Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Notice of an application for the protection of a specified area, being the area known as Ngajanha Marnta (or Spear Hill), Western Australia
Invitation to make representations
I, Tom Keely, hereby give notice as follows:
The Minister for the Environment and Energy, responsible for the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act), has received an application made under section 10 of the Act seeking to protect a specified area, being the area known as Ngajanha Marnta, or Spear Hill, near Wittenoom in Western Australia. The Minister has appointed me to provide a report to him under section 10(1)(c) of the Act.
The Applicant
The application is made on behalf of the Eastern Guruma People by Wintawari Guruma Aboriginal Corporation.
The purpose of the application
The application seeks the preservation or protection of the area specified in the application and depicted below in Figure 1, from injury or desecration. Section 10 of the Act enables the Minister to decide whether to make a declaration to preserve and protect the specified area, if the Minister is satisfied that the area is a significant Aboriginal area and is under threat of injury or desecration. In the Act, the term ‘significant Aboriginal area’ refers to an area that is of particular significance to Aboriginals in accordance with Aboriginal tradition. Section 3 of the Act provides definitions of relevant terms including ‘Aboriginal tradition’ and ‘injured or desecrated’. The area specified for protection, the claimed significance of the area and the claimed nature of the threat of injury or desecration is set out below.
Matters the report is required to deal with
The Minister will consider my report under section 10 of the Act in relation to the area sought to be protected before deciding whether to make a declaration under section 10 of the Act. Under section 10(4) of the Act, the report is required to deal with the following matters:
(a) the particular significance of the area to Aboriginals;
(b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the prohibitions and restrictions to be made with respect to the area;
(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals on whose behalf the application is made;
(f) the duration of any declaration; and
(g) the extent to which the area is or may be protected by or under a law of the State of Western Australia, and the effectiveness of any remedies available under any such law.
The area sought to be protected (the 'specified area')
The Applicant has specified one area for which protection is sought as a traditional area. This is the area known as Ngajanha Marnta, or Spear Hill, in Western Australia.
Figure 1 Map showing the specified area of Ngajanha Marnta
Claimed nature of particular significance
The Applicant states that the specified area is of particular significance in accordance with Aboriginal tradition because it features in the fixed form of Eastern Guruma song traditions and ancient traditions, and because Eastern Guruma and their neighbours follow these traditions in current ceremonial practice in accordance with traditional custom. Other statements made by the Applicant include that:
- the area is part of Eastern Guruma country over which native title has been recognised;
- numerous archaeological sites are evidence of the fact that that this has been an area of particular traditional significance to the Eastern Guruma people, with recurrent and intensive habitation for at least 10,300 years;
- Ngajanha Marnta is unique as the subject of a rich archive of oral history, narratives and songs. It is associated with continuing cultural practices and a story that is important to the Eastern Guruma people, being one of 7 or 8 key stories specific to their traditions;
- there is strong material evidence confirming visitation, occupation and use of the specified area to collect spearwood from time immemorial;
- Ngajanha Marnta is renowned throughout the Pilbara for its outstanding spearwood and its sacred provenance. This spearwood is pivotal to the standing of Eastern Guruma in social and economic networks with neighbouring Aboriginal groups; and
- the specified area includes sacred sites, habitation sites, keeping places, water sources and Ngajanha Marnta itself.
Claimed threat of injury or desecration
The Applicant states that the potential injury or desecration is attributed to some of the activities that Fortescue Metals Group has specified in its Frederick - Mining Proposal. The threat is primarily attributed to the proposed location of, and works associated with, a mine transport infrastructure corridor, including a haul road and railway and their associated geotechnical investigations. The Applicant states that Fortescue Metals Group’s plans would severely injure and desecrate Ngajanha Marnta and would have the effect of severing Ngajanha Marnta from the rest of Eastern Guruma country.
Invitation to make representations
Interested persons are invited to furnish representations in connection with my report to:
Tom Keely
Barrister
C/- Howells’ List, Ground Floor
525 Lonsdale Street
Melbourne VIC 3000
Telephone: (03) 9225 8295; 0418 124 599.
Email: tpkeely@vicbar.com.au
Representations must be made in writing by close of business by 5 April 2018 or within such further period as may be allowed. You should not send your representations directly to the Minister.
If you wish to claim confidentiality over any part of your representation, please identify why you are claiming confidentiality and how you wish confidentiality to apply. Representations will be provided to the Minister for the Environment and Energy and the Department of the Environment and Energy, along with the section 10 report. Representations, even those subject to confidentiality, may be disclosed where it is authorised or required by law, to meet procedural fairness requirements, and in response to a request by a House or Committee of the Parliament of the Commonwealth.