UN Scrutiny for WA Cultural Heritage Bill after First Nations Referral

Article by the Environmental Defenders Office

The Environmental Defenders Office has assisted a group of First Nations people to make a formal request for a United Nations Committee to review Western Australia’s draft proposed cultural heritage bill, arguing the bill is incompatible with Australia’s international obligations on racial discrimination.

Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade have made a request to the United Nations Committee on the Elimination of Racial Discrimination (the Committee) to review the Western Australian draft Aboriginal Cultural Heritage Bill 2020 under its early warning and urgent action procedure. This request has been lodged now as it is expected that the formal Bill will be tabled in the WA Parliament in the very near future.

The request to the Committee acknowledges that while reform to cultural heritage legislation is necessary, the authors of the request submit that the current Bill is incompatible with Australia’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination (the Convention). The Bill does not adequately address the structural and historical issues and inequalities which have underwritten the past and contemporary destruction of cultural heritage in WA.

Two key issues raised in the request is that Traditional Owners are unable to say ‘no’ to activities which will destroy significant cultural heritage and that there is insufficient protection of the right to culture, which prohibits States from destroying significant Aboriginal cultural heritage. The Minister administering the proposed legislation is the final decision-maker where there is a dispute between Traditional Owners and a proponent of an activity proposing to harm Aboriginal cultural heritage. The Minister is given a significant amount of discretion and the mandatory conditions that the Minister must take into account include what is ‘in the interests of the State’. Without adding protections to the schema of the Bill, including a prohibition on destruction of significant cultural heritage or a weighing process in favour of protecting Aboriginal cultural heritage, the authors submit that little will change in practice where there is a dispute between Traditional Owners and a proponent. This risks a continuation of systemic and racial discrimination which has characterised the operation of the current legislation, which the Bill is supposed to address. The authors contend that this is incompatible with Australia’s obligations under the Convention, which also applies to Western Australia.

The Committee’s early warning and urgent action procedure allows it to take steps to address serious violations of the Convention in an early manner. The Committee has a Working Group which will meet to make a preliminary assessment on the information received on situations that may require urgent action. These sessions are closed sessions. The Working Group may then make recommendations to the Committee as to what measures should be taken by the Committee, if any. The timeframe within which the Committee will address the complaint is not known.

The authors are five eminent Western Australian Traditional Owners:

Slim Parker is a Martidja Banjima senior Elder and widely respected cultural leader.

Kado Muir is a cultural leader of the Ngalia Peoples of the Goldfields region and traditional owner from the Western Desert regions of WA.

Dr Anne Poelina is a Nyikina Warrwa woman who belongs to the Mardoowarra, the lower Fitzroy River in the Kimberley region of WA.

Clayton Lewis is a Nanda Widi man with family ties to the Mid-West, Murchison & Gascoyne regions and lives in the northern wheatbelt.

Dr Hannah McGlade is from the Kurin Minang people and lives in Boorloo (Perth), she is an Associate Professor at Curtin Law School and has specialised in international human rights law, race discrimination, state violence, criminal justice and Aboriginal women and children’s issues.

Dr Lauren Butterly, Special Counsel and heritage law specialist, from our Western Australian team and Fleur Ramsay, the Chair of our First Nations and Indigenous Peoples Working Group and Special Counsel in the International Program worked closely together with the authors, and particularly Dr Hannah McGlade and Slim Parker, to draft the request.

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