Article by Sarah Collard for The Guardian

Some say the overhaul of laws is a little ‘bittersweet’ and does not go far enough, but others claim it will ‘hold businesses to ransom’

The sky isn’t falling down,” says Warren Pearce, chief executive of the Association of Mining and Exploration Companies in Western Australia. “But it’s a big change, and big changes take a while to flow through.”

The big change is the introduction on 1 July of the state’s Aboriginal cultural heritage legislation, which has been overhauled in the wake of Rio Tinto’s destruction of Juukan Gorge in the Pilbara in May 2020.

Not everyone in the land, mining and pastoral industries shares Pearce’s cautiously optimistic outlook. Vehement opponents have claimed the “horrifying” laws will “hold businesses to ransom” and cause disastrous backlogs of cultural heritage assessments.

The new laws have removed section 18 of the old Aboriginal Heritage Act, which allowed Rio Tinto to blow up the 46,000-year-old Juukan Gorge site with ministerial approval, even after archaeological digs uncovered artefacts and sacred objects signifying the importance of the site.

The state government says the new laws empower Aboriginal people to protect and manage cultural heritage on their traditional lands and embed free, prior and informed consent into agreement-making processes.

If there is a likelihood of cultural heritage being affected or disturbed, land users must submit a management plan to the Aboriginal Cultural Heritage Council for approval, detailing the consultation, consent and the agreed measures to protect the sites or artefacts.

Individuals who damage a cultural heritage site face penalties of up to $1m, while corporations can be fined up to $10m.

Jamie Lowe, a Gundjitmara Djabwurrung man from Victoria and chief executive of the National Native Title Council, says much of the opposition stems from powerful industries who are resistant to change.

“WA is a bit of a wild west situation. I’ve been over here a couple of years now and they do things a little bit differently. They don’t want to be told that maybe there’s a better way.

“The opponents have had their own way for such a long time. It’ll be hard for them to adjust. That’s not letting them off the hook, but I think they’re in a bit of shock at the moment that they might have to do business in a different way.”

‘We’ve got no clear answers’

The chief executive of the WA Farming Federation, Trevor Whittington, acknowledges some farmers want to fight “tooth and nail” against the laws, but says many others have history with local First Nations families and know many sites of cultural significance.

“There’s always a minority view, we’ve got membership who are unhappy with us because we’re not just calling for it to be abolished.

He says farmers mostly want more detail about how the new law will work.

“We are happy to protect their heritage,” he says. “We’ve got no problem with that. We just need clarity.”

He says there is particular confusion around the new requirement that land owners with more than 1,100 sq metres must seek approvals if they believe cultural heritage may be affected.

“People are not up in arms, they’re just confused more than anything,” Whittington says.

“Can we go deep ripping? Can we replace a boundary fence line without having to do a survey?

“When do you have to go and have cultural knowledge holders come on your farm to do a survey? How quickly can that be done? How much will it cost you? We’ve got no clear answers to those questions.”

Whittington says farming is not like the mining industry.

“They’ve got destructive practices. They’re either using the dynamite to blow up rocks and granite hills or dig big holes, put holes in the ground. The farming community is into land preservation.

“All the meetings with literally hundreds of farmers I’ve attended, people stand up and say, ‘Well, I’ve got heritage on my farm’, as I have on mine, and that should be protected. I am not hearing anyone saying we’re going to go and blow up something special.”

Kevin Barron manages Yallalie Downs, a 1,200-hectare cattle farm on the outskirts of Dandaragan shire, 200km from Perth.

As the chair of the Beemurra Aboriginal Corporation, which owns the property, he can see the debate from both sides, and believes the new laws will not have a big effect on how landowners use their land.

He hopes cultural heritage surveying can ensure knowledge remains for future generations.

“I’ll be telling people when they go out on surveys, you know, if they get $500 a day [for their work] to take young kids along, girl or boy, and pass that knowledge on to them. So it’s a chain reaction,” he says.

Something both sides can live with

While some in the farming and mining industries have raised loud objections to the laws, some Indigenous voices have urged the government to go further.

Jamie Lowe hopes the laws can be built on to give cultural heritage more secure protection.

“We don’t think the new heritage laws go far enough,” he says. “But they do go further than the 1972 legislation. It’s a little bittersweet. We needed to change them and they have raised the bar, but there’s still a way to go.

“We’ve all got our own stories about when our own heritage has been destroyed. There’s this carrot-and-stick conversation. Sometimes we need sticks. We need laws to actually enforce [so] that people don’t do the wrong thing.”

Hannah McGlade, a lawyer and member of the UN permanent forum on Indigenous issues, says the new laws fail to meet the international standards for the rights of Indigenous peoples and continue to favour mining companies.

“It’s very clear even from the legislation, which gives non-Indigenous stakeholders the rights of appeal that aren’t given to Indigenous traditional owners.

“There’s improvement on the bill. That’s evident, but it’s not adequate. It leaves Aboriginal culture and heritage vulnerable to damage and destruction, which has been the history of this act since it was introduced.”

Pearce, of the mining industry body, acknowledges the calls for further reform.

“Many Aboriginal groups think the legislation doesn’t go far enough,” he says. “Most in the industry think it goes further than we would have liked.

“What we’re trying to get to is something we can all live with. That gives us a much-improved level of protection for heritage … but also enables industry to keep operating without significant disruption or delay.”