Controversial WA Aboriginal heritage law passes without amendment

Article by Peter de Kruijff for WA Today

The replacement to a 50-year-old law supposed to protect Aboriginal heritage in Western Australia has passed through state Parliament without changes.

The move came despite concerns over a lack of appeal rights for traditional owners and fears a Juukan Gorge-level disaster, where 46,000 years of human history was destroyed by a mining company, could happen again.

The Aboriginal Cultural Heritage Bill was voted through 22-4 in the upper house on Tuesday night after a last-ditch attempt to install an appeal mechanism for traditional owners and proponents who don’t agree on a management plan for a sacred site failed.

Early drafts of the bill included an appeal right for both Aboriginal groups and proponents when an impasse was reached, but the mechanism was replaced in the final version of the law so the Aboriginal Affairs minister-of-the-day would be the ultimate decision maker.

Putting the decision in the hands of the minister was one of the key concerns raised by five prominent WA traditional owners and the environmental defenders on a United Nations committee, along with the lack of a veto right on development. They feared the new law would be incompatible with international treaties on the rights of Aboriginal people.

Greens MLC Brad Pettitt moved a motion on Tuesday night to reinsert a clause which would provide an avenue for appeal in the State Administrative Tribunal, but it was not supported by the government nor the Liberal and National opposition.

“A ministerial decision could be misused in a way that would see Aboriginal cultural heritage destroyed,” Dr Pettitt said.

Aboriginal Affairs Minister Stephen Dawson said in response that he believed it would be proponents who would more often use the SAT than Aboriginal groups.

He said he did not believe many cases would reach the level of the minister but if they did, he would have to consider the risk to Aboriginal cultural heritage and what was “in the interests of the state”.

This would mean weighing up the social and economic benefit of the state, including for Aboriginal people, and the interests of future generations.

“The minister’s decisions and the reasons for those decisions will be published, and that is a level of a transparency that does not exist now,” Mr Dawson said.

“It will be open to proponents to seek a judicial review of the minister’s decision. If the minister has not followed the act or the best endeavours of the act, including the one that refers to the interests of the state, a proponent can take a decision to court.

“Decisions can be made by a court that a minister has not followed the proper process. That can happen here.

“This is about state significance. I am firmly of the view that SAT would not add to this bill.

“As I said, a decision was made by government that a minister’s decision will be final.”

Opposition leader in the upper house Steve Thomas said it would not support the amendment as the government at some point had to govern.

“The SAT and legal review do not always get it right. There is no ultimate public review of those court decisions,” he said.

“However, it is absolutely the case that a minister who makes what is deemed to be a poor decision and does not examine the triple bottom line, and that includes the economic one, faces the people every four years.”

With the amendment lost, Dr Pettitt said before the final reading of the bill there had been no need to rush legislation through.

“Key stakeholders did not get to see the legislation before it was introduced. That is not the way to build trust and move on to a process of co-design; it actually deeply undermines those things,” he said.

“Unfortunately, we have had a wide range of people – from the United Nations to the Law Society of Western Australia, Aboriginal groups, traditional owners and prescribed bodies corporate – writing to us to indicate that they are not happy with this legislation in its current form.

“Although this legislation is an improvement on the 1972 legislation, it is not an improvement on the scale that is needed at this point; it is an improvement that is too incremental a step from a generation ago.

“There was an opportunity for us to go well beyond that and to have world-leading legislation in this space. Unfortunately, that opportunity has been lost.”

The state government has maintained the bill is the most progressive in the nation and that it got rid of the controversial section 18 clause that allowed for the destruction of Juukan.

Mr Dawson has been adamant a similar event would not happen again but not all Aboriginal stakeholder groups are convinced.

National Native Title Council chairman and Ngalia leader Kado Muir said the passage of the bill meant it would be business as usual on sacred sites with the continued destruction and desecration of Aboriginal cultural heritage.

“As we have continually communicated, one of the major issues with the current bill is that it leaves ultimate decision-making power in the hands of the relevant minister where a proponent or developer and an Aboriginal party cannot agree,” he said.

Federal Liberal MP Warren Entsch, who chaired a national inquiry into the Juukan cultural disaster, said earlier in the week the balance remained in favour of proponents.

“It denies First Nations people a very important avenue to prevent the abuse of ministerial power,” he said.

Concerns raised by the UN to Australia’s ambassador to the global group earlier this month were not officially passed on to the WA government.

Environment Minister Sussan Ley said through a spokesperson that the Commonwealth had “no jurisdiction to intervene in relation to this bill”.

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