4.1
Across Australia, the legislation governing Aboriginal and Torres Strait Islander cultural heritage sites has proved to be inadequate. As discussed further in Chapter 5, some jurisdictions inappropriately balance proponent landholder rights over Aboriginal and Torres Strait Islander voices. Others have legislative regimes that are opaque, making it difficult for both proponents and those seeking to protect cultural heritage sites to navigate.
4.2
The terms of reference for this inquiry sought an analysis of the operation of the Aboriginal Heritage Act 1972 (WA) and the approvals provided under this Act. Since the commencement of the inquiry, the Western Australian Government released an exposure draft of a Bill to replace this Act.
4.3
This Chapter provides this analysis, including an analysis of the draft Bill. The Chapter is not intended to be a critique of the actions of this or former Western Australian governments. However, the history, the current Act and the draft Bill to replace it, highlight issues of concern that can be found in similar legislative regimes across the country.
The Aboriginal Heritage Act 1972
History of the Act
4.4
The Aboriginal Heritage Act 1972 (WA) (the AHA) came into operation on 15 December 1972, but the Act had its genesis in the confluence of a number of developments from the early 1960s onwards.
4.5
The first was the activities of the ‘anthropological discipline and the Western Australian Museum’ (WAM) which embarked on the ‘first attempt to document the variety and Aboriginal sites in the state’ during the 1960s. This made WAM a leading player in the identification of sites, and by 1979 the registrar of the Aboriginal Sites Department in the Museum held 4000 entries. WAM and associated anthropologists became advisors to the state government on site protection and were ‘seminal influences on the drafting of [the Act] as professional bodies active in the Aboriginal heritage management space’. Indeed the WAM registry became the basis for the Register of Aboriginal Sites which was included as one of the mechanisms for the operation of the AHA. In the original draft of the Act the Museum Trustees were given the authority to make decisions about providing permits to damage Aboriginal heritage under the contentious section 18 provisions which are discussed in detail later in this chapter.
4.6
Secondly, growing official and public awareness about Aboriginal sites coincided with the mining boom which began in WA in the late 1960s and early 1970s, leading to rapid development and exploitation of the state’s mineral resources. Inland areas of WA which had previously been largely untouched by non-Indigenous people, apart from pastoral use, became affected by large-scale developments that had an unprecedented impact on local Aboriginal and Torres Strait Islander peoples. Disputes over the development of land on which important Aboriginal sites were located were growing, and it became increasingly clear that formal mechanisms were required to protect Aboriginal heritage.
4.7
Finally, a major factor pushing the decision to draft new legislation was the Weebo case, where a miner was given permission in 1969 to excavate at a site in Weebo in the Goldfields region of WA. The successive confrontations between the miner and the local Aboriginal peoples ‘highlighted the fact that Western Australia had no way of protecting places that were significant to Aboriginal people’.
4.8
The affair began to ‘provoke discussions about the government’s responsibility for protecting ‘Western Australian heritage’ in the face of the enormous mineral exploration of the 1960s, with criticism of the out-dated Mining Act 1904 (WA)’. Against this background, a new government elected in 1971 introduced the AHA into the WA Legislative Assembly in April 1972.
4.9
The stated purpose of the AHA was ‘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’.
Reviews of the Act
4.10
Since its introduction, the AHA has been the subject of five different reviews – in 1984, 1991, 1995, 1996 and 2011. But despite significant changes in the legal, social and environmental circumstances surrounding the preservation and protection of Aboriginal cultural heritage, few significant changes to the legislation have been made in almost 50 years of operation. Whilst each review identified the need for major legislative reform, most initiatives failed to garner parliamentary support and lapsed at the conclusion of parliamentary terms.
4.11
In all five reviews, independent and government departmental reviewers made broadly similar recommendations for reform, including:
greater protection of cultural heritage sites
amendments to ministerial powers
improvements to consultation with traditional owners, protection of sites, procedural fairness, conflict resolution, compensation, interaction with other state and federal legislation, and enforcement of the Act
better identification of traditional owner groups and sites of significance.
4.12
Some proposed action was taken by the respective governments in response to these inquiries, including proposing new legislation to replace the AHA, but nothing was ever enacted.
Amendments to the Act
4.13
The Act has been amended on four occasions – in 1980, 1995, 1999 and 2004.
4.14
The most significant amendments were those passed in 1980. Several key changes were made:
The definition in section 5 of what constituted ‘an Aboriginal site’ was narrowed and made more onerous to meet. New requirements specified that the site should be of ‘importance and significance’, or a ‘sacred, ritual or ceremonial site’ or ‘should be preserved because of its importance and significance to the cultural heritage of the State’.
The Minister became the primary decision-making authority for the use of land containing Aboriginal sites, including through amendments to section 18 which empowered the Minister to give consent that a landowner could use land contrary to prohibitions specified in section 17. As mentioned above, the original provisions of section 18 had placed the decision-making authority in the hands of the WA Museum Trustees.
The Minister’s authority to make decisions regarding the disruption and protection of Aboriginal sites was broadened to include the ‘general interest of the community’ (section 18). Before this amendment, consideration needed only to be given to the ‘importance and significance’ of any sites to be affected.
A right of appeal to the Supreme Court was introduced for landowners in respect of decisions made by the Minister under section 18. Notably the right of appeal was not extended to other parties. An application to the Supreme Court under the terms of legislation other than the AHA was, and remains, the only avenue through which Aboriginal peoples can appeal.
4.15
The 1980 amendments were made in the wake of a dispute at Nookanbah Station between the owners of the pastoral lease, the local Yungngora people, and the Amax company drilling for oil on a heritage site. The Yungngora people, represented by the Kimberley Land Council (KLC), had been opposing drilling since 1978 because of potential damage to the site. The Trustees acting under the AHA had examined the cultural information and did not give consent to the drilling. The WA Government directed the Trustees to consent to the exploratory activity.
4.16
The Government subsequently passed the amendments to Act in order to give the Minister direct authority to give consent orders under section 18, rather than acting on the advice of the Trustees. Thus, in the view of Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), the amendments were a response to the ‘politically charged atmosphere’ created by the dispute, which came to national and international prominence when a picket of local people protesting the drilling was forcibly broken up by police to allow Amax drilling equipment and personnel to move onto the site.
4.17
As noted in Chapter 3, in order to expedite the exploitation of mineral deposits at Marandoo in the Pilbara region, the WA Government passed the Aboriginal Heritage (Marandoo) Act 1992 to ‘enshrine in legislation consent under section 18 of the AHA’. This effectively allowed the Government to excise from the AHA the areas that the proponent was seeking to develop.
4.18
This view was echoed by the Wintawari Guruma Aboriginal Corporation (WGAC):
This meant that no provisions of the AH Act apply to any of the Marandoo operations. RTIO is not required to comply with any aspect of the AH Act for any activity or purpose within an area of land approximately 193 km2 in size. RTIO is not required to seek any form of approval, to provide any information about cultural heritage places, report on any activity or cultural site found, or engage with Aboriginal people about any aspect of its mining at Marandoo. To WGAC’s knowledge there is no other part of Australia where no form of Aboriginal heritage legislation applies.
4.19
The principal effect of the amendments of 1995 was to abolish the Trustees of the Museum and move their functions to the Aboriginal Cultural Material Committee (ACMC), appointed by the Minister as an advisory body.
4.20
In 1999 the Act was again amended to broaden the definition of landowners. Section 18 was amended to read that ‘the expression the owner of any land’ included holders of any rights in relation to land under the Petroleum Act 1967, Dampier to Bunbury Pipeline Act 1997, Petroleum Pipelines Act 1969 and Energy Coordination Act 1994. 2012 amendments included persons who hold a licence under the Water Services Act 2012 as an owner of land.
4.21
Further amendments to the Act in 2004 transferred jurisdiction for appeals under section 18 from the Supreme Court to the WA State Administrative Tribunal.
Key provisions of the Act
4.22
The Minister for Aboriginal Affairs is responsible for administering the Act with the assistance of the Department of Lands, Planning and Heritage (DLPH) and the ACMC. The ACMC serves as a specialist advisory body to the Minister as established by the Act. The Act grants the Minister broad powers to both protect sites of significance and grant land holders permission to destroy sites.
4.23
The key operative sections relevant to this report contained in Part IV, dealing with the protection of Aboriginal sites, including the critically important sections 17 and 18.
4.24
Section 17 creates a general prohibition against damage or alteration of an Aboriginal site without authorisation.
4.25
Section 18 allows a land owner to make an application to the Minister (through the ACMC) to use land for a purpose which, unless the Minister gives consent under this section, would be likely to result in a breach of section 17. The ACMC, which then ‘forms an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site’, and submits a recommendation to the Minister. The Minister must consider the ACMC recommendation and also consider the ‘general interest of the community’, before consenting or declining the application. Conditions may be attached. Where consent is given, actions which would constitute an offence under section 17 no longer do so.
4.26
The Minister has discretion to act outside the recommendation made by the ACMC, as confirmed by Minister for Indigenous Affairs; ex p Woodley and Wintawari Guruma Corp v Minister Wyatt.
4.27
Section 19 allows the ACMC to recommend to the Minister that sites of outstanding importance should be declared protected areas. A declaration gives the Minister exclusive use and occupation of the area, vested on behalf of the Crown. Before making a determination, the Minister must consider protection in the general interest of the community.
4.28
Section 20 allows for a temporary declaration of protection to be made in cases where the ACMC recommends that it may become expedient to declare any locality to be a protected area, or that an archaeological or other investigation should be conducted. Traditional owners highlighted that no protected areas have been declared since 1994.
Critiques of the Aboriginal Heritage Act
4.29
The Committee received extensive evidence criticising provisions of the AHA and the way it has been applied by successive governments. In general, criticisms of the Act take two different forms:
1
the Act was progressive for its time but that it has proved ineffective in the face of the pressures on Aboriginal heritage from the scale of economic development in WA.
2
the AHA has not delivered on its initial stated aims because of the actions of successive governments who have either ‘watered down’ the Act or have applied it in such a way that it has not protected Aboriginal heritage and in some instances has even facilitated destruction of sites.
4.30
It is notable that the AHA was enacted before native title rights were formally recognised by the High Court of Australia:
At the time of its introduction, it was widely recognised that the AHA was the most comprehensive piece of Aboriginal heritage legislation in Australia, affording automatic (or blanket) protection to places and objects important to Aboriginal people. In contrast to other legislation developed around the same time, the AHA emphasised the importance of Aboriginal tradition, culture and heritage to contemporary Aboriginal people and their culture, rather than merely matters of archaeological, anthropological or other scientific interest.
4.31
However, it is now broadly accepted as being outdated. The Chamber of Minerals and Energy of Western Australia (CME) stated:
There is general acceptance from a range of stakeholders that the current Act has not maintained pace and currency with modern expectations of Aboriginal cultural heritage management, having had no significant amendment since its inception. Further, the current WA legislation pre-dates the recognition of Native Title further highlighting the need for modernisation.
4.32
In the view of AIATSIS, even some empathetic approaches to the protection of Aboriginal heritage that characterised the tone of the original debates over the Act tended to focus on Aboriginal ‘as something of the past to memorialised rather than something contemporary that is utilised, shared and revitalised’.
4.33
AIATSIS added that there were ‘well meaning’ arguments in favour of the Act that showed some ‘genuine and sophisticated understanding and value of Aboriginal people and culture’. But this early thinking behind the Act was revealed as inadequate in the face of the massive increase in the exploration and exploitation of mineral resources in the 1960s and 1970s.
4.34
Ms Tracy Chaloner from Murdoch University argued:
…the Government has paradoxically used the AHA to favour developers over Aboriginal peoples. …the AHA has been amended to progressively water down its application to protecting Aboriginal heritage and consequently to increase the powers of the Minister and the State government in achieving a ‘prodevelopment’ agenda.
4.35
According to the WA DLPH:
The Act has been a source of conflict involving Aboriginal people and land use proponents due to its procedural uncertainty and lack of dispute resolution mechanisms. It does not encourage protection of Aboriginal heritage through co-existence with compatible land uses or modification of proposals to avoid or minimise impacts.
4.36
The KLC highlighted the concerns of many Aboriginal organisations and likeminded bodies, that the Act disempowered Aboriginal peoples because ‘Traditional Owners have no procedural rights in relation to any aspect of decision making under the AHA’:
…they have no ability to:
(i) initiate any kind of enforcement or other process which may lead to a prosecution for damage to Aboriginal sites, as this power sits only with the Minister of the day; or
(ii) determine whether consent to destroy Aboriginal heritage sites should be granted, nor do they even have a statutory right to be heard in any consent to destroy applications or procedural rights under the AHA to seek a review of such decisions.
…The regulatory design of the AHA is such that the primary interaction between Traditional Owners and the AHA is through the authorisation of destruction of cultural heritage rather than through any means of managing or protecting cultural heritage.
4.37
Criticism of the Act was most forthrightly summarised by Hon Robin Chapple, in the following terms:
The problem has always been the conflict between this piece of legislation and the economic desires of industry and the State. We have seen the Act amended a number of times to diminish its capability of protecting sites whether anthropological, archaeological, or ethnographical; including sacred ritual or ceremonial sites.
We have seen administrative decision to water-down protection of sites; which eventuated in many being removed from the register, and it was the very Department charged with protecting aboriginal sites that did this. Since the introduction of the AHA we have seen the Department support, via the almost blanket advice to the ACMC that sites should be impacted or destroyed, and all Ministers with final oversight willingly go-against the advice of the ACMC in allowing almost every application to destroy or impact sites and surrounds.
Section 18 and its application
4.38
The bulk of the critical evidence about the AHA focused on section 18 of the Act and the manner in which it has been interpreted, amended and applied by successive governments.
4.39
The Department of Planning, Lands and Heritage (DPLH) told the Committee:
The current Act’s Section 18 Notice and Consent process does not adequately facilitate risk-based decision-making and requires all proposals to follow the same approval pathway irrespective of the degree of actual or predicted heritage impact. Importantly, the Act currently does not provide for any right of appeal by Aboriginal people in relation to decisions about their cultural heritage. There is also a lack of transparency required by the Act about decisions made.
4.40
A number of witnesses made the case that section 18 has, in effect, become a ‘damage by permit system’, an instrument which has actually facilitated the capacity of mining companies to legally destroy Aboriginal heritage. It has frequently been observed that the destruction of the Juukan Gorge rockshelters was carried out legally, not only not in contravention of the law, but with the explicit sanction of law. For example, Dr Sue-Anne Wallace contended that ‘Rio Tinto seems to be taking shelter under the legality of its actions under [s]ection 18 approvals’. Similarly, Mr Bruce Harvey made the observation that Rio Tinto used section 18 to act ‘according to a strict interpretation of the law … to destroy specified Aboriginal heritage objects and places’.
4.41
The Australian Archaeological Association (AAA) pointed out that a section 18 permit can become permanent permission for destructive activity, even if new information about significant heritage values is uncovered after the permit is issued:
The loss of the significant Juukan Gorge rockshelters, despite new and compelling evidence from archaeological excavations conducted after the [section] 18 permit to destroy was issued, highlights the need to reform the WA Aboriginal Heritage Act, 1972. … Once a [section] 18 permit is granted, there is no opportunity in the approvals process to allow re-evaluation of sites at which significant archaeological or other finds are subsequently made, such as at Juukan Gorge. In such cases, any decision to mitigate the destruction of significant sites is entirely at the discretion of, and dependent on, the goodwill of the developer.
4.42
The point was highlighted by the then WA Minister for Aboriginal Affairs, Hon. Ben Wyatt, who, in response to a question about the section 18 approval granted to Rio Tinto at Juukan Gorge in 2013, told the Committee that ‘once that section 18 is granted … under the legislation there is effectively nothing I can do as Minister’.
4.43
The Australian Speleological Federation also drew attention to the issue and questioned the rationale of Rio Tinto’s lack of action when it received new information about the heritage value of Juukan Gorge:
Permission to blast the site under [s]ection 18 of the AHA 1972 was granted in December 2013 by WA Minister for Aboriginal Affairs, Peter Collier, provided further digs were carried out. In 2014 a retrieval/salvage archaeological trip by Scarp Archaeology to Juukan caves occurred, resulting in the site showing aboriginal occupation going back 46,000 yrs BCE. More than 7,000 items retrieved. This was funded by Rio and involved PKKP representatives. Nevertheless, it is not until five (5) years later in early 2020 that destruction of the site occurred. What was happening in that five years?
4.44
The effect of section 18 in entrenching a ‘right to destroy’ is reinforced by the gap between the rights of mining companies and those of traditional owners under the Act: miners have the right to appeal the Minister’s decision, but traditional owners do not.
4.45
This point was highlighted by Blue Shield Australia, which said of the Juukan Gorge:
Once the significance of the place had been established, there was no process under the Act, or within the administration of the Act, that could alter the terms of the section 18 permit. Under the AHA, no parties other than the Land Owner can appeal a section 18 decision. So, the Traditional Owners had no right of appeal after section 18 was granted, despite having found new and compelling evidence about the significance of the site.
4.46
The view was supported by the submission from the PKKP which stated:
A longstanding deficiency of the current Act is that the power to permit damage to an Aboriginal site is exercised by the Minister and that appeal mechanisms are only available to landowners and developers- and not to Traditional Owners. It is repugnant to Traditional Owners that the ‘owner of any land’ for the purpose of Section 18 does not include the Traditional Owners…
4.47
WGAC concurred with the view that section 18 of the AHA has become a tool by which corporations can exercise power over Aboriginal communities:
It is Wintawari’s experience that FMG [Fortescue Metals Group] chooses each time it applies for section 18 consent to precipitate a contest between Wintawari and FMG about destroying Eastern Guruma sites and relies on the government being the arbiter and decision-maker under section 18. It is Wintawari’s view that FMG use to their advantage the fact that successive Aboriginal Affairs Ministers in WA have not declined a section 18 notice on mining tenure for over ten years.
4.48
The Committee also received evidence that successive governments had relied on section 18 to the exclusion of other provisions in the law which could be more protective of Aboriginal heritage, thus strengthening the view that the Act had become an instrument for destruction not protection. WGAC stated:
It is worth noting that the AH Act contains a number of provisions intended to provide protection that are not currently utilised by those administering the Act, and have not been used for a long time. For example, the AH Act provides for the declaration of “protected areas” for sites of outstanding importance (s19) which gives the Minister exclusive use and occupation of the area, vested on behalf of the Crown. No protected areas have been declared since 1994. In Western Australia, this government, like successive governments before it, has chosen to focus its resources on one provision at the expense of all others –section 18. It is open to any Aboriginal affairs minister to recalibrate their administration of the legislation and focus on preservation rather than destruction, without any legislative amendments or redrafting..
Criticisms of the ACMC
4.49
The ACMC, as a key element of the process for determining applications under section 18 of the Act, was the target of much critical comment. The Committee was presented with strong views that the ACMC is unable to fulfil its intended purpose because of the way it is constituted and because of actions by both the Department and the Minister.
4.50
Many witnesses made the point that the Act does not require any Aboriginal membership in ACMC, that governments had failed to include relevant specialists in the Committee, and that the ACMC had failed to consult Aboriginal peoples in its deliberations, labelling this ‘breathtakingly inadequate’.
4.51
The Australian Research Council Centre of Excellence for Australian Biodiversity and Heritage (CABAH) argued that ACMC:
…requires a detailed and up-to-date knowledge from Indigenous stakeholders and a range of disciplines, including anthropology, archaeology, history, ecology, and Earth and climate science. … While the ACMC must include one person recognised as “having specialised experience in the field of anthropology as related to the Aboriginal inhabitants of Australia”, there is currently no requirement under the Act to include specialists in other relevant fields, such as suitably qualified archaeologists and cultural heritage professionals. We consider this a notable omission of essential expertise from the ACMC.
4.52
The AAA concurred with this view and said that the absence of specialists forced the ACMC to rely on ‘the expertise of departmental officers, who often have no professional qualifications in any field of heritage’. In addition, documentation in support of applications depends on the ‘expertise and professionalism of internal heritage officers within the proponent organisation’ or on their external consultants.
4.53
The concentration of decision-making power in the hands of the Minister, rather than a qualified and consultative body, was criticised by several witnesses. The Yinhawangka Aboriginal Corporation stated:
… the discretionary power of the Minister (to direct the ACMC to do anything [underlining in original]) that has existed since 1980, the limited resources of the Department and the ACMC, the limited role of Aboriginal people speaking for their country, and the limited role of experts like archaeologists and anthropologists, all act to render the ACMC impotent in the exercise of the functions that the Parliament originally intended them to exercise.
4.54
The WGAC suggested that the Minister, the ACMC and the Department:
…regularly accept and make decisions on information that is preliminary and incomplete, and rely on work-arounds and compromises, such as applying conditions to more fully investigate sites before they are destroyed.
4.55
Mr John Southalan, a lawyer with expertise on Indigenous rights and mining, went as far as to suggest that the recommendations of the ACMC were routinely ignored or circumvented by the Department and the Minister. Mr Southalan cited a 2009 example where the Supreme Court noted a difference between the ACMC’s recommendation to the Minister and what the Department reported to the Minister. The Court stated that the discrepancy:
… came about because decisions had been made within the department as to the terms in which that recommendation should be expressed. There was no reference back to the committee or any member of the committee before the officers of the department changed those terms.
4.56
Mr Southalan also cited another case where the Court stated that the Department’s briefing note to the Minister had misrepresented information provided by the ACMC.
4.57
Mr Southalan provided evidence that he said showed the Department had attempted to narrow the definition of what constituted a significant site to be included in the Registry. New guidelines adopted by the Department in 2013 ‘misconstrued the statute and improperly narrowed the Act’s protection’, a finding that was supported by a Supreme judgement on the issue in 2015.
4.58
Getup elaborated, stating that the departmental guidelines had changed criteria, such as stating that the ‘meaning of “site” is narrower than “place”’, and that ‘or 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’. Getup also highlighted that the Supreme Court had:
…concluded that the guidelines adopted by the ACMC for the determination of what is an Aboriginal site under the AHA WA were inconsistent with the definition of ‘Aboriginal site’ in the AHA WA.
4.59
Mr Southalan further suggested that the courts had even come to regard advice provided by the ACMC as virtually irrelevant by adjudging that government non-compliance with ACMC advice did not invalidate any consent under section 18.
4.60
In Wintawari Guruma Aboriginal Corporation v Minister Wyatt the Court ‘reasoned that the Minister did not need to inquire or be satisfied that the Committee’s decision was legally valid before acting on it’. The case of Abraham v Aboriginal Affairs Minister (2016) revealed that the Government had failed to appoint an anthropologist to the ACMC, as required by the AHA, but the Court held that this did not affect the Act’s operation. In Minister for Indigenous Affairs; ex p Woodley 2009, the fact that the Department had changed the information submitted by the ACMC was immaterial because:
From the point of view of the Minister, the committee’s work has been done, its recommendation is known and that recommendation would make no difference to the substance of the Minister’s decision.
4.61
A number of witnesses submitted that the record of Ministers’ decisions on section 18 conclusively demonstrated that the provision had effectively become a mechanism to permit destruction of Aboriginal heritage and that the ACMC had been marginalised and ignored by successive Ministers. For example, 957 section 18 approvals had been processed by the ACMC up until 2004 and it had approved 702 applications, refusing only 32 and referring the remainder back to the proponent. From 2008 to 2011 there were 360 applications, 302 of which were approved by the Minister. This included 12 which the ACMC had recommended against, but which were nevertheless approved by the Minister.
‘Watering down the Act’: The effect of amendments to AHA
4.62
The Committee received evidence that amendments to AHA had weakened the Act and provided greater power to Ministers who have used this to disadvantage Aboriginal interests.
4.63
Ms Chaloner submitted:
Each time amendments have been proposed to the AHA it has been in response to a specific situation which was politically difficult for the incumbent government. The effect has been to water down the legislation and make it ineffectual in protecting Aboriginal heritage.
4.64
AIATSIS said that the 1980 amendments narrowing the coverage of the Act to sites of ‘significance’ had:
…introduced a philosophical change to the WAAHA as it now required subjective decisions to be made on what was important and significant… This has been criticised because value-based assessments are ethnocentric, and judgments were not necessarily made by the Aboriginal people themselves (but rather by the trustees of the WAM or later by the ACMC and [M]inister) and were often made in the context of a proposed development of the site’...
4.65
The insertion of a requirement for the Minister to consider the ‘general interest of the community’ was criticised by several witnesses on the basis of its ambiguity and the latitude it gives the Minister to make decisions for political advantage. Hon Chapple argued:
The ambiguity of the wording, which neither defines what is meant by ‘community’ nor describes ‘scope of 'interests', allows the Minister to, at their discretion - and without qualification - make a decision, without accountability. It follows that within a political context, this is likely to result in a decision based on the political imperatives of Premier and Cabinet.
Aboriginal Cultural Heritage Bill 2020
Consultation and drafting of the Bill
4.66
The drafting of the Aboriginal Cultural Heritage (ACH) Bill took place in response to the growing clamour for major reform of legislative protections for Aboriginal heritage in WA. Acknowledging the criticism of the existing Act discussed above, the Hon Ben Wyatt stated:
Although ground-breaking in its time, … the Act has been described as ‘embarrassingly out of kilter’ with modern standards of heritage management, but also and more importantly, the rights and reasonable expectations of Aboriginal people.
4.67
The WA Government commenced a review of the AHA in 2018. A three-stage consultation process has since taken place. Phase one of the process sought to identity issues and gaps in the AHA legislation and to promote ideas on what modernised legislation should look like and how it should operate in the interests of stakeholders. DLPH held a series of workshops across the state to enable Aboriginal peoples to have direct input into the review. More than 130 submissions were received in this phase of consultation.
4.68
According to Hon Ben Wyatt, feedback from the initial consultation was that:
…the current Act is no longer fit for purpose. We have heard that too much Aboriginal heritage has been damaged or destroyed; but we have also heard that dealing with the cumbersome, costly and uncertain processes to comply with the Act has economic consequences that should be addressed.
4.69
Phase two began in March 2019 with the release of a discussion paper based on submissions and feedback received in the initial phase of consultation. The Discussion Paper set out proposals for new legislation. Fifteen information sessions and 35 workshops were held with some designed for Aboriginal peoples and others for non-Indigenous stakeholders and peak bodies. More than 70 submissions were received.
4.70
Phase three of the review commenced in October 2020 with the release of the draft exposure bill of ACH. Eighteen community information sessions were held in September and October designed to receive input from Aboriginal community members and residents. 158 submissions were received.
Key features of the Bill
4.71
The objects of the ACH Bill are:
a.
To recognise the importance of Aboriginal cultural heritage and Aboriginal custodianship
b.
To recognise, protect and preserve Aboriginal cultural heritage
c.
To manage activities that may harm Aboriginal cultural heritage
d.
To promote an appreciation of Aboriginal cultural heritage.
4.72
As explained by the DPLH, key features of the Bill include:
1
Updated Aboriginal cultural heritage definition, replacing a ‘focus on sites and artefacts’ with a recognition of Aboriginal ‘living culture’ and ‘cultural landscapes’.
2
Recognised Aboriginal custodianship and control of cultural heritage, including encouraging the return of secret and sacred objects.
3
A new directory of Aboriginal cultural heritage, led by the Aboriginal Cultural Heritage Council (ACH Council).
4
Establishment of the ACH Council, and the Local Aboriginal Cultural Heritage Services (LACHS) to manage Aboriginal cultural heritage.
5
Protecting areas of outstanding significance by declaration of Protected Areas.
6
Managing activities that may harm Aboriginal cultural heritage through Aboriginal Cultural Heritage Management Plans agreed by Aboriginal parties and proponents.
7
Stronger compliance and enforcement, with heavier penalties, and the Minister able to issue stop activity and remediation orders.
8
Both Aboriginal parties and proponents afforded rights of review.
4.73
The ACH Council and the LACHS are at the heart of the WA Government’s stated objective of ‘including an Aboriginal voice in the management of Aboriginal cultural heritage’ and are envisaged as ‘an architecture that elevates’ Aboriginal bodies in the management system.
4.74
The ACH Council, chaired by an Aboriginal person, will ‘provide oversight of the Aboriginal cultural heritage system’ and ‘proactively assist in the identification, protection, preservation and management of Aboriginal cultural heritage’. The Council will appoint the LACHS across the state which will, in turn, produce an Aboriginal Cultural Heritage Management Plan for that locality, negotiated as an agreement between the Aboriginal representatives and proponents of mining and other activities in the area. The Plan will be approved by the ACH Council.
4.75
If there is difficulty in reaching an agreement, the Council will assist the achievement of an agreed outcome. Beyond this, the Minister can make a ruling if disagreements cannot be resolved at the ACH Council level.
4.76
The then Minister described the arrangement in the following terms:
The Council's there to provide a strategic oversight … in the first year or two, the council will be quite active in setting parameters on what they see as the standards, the broad parameters that need to be in an agreement, and then it's up to the LACH and the planned proponent to have agreements that suit. It's up to the Council to approve those agreements. The Council needs to see all of those things [such as] informed consent, consultation and how they deal with new information, for example. ... And when an agreement can't be reached, its role is to try to mediate those outcomes. It's quite a different process from the ACMC. Basically, it's about enabling the LACHS to enter into agreements around how their country is used.
4.77
The Bill establishes a tiered land use approvals system encouraging proponents to undertake due diligence to determine if an activity will affect Aboriginal cultural heritage. Activities that are rated as having medium to high impact would require an agreement with the relevant Aboriginal parties and development of an Aboriginal Heritage Management Plan. Low impact activities would require a DPLH permit, while minimal impact and exempt activities would not require approval.
4.78
The ACH Council will manage the Aboriginal Cultural Heritage Directory, which will replace the existing Register, and will be a record of Aboriginal cultural heritage of the State, and a depository of all information and documents relevant to Aboriginal cultural heritage, including cultural heritage permits and Management Plans. The ACH Council will also promote public awareness and appreciation of Aboriginal cultural heritage in WA.
4.79
Hon Ben Wyatt emphasised that the new arrangements would link directly with the bodies established under the Native Title Act. The Prescribed Bodies Corporate (PBCs) established under native title would become the Aboriginal entities that develop Management Plans.
4.80
As the then Minister told the Committee:
We are linking in very closely … with the native title process and the native title architecture that's been well created across the nation, particularly in Western Australia, because we see that PBCs have gone through the process of being identified as the key groups, so we want to come in off the back of that and make that indication that they are the right groups to negotiate with and to enter into agreements with…
4.81
In recognition of the unequal resources available to mining companies and Aboriginal bodies in negotiating agreements, the then Minister also proposed that the Commonwealth should support the strengthening of PBCs:
…if you're a Rio or BHP … the resources that they have are without limit versus an Aboriginal prescribed body corporate. And sometimes more support needs to be given to those groups. So one thing that I think the Commonwealth can do, rather than create a separate heritage regime, is actually invest in the architecture that's been created under the Native Title Act. I see that as the real opportunity now. If we're wanting to elevate agreement making, if we're wanting to elevate the voice of Aboriginal people at this table, the Commonwealth has an easy way to do it—it's to provide more support to PBCs.
Critiques by Aboriginal organisations
4.82
Submissions from Aboriginal organisations conveyed deep scepticism about the Bill. They indicated a lack of trust that the proposed legislation would improve the management and protection of Aboriginal heritage, even extending to concerns that the Bill would make things worse and be ‘a step backwards’. Criticisms of the Bill challenged the conceptual foundation of many provisions, while also arguing that the practical application of the Bill would, like the existing legislation, lead to the destruction of Aboriginal cultural heritage.
4.83
The KLC submitted that the Bill represented a ‘failure to meet international or best practice standards’, arguing that:
…reform should be based on the Best Practice Standards in Indigenous Cultural Heritage Management and Legislation developed by the Heritage Chairs and Officials of Australia and New Zealand … designed by reference to the minimum [emphasis in original] standards set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Australian Government endorsed in April 2009…
4.84
According to Aboriginal witnesses, the root problem with the Bill is that it ‘does not recognise Aboriginal people as the primary decision makers about their cultural heritage’. Submissions were united in their calls for a key role to be provided for both engagement with, and decisions by, traditional owners. Instead, the ‘due diligence’ process empowers proponents and government bodies to decide what constitutes Aboriginal cultural heritage and to make critical judgements about whether or not it could be damaged or destroyed. The witnesses argued that, whatever the Bill’s intention, the precedent of the existing AHA showed that the proposed system would be exploited by proponents to their benefit at the cost of Aboriginal heritage.
4.85
KLC highlighted its concerns by citing the example of the recent destruction caused by exploration by Kimberley Granite Holdings (KGH) in an area in the east Kimberley region and the distress it has caused to the recognised Malarngowem native title holders. The KLC submission:
…notes with concern that destruction similar to that caused by KGH could occur under the regime proposed in the Draft Bill because native title holders are excluded from critical decision making about impact assessment pathways (which is instead bestowed upon proponents…) and are also excluded from the final decision making process, which is the sole purview of the Minister … and the Aboriginal Cultural Heritage Council...
4.86
The Committee received critiques of both the conceptual foundation and probable practical application of the Aboriginal Cultural Heritage Directory proposed in the Bill. KLC submitted that the Directory would be ‘anathema to the fundamental concepts surrounding Aboriginal cultural knowledge and information’:
The ACH Directory fails to account for the secret and sacred nature of certain Aboriginal cultural knowledge. To make Aboriginal cultural knowledge accessible by proponents, government administrators and other non-Indigenous people completely disrespects and undermines the traditional ways that knowledge is transmitted and gained in Aboriginal societies…
4.87
Because of what KLC saw as the Directory’s flawed conception, it could not fulfil its proposed role as a repository of all Aboriginal heritage because some Aboriginal people would be reluctant to disclose certain information to a government body such as the ACH Council:
Reluctance to provide details of the significance of Aboriginal sites, places and object does not necessarily mean they are not important or in need of protection. Rather, it is often the most important sites that are most secret and sacred and therefore least likely to be included on a searchable database such as the ACH Directory.
4.88
KLC submitted that, in practice, the Directory would disempower Aboriginal peoples and create a mechanism by which both proponents and the government would silence Aboriginal voices and circumvent their role in heritage management. Custodians would be expected to disclose knowledge to the Directory, or information would be placed on it by the ACH Council without their consent. Such information would then be used by proponents to ‘displace the need for direct engagement by proponents with Traditional Owners at the due diligence assessment stage’.
Following precedent, the industry catchcry will likely become “if it’s not on the ACH Directory, it doesn’t exist”. Inappropriate and undue reliance on the ACH Directory in the due diligence assessment stage will mean that Aboriginal cultural heritage can, and will, continue to be destroyed if the Draft Bill is made law in its current form.
4.89
The disempowering effects of the Directory would thus extend into each subsequent step in the due diligence process described in the Bill.
4.90
The perspective of Aboriginal organisations is that the due diligence process, and the powers it gives to proponents, the ACH Council and the Minister will, in practice, circumvent the capacity of traditional owners to make decisions about their cultural heritage at all stages of the processes provided for in the Bill. In the words of the PKKP, ‘the ultimate power still rests with the Minister to make decisions about the destruction of sites’.
4.91
KLC told the Committee that the tiered land use approvals system was ‘unacceptable’ because it gave proponents the power to make assessments about what constituted each level of potential impact without any ‘engagement with Traditional Owners, nor right of appeal or review’.
Proponents have a commercial interest in setting a lower level of impact assessment because this will lower project costs. If a proponent assesses the level of impact as lower rather than higher, they will avoid the time and costs associated with higher impact assessment such as having to notify or consult with the affected Aboriginal persons, apply for an ACH permit or negotiate an ACH management plan for the activity.
4.92
National Native Title Council (NNTC) supported this view:
This gifts to the proponent the power of assessing the likely impact of their proposed activity, whether there is Aboriginal cultural heritage in the area and whether it will be harmed thus allowing the proponent to determine the procedural rights to be afforded to Traditional Owners. … The WA Bill provides for no right of review or scrutiny of the proponent’s assessment.
4.93
NNTC also criticised the linking of the Bill’s provisions to the federal native title system, arguing that:
The powers and functions of the LACHS … are limited in a manner mimicking the pitfalls of the Native Title Act 1993 (Cth), in that they only have rights, in relation to certain classes of activities, to be notified, be consulted or to negotiate agreements within a prescribed timeframe about the management of Aboriginal cultural heritage affected by a particular activity. Failure to reach agreement with a proponent within the prescribed timeframe results in the matter being pushed up the line to the ACH Council and the Minister. Like the Native Title Act 1993, consent of the affected Traditional Owners is ultimately not required.
4.94
If a proponent conducts due diligence and assesses their activity as exempt or having minimal impact they would not require a DPLH permit. KLC noted that judgements by the National Native Title Tribunal (NNTT) and Federal Court that even these activities could ‘significantly and unacceptably interfere with Aboriginal heritage sites’. NNTC and other Aboriginal organisations also condemned the ‘unfounded assumptions that such minimal or low activities can never have a significant impact on heritage’. In any case, according to KLC, such assessments ‘should not be a matter for a proponent or a government department to determine in the absence of consultation with native title holders’.
4.95
In a similar vein, the NNTC expressed the concern that:
As LACHS have no right to even be notified of minimal or exempt activities, and can only be notified of low impact activities, then a huge proportion of activities which can, and do, detrimentally interfere with Aboriginal cultural heritage could proceed on the basis that proponents undertake their own due diligence assessment.
4.96
In the case of activities that a proponent assesses to be of low impact, the KLC submission observed that the permits ‘appear to replicate the process under s18 of the AHA’ because the decision to grant a permit is made by the ACH Council, a body that ‘is not representative of the interests of Aboriginal people’. Moreover, the KLC pointed out that an:
ACH permit applicant or holder has rights of review in respect of their permit but native title holders are not provided any procedural rights when the ACH Council decides to grant a permit.
4.97
The NNTC also submitted that the proposed arrangements replicated current problems:
…this process is almost identical to the disastrous s18 process under the existing Aboriginal Heritage Act 1972 (WA) that led to the destruction of Juukan Gorge, differing only in that it requires notification of native title parties, “knowledge holders” and LACHS.
4.98
In the last scenario, if a proponent assesses their proposed activity as having a medium-high impact they are required to engage with traditional owners to negotiate an ACH management plan. But, if no agreement is reached, the proponent may apply to the ACH Council to have the Minister approve the management plan without the consent of traditional owners. Thus the ultimate decision is made by the Minister on the recommendation of the ACH Council. In the view of the KLC:
The option for a proponent to apply for approval of an ACH management plan in the absence of an agreement with Traditional Owners undermines the negotiating position of Traditional Owners…
4.99
A number of witnesses drew the Committee’s attention to the fact that the process of making agreements between proponents and traditional owners did not recognise the ‘power imbalance’ and ‘unequal bargaining power of the parties’ which undermines the capacity of traditional owners to reach agreements based on their free, prior and informed consent.
4.100
According to Ms Amy Stevens from Murujuga Aboriginal Corporation, such imbalance undermines the agreement making process on which the Bill is based:
I have serious reservations about an Aboriginal heritage protection act that is based entirely on agreement making, when our current experience is the agreement-making with mining companies is fundamentally unequal … the majority of mining companies can meet all their legal obligations to consult and negotiate in a way that only serves to further disempower Aboriginal people.
4.101
Several submissions therefore called for the resourcing of LACHS to enable them to adequately engage in any agreement making process. Indeed the then Minister also called on the Commonwealth to provide appropriate funding for Aboriginal corporate bodies.
Perspectives from other stakeholders
4.102
The Committee gathered evidence from a range of other stakeholders in the business, academic and non-government worlds. Their submissions largely echoed the concerns of Aboriginal organisations, as well as adding points from particular non-Indigenous perspectives.
4.103
The evidence mostly related to issues such as the rights of Aboriginal peoples to be decision-makers about their own cultural heritage, the preponderance of provisions about agreement making and permitting damage in the Bill, the costs to traditional owners in negotiating agreements, and the powers and appeal rights for Aboriginal organisations.
4.104
The International Council on Monuments and Sites (ICOMOS) presented a critique of the Bill and a series of recommended changes which largely focused on the need for greater empowerment of Aboriginal peoples in the conservation of cultural heritage – as distinct from merely harm management: ICOMOS said the Bill is flawed because:
1
It does not adequately empower Aboriginal people as decision-makers in a way consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
2
There is insufficient guidance in the Bill on how the local ACH services will be constructed, operated and supported.
3
It has unbalanced review and appeals processes in relation to decisions that impact on Aboriginal heritage which appear to favour proponents over Aboriginal people.
4
It fails to provide adequately for the full process of cultural heritage conservation.
4.105
Of ICOMOS’ detailed set of recommendations for changes to the Bill, the most important included:
Increase the decision-making powers of LACHS and ACH Council
Strengthen the rights of appeal for Aboriginal organisations
Ensure that all areas of WA have a LACH and that they are adequately resourced
Broaden the definition of Aboriginal cultural heritage to include all intangible heritage
Shift the focus of the Bill from protection and management of harm to conservation of cultural heritage, including by empowering LACHS to conduct comprehensive heritage assessments.
4.106
From a broadly similar perspective, the AAA and the Anthropological Society of WA (ASWA) expressed particular concern about the Bill’s narrow focus on the management of harm to Aboriginal heritage as part of encouraging economic development. According to the AAA, the Bill is still an ‘instrument for facilitating development approvals rather than for protecting and celebrating sites of cultural and historic significance’. The ASWA, in its submission to the WA Government consultations on the Bill, made the case that the:
…forced transition, under the Bill, of land defined by cultural tradition to a tradable commodity to provide for ‘balance’ in the recognition of value to the State and broader community formally establishes a new heritage economy, with its foundation reliant upon the doing of harmful activities upon Aboriginal heritage.
4.107
Continuing this theme, and adding support to the view common amongst Aboriginal witnesses that the Bill replicates the problems of the existing legislation, the ASWA submitted:
…the Bill provides for the lodgement of an Aboriginal Cultural Heritage Management Plan (ACHMP) only when an activity is proposing harm to be done to Aboriginal heritage. The Aboriginal Heritage Council (AHC) is placed in the situation of examining and approving an ACHMP only in the context of the harming activity. This proposition enshrines in law the fatal flaw suffered by the Aboriginal Cultural Material Committee (ACMC) under the AHA section 18 process.
4.108
Griffith University Centre for Social and Cultural Research argued that the ‘consultation’ that actually occurs with Aboriginal organisations is effectively only a precursor to damage to cultural heritage:
…most heritage consultation that occurs throughout Australia commences with a client wanting to impact cultural heritage and going through the process of “consulting” in order to gain legal permission to do so; consultation rarely results in any fundamental change to planned developments, and thus rarely meets the definition of active, genuine consultation.
4.109
Concerns about negative effects of the Bill on all parties managing cultural heritage were raised by Mr Marcus Holmes, a native title lawyer, who predicted:
…massive proponent works delays, Aboriginal heritage service provider corporations being out of pocket, sites being impacted by ‘exempt” and so-called “low impact” works and massive micro management and oversight by the State and quasi state agencies of any real Aboriginal control of their cultural heritage.
Mr Holmes nevertheless submitted that positive aspects of the Bill were that it broadens definitions of cultural heritage, provides for appeal rights for Aboriginal people to the State Administrative Tribunal, establishes Aboriginal heritage service-providers, creates links to native title agreements, and provides for higher penalties for infringements.
4.110
The Law Council of Australia made a generally positive submission to the Committee about the ACH Bill, noting that it ‘creates a multitude of new and improved processes, compared to the Aboriginal Heritage Act 1972 (WA)’, and a number of its concepts ‘bear some similarity to those existing in other State legislation’. The Council welcomed the inclusion of ‘intangible elements’ as part of the definition of Aboriginal cultural heritage, but made the argument that the limitation of the definition of harm to ‘ground disturbance’ effectively ‘renders irrelevant’ the concept of ‘intangible elements’. The Council recommended that the Bill should ‘adopt provisions similar to those in the Aboriginal Heritage Act 2006 (Vic)’ in relation to the registration and management of intangible heritage. Other recommendations included that the Bill should clarify how LACHS will be resourced, and that it
…should replicate the Aboriginal Heritage Act 2006 (Vic) model of Registered Aboriginal Parties which results in a greater devolution of functions and power to local Aboriginal decision- makers.
Industry perspectives on the Bill
4.111
Rio Tinto told the Committee that it ‘has and will continue to support the WA Government’s reforms to repeal the AH Act and replace it with new Aboriginal heritage legislation’ and that it has participated in the ongoing review of the Act. The essence of Rio Tinto’s view is that it supports processes for managing the protection of Aboriginal culture which ‘balance’ the interests of the respective parties and that it endorses the Bill’s approach of negotiating agreement-based systems:
[Rio Tinto] supports new Aboriginal heritage legislation that balances meaningful Aboriginal stakeholder engagement and protection and management of Aboriginal heritage values with the delivery of certain, timely and efficient outcomes for stakeholders.
4.112
The company’s submission added that while Rio Tinto supports agreement making, the new process should not create uncertainties for current operations:
Heritage protection should first seek to be achieved through agreement making with the Traditional Owners of the affected land, rather than through the current statutory framework which does not contemplate agreements. … However, this should occur in a manner that does not introduce uncertainties for operations under existing agreements.
4.113
Therefore, any changes to the current regime should:
a.
not introduce uncertainty or risks to proponents who have acted in good faith to appropriately manage heritage values within the context of their existing operations and in compliance with current laws; and
b.
be proportionate in balancing the protection of cultural heritage and the potential for land development, as actions prohibiting land development may affect not only the land use proponents but also Traditional Owners who can, and often choose to, benefit through agreements in regards to land use.
4.114
Rio Tinto presented a generally positive outlook on other provisions in the proposed legislation, while noting certain issues about how the provisions might operate in practice.
4.115
On the Bill’s provisions for the creation and resourcing of Aboriginal bodies to participate in agreement making, Rio Tinto stated:
Traditional Owners must have a primary role in the management of heritage values, including through the introduction of Local Aboriginal Heritage Services (LAHS) [also LACHS], noting this change will need to be supported by ensuring LAHS are appropriately resourced…
4.116
The company’s support for the due diligence process through tiered assessment was qualified by its opinion that the Minister should have the ultimate authority:
…the introduction of the Aboriginal Heritage Council to assist with the tiered assessment process and an expedited approval process for proposals that have no or low impacts on heritage values, will ensure greater focus on sites of higher significance. However, the Minister must retain overall accountability and decision making-powers for the Aboriginal heritage system in Western Australia…
4.117
The submission expressed support for extended definitions of cultural heritage to include ‘intangible heritage or cultural landscapes’. But it noted that:
…intangible values can cover larger areas of land, including whole mines or developments. Accordingly, the legislation will also require a clear framework to determine how these sites can be identified and impacts can be measured as this has the potential for large areas to be quarantined from development, notwithstanding investment in exploration and mining investment over many years.
4.118
Rio Tinto also stated that it:
…supports transparency in decision making and appeal rights for Traditional Owners and land use proponents for future statutory approvals that authorise disturbance of heritage sites.
4.119
Finally, the company informed the Committee of its view that ‘heritage protection should primarily occur under state legislation’ and ‘where State heritage preservation laws are effective, there should not be a significant need for Commonwealth protective action’.
4.120
Submissions to the WA consultative process included those from the Association of Mining and Exploration Companies, Australian Petroleum Production and Exploration Association, BHP, Chamber of Minerals and Energy, Fortescue Metals, Roy Hill Holdings and Woodside Energy.
4.121
The submissions generally recognised the need to modernise WA’s legislation on Aboriginal cultural heritage and welcomed the drafting of new legislation. There was wide acceptance of the key principles enshrined in the Bill, including broadened definitions of Aboriginal cultural heritage, an increased role for Aboriginal organisations, the agreement making process between proponents and Aboriginal representatives, and the establishment of new Aboriginal bodies such as the ACH Council and LACHS. A continued role for the Minister as the ultimate decision maker was mostly supported.
4.122
There was less acceptance, however, that the Bill as drafted would provide certainty for proponents and traditional owners and that there was sufficient balance reached between the interests of the parties involved. Some submissions expressed concerns that the processes described in the Bill would cause unacceptable delays to development and impose economic costs on the state.
4.123
Criticisms did not, in broad terms, attack the objectives behind processes proposed in the Bill, but a frequently expressed view was that there is insufficient detail and explanation and that, as a result, there could be unintended consequences in practice. For example, questions were raised about the responsibilities and resourcing of the LACHS. In particular, there was criticism of the absence of clear regulations, codes and guidelines to give meaning to the proposals provided for in the Bill. Some submissions argued that proper judgements about the effectiveness of the legislation could not be made until these were available. The penalty regime was the subject of particular disapproval, with some submissions arguing that lack of clear definitions of offences could put explorers and developers in the position of unintentionally breaking the law.
Committee comment
4.124
The Committee notes that the Aboriginal Heritage Bill 1972 was, for its time, a progressive legislative initiative made when the WA mining boom was exposing Aboriginal cultural heritage in vast new areas of the state to the threat of damage or destruction. It was passed into law when Australian and international awareness about the need to protect Aboriginal heritage was still relatively undeveloped.
4.125
But the legislation has not fulfilled its initial promise, and the Committee considers that the WA experience is a salutary lesson. A law with stated good intentions became, in practice, a mechanism through which the disturbance, damage and destruction of both physical and intangible Aboriginal cultural heritage has repeatedly taken place.
4.126
This occurred partly because of amendments to the law, but mainly because of the manner in which the legislation was interpreted and administered by successive Ministers. In particular, section 18 has become the key operative provision of the law and the basis for a system of damage by permit. The Minister has become the arbiter for decisions about the approval of damage to the exclusion of the voice and interests of traditional owners. The AHA has failed to strike a balance between the needs and aspirations of the various parties and has excessively favoured the interests of proponents.
4.127
The Committee commends the WA Government initiative in finally taking action to modernise its legislation governing cultural heritage. The Committee notes that the AHA has been the subject of five reviews, the recommendations of which were largely unacted upon. A thorough re-examination of the objectives and approach of WA legislation on Aboriginal cultural heritage is long overdue.
4.128
The Committee considers that the drafting of the Bill is an opportunity to produce legislation that incorporates best practice and standards from Australian jurisdictions, as well taking inspiration from international experience and meeting or exceeding the commitments Australia has made in international agreements.
4.129
The Committee supports the objectives of the Bill to strengthen Aboriginal voice in the management of Aboriginal cultural heritage, and acknowledges the efforts of the WA Government to seek a better balance between proponents and traditional owners in the development of the state’s resources.
4.130
The Committee notes the proposal for the establishment of new bodies to manage the protection of Aboriginal heritage and to facilitate the involvement of traditional owners. These bodies will form the basis of the Aboriginal side of the process of agreement making with proponents that is the foundation of the Bill’s approach to the management of cultural heritage.
4.131
The Committee notes the apprehension expressed by Aboriginal witnesses about the power imbalance between the two parties to agreement making, and the unequal resources available to Aboriginal representatives compared to those of proponents such as mining companies. If negotiations between the two parties are to proceed effectively, with a fair chance of reaching equitable outcomes, the Local Aboriginal Cultural Heritage Services (LACHS) must be supported with adequate human and financial resources.
4.132
The Committee notes the evidence from Aboriginal organisations arguing that the due diligence process described in the Bill hands out to proponents the right to make decisions about what constitutes significant Aboriginal cultural heritage and what impact proposed activities would have on the heritage. Aboriginal organisations, on the other hand, have limited scope to challenge such decisions.
4.133
The Committee also received conflicting views about the role of the Minister under the proposed new arrangements. Submissions from mining representatives expressed agreement with the sections of the Bill which provide for the Minister to have a final deciding role in the agreement making process when the two parties are unable to reach agreement. Submissions from Aboriginal organisations and other stakeholders, on the other hand, argued that the draft legislation gives the Minister too much power and that this will replicate the problems of the current Act where the Minister has been the decision-maker in the great majority of cases concerning approvals to damage Aboriginal heritage. The view of Aboriginal organisations is that the relevant traditional owners should have final responsibility for deciding whether their cultural heritage should be damaged or destroyed.
4.134
The Committee notes with concern that the Aboriginal organisations’ views indicate that they have concluded that provisions allowing that the Minister may make decisions about approvals in certain circumstances, will mean that the Minister will make the decisions, and do so on a routine basis. This interpretation appears to reflect traditional owners’ negative experience of the operation of the AHA over many years. There is a clear lack of confidence and trust that such a situation will not be replicated under the proposed legislation. It will be challenging for the WA Government to pass legislation that is generally acceptable to all parties if such fundamental problems of trust are not overcome.
4.135
In the light of the above issues raised by Aboriginal representatives, the Committee encourages the WA Government to review the ACH Bill and make amendments to address these concerns. Particular consideration could be given to accommodating the principles of free, prior and informed consent. Consultations with Aboriginal representatives must be conducted in a way that accords with Aboriginal traditions of dialogue. And indeed the new law must seek to establish processes which recognise that Aboriginal knowledge may be passed on in ways that are not yet recognised in our existing systems.
4.136
The Committee acknowledges the evidence from witnesses about the operation of Aboriginal heritage protection legislation in other jurisdictions. For example, reference was made to provisions on the registration and management of intangible heritage in Victorian legislation. The Committee considers that there is scope for the WA Government to further investigate approaches adopted by the Commonwealth and other states and territories and to adapt the WA Bill in the light of these approaches.
4.137
In light of the criticisms of the operation of the current and proposed Western Australian legislation, the Committee considers that the Commonwealth Government has a role in legislating for minimum cultural heritage protection standards. This is discussed in detail in Chapter 7.