Article by Giovanni Torre for National Indigenous Times

The United Nations has urged the Australian Government to investigate the Western Australian government’s Aboriginal Cultural Heritage Bill.

On 3 December, Marc Bossuyt, Vice-Chair of the United Nations Committee on the Elimination of Racial Discrimination, wrote to Her Excellency Sally Mansfield, the Permanent Representative of Australia to the United Nations Office in Geneva, informing her that the Committee, under its early warning and urgent action procedure, had considered the Bill and become aware of a number of concerns.

The Committee had been contacted in September by a group of senior First Nations people led by Dr Hannah McGlade who made the case that the legislation was incompatible with Australia’s international obligations on racial discrimination and requested a review.

In their request, Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr McGlade noted 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 are that Traditional Owners are unable to say no to activities which will destroy significant cultural heritage, and that there is insufficient protection of the human right to culture, which prohibits States from destroying significant Aboriginal cultural heritage.

Mr Bossuyt wrote that “the draft Bill allegedly fails to respect, protect and fulfill the right to culture of Aboriginal peoples”.

“The Committee is concerned about the allegations that the consultation process on the draft bill was not adequate, notably by not assigning enough time to evaluate particularly important topics for Aboriginal peoples, such as whether the draft incorporates the right to free, prior and informed consent of concerned communities,” he said.

The Committee also noted that it had also been alleged the Bill granted the Minister for Aboriginal Affairs “overly wide” discretion to approve activities that could have an impact on Aboriginal Cultural Heritage without establishing a clear requirement to protect such heritage, and that the possibility for Aboriginal peoples to pursue a review of such approvals in the State Administrative Tribunal had been excluded in the final Bill.

Mr Bossuyt identified other areas of concern and noted that “according to the information received” by the Committee, the discretionary power attributed to the Minister and the absence of effective remedies and legal redress “will maintain the structural racism of the cultural heritage legal and policy regime, which has already led to the destruction of Aboriginal cultural heritage in Australia”.

The Committee asked the Australian Government to provide information on the concerning allegations noted in Mr Bossuyt’s correspondence, the current status of the Bill, and the measures adopted to “fully and adequately” guarantee the right to consultation of Aboriginal peoples in Western Australia regarding the drafting and discussion of the Bill, “as well as any further steps to consider suspending its adoption or withdrawing it until such consultations take place and consent is obtained”.

The Committee also urged the Australian Government to consider engaging with the United Nations Expert Mechanism on the Rights Of Indigenous Peoples, and set a deadline of 30 March, 2022 for the government’s response.

In an article published in the Indigenous Constitutional Law and Australian Public Law journals today, Dr McGlade noted that “the lessons that Western Australia tell us – so soon, so clearly – is that we need the Commonwealth Parliament to move with urgency” to implement in law the reforms recommended by the Joint Standing Committee on Northern Australia’s Inquiry into the destruction of Indigenous heritage sites at Juukan Gorge.

“They also, once again, underscore the pressing need for constitutionally protected structural change, as called for in the Uluru Statement from the Heart,” she wrote.

Dr McGlade wrote that WA Premier Mark McGowan has “refused to listen to any of the State’s Aboriginal Land Councils that the Bill was unacceptable, although his office had previously assured stakeholders they would not pass the legislation without substantial Aboriginal support”.

“Aboriginal land councils and leaders rejected as superficial the State’s consultation on the legislative reform and called for a co-designed process to allow for traditional owners to increase protection of heritage sites,” she wrote.