Landmark WA Test Case on Aboriginal Sacred Sites
Tuesday 7 April 2015 @ 1.03 p.m. | Legal Research
Justice Chaney ruled in the supreme court last Wednesday (1 April 2015) in the case of Robinson v Fielding [2015] WASC 108 that a decision by the Aboriginal Cultural Materials Committee (ACMC) to remove a sacred site in Port Hedland from the state’s cultural heritage register was based on a misconstruction of the Aboriginal Heritage Act 1972 (WA) (Aboriginal Heritage Act) and should be reviewed.
Background to the Case
The Aboriginal heritage site in question is Marapikurrinya Yintha, a body of water that includes the harbour at Port Hedland as well as mangrove flats and creeks that feed into the harbour. It is sacred to the Marapikurrinya and Kariyarra people as a home of the Warlu, or rainbow serpent, and was registered in 2008 in accordance with section five of the Aboriginal Heritage Act, which allows for the protection of “any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent”.
But in July 2013, the WA Department of Aboriginal Affairs introduced guidelines on the correct interpretation of a “sacred site”, which declared that “for a place to be a sacred site requires that it is devoted to a religious use rather than a place subject to mythological story, song or belief”.
Three months later, the Port Hedland Port Authority applied to the ACMC for approval to build a new general cargo wharf at an area known as Lumsden Point. The proposal was announced by the Barnett government as part of its Pilbara expansion plans in 2012. Lumsden Point is inside the area previously listed as being Marapikurrinya Yintha. But in December 2013 the ACMC ruled that the port authority’s proposal did not conflict with any registered Aboriginal Heritage Sites and that Marapikurrinya Yintha was not a registered site.
Challenge to the ACMC Decision
The ACMC decision was challenged by brother and sister Kerry and Diana Robinson, who are Marapikurrinya people and members of the Kariyarra native title claim group. They claimed both that the government had misinterpreted the meaning of a sacred site, and that they had been denied procedural fairness in not being notified by the ACMC that the site could be taken off the heritage register.
In his judgement, Chaney found that the ACMC made its ruling on the basis of advice provided in a report by the Department of Aboriginal Affairs, which said that Marapikurrinya Yintha no longer qualified as a sacred site, because, in part, of a “lack of evidence of specific rituals, ceremonial and cultural activities associated solely with the site”:
"I conclude that the committee did not give consideration to the question of whether or not the Marapikurrinya Yintha was a place of importance or special significance because the question did not arise for consideration in light of the conclusion that it was not a sacred site...The ACMC asked itself the wrong questions and identified the wrong issues, thereby falling into jurisdictional error."
Reaction from Parliament and Potential Class Action
WA Greens MP Robin Chapple said the mass delisting of Aboriginal heritage sites was already occurring:
“If his honour has said that this decision must go back before the ACMC and it must adhere to the Act, then all of the 22 decisions that we are aware of, and maybe many more, also need to go back to the ACMC and be reviewed under the same judicial ruling.”
Labor’s Aboriginal affairs spokesman, Ben Wyatt, agreed, saying the government should review all sites “as a matter of priority” to avoid a costly class action, which has already been raised as an option by other affected groups. The traditional owners have also confirmed a class action is likely.
Aboriginal Affairs Minister Peter Collier said the court’s decision reaffirmed the need for Aboriginal people to be properly consulted before decisions were made and for heritage decisions to satisfy procedural fairness – two areas which WA’s leading Aboriginal bodies, and the state opposition, say are degraded under the proposed amendments to the Act. The Aboriginal heritage amendments are expected to come before parliament in July 2015.
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