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[2000] TASSC 145
Supreme Court of Tasmania
2000-10-18
Cox CJ
Original judgment source is linked above.
CITATION: Taylor v Gibbon; Gibbon v Taylor [2000] TASSC 145
Aboriginals - Relics and heritage protection - Preservation of artefacts - What constitutes site bearing signs of the activities of original inhabitants of Australia or their descendants - Whether strip of land containing four artefacts scattered over length of 115 metres such a site - Whether construction of levee thereon interfered with a relic.
Aboriginal Relics Act 1975 (Tas), s2.
Judgment Number: [2000] TASSC 145
1 Two charges under the Aboriginal Relics Act 1975 ("the Act") are the subject of this appeal and cross-appeal. The appellant was convicted on the second charge and this is the subject of the appeal, while his acquittal on the first charge is the subject of the cross-appeal. The two charges were as follows:
"1 That Ian Clark Taylor on a property known as 'Belmont' near Swansea in Tasmania between on or about the 30th March 1998 and on or about the 14th April 1998 did, otherwise than in accordance with the terms of a permit granted by the Minister on the recommendation of the Director, conceal 4 relics within the meaning of the Aboriginal Relics Act 1975 ('the Act'), ie 4 artefacts identified as artefact type numbers 2, 3, 4 and 5 in a document known as 'Aboriginal Archaeological Survey Report - The Proposed Extension of Wet Marsh Dam, Swansea', by McConnell and Stanton, dated September 1997 ('the Survey Report') by burying the said relics during the construction of a levee on the said property, contrary to Section 14(1)(a) of the said act.
2 That Ian Clark Taylor on a property known as 'Belmont' near Swansea in Tasmania between on or about the 30th March 1998 and on or about the 14th April 1998 did, otherwise than in accordance with the terms of a permit granted by the Minister on the recommendation of the Director, interfere with a relic within the meaning of the Aboriginal Relics Act 1975, ie a site bearing signs of the activities of the original inhabitants of Australia or their descendants, being identified by and allocated the Tasmanian Aboriginal Site Index number 7858 by covering or concealing part of the said site during the construction of a levee on the said property contrary to Section 14(1)(a) of the said act."
2 The appellant was the part owner of a property near Swansea called "Belmont". On the property is a feature known as Wet Marsh. A neighbour, Websters Ltd, being desirous of obtaining a supply of water for a venture involving the cultivation of walnuts, entered into an agreement with him to procure the water it needed. To ensure an adequate supply of water, the Marsh needed additional damming. What was contemplated was the construction of a levee bank on the north and north-eastern corner of Wet Marsh. Appended to these Reasons is a plan of the Marsh. The approximate site of the levee is shaded. The Parks and Wildlife Service was advised of the proposal and on 27 and 28 August 1997, Ms A McConnell and Mr S Stanton went to the appellant's property for the purpose of conducting a survey of the area around Wet Marsh. They located and recorded around the perimeter of the Marsh some 250 stone artefacts. They produced a Survey Report in September 1997 entitled "Aboriginal Archaeological Survey Report - The Proposed Extension of Wet Marsh Dam". Ms McConnell is a consultant in archaeology, cultural heritage management and quaternary geoscience, while Mr Stanton is an Aboriginal Heritage Officer. The latter made application to the Aboriginal Heritage Section of the Parks and Wildlife Service to record Wet Marsh as an aboriginal site and to allocate a number to it. He did so by filling in a form (P6) headed "Tasmanian Aboriginal Land Council: Inland Site Recording Form". On the form he identified the map grid reference, stated that the site was located on the "edge of lagoon and on lunettes" and stated that the size of the site was "2,600 metres" in length and "100 metres (av)" in width. Under the heading "Site/feature types" appear the words "Artefact scatter" and the area is described as follows:
"Large artefact scatter which surrounds the east, south and south west margin of Wet Marsh, north of Swansea. There is surface scatter of flaked cherty hornfels (dom), quartz (minor), and silcrete (rare) which includes cores, waste flakes and a high percentage of formal tools and utilised pieces. The site also contains some rare fragmented shell, a small number of grindstones/anvil/stones on dolerite (?) river pebbles, rare flakes 19C European glass and possibly burnt clay fragments (from hearths?). The site appears to include occupation around the margin of the lagoon/marsh as well as more sparse occupation on the lunettes on the east and south east sides. The site is clearly a contact site. The site appears relatively undisturbed apart from ploughing and some disturbance by drain excavation & maintenance, The site possibly extends south to the Tasman Highway to the sites recorded by Thomas & Summers (1992)."
The Aboriginal Heritage Section allocated the number 7868. What status that gave the document or the area therein described is unclear.
3 On 15 October 1997, both returned to Wet Marsh for a meeting at which the appellant was present. Discussions occurred with a view to avoiding damage to any of the artefacts by the construction of the levee. Between 30 March and 14 April 1998, the appellant constructed the levee by bulldozing soil on the edge of the Marsh to a height in excess of 1 metre. On 16 April 1998, Mr Stanton returned to Belmont and claimed that the levee covered an area beside the lagoon where Ms McConnell and he had located artefacts numbers 2, 3, 4 and 5, thereby concealing them. The evidence justified a finding that the appellant did not have a permit as alleged in each charge.
"14 (1) Except as otherwise provided in this Act, no person shall, otherwise than in accordance with the terms of a permit granted by the Minister on the recommendation of the Director -
(a) destroy, damage, deface, conceal, or otherwise interfere with a relic;"
"2 (1) In this Act, unless the contrary intention appears -
'Director' means the Director of National Parks and Wildlife;
(2) For the purposes of this Act, any person who has wholly or partly descended from the original inhabitants of Australia is a person of Aboriginal descent.
(3) For the purposes of this Act, but subject to the following provisions of this section, a relic is -
(a) any artefact, painting, carving, engraving, arrangement of stones, midden, or other object made or created by any of the original inhabitants of Australia or the descendants of any such inhabitants;
(b) any object, site, or place that bears signs of the activities of any such original inhabitants or their descendants; or
(c) the remains of the body of such an original inhabitant or of a descendant of such an inhabitant who died before the year 1876 ...
(4) No object made or created after the year 1876 shall for the purposes of this Act be treated as a relic, and no activity taking place after that year shall for those purposes be regarded as being capable of giving rise to such a relic.
(5) In any proceedings under this Act in relation to an object alleged to be a relic, the court shall assume the object to be a relic if it is satisfied that there are reasonable grounds for believing that the object is, or may be, a relic."
"7 (1) Where the Minister is satisfied that there is on or in any land a relic and that steps should be taken to protect or preserve that relic, he may, on the recommendation of the Director, by order declare an area of land within which it is situated to be a protected site.
(3) An order shall not be made under this section in respect of an area of land (other than an area of Crown land), unless the owner and occupier of the land consent, in writing, to the making of the order."
"8 (1) The Director is charged with the management and maintenance of every protected site and the protection and preservation of the protected objects on and in that site.
(12) A person having an estate or interest in any land is entitled to compensation for any loss or injury (whether to the land or any object on the land), or for any decrease in the value of that land, arising from the exercise on that land of any of the powers conferred on the Director by this section, and that compensation shall be of such amount as may be agreed between that person and the Director."
"12 (1) Subject to this section, on the recommendation of the Director, the Minister may acquire or accept a relic on behalf of the Crown and a relic so acquired or accepted becomes vested in the Crown.
(10) This section does not authorize the acquisition or acceptance of any land or require the severance of any relic from land."
5 Before the learned magistrate could convict the appellant of the first offence alleged against him, she instructed herself that she had to be satisfied:
(a) that an act, namely the concealment by burying, was done by the appellant at his property at Swansea between on or about 30 March 1998 and 14 April 1998;
(b) that the act was done by the appellant otherwise than in accordance with the terms of a permit; and
(c) that the act involved relics within the meaning of the relevant Act.
The prosecution contended that the appellant, without having the appropriate permit, had heaped up earth in the form of a levee over the land upon which Ms McConnell and Mr Stanton had located items 2, 3, 4 and 5, thereby concealing them. The crucial issues were whether these items were relics within the meaning of the Act; whether when they were sighted by Ms McConnell and Mr Stanton on 27/28 August 1997 they were in a position which was covered by the levee the following April; and whether immediately before that levee was constructed they were in the same position.
6 As to the first issue, the learned magistrate found beyond reasonable doubt that the items were artefacts, but in the absence of direct evidence that they were made or created by any of the original inhabitants of Australia prior to 1876 was not prepared to make a finding to this effect on the basis of satisfaction beyond reasonable doubt. She had recourse, however, to s2(5) and expressed herself satisfied that there were reasonable grounds for believing that the items were, or may be, relics and made a positive finding to that effect. No complaint is made in respect of that finding for the purposes of the proceedings constituted by the first charge. She found that the items were located in a position subsequently covered by the levee, but was not satisfied beyond reasonable doubt that they were still in the same position when that levee was constructed. The respondent's cross-appeal relates to the dismissal of the first charge on the lastmentioned basis. It is contended that the learned magistrate erred in finding that it was possible the items had been moved between August 1997 and April 1998 by some person or process other than by the actions of the appellant and in failing to infer that they remained in the same position when there was no evidence that they had been or were likely to have been moved. There was evidence from Mr Stanton that in August 1997 there was a large number of sheep grazing the land and drinking from the lagoon, while the respondent gave evidence that between 1,000 and 2,000 sheep were turned on to the land in about March 1998. He also said that during the period hunters, some with and some without permission, had access to the land by vehicle, and that the land was cropped and harvested in that time. The items were only on the surface of the land as Ms McConnell picked them up to examine them before returning them to their original positions. The respondent gave evidence that prior to constructing the levee, he looked for artefacts in the area where he believed these four objects had been located, but could not find them. In these circumstances, it is my view that the learned magistrate was entitled to entertain a reasonable doubt as to the continued presence of the artefacts in their original positions. The activities of sheep or hunters may have caused them to be moved a short distance therefrom and outside the site of the levee. The admitted growth of grass and other vegetation would have militated against their discovery had that been the case.
7 However, the appellant, in defending his acquittal against the cross-appeal, is entitled to and did argue that the finding by the learned magistrate that the artefacts had been on the site later covered by the levee was against the weight of the evidence and led to an unsafe and unsatisfactory verdict. I think there is considerable substance in this. Mr Stanton was the only witness who asserted that the levee covered the position where the four items were found the previous August. The method of recording their position was extremely unsophisticated. Ms McConnell in some cases measured and in others paced the distance of the four items (as she did of 155 other artefacts around the perimeter of the lagoon although even some of the latter distances were only estimated) from what she took to be its high water mark. However, she acknowledged that the actual water level was lower than the high water mark she claimed to have been able to identify and said that she could not remember if all distances had been taken from the high water mark or the actual water's edge. On the appended plan, she plotted the position of each. According to that plan, the distance between the northern most and the southern most of the four was approximately 115 metres, but even the scale on the plan was, according to unchallenged evidence, defective and the true scale distance was greater. No bearings were recorded. No adequate explanation was given as to how distances between artefacts were determined or how the northern most artefact in this group (item 2) was plotted on the plan in a north-south line by reference to any detailed measurement from a known point. Items 2 and 3 were recorded as 30 metres from the high water mark, while item 4 was 15 metres therefrom and item 15, 20 metres from the high water mark. In evidence not subject to cross-examination, the appellant said that 70 per cent of the fill material for the levee was procured from under high water mark and pushed outwards to form an embankment. He said at the particular stretch of levee, the width of its base was from 3 metres at its lowest end to a maximum of 12 metres at a discontinued fence line relied upon by Mr Stanton as a datum point for the items and that "possibly a third" of the levee bank was inside the high water mark. This meant that the outside edge of the levee would be at most 8 metres from the high water mark well short of the distances measured to each object. It was an agreed fact that the levee was "approximately 500 metres long and up to 20 metres wide". The learned magistrate incorrectly recorded in her Reasons for Judgment that "there was no dispute on the evidence that the levee was approximately 500 metres long and 20 metres wide". Certainly on the prosecution case it was no greater than 20 metres wide. Mr Stanton was not prepared to concede that the inside edge of the levee was below the high water mark. He claimed the earth had been moved above that mark and that in his opinion the position of the levee "was such that it would have been on top of artefacts 2 - 5 in as much as it was my opinion a certain distance from the previous dam level, the water level". He conceded that he did not measure that distance and could not recall if when he visited the site in April 1998 he had with him the plan prepared by Ms McConnell the previous August. He also agreed he made no record of the position of the levee in relation to the artefacts until he had left the area. The uncertain method of recording the position of the objects to begin with, the fact that Mr Stanton only noted their position once previously in August and had not visited the site in the meantime save for the October visit and the imprecision of his identification of their location in April, compared with the appellant's evidence of the width and positioning of the levee could not but create a reasonable doubt as to whether or not the levee was constructed over the sites of items 2 - 5. The appellant was rightly acquitted on count 1, for this reason in any event.
8 In respect of count 2, the learned magistrate proceeded to conviction on the basis that the whole of the site comprised and described in P6, the application which resulted in the allotment of what was called the Tasmanian Site Index number 7858, that is to say the area of an average width of 100 metres surrounding the Marsh and being of a length of 2,600 metres, was a relic within the meaning of the Act and that the appellant had erected the levee on part of it. The survey report identifying the artefacts found by Ms McConnell and Mr Stanton shows that only four of the 156 artefacts given a specific number on the map appended hereto were, on the prosecution case, affected by the levee. On the eastern side of the Marsh for a distance of some 500 metres south of the levee, only nine artefacts were recorded, while between there and the southern extremity of the Marsh were recorded artefacts numbered 14 - 118 and a concentration of other artefacts which were recorded as being there but not given a number. On the south-west side of the lagoon, some 30 more numbered artefacts are shown dotted progressively along a line of approximately 600 metres. There is a gap along the western side of the lagoon for a further 200 metres approximately and then for the next 100 metres items numbered 149 - 155 are recorded. In the top third of the lagoon shown on the appended plan (above the words "WET MARSH") only 10 out of the 156 artefacts given numbers are to be found. The vast preponderance of artefacts are situated on the south-eastern and south-western sides of the Marsh at a considerable distance from the site of the levee. It will be remembered that the description given in P6 commences "Large artefact scatter which surrounds the east, south and south west margin of Wet Marsh". None of the four artefacts located in the general area of the levee was found beyond reasonable doubt to have been a relic, the learned magistrate having recourse to the facilitative provisions of s2(5).
9 In finding that the whole area described in the Tasmanian Site Index number 7858 document was a relic, the learned magistrate had to be satisfied beyond reasonable doubt that it was a site which bore signs of the activities of the original inhabitants of Australia or their descendants. Without making such a finding, the learned magistrate again had recourse to s2(5), saying that for the same reasons she had already expressed, she was satisfied that it was or might be a relic and therefore found that it was. In doing so she was in error, for the subsection only applies in relation to proceedings under the Act in relation to an object alleged to be a relic, as opposed to a site or place. Mr Neasey for the respondent concedes the error, but submits that it is of no moment because there was ample evidence that compelled such a finding. I think there was ample evidence that parts of the perimeter of the lagoon bore signs of the activities of the original inhabitants of Australia and that those who recorded the area described in P6 as a site regarded it as such. But this is not sufficient to compel the conclusion that it was and that the act of constructing a levee on the north-eastern corner was an interference with a relic.
10 What did Parliament mean when it used the words "site which bears signs of the activities" of the Aboriginal people? The word "site" is an ordinary English word meaning place or position of some specified thing. It draws colour and extent from the thing specified. Hence the site of a fortified town may be identified by the remains of its fortifications and may not include things outside those fortifications. Here Parliament is not dealing with any location such as a city or building to which fixed limits may be ascribed. It is dealing with a geographic location which is determined by reference to signs of the activities of a nomadic people. From the presence of a large number of artefacts in the south-eastern corner of the lagoon it is reasonable to conclude that the Aboriginal people carried out a number of activities in that immediate area and that that immediate area is a site which the Act contemplates as worthy of preservation. On the north-western corner, however, no artefacts have been found within a distance, as the crow flies, of 500 metres approximately, thus exhibiting no signs of any activity there at all. Was it contemplated that such a lengthy area of land with a width of 100 metres should be entitled to the same protection? It is to be noted that even the status of protected site may not be conferred upon any land unless the Minister is satisfied that steps should be taken to protect a relic and the owner and occupier consent to an order to that effect (s7(1) and (3)) and that if such an order is made and the Director's activities cause detriment to the land, the owner may obtain compensation. Furthermore, there is no power to acquire land for the purposes of the Act. In these circumstances it seems hard to believe that Parliament contemplated that the use of a substantial area of land along the north-west perimeter of the lagoon to a depth of 100 metres could be restricted by a prohibition on ploughing it or otherwise interfering with or covering it with soil, without any right to compensation, when it bore no signs of aboriginal activities at all, or that the land to the north-east of the lagoon should be similarly restricted because four artefacts scattered over a distance in excess of 115 metres but within 30 metres of the high water mark were found there. The numerous artefacts on the south-east corner of the lagoon perimeter were signs of the activities of the original inhabitants. The mere presence of one or even many artefacts at a given location does not necessarily make that location a site or place that bears signs of aboriginal activities. If that were so, a museum housing a collection of artefacts could be said to be a site which was a relic within the meaning of the Act. I think it is implicit in s2(3)(b) that the site must bear signs of activities which were carried on at that location. If that is so, the north-western area described above clearly could not be part of the site, while that to the north-east where the levee was constructed, could not be described as a site or part of a site which was a relic unless the learned magistrate was satisfied beyond reasonable doubt that the signs relied upon demonstrated aboriginal activities carried on there. These artefacts are at the extremity of the scatter and may have been moved by more than a century and a half's agricultural pursuits from the position at which the high concentration of artefacts constitute signs of aboriginal activities. Their presence does not compel the requisite finding to a degree beyond reasonable doubt. Thus the learned magistrate's incorrect reliance on the facilitative provisions of s2(5) was not cured in the way contended for by Mr Neasey.
11 The powers conferred upon the Court on the hearing of a Notice to Review by the Justices Act 1959, s110, are wide enough in the present circumstances to permit me to make all such orders as are necessary to secure a final determination of the matter on the merits. I do not overlook the evidence of Ms McConnell as to the cultural heritage of the general area of Wet Marsh, but in my opinion no finding beyond reasonable doubt could properly be made that a levee was constructed on a site which bore signs of the activities of any of the original inhabitants of Australia or their descendants, even if items 2, 3, 4 and 5 were located under or adjacent to the levee. Even if, as a matter of law, a finding beyond reasonable doubt could legitimately be made, the learned magistrate did not make such a finding and, for my part, on an examination of the evidence I am not prepared to exclude a reasonable doubt about the issue. The charge ought to have been dismissed.
12 Accordingly, I uphold the appeal and quash the appellant's conviction on the second charge referred to above and the sentence imposed. The cross-appeal is dismissed.