Herbert Bropho at a 2014 protest against changes to the Aboriginal Heritage Act. Photo by Steve Grant
THE Barnett government’s program of stripping heritage protection from a swag of Aboriginal sites across the state has been dealt a blow in the Supreme Court.
On Wednesday, Justice John Chaney ordered a decision of the Aboriginal affairs department’s cultural materials committee to deregister Port Hedland harbour be set aside because the Aboriginal Heritage Act had been misinterpreted.
Justice Chaney found the department had been wrong to exclude sites associated with mythological beings; the basis for 22 de-listings which have Aboriginal groups across the state calling foul.
“The ACMC asked itself the wrong questions and identified the wrong issues, thereby falling into jurisdictional error,” Justice Chaney wrote in his findings.
The department had argued that the combination of the words “sacred” and “site” in the Act referred exclusively to where Aboriginal people conducted religious ceremonies. But Justice Chaney found that was wrong.
“In the context of legislation dealing with Aboriginal culture, the word ‘sacred’ must necessarily contemplate spiritual and mythological purposes,” he found.
The Port Hedland case was launched by brother and sister Kerry and Diana Robinson, who are part of the Marapikurrinya family.
An area incorporating the harbour and surrounding creeks is known to local Aborigines as Marapikurrinya Yintha, and is associated with a Dreamtime rainbow serpent known as Kata-Katara. The site was registered in 2008, but delisted in 2013 when the local port authority applied to construct new berths.
The Herald asked the department if it would appeal the decision or voluntarily overturn other affected ACMC decisions.
Updated 1/52pm: The department handballed the Chook’s query to Aboriginal affairs minister Peter Collier, who said he “acknowledges the decision”.
“It is reflective of an Aboriginal heritage system that was developed more than 40 years ago, and how a lack of clarity within the current legislation can impact on decisions by those that work within its boundaries, including the Aboriginal Cultural Material Committee (ACMC). The decision provides further clarity and the decision will now be reviewed,” Mr Collier said.
“The decision further confirms the need for Aboriginal people to be properly consulted prior to decisions being made. It also demonstrates that the Court of Law is the appropriate place for aggrieved parties, including Aboriginal people, to appeal decisions. Decisions by the ACMC should be reviewable, and must satisfy procedural fairness.
“It reinforces the need for change to the system, and I look forward to debating the proposed changes to the Aboriginal Heritage Act 1972 in Parliament.”
Mr Collier did not answer whether other affected ACMC decisions would be reviewed or overturned.
Anthropologist Stephen Bennetts, one of the founders of the Aboriginal Heritage Action Committee, said it was a “famous victory”. His group is campaigning against proposed changes to the Act currently before parliament, saying they effectively shut out Aboriginal people from having a say in protecting their heritage.
by STEVE GRANT