company the right to carry out works or use land on or near to a sacred site
  • all refusals of Certificates
  • all agreements that have been made between the custodians of the sacred site and an applicant for a Certificate.

You can check whether or not a sacred site is registered by contacting the Aboriginal Areas Protection Authority and asking for information from the Register of Sacred Sites or the Register of Certificates.  There is an application form to obtain information from these records.

Who can I contact if I have a concern or complaint about an Aboriginal sacred site?

If you are concerned about a sacred site that has been damaged or is at risk of being damage, you can report your concern to the Aboriginal Areas Protection Authority.

Telephone: +61 (08) 8999 5511

Aboriginal Areas Protection Authority
GPO Box 1890
Darwin
NT 0801

enquiries.aapa@nt.gov.au

 The Aboriginal Areas Protection Authority asks for the following information to help it investigate the damage:

  •  The name of the site.
  •  The location of the site.
  •  What kind of damage has occurred.
  •  Who discovered the damage.
  •  Who has caused the damage.
  •  If anyone has witnessed the damage being caused.
  •  Whether any actions were taken to try to stop the damage being caused, and by whom.
  •  Whether the site is still under threat from further damage.

The Aboriginal Areas Protection Authority is responsible for enforcing the Northern Territory Aboriginal Sacred Sites Act.