Aboriginal heritage test case overturns decision to deregister Port Hedland site

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Several culturally significant sites around WA have had their protection withdrawn in the past year on the basis they no longer fit the definition of a sacred site.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.

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Traditional owners in WA to launch class action over deregistration of sacred sites

Clayton Lewis Aboriginal Heritage Action AllianceClayton Lewis said it was ridiculous to suggest religious activity was required at the sites. (ABC News)

Laura Gartry ABC News 11 Mar 2015

RELATED STORY: Sacred site definition challenged in court case

Traditional owners in Western Australia are set to launch a class action lawsuit against the State Government over the deregistration of sacred Indigenous sites.

In the past year several culturally significant sites, including waterways in the Mid West, have had their protection withdrawn by the Government on the basis they no longer fit the definition of a sacred site.

Minister for Aboriginal Affairs Peter Collier told Parliament late last year that for a place to be considered a sacred site, it must show it was devoted to religious use rather than just be a place of mythological story, song or belief.

The decision to deregister several sites was sparked by development applications from mining and exploration companies.

Aboriginal Heritage Action Alliance (AHAA) co-founder Clayton Lewis said they were waiting for a Supreme Court judgement on a test case challenging the deregistration of sites in Port Hedland.

"If the ruling on Port Hedland is overturned, this opens the door for lots of other Aboriginal people to get together to have a class action against the State Government," he said.

Mr Lewis is a Widi traditional owner from the Perenjori region, in the state's Mid West, north of Perth.

He was recently notified by the Department of Aboriginal Affairs (DAA) that the Mongers Lake Waterways would be removed from state's Heritage Register, despite being recognised as a significant site in 2005.

"Under the original DAA registration it was recorded as a mythological site of significance," he said.

"The disturbance of any serpent [Beemarra] mythology upsets the balance of [the] region. We believe that the waterways should be left alone."

Mining application prompts reconsideration of site

In a statement, the DAA said the site was reconsidered after receiving an application by Perangery Pastoral Company to extract gypsum from the salt lake.

"It was determined the information available did not support that the entire water system of the lake was a single sacred site on the basis," it said.

The Widi mob was informed by a letter from the DAA that the site no longer fit the definition of a sacred site and they must prove its validity for it to remain protected.

"For this place to be determined as sacred site ... specific details regarding the religious activity conducted and are solely associated with this place would need to be provided ... rather than just a belief or the presence of an ancestral being," the letter stated.

Mr Lewis described the requirement as "ludicrous".

"It's just ridiculous to suggest that religious activity is conducted at an Aboriginal mythological site," he said.

"It's not like we are going to church on a Sunday morning there in a western sense. That's not what happens at the mythological site. We greet the Beemarra and throw sand into water, it's a cultural practise."

Lawyer Greg McIntyre, who represented Eddie Mabo in the historic 1992 native title case, is representing the Port Hedland claimants in the test case.

He has previously argued whether or not a site has been used for religious purposes was irrelevant.

Mr McIntyre confirmed he would be involved in a potential class action but could not comment further until the judgement on the Port Hedland case was handed down in a number of weeks.

The AHAA is hoping to locate any other sacred sites that have been deregistered on the basis they were not religious.

"We are hoping to bring people together and consolidate action against the state. AHAA are looking to gain an understanding of where else this is happening across the state, we already know of a number of other sites," Mr Lewis said.

The Department of Aboriginal Affairs said the group was entitled to pursue legal action.