Article by the Environmental Defenders Office

The West Australian parliament has passed new cultural heritage legislation, just days after a United Nations committee raised concerns about the new laws.

The UN Committee on the Elimination of Racial Discrimination (CERD), issued a response to a request by a group of prominent Western Australian First Nations people – Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade – for the Committee to review the proposed cultural heritage bill.

The Environmental Defenders Office worked closely together with the authors, and particularly Dr Hannah McGlade and Slim Parker, to draft the request. Our clients asserted that the WA bill is incompatible with Australia’s international obligations on racial discrimination and sought intervention under the early warning mechanism of the Committee. More detail is available here.

The bill, now the Aboriginal Cultural Heritage Bill 2021 (WA) (ACH Bill), passed through parliament late on the evening of 14 December 2021 and will formally be the Aboriginal Cultural Heritage Act 2021 (WA).

The Vice-Chair of the UN Committee responded to the request on 3 December 2021 by letter directed to Australia’s Permanent Representative to the United Nations Office, Geneva (as is the custom) and received by our office on 10 December 2021. You can read the letter here. The Committee expressed concern about the ACH Bill and the process of consultation followed. The Committee noted that, based on the information it has received, it is particularly concerned about:

• whether the ACH Bill appropriately incorporates the right to free, prior and informed consent of concerned communities;
• the role of the final decision maker (the Minister for Aboriginal Affairs) where there is no agreement between Aboriginal people and a proponent. In particular, that the Minister has overly wide discretion that is ‘based on an ‘interests of the State’ test and without establishing a clear requirement to protect such heritage from degradation or destruction’. In this context, the Committee noted that, based on the information received, the discretionary power attributed to the Minister and the ‘absence of effective remedies and legal redress for Aboriginal peoples to challenge his decisions will maintain the structural racism of the cultural heritage legal and policy scheme’ in WA;
• whether there is an ability to review the Minister’s final decision by an independent administrative tribunal, and why such an opportunity to WA’s State Administrative Tribunal has been removed from the ACH Bill; and
• that there appears to be no mechanism of review by Aboriginal people of a refusal for designation of cultural heritage as a protected area.

The Committee noted that it had previously made observations to Australia to ensure that free, prior and informed consent is incorporated into pertinent legislation and fully implemented in practice. Further, the Committee recommended Australia ‘respect and apply the principles enshrined’ in the UN Declaration on the Rights of Indigenous Peoples.

The Committee has requested that the Australian Government respond by addressing the issues raised by the Committee and providing information on:

• the current status of the ACH Bill;
• any measures adopted to guarantee the right to consultation of Aboriginal peoples in WA regarding drafting of the ACH Bill; and
• any steps taken to consider suspending its adoption or withdrawing it until such consultations take place and consent is obtained.

The Committee also encourages the Australian Government to consider engaging with the UN Expert Mechanism on the Rights of Indigenous Peoples to provide technical advice on the development of the legislation and to facilitate dialogue between the government and Indigenous peoples. The Committee requests Australia submit their response by 30 March 2022.

The letter and the strength of the concerns expressed by the Committee are welcome for EDO’s clients. This is an important intervention and requires the Australian and Western Australian governments to consider their response and actions. In this context, we also note that the Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge was released when the ACH Bill was largely already finalised. The Inquiry Report ‘encourages the WA Government to review the ACH Bill and make amendments to address… concerns’ particularly with respect to final decision-making powers of the Minister. The valuable lessons from the Inquiry process have not been incorporated into the ACH Bill.

Although the ACH Bill has now passed, our clients’ concerns remain. The UN Committee process is still on foot and our clients now await the response of the Australian Government to the Committee’s letter.