WA’s new Aboriginal Heritage Act keeps mining interests ahead of the culture and wishes of Traditional Owners

Article by  for The Conversation

Only a year after the 46,000 year-old sacred Aboriginal site Juukan Gorge was destroyed by Rio Tinto, the West Australian Legislative Council in Perth will pass an Aboriginal Heritage Bill that puts the interests of mining companies above the wishes of Traditional Owners.

The Senate inquiry report into the destruction of Juukan Gorge “A way forward” called for a new national framework of Aboriginal heritage protection co-designed with Aboriginal people. It recommended the responsibility for Aboriginal heritage to be reverted to the minister for Aboriginal affairs.

The report also called for a review of the Native Title Act 1993 to address inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples under the future act regime. The report’s authors were clear future work should recognise the United Nations Declaration on the Rights of Indigenous Peoples.

This new law ensures mining companies can still apply to damage or destroy Aboriginal sacred sites, the minister for Aboriginal affairs still has the final decision making role to approve the damage or destruction of heritage sites, and non-Aboriginal “proponents” (mining companies and developers), can appeal if the result is not in their favour. Aboriginal groups have no such right of appeal if the ruling is not in their favour.

Aboriginal land councils ignored

The ALP majority government led by Premier Mark McGowan disregarded state Aboriginal land councils who expressed the bill was “unacceptable”.

An emergency request to the United Nations Committee on the Elimination of Race Discrimination outlining how the law entrenches systemic racial discrimination against Aboriginal Traditional Owners, was also ignored.

Aboriginal land council leaders called for a co-designed process to allow for Traditional Owners to increase protection of heritage sites. This was reflected in an Open Letter of Concern signed by 150 Aboriginal cultural leaders and renowned Australians. This letter pointed out the bill was weighted in favour of mining and economic interests over Aboriginal heritage, and breached United Nations treaty law.

However, Aboriginal Affairs Minister Stephen Dawson argued the bill would give better protection for Aboriginal heritage and was the right thing for his government to do.

The main concern with the bill is the ongoing role of the minister to grant approval to mining companies and developers to damage and destroy heritage sites. The new act has replaced the old section 18 process which allowed the approval of more than 1,000 permissions by the state to approve the damage or destruction of Aboriginal heritage sites.

Rarely had the minister refused a section 18 application and protected a site.

Since the Aboriginal Heritage Act commenced in 1972, mining companies and developers have always relied on the Aboriginal Heritage Act – and the minister’s final decision making power – to lawfully damage or destroy heritage sites, as Rio Tinto did with Juukan Gorge.

This new act adopts (and misuses) the language of international human rights law. It does this by referencing Indigenous people must be given the opportunity to provide “free, prior and informed consent” to the damage of sites.

However the United Nations says the test of free, prior and informed consent from Indigenous peoples includes the ability to exercise self determination, including over things which affect their lands. Given Indigenous peoples are not free to say “no” to harm, damage or destruction of their sites, this principle is not met by this bill.

The state’s relationship with Aboriginal people

Western Australia has made few meaningful attempts to respect First Nations people in its constitutional arrangements or systems of governance.

In 2015 the WA parliament, following extensive consultations, amended the state’s constitution to acknowledge Aboriginal people were the traditional custodians.

When he was opposition leader, McGowan said this was a “long overdue […] act of genuine reconciliation designed to reflect the historical reality of Western Australia.”

This act of genuine reconciliation appears to have been forgotten by the McGowan government during the passage of the Aboriginal Heritage Act.

In 2021 soaring iron ore prices led to a huge $5.6 billion budget surplus – with WA outperforming all other states. A further $2.8 billion was projected for the next financial year and ongoing budget surplus forecast through 2024 -25.

This staggering amount of income from mining underlines the state’s conflict with Aboriginal people who wish to protect significant cultural sites, and might explain why the views of Aboriginal people are not being heard and respected.

Unlike most of Australia, Aboriginal people have never had any land rights legislation in Western Australia. The mining industry’s impact on the state was and continues to be very influential.

We have a right to protect and preserve our lands

In September a group of West Australian First Nations people formally contacted the United Nations Committee on the Elimination of Racial Discrimination about the urgent action needed to address WA’s new heritage act.

The United Nations Committee on Friday, UN Human Rights Day  formally contacted the Australian government highlight the concerns, seek a formal response and request they work with an expert body called the Expert Mechanism on the Rights of Indigenous Peoples to remedy the act.

What has happened in our state, to heritage lands and sacred sites, highlights our continued dispossession as peoples without recognised sovereignty and Treaty rights. Our peoples’ human rights are at the whim of a state acting with multinational mining interests in mind. Recent history shows the weakness and hypocrisy of the state’s reconciliation promise and symbolic constitutional recognition.

This reminds Aboriginal people we must continue to demand meaningful structural change and reform, as articulated in the Uluru Statement from the Heart’s claim for “Voice, Treaty and Truth”.

Substantive reforms, not hollow promises, are critical to Australia’s realisation of the UN Declaration on the Rights of Indigenous Peoples. This includes the urgent need to honour our right to protect and preserve our respective lands, and our ancient heritage and culture.

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