In August of 2013 a Northern Territory court found OM Manganese guilty of the desecration of an Indigenous sacred site. OM Manganese runs the Bootu Creek mine, north of Tennant Creek in the Northern Territory. This was the first time that the charge of desecration had been successfully prosecuted in an Australian court, and the decision will be the subject of debate for a long time to come.
One aspect that particularly struck me was that Magistrate Sue Oliver said in her decision that “In my view the offence created by section 35 of desecration of a sacred site was intended to go to the heart of what was recognised by the legislation, that is, the sacred or spiritual nature of a site. If that character should be insulted, diminished or removed, it may interfere with or cause to be lost, the belief systems associated with a site including damaging the sacredness of the site.” (Oliver 2013) This means that intent to desecrate a site is not necessary to be found guilty if, by their actions, the party had damaged the spiritual or sacred meaning of the site.
This has huge implications for the heritage industry. Usually criminal actions are at least partially defined by the intent to commit a criminal act. Magistrate Oliver found that in the case of desecration intent is not a factor, only results. Heritage professionals now have duty to protect not only the physical aspects of a site, but also the sacred/spiritual aspects of the landscape from detrimental activities.
During the course of the Practicum that I have been undertaking at Australian Cultural Heritage management Pty Ltd it has become apparent that changes in heritage legislation and case law has a profound impact on how archaeologists work. Currently most archaeological work in South Australia and Western Australia is limited to survey and assessment, as this is all that the law requires. This decision has the potential to cause both governments and mining companies to dramatically revise the role of archaeology in their decision making process, and the place of Traditional Owners in decisions about sacred sites.
Map showing the location of the Bootu Creek Mine http://www.resourcesroadhouse.com.au/_blog/Resources_Roadhouse/post/Bligh_Resources_to_acquire_more_NT_ground/