Calls are growing louder for the WA government to withdraw its Aboriginal Cultural Heritage legislation, with close to 150 eminent Australians putting their name to a letter of concern.
Work to replace the outdated Aboriginal Heritage Act started years ago, but was not done in time to prevent the destruction of a sacred site at Juukan Gorge in WA’s Pilbara region in May 2020.
The WA government introduced the new legislation a fortnight ago and was using its parliamentary majority to rush the bill through before the end of the year.
The legislation was aimed at better protecting Aboriginal heritage by removing the controversial section 18 approvals process which allowed mining giant Rio Tinto to blast the 46,000 year old rock shelters despite traditional owners warning of the site’s cultural significance.
But the bill has been met with shock and outrage by some traditional owners and Indigenous leaders, who fear it will not prevent another Juukan Gorge disaster and claim there had not been enough consultation.
Among their concerns was that the WA Minister for Aboriginal Affairs would still have the final say in circumstances where traditional owners and mining companies could not agree.
Also, the Aboriginal Cultural Heritage Council, which will be responsible for providing strategic oversight of the system, would only have a majority Aboriginal membership rather than full representation and members would be appointed by the minister.
Further, the new laws gave no rights to traditional owners to appeal to the State Administrative Tribunal against decisions by the minister.
Bill ‘unacceptable’ in current form
In the letter to WA Premier Mark McGowan, the 146 signatories stated that the Bill would not recognise, protect and preserve Aboriginal cultural heritage.
“The bill does not allow for Aboriginal people to ensure heritage and site protection — without the agreement of the proponent and/or the Minister for Aboriginal Affairs,” the letter stated.
“Aboriginal people have repeatedly requested improved legal protection of heritage sites, but the bill is weighted against Indigenous custodians in all processes involving heritage applications to conduct activities that disturb or destroy areas of cultural heritage.
“Respectfully, we request you to withdraw the Bill and ensure the law is co-designed with Aboriginal people to respect human rights and ensure a ‘best practice’ system to protect Aboriginal cultural heritage in our state.”
The wide range of signatories to the open letter included former Australian of the Year Fiona Stanley AC, Anglican Archbishop Kay Goldsworthy AO, businesswoman Janet Holmes-A-Court AC, former WA Premier Carmen Lawrence, and Ernie Dingo AM.
Noongar human rights lawyer Dr Hannah McGlade said the Bill was being reviewed by the United Nations committee on race discrimination.
“We are sending a clear message to Premier McGowan that the bill, currently, is unacceptable to a great many people,” she said.
“Prominent Australians stand with us in saying Aboriginal heritage and culture matters. This government must stop putting mining and economic interests above the rights of traditional owners to protect and care for sacred lands.”
The state opposition accused the government of ramming the legislation through parliament, after it introduced the Bill with more than 100 changes to the draft legislation in the second last sitting week of the legislative assembly.
Laws to pass within weeks
WA’s parliament was expected to pass the legislation within a few weeks, after the state government declared it was urgent legislation and added an extra sitting week for the upper house to complete its debate before the end of the calendar year.
The state government defended the consultation process and the legislation, saying the bill incorporated feedback from more than 100 workshops and information sessions attended by more than 1,400 people, 150 targeted and individual stakeholder meetings and more than 380 submissions.
Mr McGowan said it was “the most progressive cultural heritage legislation in the country”.
“It mandates agreement-making with traditional owners, in line with native title laws, and allows Aboriginal people to negotiate better outcomes for projects on their lands,” he said in a statement.
In parliament, Mr McGowan said the bill would ensure that the protection of Aboriginal cultural heritage would be improved and at the forefront of consideration when projects were developed.
“After three decades of failed attempts, we are introducing our new Aboriginal Cultural Heritage Act,” he said.
“My view is that governments are elected to act, they are elected to make decisions and they are elected to improve things, and that is what this legislation will do.”