An important test case heard in the Perth Supreme Court on Monday ruled that the Government committee’s narrow interpretation of ‘sacred’ site, which has seen existing sites stripped from the state register, was a misconstruction of the Act. The court case regarded the Marapikurrinya Yintha site near the Port Hedland Port in northern WA.
The WA Governments Aboriginal Cultural Materials Committee (ACMC) is the community representative body that considers if Aboriginal sites around the state should have the protection of the Aboriginal Heritage Act 1972.
This court decision has shown that the ACMC has not been representing the views of Aboriginal people in the state, and has in fact been dismissing the very places that are important to them. To deny that a place such as Marapikurrinya Yintha is not a sacred site because there is no evidence of ‘religious use’ reveals a lack of understanding of how Aboriginal people use sites.
There has been contention since the ACMC has been applying new guidelines to Section 5b of the Act. This has resulted in the deregistration of sites as the ACMC claims they were not ‘sacred’ because there was the “no evidence of religious use” of the site.
Justice Chaney has asserted that the ACMC misapplied the proper tests under s 5 and s 39 of the Act. “By requiring evidence of specific religious use, the ACMC did not have regard to associated sacred beliefs as the primary consideration as required by s 39(3). The ACMC asked itself the wrong questions and identified the wrong issues, thereby falling into jurisdictional error”.
This is meaningless from the perspective of what is important to Aboriginal people, and is really applying a western concept of sacred. It perverts the original intent of the Act which recognised the legitimacy of an alternate worldview, by assimilating Aboriginal notions of ‘sacred’ to the western church.
Justice Chaney also found that the s 5 guidelines that appear on the Department of Aboriginal Affairs website are inconsistent with the proper construction of s 5 to the extent that they assert the meaning of ‘site’ is narrower than ‘place’. Justice Chaney states, “In my view, there is no reason to read the expression ‘site’ as being somehow narrower than ‘place’”.
Parliamentary questions asked by the Honourable Robin Chapple reveal this reinterpretation of the Act came from flawed legal advice from the State Solicitors Office (SSO), which was tabled at an ACMC meeting on the 21st of November 2012. Since this advice was tabled, 22 Section 5b sites have been removed from the register.
Aboriginal Heritage Action Alliance (AHAA) spokesperson Clayton Lewis says it calls into question the sincerity of the Barnett Governments AHA amendment bill that is currently before parliament awaiting debate. “If the Government is getting advice from the SSO on the definition of what a Aboriginal site is, yet denies what is of importance to Aboriginal people, it indicates the purpose of this amendment bill is to streamline heritage approvals for industry, rather than a legitimate action to strengthen heritage protection”.
The fact that the Supreme Court has found the SSO advice on s5 to be flawed calls the robustness of the 2014 amendments, currently before parliament, into question. The amendment bill has already been subject to scathing critiques from WA’s legal, archaeological and anthropological professions.
The AHAA’s position is that the amendment bill is an unworkable piece of legislation that will be to the detriment of Aboriginal sites in WA. AHAA wants the legislation referred to a parliamentary select committee so the issues can be properly examined.