Chaney J
In this matter an application was brought by members of the Marapikurrinya family group who are also members of the Kariyarra native title claim group and directors of Marapikurrinya Pty Ltd (MPL), a company carrying out heritage work in the Port Hedland area (the applicants). The respondents were the Aboriginal Cultural Materials Committee (ACMC), Pilbara Port Authority, Minister for Indigenous Affairs. The Attorney General for Western Australia was given leave to intervene and be heard.
The applicants sought judicial review and a writ of certiorari in relation to a decision made by the ACMC on 18 December 2013 under s 18(2) of the Aboriginal Heritage Act 1972 (WA) (AH Act). The ACMC had formed the opinion that an Aboriginal Site did not exist on the land and waters recommended to the Minister for Aboriginal Affairs that the Port Hedland Port Authority’s use of the land and waters would not impact upon any Aboriginal sites, at [2].
The applicants were successful on 4 of 10 grounds and the decision was set aside and the matter referred back to the ACMC to reconsider its recommendations to the Minister, at [148].
At [4], Chaney J recounted the applicants’ contention that the ACMC had:
…misconstrued the expression 'sacred site' as it is used in the AH Act and, in doing so, took into account irrelevant considerations, failed to have regard to relevant considerations, failed to exercise an independent discretion, denied the applicants procedural fairness and acted unreasonably.
Chaney J held, at [148], that:
the ACMC decision should be set aside and
the matter should be referred back to the ACMC to reconsider its recommendations to the Minister.
Chaney J’s decision does not explicitly concern native title. However, it provides important discussion and analysis of the expression ‘sacred site’ as used in the AH Act.
Having a site registered under the AH Act provides significant protection. Under s 17 of the AH Act, it is:
…an offence for any person 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 16 permits the Registrar, on the advice of the ACMC, to interfere with Aboriginal sites. At [12].
Under s 18(2) AH Act, the Minister’s consent is informed by the ACMC’s opinion as to whether there is, and the significance of, any Aboriginal site on the relevant land and its recommendation to the Minister as to whether or not consent should be given to use the land and any conditions that should accompany the consent.
Background
On 6 August 2008, the ACMC considered a s 18 Notice and various reports including a report by Anthropos Australia entitled, 'The report of an Aboriginal ethnographic survey and cultural impact assessment of works proposal RGP5 port expansion project, Harbour and Wedgefield North project areas, Port Hedland, Pilbara region, Western Australia 2008' (the Anthropos report). The report outlined the connection of the Marapikurrinya family group and other Kariyarra People with the Port Hedland Harbour, through the presence of a Warlu (rainbow serpent) in the area,at [18], and its influence on the lives of the Marapikurrinya People.
On the basis of the report and other consultations, the ACMC formed the opinion that Marapikurrinya Yintha (a body of water encompassing the Port Hedland Harbour) was an Aboriginal Site and it was entered onto the Register of Aboriginal sites on 6 August 2008. In October 2008 the ACMC extended the boundary of the site to the low water mark.
These decisions were effectively reversed by the ACMC's 18 December 2013 decision that the Marapikurrinya Yintha is not a site that the AH Act applied. This decision was based on a report prepared by the Department of Aboriginal Affairs which concluded that 'Marapikurrinya Yintha is no longer a site that s 5 of the AH Act applies to.’
Issues considered
The applicants’ standing
At [61], Chaney J found that the applicants had a special interest in the site which gave them standing to bring proceedings. This was partly in view of ‘the physical interactions between the Marapikurrinya People (including the applicants) with the site’. In this respect, Chaney J distinguished the case from Western Australia v Bropho (1991) 5 WAR 75 given the evidence contained in the Anthropos report of:
…walking the historic fishing and hunting tracks through the mangroves of the area, collecting bush medicine and bush tucker, fishing, crabbing and collecting shellfish, and then cooking their catch in the area…[and] physical practices of spraying and calling the name of the Warlu…, at [58].
The ACMC’s decision
Chaney J found at [100-102] that the ACMC had fallen into jurisdictional error when it concluded that the site was not a sacred site by requiring evidence of specific religious use and failing to consider associated sacred beliefs as the primary consideration under the AH Act.
At [140] the Court concluded 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 AH Act.
His Honour went on to hold, at [143] that:
..In my view, the ACMC was bound to provide an opportunity to the applicants as representatives of the Kariyarra family group to respond to the proposal contained in the Department report to cease to recognise the Marapikurrinya Yintha as a site for the purposes of the Act.
The significance of the decision
The decision is significant in clarifying how the ACMC should make its decisions and its obligations in relation to procedural fairness.