Article by Sarah Ison and Paige Taylor for The Australian

Western Australia’s Indigenous leaders are demanding Anthony Albanese intervene
and give stronger protections to their sacred sites, as they say the state Labor
government has “betrayed them” with its sudden decision to scrap controversial heritage laws.
As support for an Indigenous voice to parliament plummets in the west and the Yes
campaign hails the mooted removal of the WA Aboriginal Cultural Heritage Act as
the right step, the state’s leading Aboriginal advocates and native title lawyers say
the reforms were “wrongly conflated” with the referendum and governments
supporting a voice had failed to listen to them.

The Australian understands WA Aboriginal Affairs Minister Tony Buti told top
stakeholders on Friday the government intended to scrap the existing WA
Aboriginal cultural heritage laws and reinstate the 1972 laws they replaced, though
with some amendments.

The Coalition on Friday said it was clear WA Labor realised the laws were turning
West Australians against the voice, with one senior Liberal calling on Premier Roger
Cook to sack Mr Buti.

While the Prime Minister and members of his ministry refused to comment on the
WA government’s move to scrap the heritage laws – due to be rubber-stamped at a
state cabinet meeting on Monday – WA activists said the federal government had to
use its powers to step in.

Both Labor and pro-voice activists have tried over the past month to separate the
referendum from the growing controversies over heritage laws and Aboriginal
treaties.

On Sunday, Mr Albanese told The Australian voters had nothing to fear from the
second part of the Uluru Statement from the Heart – a proposed Makarrata
Commission that would lead agreement-making and is referred to as treaty for
short – as any outcomes would be mutual and not imposed.

“The very word Makarrata is something that no one should have any fear over
because by definition, it’s about consensus and working together, and that is
something that we need to do as a nation,” he said.

National Native Title Council chair Kado Muir said the state government has caused
“uncertainty … confusion and fear” and he would now look to the federal
government for a stronger cultural heritage regime.

While critical of the 2021 legislation, implemented within 18 months of Rio Tinto’s
destruction of Juukan Gorge, Mr Muir said he was concerned there was now a
situation “where cultural heritage in Western Australia will not be protected”.

“This has all been implemented on an ad hoc basis and with kneejerk reactions,” he
said.

“What this demonstrates is a very clear signal that we need more national standards
and a national approach to cultural heritage protection in this country.

“It seems the government has lost control of the ability to protect cultural heritage
in Western Australia and so our next resort is to go to the federal government.”

The new WA laws were to apply to properties of more than 1100sqm, and would
introduce a three-tiered system imposing obligations on landholders. Farming
groups had become increasingly concerned with the application of the laws, and a
protest was planned to take place outside state parliament on Tuesday.

Leading Aboriginal heritage lawyer Greg McIntyre, who prosecuted the Mabo case
in the High Court, said the laws had not been “working in the way which is
compatible with good governance”, and he urged the Albanese government to use
its powers under the federal Heritage Act to fill the gap left by “ineffective” state
legislation.

“The Aboriginal and Torres Strait Islander Heritage Protection Act of the
commonwealth is probably designed for events such as this. Because what it does is
it comes into play where state legislation has demonstrated to be ineffective and
that’s one of the preconditions for the federal minister exercising power under that
legislation,” Mr McIntyre said.

“We do have federal legislation to fall back on and one would hope that the federal
minister will recognise that and act appropriately.”

International human rights lawyer Hannah McGlade, an Indigenous woman, said it
would be “unacceptable” for the WA government to revert to the original heritage
Act and was critical of the WA government supporting a voice to parliament, while
failing to listen to Indigenous Australians on cultural heritage.

“This is my advice to them: To respect Aboriginal interests here, Aboriginal voices,”
Dr McGlade said. “We’re going to a referendum on listening to Aboriginal people so
they should demonstrate here in their own backyard now on this very important
matter.”

Dr McGlade said she and a number of other Indigenous leaders had written to the
United Nations in December over the heritage laws, as the state government failed
to engage with their concerns.

“We advised them all along, this Act would not work,” she said.

“This Act was fiercely opposed by all Aboriginal land councils and representative
bodies … there was some improvement (compared to the previous Act) but it still
just wasn’t acceptable.”

The Puutu Kunti Kurrama and Pinikura Aboriginal Corporation said it was
“devastated and angered” by reports the Cultural Heritage Act would be scrapped,
with the PKKP people “left feeling betrayed”.

“The previous heritage Act, which predates native title, permitted the wanton
destruction of Juukan Gorge. While the new Act is not perfect, it is better than
what it replaced,” corporation chair Terry Drage said.

Asked if the federal government was preparing to step in and field an influx of
applications for the protection of WA sacred sites, a spokeswoman for Environment
Minister Tanya Plibersek said: “Any application made under the Aboriginal and
Torres Strait Islander Heritage Protection Act will be assessed according to the law
in the usual ways.”

“Both Liberal and Labor governments have done (so) under this Act for nearly 40
years,” she said.

A WA government spokesman on Sunday said: “The federal government has not
approached the state government on issues related to Aboriginal cultural heritage.

“There has not been a decision on the future of the 2021 legislation. As part of our
collaborative and consultative approach, the Cook government has been working
closely with all stakeholders through the implementation of the modernised
legislation.

“That is why an implementation group was established; to monitor, report and help
address any issues that may arise, which means immediate changes can be
progressed if required. The Premier has made it clear that if changes are necessary,
then the state government will work through that with everyone impacted.”