Aboriginal heritage test case overturns decision to deregister Port Hedland site
Steve Corsini
Aboriginal heritage test case overturns decision to deregister Port Hedland site
By Nicolas Perpitch and Laura Gartry ABC http://www.abc.net.au/news/2015-04-01/aboriginal-heritage-test-case-port-hedland/6366250
Wed 1 Apr 2015, 7:14pm
Related Story: Traditional owners to launch class action over deregistration of sacred sites
Related Story: Sacred site definition challenged in court case
The Supreme Court has quashed a decision by a West Australian Government committee to deregister a Port Hedland Aboriginal sacred site, in a test case that opens the door to a class action by traditional owners.
In his judgement, Justice John Chaney referred the case back to the Aboriginal Cultural Materials Committee (ACMC).
The committee had recommended to State Indigenous Affairs Minister Peter Collier that land and waters around parts of Port Hedland port should no longer be considered an Aboriginal sacred site because it had not been used for religious purposes.
"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," Justice Chaney said in his judgement.
"The ACMC asked itself the wrong questions and identified the wrong issues, thereby falling into jurisdictional error."
Marapikurrinya brother and sister Kerry and Diana Robinson had challenged the validity of the ACMC's finding in December 2013.
Guidelines issued by the Department of Aboriginal Affairs stated that to be a recognised as sacred site, a place needs to have been devoted to religious use rather than simply mythological stories, songs or beliefs.
Several culturally significant sites around WA have had their protection withdrawn in the past year on the basis they no longer fit the definition of a sacred site.
The Robinsons rejected that definition, arguing it was irrelevant whether the area had been used for religious purposes.
Their lawyer Greg McIntyre, who represented Eddie Mabo in the historic 1992 native title case, told the court in November the Aboriginal Heritage Act made no requirement for religious use.
He contended it was enough for it to be of special importance or significance to people of Aboriginal descent.
Lawyer for the committee George Tannin has said the clearly accepted definition of a sacred site was one "devoted to a religious purpose" rather than merely a place of veneration or religious respect.
Class action likely, traditional owner says
Aboriginal Heritage Action Alliance (AHAA) co-founder Clayton Lewis has previously said if the Port Hedland ruling was overturned it would open the door to other Aboriginal people mounting a class action against the WA Government.
Mr Lewis is a Widi traditional owner from the Perenjori region, in the state's Mid West, north of Perth, where the Department of Aboriginal Affairs has signalled the Mongers Lake Waterways will be removed from Heritage Register.
In a statement, Mr Robinson hailed the decision.
"This is good news. 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.
"From the beginning when the Mt Newman mining company came to Port Hedland in the 1960s we have had too many problems from the government side of it.
"We know Port Hedland Harbour is a port.
"Our Yinda is getting destroyed every time a mining company comes here hammering and dredging.
"What this court has done is about respect and Government acknowledging us for our Yinda site."
Opposition Aboriginal affairs spokesman Ben Wyatt also welcomed the decision.
"A strong decision that confirms the Barnett Government was trying to reinterpret the definition of an Aboriginal site so narrowly so as to ensure sites of significance to Aboriginal people were struck from the register," he said.
"Further, not providing for procedural fairness to the Aboriginal claimants prior to striking sites from the register shows the scurrilous intent of the Barnett Government."
Aboriginal Affairs Minister Peter Collier has been contacted for comment.
john...@ozemail.com.au
Thanks Steve,
I am also examining a proposal to delist a AHIMS site west of Sydney. Anyone wanting to know details please contact me off list (this will be a very in-depth study of both policy and the physical facts, or at least I am hoping so).
Kind Regards,
Dr John Byrnes
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----- Original Message -----From:oza...@googlegroups.comTo:<oza...@googlegroups.com>Cc:Sent:Wed, 1 Apr 2015 21:44:38 +0800Subject:{OzArch} Aboriginal heritage test case overturns decision to deregister Port Hedland site
Aboriginal heritage test case overturns decision to deregister Port Hedland site
By Nicolas Perpitch and Laura Gartry ABC http://www.abc.net.au/news/2015-04-01/aboriginal-heritage-test-case-port-hedland/6366250
Wed 1 Apr 2015, 7:14pm
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