Massacre sites are of great significance. From Reference 2
Aboriginal people have only limited legal authority for their heritage if they are native title holders or registered Aboriginal Owners on Aboriginal-owned conservation reserves. However, following some successful legal challenges, there are now procedural requirements that a community be consulted over the issuing of any consents to destroy. These consultations have not led to the refusing of any applications though,
Under the Act, Aboriginal people are all but powerless to prevent any activity which may result in the destruction of their heritage. The NPWA does not protect Aboriginal heritage, it merely regulates its destruction. Since 2000, over 1,200 consents to destroy have been issued. None have ever been refused and there has only been one successful prosecution by the DEC for the illegal destruction of any Aboriginal objects since the NPWA was enacted in 1974.
In an attempt to protect cultural heritage, Traditional Owners have had to resort to litigation. Recently on the north coast of NSW, Bundjalung Elders, Douglas and Susan Anderson have had success in the Courts. They have challenged two developments including a proposed housing estate and an eight metre wide, 600 metre long bitumen cycleway over land associated with a historically recorded massacre that took place in 1854.
For Aboriginal people there are three bases for assessing the significance of a place: traditional culture; the commemoration of historic events particular to their experience since invasion, and the physical archaeological record. As well as being a traditional camping place and burial site, the Angels Beach area is significant to the Bundjalung because of its association with the massacre.
In the case against the cycleway it was argued that Council failed to consider the significance of the site due to the massacre when making its decision to grant development consent. The Council repeatedly ignored the objections raised by the Andersons on behalf of the community, who as a last resort took the matter to the land and Environment Court.
Justice Cowdroy set aside Council's approval stating that it was clear the cultural heritage issue of the massacre was significant and ought to have been adequately and comprehensively considered under the NSW Environmental Planning and Assessment Act 1979 (EP&A Act). This decision has set a precedent that in some circumstances cultural heritage issues are on a par with environmental considerations under the EP&A Act, acknowledging the importance of significant sites to Traditional Owners.
The massacre became a factual argument in the litigation against the proposed housing estate at North Angels Beach. The first challenge was to the issuing of the consent to destroy where the Traditional Owners argued that an anthropological report containing information about the massacre was not considered. Justice Pain found that the extent of the cultural significance of the site collid not have been appreciated by the DEC when making its decision without having regard to the report. She invalidated the consent to destroy on the grounds that the DEC failed to adhere to the objects of the NPWA by not applying the principles of ecologically sustainable development, specifically the concept of intergenerational equity. This principle means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
A further challenge by the Andersons against the issuing by the NSW Minister for Planning granting development approval at North Angels Beach also centered on a failure to consider the significance of the site because of the massacre. Justice Biscoe stated that: "Revelation of the massacre would have breathed life, death and tragedy into, and strippad the veil of the obscurity from the bland words 'high significance' ... and the revelation could have materially affected the Minister's decision."
The North Angels Beach proposed subdivision is on hold until they receive another development approval and consent to destroy. A second consent to destroy was issued and subsequently challenged in Court, The developers agreed to the orders that the consent be nullified without going to trial. However, the developers have reapplied for another consent to destroy, which has yet to be granted.
These legal victories have set a precedent for all Aboriginal people in NSW who had previously been powerless to prevent the routine and systematic destruction of sacred sites and other areas of significance.