WA premier Roger Cook axes Aboriginal cultural heritage laws after outcry by landholders

Article by Sarah Collard and Josh Butler for WA Today

Government apologises for new laws it says went too far and placed unnecessary burdens on everyday property owners

Western Australian premier Roger Cook has repealed Indigenous cultural heritage laws amid concerns they were confusing and difficult to implement. Photograph: Richard Wainwright/AAP


The Western Australian government has apologised and scrapped its controversial Indigenous cultural heritage protection laws just weeks after they came into effect.

The premier, Roger Cook, and Aboriginal affairs minister, Tony Buti, made the announcement after days of speculation and months of intense pressure from the state’s farming, mining and pastoralist industries over concerns the new laws were confusing and difficult to implement.

“Put simply, the laws went too far, were too prescriptive, too complicated, and placed unnecessary burdens on everyday Western Australian property owners,” Cook said.

Cook apologised for the laws on Tuesday: “I understand that the legislation has unintentionally caused stress, confusion and division in the community, and for that I’m sorry,” Cook told reporters.

After widespread outrage at mining giant Rio Tinto blasting of the 46,000-year-old Juukan Gorge in the state’s Pilbara region in May 2020, the state promised to update the cultural heritage laws under which the destruction was permitted to go ahead.

Section 18 of the act permitted Rio Tinto to blow up the site even after further archaeological digs uncovered artefacts and sacred objects signifying the importance of the site were found.

“The original intent of the legislation changes in 2021 was to prevent another Juukan Gorge tragedy, and my government will deliver on that commitment. But our response to Juukan Gorge was wrong. We got the balance wrong.”

The state’s cultural heritage laws will revert back to the 50-year-old 1972 laws which the government says will be strengthened to provide greater power to traditional owners.

Buti said in a statement that they had listened to community feedback about the laws.

“We have listened to the concerns raised and taken the time to assess its impact and now found a way forward that is fair, reasonable and responsible,” he said.

Buti said the government had admitted that the laws were too complicated and apologised publicly.

The state government said the reformed 1972 laws will outlaw gag orders on traditional owners and that agreement making with be a “key principle” to ensure that Aboriginal people can have “a central role in decisions about their own heritage”.

“Critical” amendments to the restored legislation from 1972 include: the right of review of decisions granted under the controversial section 18 process. If consent is granted to destroy recognised cultural heritage, the owner will be required to inform the minister of any new information to “help prevent another Juukan Gorge”.

The chief executive of the National Native Title Council, Jamie Lowe, told Guardian Australia the state’s cultural heritage laws had been a “total disaster” and left Indigenous groups and native title owners frustrated and angry: “This has been flawed from the start,” Lowe said.

He said the state government had failed to adequately consult First Nations groups during the five years the legislation had been drafted and reviewed.

“The actual implementation to this has been an absolute disaster, everyone has their issues with the laws,” Lowe said.

“You get the result of this: a waste of taxpayers’ money, people’s time and energy and net result of zero … The arrogance was there for all to see, First Nations groups didn’t want to be consulted to, they want to be worked with and they want to actually be there throughout all these discussions.”

Lowe said the group’s members felt frustrated at a lack of consultation and being put through a painful process of trying to improve the protections on sacred cultural heritage.

“The trauma that we’ve been put through. It’s not easy having to go out there and fight for protection of your heritage and your voice is not getting heard … that’s a traumatising experience for First Nations groups.”

The prominent Western Australian barrister Greg McIntyre, who worked on the landmark Mabo case, said the government backtracking over the laws was unprecedented.

“I’ve never heard of anything like this ever happening before,” he said. “I think they had good intentions. But I think what happened is towards the end of the process, they didn’t engage in adequate consultation about these laws.

“Certainly a right of appeal would be good because there wasn’t one in the current 1972 legislation. Those are improvements on the previous legislation but we’ll just have to wait and see how they implement it,” McIntyre said.

Indigenous leaders including Kado Muir, Anne Poelina, Clayton Lewis and Hannah McGlade are calling for substantive reforms and an “urgent roundtable” with the Western Australian government to ensure new reforms adequately protect cultural heritage.

“We need a commitment for co-design of an improved law that will better protect cultural heritage, they said in a written statement.

“The Premier must convene an urgent roundtable of First Nations leaders to do this. It is critical that our Voices are finally heard and listened to on cultural heritage protection.”

Nationals MPs have repeatedly demanded the Labor government rule out such laws on a federal level, despite the government having no plans to do so, while opponents of the voice to parliament have sought to link the referendum to the heritage laws, despite there being no formal connection between the two.

The Nationals leader, David Littleproud, called the Western Australian government’s changes to the laws “common sense”.

“This is a victory for the people of Western Australia who made their feelings clear during the Let Farmers Keep Farming event in Katanning, that they did not support this major government overreach,” he said in a statement.

“We must now get a guarantee from the federal Labor government that it will not implement similar laws on a national scale.”

The federal environment minister, Tanya Plibersek, was asked numerous questions about the Western Australian laws in recent parliamentary sittings. She told question time on Monday: “I don’t know how often I can say to this place what I said every day last week in question time: we are not for one moment intending to take on the cultural heritage protection laws of any state or territory.

“We’re not talking about duplicating, copying, adopting any WA laws,” she said.

The Western Australian government has been contacted for further comment.

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