The Supreme Court in Robinson -v- Fielding concluded that Guidelines adopted by the Aboriginal Cultural Materials Committee for the determination of what is an Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (AHA) are inconsistent with the definition of ‘Aboriginal site’ in the AHA.
This decision had the effect of contradicting an approach which Registrar of Aboriginal Sites and ACMC has been taking to Aboriginal Sites which has seen 22 sites removed from the Register and threatens to leave any sacred site not associated with ritual or ceremonial activity unprotected by the AHA and would remove from such sites the requirement under the AHA that the Minister for Aboriginal Affairs conclude that it is in the community interest to excavate, destroy, damage, conceal or alter the site.
Section 5(b) of the AHA says that the Act applies to “any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent” and ‘Aboriginal site’ is defined to mean any place to which the Act applies.
The AHA establishes an Aboriginal Cultural Materials Committee (ACMC) with functions set out under s 39, including evaluating the importance of places alleged to be associated with Aboriginal persons and advising the Minister on questions referred to it. Section 39(3) prescribes that –
Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place or object for the purposes of this Act.
The Registrar of Aboriginal Sites has the statutory function of maintaining a register of places to which the AHA applies.
Section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal, or in any way alter, any Aboriginal site unless that person is acting with the authorisation of the Registrar under s 16 or with the consent of the Minister under s 18.
Section 18 of the AHA provides for the owner of land to obtain consent from the Minister to use land for a purpose which would otherwise breach s 17.
Recognition of Marapikurrinya Yintha site
The applicants in this case, Diana and Kerry Robinson, are a sister and brother who are part of the Marapikurrinya family group (or clan estate) and part of the Kariyarra native title claim group. They are directors of Marapikurrinya Pty Ltd (MPL), a company which carries out heritage work in the Port Hedland area
On 6 August 2008 the ACMC considered a s 18 notice issued on 17 April 2008 by BHP Billiton Iron Ore Pty Ltd (BHPIO) on behalf of the Port Hedland Port Authority (PHPA) and Mount Newman Iron Associates in relation to new berths to be located at Nelson point and further dredging of Port Hedland Harbour. The ACMC in considering that application formed an opinion that the Marapikurrinya Yintha which is a body of water encompassing the waters of the Port Hedland harbour together with numerous creeks adjoining those waters was an Aboriginal Site under that AHA and the Marapikurrinya Yintha was entered onto the Register of Aboriginal sites.
A report by Anthropos Australia which was prepared for MPL and BHP, states that the Port Hedland Harbour in its entirety is a Yintha (meaning living water) imbued with the life of the Warlu (rainbow serpent). The ACMC received an oral presentation by Diana and Kerry Robinson in relation to the significance of the Marapikurrinya Yintha and they were given an opportunity to comment and respond to a report by an Anthropologist, Kim Barber, assessing the reports of Aboriginal ethnographic surveys and a cultural impact assessment of the works proposed.
The ACMC maintained its view that the Marapikurrinya Yintha was an Aboriginal Site in relation to s 18 notices on 16 October 2008, 2 December 2009 and 3 August 2011 and at a meeting on 15 August 2011.
In July 2013, the ACMC adopted new guidelines in relation to s 5 of the AH Act, which included public release of a document titled 'Section 5 of the Aboriginal Heritage Act 1972 (WA)' (s 5 Guidelines). The guidelines list criteria that will be taken into account when determining whether a place is a sacred, ritual or ceremonial site which are additional to the criteria specified in s 39 of the AH Act as follows:
- The meaning of "site" is narrower than "place";
- For a place to be a sacred site means that it is devoted to a religious use rather than a place subject to mythological story, song or belief;
- For a sacred site associated with Travelling Ancestors:
- There are stories and songs that celebrate the activities of ancestral figure(s);
- Either there are events which occurred to the ancestral figure at that place; or
- The ancestral figure left some mark or thing that has form eg a spring or rock formation;
- For sacred sites associated with figures or powers, the place is associated with a figure or a power which belongs to the country or was always there
‘No longer a site’
On 17 October 2013, the Department of Aboriginal Affairs (DAA) received a notice pursuant to s 18 of the AHA from the PHPA to impact a registered Aboriginal heritage site, the Marapikurrinya Yintha. The notice included a report from an archaeologist confirming that the site would be impacted by proposed works.
A Departmental report discussed the Barber Report and Anthropos’ Report, but not to the Robinsons’ response to the Barber Report, and concluded that Marapikurrinya Yintha is no longer a site to which s 5 of the AHA applies.
On 3 December 2013, the Registrar wrote to the PHPA, requesting additional information in relation to the Site, stating that her view was that the ethnographic information submitted with the 2013 s 18 Notice 'does not demonstrate evidence of the Aboriginal heritage sites on the land subject of the notice'. In particular, additional information was sought in relation to details of specific rituals and ceremonies associated with the Marapikurrinya Yintha. None was able to be provided within the time frame allowed.
On 18 December 2013 the ACMC resolved to confirm and endorse the site assessment of the Departmental report, i.e., that Marapikurrinya Yintha is no longer a site to which s 5 of the AHA applies.
It was argued for the Attorney-General that the Robinsons did not have standing to bring the case because, as custodians their concern was of a spiritual nature; relying on dicta of Anderson J in State of Western Australia v Bropho. It was suggested that the Plaintiffs did not pass the test for standing set in Australian Conservation Foundation Inc v Commonwealth of having a special interest beyond that of the general public and beyond a mere intellectual or emotional concern.
The applicants argued that they had the same special interest as was accepted by Martin CJ in Woodley v Minister for Aboriginal Affairs when he said –
Mr Woodley is a senior representative of the Yindjibarndi People and the Yindjibarndi Aboriginal Corporation is a corporate entity which is representative of the Yindjibarndi People. The Yindjibarndi People undoubtedly have a special interest over and above that of the community in general in the preservation of heritage value of this site. They also have every reason to suppose that their interests would be respected in the processes relating to the grant of consent.
The Attorney-General also argued that the case could be contrasted with that of the applicants in Onus v Alcoa of Australia Ltd, which concerned possible destruction of sacred relics. In that case, in addition to the beliefs associated with the relics there was evidence of physical interaction with the relics. The Attorney-General contended that the applicants in this case had not pointed to any evidence of their physical interaction with the land and water the subject of the notice.
Chaney J referred to the evidence of physical interaction with the site in the Anthropos report and held that –
In view of the physical interactions between the Marapikurrinya people (including the applicants) with the site, the applicants' role as senior traditional spokespeople of the Marapikurrinya responsible for speaking for the Port Hedland Harbour, the applicants' role as directors of MPL, and because the applicants' interests would be distinctively and adversely affected by the decision of which they seek judicial review, the applicants should be regarded as having a special interest in the site which gives them standing to bring these proceedings.
Guidelines and ACMC misconstrue Act
Chaney J found that, contrary to what was suggested in the Guidelines, the expression 'Aboriginal site' as used in the AH Act includes 'places' and 'site' does not have a narrower meaning than 'place', and rejected the contention for the Attorney-General that ‘site’ denotes a location on which a particular thing is devoted to a particular use and 'sacred' is used in the sense 'appropriated or dedicated to a religious purpose'. He concluded -
In the context of legislation dealing with Aboriginal culture, the word 'sacred' must necessarily contemplate spiritual and mythological purposes. The words 'ritual' and 'ceremonial' are clearly referrable to cultural purposes, although such purposes may substantially overlap with sacred purposes.
He rejected the assertion in the Guidelines that ‘for a place to be a sacred site, it must be devoted to a religious use rather than be subject to mythological story, song or belief’ and held 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.
Chaney J noted that it was agreed by all members of the Court in The State Western Australia v Bropho that the AHA did not evince a legislative intent to preclude the principles of natural justice so as to displace the common law requirement for procedural fairness. He considered the object of the AHA, being to 'make provision for the preservation on behalf of the community, of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants ...'. He noted that under s 18 there is an obligation on the Minister to inform the owner, in writing, of his decision, but no obligation to inform any Aboriginal persons who may have an interest in any affected site; and that the owner of land who is aggrieved by a decision of the Minister made under s 18(3) is given a right under s 18(5) to apply for a review of the Minister's decision by the State Administrative Tribunal, but no such right extends to with an interest in the site.
Ultimately he concluded -
Notwithstanding [an] overall focus on the interests of the community generally, it is plain that the effective operation of the AH Act requires input of some kind from Aboriginal people. Aboriginal people are necessarily the principal source of information as to the existence of sites to which the AH Act applies, and as to the significance and importance of those sites.
In my view, the scheme of the AH Act is such that the ACMC is obliged, as a matter of procedural fairness, to ensure that it has sufficient information from the Aboriginal persons who might be affected by a decision as to the existence, significance and importance of sites which might be affected by a proposal under s 18. That does not mean that it is necessary, as a general rule, to specifically invite persons who might be affected by the decision to make either written or oral submissions before a s 18 decision is made. It may be sufficient to meet the obligation of the ACMC that it invites the proponent to provide appropriate reports which canvass the inquiries made of, and views expressed by, those Aboriginal groups with a connection to the land. Whether anything more might be required in any particular case is a matter to be considered in light of the individual circumstances of each case.
If the interpretation of the AHA argued for on behalf of the Attorney-General, and the position adopted by the ACMC and set out in the Guidelines had prevailed, substantial numbers and perhaps the most culturally important category of Aboriginal site would have been denied protection by the AHA. The Minister for Aboriginal Affairs has said in parliament that the Registrar has removed 22 Aboriginal sites from the register since 2012 based on the Guidelines challenged in the Robinson case.
This is not the first instance in Western Australia in which there has been a significant foray into avoidance of the effect of the AHA. In 1989 the Western Australian Government asserted that the Crown was not bound by the AHA and so did not require consent under s 18 of the AHA to pursue a development of the Old Swan Brewery through the agency of the WA Development Corporation. That interpretation of the AHA, upheld by the Supreme Court was overturned by the High Court in Bropho v Western Australia. The High Court held that
There is no difficulty in discerning in the provisions of the Act a legislative intent that those provisions apply generally to Crown land and to objects on such land. The duty of the Minister to ensure that "all places in Western Australia" that are of Aboriginal significance be recorded was clearly intended to extend to all land, regardless of its ownership....
In the context of the clear applicability of the provisions of the Act to Crown land, the conclusion that it was the legislative intent that the general words of s.17 should apply indifferently to natural persons in Western Australia, including government employees, is all but inevitable.
Greg McIntyre SC
  WASC 108.
 In Bropho v Tickner  FCR 24; 40 FCR 165 Wilcox J concluded that the AHA did not provide effective protection to Aboriginal sites because the Minister had power to consent to their excavation, destruction, damage, concealment or alteration.
 The State of Western Australia v Bropho (1991) 5 WAR 75. Franklyn J agreed with Anderson J. Malcolm CJ was of the opinion that Bropho had a special interest as a custodian because of the long standing cultural and spiritual attachment of his group to the site.
 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530 - 531.
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