Heritage laws in Western Australia are in a legislative mess, with new rules to protect Indigenous culture axed just weeks after coming into operation.
The saga has outraged Aboriginal groups, who say they have yet again been treated like second-class citizens.
Just five weeks after the new laws hit the statute books, the WA premier, Roger Cook, admitted his government’s Aboriginal Cultural Heritage Act 2021 was divisive, confusing and stressful for landowners.
This week he sensationally repealed the new heritage rules, casting years of work by native title organisations and bureaucrats on to the scrapheap.
In its place, an outdated and “racist” 1972 Act – the same legislation that was in force when ancient rock shelters were destroyed by mining giant Rio Tinto two years ago – will be amended and made law once more.
The embarrassing backflip is, in one sense, the inevitable consequence of a government with near total parliamentary control rocketing poorly debated bills through both houses.
Parliamentarians were given just days, at the end of 2021, to get their heads around hundreds of pages of legislation that created a tiered approval system for WA cultural heritage applications.
Labor holds 53 of 59 seats in the Legislative Assembly – WA’s lower house. In December 2021 the Liberals lost a vote to have the cultural heritage bill sent through a committee for legislative scrutiny.
But even before it became law, released regulations were unpopular with Aboriginal groups – because it gave the final say on heritage to the minister.
Farmers and pastoralists said they were paralysed with fear because the new rules required anyone with property bigger than 1,100 sq metres to perform potentially costly cultural heritage checks from local Aboriginal groups and apply for permits before development.
In late June, the Pastoralists and Graziers Association called for the legislation to be scrapped and petitioned parliament for its rollout to be delayed. This week they rallied outside parliament.
Cook and his Aboriginal affairs minister, Tony Buti, surprised the protesters by backflipping and apologising for the legislative blunder. But it is the protection of Indigenous culture that has suffered the biggest blow as a result.
Hundreds of sites approved for destruction
The old-but-new 1972 act brings its controversial section 18 back into play – a regulation that was condemned by the inquiry into the Juukan Gorge travesty.
Section 18 provides an avenue for miners or landholders to apply to a department committee to destroy, damage or alter registered Indigenous sacred sites.
While the 1972 act will be amended to allow traditional owners to appeal decisions made undersection 18 – something they couldn’t do before – the final say rests with a minister who will inevitably have to consider a range of competing priorities.
The former Greens MLC Robin Chapple says that since 1972, only a tiny handful of section 18 applications associated with the mining industry have been denied, out of tens of thousands.
“The legislation that has been repealed was a basket case. The mining corporations had the capacity to deal with it, but it provided no surety for landowners. At the end of the day though, this is an Aboriginal protection act and it must be to protect Aboriginal heritage,” Chapple said.
He says there are hundreds of section 18s already approved under the previous and unamended 1972 act
The Aboriginal affairs minister, Tony Buti, did not clearly state how these existing section 18 approvals would be affected, but he did say that amendments to the 1972 laws would ensure a Juukan Gorge tragedy could never happen again.
Owners of section 18s will have to inform the minister if they become aware of new information, Buti said.
“Native Title parties will also have the right to appeal on existing section 18s following the minister’s review of the consent as a result of receiving new information.”
Questions to Buti’s department about how many section 18s currently exist or if any applications for destruction of cultural heritage sites had been submitted since the new laws came into effect on 1 July went unanswered.
Safeguards taken away
Traditional owners of Juukan Gorge caves Puutu Kunti Kurrama and Pinikura (PKKP) say they are devastated and angry at the government’s decision to repeal the new laws, describing it as a kneejerk reaction to bad press.
PKKP’s land and heritage manager, Jordan Ralph, says reverting back to culturally inappropriate 1972 legislation is among the worst decisions for Aboriginal cultural heritage protection this country has seen.
“First Nations people are being treated as second-class citizens in their own country,” Ralph said.
“The safeguards that were supposed to be provided by the 2021 legislation have now been taken away and we will revert back to an outdated definition of Aboriginal cultural heritage and an approvals process that benefits industry over our country,” Ralph said.
Ralph says that the PKKP’s biggest concern is that under the 1972 act, the department changed the definition of what constitutes a cultural heritage site and de-registered thousands of heritage places.
According to a 2016 report by the UWA heritage archaeologist Joe Dortch and Tom Sapienza “analysis in 2014 indicated that potentially more than 1,500 sites had been de-registered in the Pilbara alone”.
There are 150,000 registered Aboriginal heritage sites across WA and of those, 78 are protected areas, which means they have the highest level of protection.
Kado Muir, chair of the National Native Title Council and co-chair of the First Nations heritage protection alliance, said he was opposed to the new 2021 legislation and accused the government of acting arrogantly by excluding Indigenous voices from key decisions.
Muir says this saga proves the importance of the federal referendum for an Indigenous voice to parliament in October.
“There are politicians of all persuasions in parliament talking about Aboriginal cultural heritage, but none of them are actually talking as an Aboriginal person,” Muir said.
“We are suffering an injustice. The whole way that Aboriginal heritage is being managed in Australia continues to marginalise Aboriginal people from that process,” Muir said.
