Last Friday S & R Building & Construction (S & R Building) — and two of its Directors — were listed to enter a guilty plea in the Darwin Magistrates Court before Magistrate Michael Carey in relation to three charges against each that in November 2007, they entered, carried out work on and desecrated a sacred site at the remote township of Numbulwar on the Northern Territory gulf coast.

S & R Building travelled to Numbulwar in November 2007 to build a compound to house the local Australian government business manager.

Crikey understands that work was undertaken pursuant to a contract issued by Indigenous Business Australia (IBA), further to IBA being engaged to arrange the construction of several similar compounds at many of the 73 NT townships subject to the NT intervention. Indigenous Business Australia is a statutory body wholly owned by the federal government and operates under Jenny Macklin’s Indigenous Affairs portfolio.

Last Friday, Magistrate Carey was, by all accounts, less than positively disposed to the case against the company. In the course of plea bargain negotiations between the prosecution and the defence, all charges were dropped against the company directors and the company was called to answer a single count of “Work on sacred site” contrary to s. 34 of the NT Aboriginal Sacred Sites Act.

Magistrate Carey, in a decision that has more than a few eyebrows raised and tongues wagging up here, determined that it was appropriate that no conviction be recorded and that a fine of $500 be levied against the company.

I’ve previously discussed this case (and my early involvement in it) when it last came before the court in December last year here. Murray McLaughlin of the ABC’s 7.30 Report prepared an excellent piece on the matter in November 2007 that you can see here.

The NT’s Aboriginal Sacred Sites Act (the Act) is administered by the Aboriginal Areas Protection Authority (AAPA), a statutory authority established by the Act.

The broad purpose of the Act is to:

… effect a practical balance between the recognised need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement …

In order to give effect to this “practical balance” the Act establishes a scheme whereby anyone using or carrying on works on land or sea at or near to a sacred site can apply for certification that indemnifies the holder of the certificate from prosecution for damage to sacred sites provided that the holder carries out the works in accordance with the conditions on the certificate.

The Act was one of the first pieces of legislation passed following NT self-government in 1978 and while it has occasionally been the subject or cause of controversy, it has now become an accepted part of the legal landscape of the NT.

It is commonly accepted practice that anyone — whether small builder, major developer, local council or government agency — will seek the protection provided by the issue of AAPA certification before starting works.

Anyone, it seems, apart from the federal government’s FaHCSIA. Particularly in relation to the rushed and extensive works, including the works at Numbulwar undertaken by S & R Building, that saw them build a long-drop toilet smack bang in the middle of the region’s most sacred ceremonial ground and, almost three years later, face the court in Darwin.

That FaHCSIA considers itself above the operation of long-established legislation that protects the most sacred places in the NT has long been a matter of concern to the staff at AAPA.

Dr Ben Scambary started work as AAPA’s CEO not long after the events at Numbulwar but was soon aware of the difficulties his predecessor had been having with FaHCSIA in relation to the roll-out of construction works associated with the NT intervention.

Crikey spoke with Dr Scambary late yesterday.

“The key thing about this event at Numbulwar is that it wouldn’t have happened if the federal government had engaged in the processes of the Sacred Sites Act at the outset of the intervention. We had many discussions with senior NT intervention staff about doing exactly that and they elected not to do so. It wasn’t as if they did not have prior warning. We advised them at every turn that they should be getting site clearances. All of those early works were done without any reference to the sacred Sites Act.”

Late last year the AAPA board made the following resolution:

“The AAPA board is concerned that the Australian government continues to undertake works on Aboriginal communities without taking proper and adequate steps to ensure that sacred sites are not entered, desecrated or damaged. The AAPA board members call on the Australian government to respect Aboriginal culture and to use the Sacred Sites Act to protect sacred sites for its works across the Territory’s Aboriginal communities.”

Crikey has been shown the victim’s impact statement prepared by eight of the custodians of the Numbulwar site and presented to Magistrate Carey.

Their distress, not only at the unfortunate construction of a toilet on their most sacred ground, but also at the failure of the Australian justice system to afford them any relief to their anger and hurt, is palpable:

“We still feel bad, angry and hurt inside. We have not healed and cannot be healed without proper compensation to restore balance in our culture.

“We respect white law, we cannot punish these people the way we would have done in the past … They have shown no respect for our law and culture — this makes our law look weak. We are ashamed of this incident. Other Aboriginal people right across the Top End from Groote [Eylandt] to Ngukurr, Borroloola, Bulman, Maningrida and Ramingining — all of the communities where the Kunapipi ceremony connects us — they’re all saying, ‘We’ve done the wrong thing at Numbulwar’ by letting this happen here.

“Great shame has been bought upon us.

“Punishment will never fit the crime in this case. They have broken Aboriginal law, but cannot be subject to it.”

Yesterday Crikey spoke to Bobby Nungumajbarr, one of the custodians who signed the victims impact statement.

“We thought that this was going to be settled and they [the contractors] were going to get a big fine. But that $500 is peanuts. They should’ve not got fined, they should get a sentence you know? Been sentenced for many years, you know, for doing that damage. Our culture and our beliefs are there for our life and we can’t rub it off.”

Earlier today Crikey contacted FaHCSIA Minister Jenny Macklin for comment on this matter. Her office referred us to FaHCSIA in Darwin. FaHCSIA issued the following statement:

FaHCSIA acknowledges the hurt and distress suffered by the Numbulwar community, after a government sub-contractor working in Numbulwar dug a pit toilet on a sacred site. Senior FaHCSIA staff travelled to Numbulwar in 2008 to apologise personally to Traditional Ownehcsiars.

*Bob Gosford was employed as a legal adviser by the Northern Land Council from September 2007 to September 2008.