WA Government Forced to Reassesses Contested Aboriginal Heritage Sites

Wednesday 24 June 2015 @ 11.34 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

Recently, The Australian reported the WA Supreme Court's decision in Robinson v Fielding [2015] WASC 108 (1 April 2015), of Justice John Chaney, which found that the WA Government had erred in creating a new definition of an Aboriginal site that contradicted its own heritage legislation and had brought about ". . . [t]he painstaking task of reconsidering what makes a sacred site in Western Australia . . ." , concluding that the WA Government was writing to hundreds of traditional owners following a court finding against its previous ". . . hard-line approach".

The Issues in Robinson v Fielding

In this case, the WA Supreme Court in April 2015 quashed a decision by the WA Government's Aboriginal Cultural Materials Committee (the ACMC) to deregister a Port Hedland Aboriginal sacred site.

Essentially, the case was about what sites are to be considered an "Aboriginal Site" for the purposes of the Aboriginal Heritage Act 1972 (WA) (the AH Act) and in particular section 5 of that Act, which deals with the places to which the Act apples and provides as follows:

"This Act applies to

(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;

(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;

(c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;

(d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed."

Effectively, the AH Act applies to any place covered by section 5, or as Justice Chaney points out in his judgment at paragraph [9]:

"The expression 'Aboriginal site' is defined to mean a place to which the Act applies by the operation of s 5".

The key issues in the case were whether the ACMC had misapplied the AH Act and following from this whether there was a right to be heard and whether procedural fairness had been observed.

The question of whether the ACMC had misapplied the AH Act was connected to guidelines issued by the WA Department of Aboriginal Affairs which 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. This was rejected by the Robinsons and other applicants who argued that it was not relevant whether the area had been used for religious purposes. Instead, the applicants argued that the AH Act made no requirement for religious use and that it was enough for it to be of special importance or significance to people of Aboriginal descent.

The Decision in Robinson v Fielding

In his judgment on this point, Justice Chaney at paragraphs [99] to [100] states:

"[99] It follows that, 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 AH Act.

[100] . . . 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."

Reflecting specifically on the Department issued guidelines, Justice Chaney says, at paragraph [102], that the ACMC had taken the criteria for a sacred site into account but had also misinterpreted them:

"[102] . . . As I have already concluded, the Committee did have regard to the tests set out in the s 5 Guidelines. To the extent that the Committee had regard to the proposition that the meaning of 'site' is narrower than 'place', and to the requirement for devotion to a particular religious use, the ACMC misapplied the proper tests under s 5 and s 39. 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."

Thus, an Aboriginal Heritage site can be more widely associated with aboriginal culture than the strict religious purpose sought to be ascribed by the ACMC and the WA Government.

Comment and Consequences of the Case

One of the key consequences as reported by the ABC is that several culturally significant Aboriginal sites around WA have had their protection withdrawn in the past year (2014-15) on the basis they no longer fitted the definition of a "sacred site" meaning that legislation to remove impediments for mining companies has been delayed indefinitely while the government reassesses, according to The Australian, almost 40 contested heritage sites dropped from the State Heritage Register.

Others see the decision as an opportunity for further class action - the ABC reported the Aboriginal Heritage Action Alliance co-founder Clayton Lewis as saying if the Port Hedland ruling was overturned, it would open the door to other Aboriginal people mounting class actions against the WA Government.

The opposition Aboriginal affairs spokesman was reported as saying the decision was:

"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, ..."

It seems that the legislation the WA government had been attempting to use to “streamline” the heritage processes, which it has claimed was costly and time-consuming, could, as a result of streamlining, have made the process even more time consuming and costly.

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