Landmark court case sets new heritage precedent

Thursday, April 2

The Supreme Court of Western Australia yesterday overturned a decision by the Aboriginal Cultural Materials Committee (ACMC) to deregister a Port Hedland Aboriginal sacred site in a test case on the committee’s interpretation of the Aboriginal Heritage Act 1972.

Guidelines issued by the Department of Aboriginal Affairs on section 5b of the Act stated that to be recognised as a ‘sacred site’, a place needs to have been devoted to religious use rather than simply mythological stories, songs or beliefs.

These guidelines have already resulted in 22 sites being delisted since November 2012 with many more earmarked for removal from the register.

In delivering his verdict, Justice Chaney stated: “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.”

WA Greens spokesperson on Aboriginal Affairs Robin Chapple MLC said this was a tremendous victory, not just for Kerry and Diana Robinson, but for all Indigenous West Australians.

“It is not the government’s right to set the parameters by which a site is deemed sacred by its traditional owners,” he said.

“The ACMC should be listening to Indigenous Australians and taking into account their interpretation of what defines a sacred site as paramount.”

Mr Chapple said all sites which had been deregistered using this interpretation of a ‘sacred site’ must now be reinstated by the ACMC.

“Many of these sites were deregistered because they were impeding state development,” he said.

“It certainly makes you wonder why the department introduced such a narrow interpretation of a sacred site at this time.

“Any development that is now taking place at previously registered sites must be immediately halted before more damage is done.”

Mr Chapple said this issue stemmed from a lack of proper representation on the ACMC and hence, a lack of appropriate cultural understanding when it came to making decisions on Aboriginal heritage.

“There is a distinct lack of indigenous representation on the committee and, despite their being a requirement in the Act, no anthropologist either,” he said.

“It’s no wonder they make these kind of monumental cultural errors; the ACMC needs an immediate overhaul so that it can provide the proper representation and protection for Indigenous heritage.”

For comment please contact Robin Chapple on 0409 379 263 or 9486 8255.

Media liaison: Tim Oliver           

Mobile: 0431 9696 25

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