Landmark Western Australia
Labor and the Greens are calling for an urgent review of 22 formerly heritage-listed Aboriginal sacred sites after a landmark judgment in the supreme court of Western Australia found that the definition of a sacred site being used by the Department of Aboriginal Affairs was invalid.
Justice John Chaney ruled in the supreme court on Wednesday 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 and should be reviewed.
The 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.
That 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”.
“To the extent that the ACMC brought to account the lack of evidence of specific rituals, ceremonial or cultural activities associated solely with the site, as invited to do by the Department report, it acted upon a misconstruction of s 5 of the [Aboriginal Heritage] Act, ” Chaney said.
Chaney ordered that the ACMC’s earlier decision be set aside and the matter referred back to the committee to reconsider its recommendations to the minister.
Kerry Robinson released a statement through his lawyers, saying the decision was “good news” and describing the struggle the Marapikurrinya had since Port Hedland became a mining town in the 1960s.
“We the Marapikurrinya clan have been waiting for a long time for this to happen, ” he said. “We have been fighting so hard for our lore and land not to be destroyed.
“We know Port Hedland Harbour is a port. Our yinda is getting destroyed every time a mining company comes here hammering and dredging. It is about time we won something. What this court has done is about respect and government acknowledging us for our Yinda site.”
The Robinsons were represented by Greg MacIntyre SC, a barrister who specialises in Aboriginal heritage and worked on the Mabo case. MacIntyre told Guardian Australia the guidelines used by the department “completely delists all mythological sites”.
Most of the registered Aboriginal sites in WA are of mythological or archaeological significance. Sites of regular ceremonial or ritual use, such as law grounds, are often not registered.
MacIntyre said the assumption that a site required regular ceremonial use to be considered sacred was a misunderstanding not only of the Act but of Aboriginal and Torres Strait Islander culture, which often prohibited people from visiting sacred sites.
MacIntyre said he had been contacted by a number of Aboriginal people since the case began who said a sacred site significant to their group had been deregistered using the guidelines that the supreme court has now overturned.
“If these guidelines were continued to be applied in the way that they were, I would say that the vast majority of sites that have been on the register for years would be removed, ” he said.
WA Greens MP Robin Chapple said the mass delisting of Aboriginal heritage sites was already occurring.
At the time Collier maintained that for a site to be sacred, “it must be demonstrated that it is devoted to a religious use rather than just a place subject to mythological story, song or belief”.
Chapple told Guardian Australia the government should order a review of all decisions to deregister sites it had declared not sacred, not just the decision that was the subject of this court case.
“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, ” he said.