Article by Gerard Mazza for Arena

Woodside Petroleum’s Pluto onshore gas plant in Western Australia.

In August 2021, a 500-strong crowd led by First Nations people from across Western Australia gathered on the steps of Parliament House in Perth to protest the Labor government’s proposed new Aboriginal Cultural Heritage legislation. The rally was organised by the Kimberley Land Council (KLC), a peak Indigenous body from the state’s northernmost region.

A couple of days before the protest, KLC CEO Tyronne Garstone said that the government had failed to adequately consult on the Bill. ‘Fundamentally, this Bill will not protect Aboriginal cultural heritage and will continue a pattern of systematic structural racial discrimination against Aboriginal people’, he said. Mr Garstone was not alone in his objections, yet the calls of Traditional Owners were not heeded. In December 2021, the legislation passed through parliament. The 2021 Aboriginal Cultural Heritage Act came into force on 1 July 2023.

Last week, a crowd of around 700 people attended another rally on those same parliamentary steps, organised by farmers and pastoralists. It was the culmination of an aggressive campaign that began in the weeks before the Act came into effect, demanding that the laws be delayed or changed because they placed an undue burden on landowners. An hour before the rally began, WA Labor Premier Roger Cook confirmed the legislation would be scrapped entirely, after having been in force for just five weeks. Aboriginal Affairs Minister Tony Buti stood outside parliament and apologised to the gathered farmers for the ‘anxiety’ the legislation had caused them. ‘Obviously, we overreached’, he said, according to The West Australian. ‘We have listened to the concerns of the West Australian community—all parts of the West Australian community—that’s why we have announced that we are repealing the 2021 legislation’.

While Dr Buti claimed he had listened to everyone, the story of this bungled heritage reform shows that in Western Australia, some groups’ concerns are more easily pushed to one side than others. WA Labor, vocal in its support for an Indigenous Voice to Parliament, has consistently shown that when it comes to cultural heritage, it is not interested in listening to the voices of Traditional Owners whose land and spiritual traditions have been under continuous attack since colonisation.

Before the 2021 Act came into effect, Western Australia had in place 50-year-old cultural heritage legislation, passed in 1972, which empowered the Aboriginal Affairs Minister to consent to the destruction of heritage sites under a ‘Section 18’ approval process. Section 18 approval allowed Rio Tinto to destroy the Juukan Gorge rock shelters in the Pilbara in 2020, causing great distress to Traditional Owners represented by the Puutu Kunti Kurrama and Pinikura Aboriginal Corporation (PKKP), and a global outcry. But as the Joint Standing Committee on Northern Australia’s final report on its enquiry into the disaster makes clear, what happened at Juukan Gorge was not an isolated incident. The 2021 report found that Western Australia’s failed cultural heritage legal regime had ‘resulted in widespread destruction of tangible and intangible cultural heritage assets with Aboriginal and Torres Strait Islander people being left without assistance in dealing with developers’. Similar destruction has happened both before and since Juukan Gorge was desecrated. In its submissions to the Juukan Gorge Inquiry, the Yindjibarndi Aboriginal Corporation (YAC) pointed out that Fortescue Metals Group (FMG) had been operating iron ore mines at the Solomon Hub on Yindjibarndi country in the Pilbara region since 2008 and had destroyed two important rock shelters during that time, one of which was over 50,000 years old.

This week, the Federal Court is sitting at Bangkangarra on Yindjibarndi country, right nearby the Solomon Hub, as part of a landmark court case to determine how much FMG owes the Yindjibarndi people in royalties and compensation for mining on their country, or ngurra, without consent. Last week, YAC’s legal counsel told the court 249 cultural heritage sites had been destroyed by FMG under Section 18 approvals.

Many Traditional Owners describe damage to heritage, including cultural landscapes, as deeply traumatic. In an affidavit presented as evidence to the Federal Court dispute earlier this year, Yindjibarndi elder Tootsie Daniel said:

I get a tear in my heart just thinking about the mine destroying the country. Our ancestor spirits are being transferred into the train carriages. They were in the earth looking after our country. Now they are crying going to another country. They are crying to us. They are sacred. FMG shouldn’t be touching our ngurra. The spirits are crying to be home on their Yindjibarndi ngurra. They should be left alone.

Through its legal action, YAC will hopefully gain a much-deserved share in the vast profits FMG has made from destroying the Yindjibarndi’s ancestral lands. The case may also set a precedent that could be useful for Traditional Owners across the continent in their dealings with miners. But to get near that point has been difficult and costly, especially given that FMG has allegedly fostered division within the Yindjibarndi community. And of course, the damage to heritage cannot be undone. Ms Daniel said in her affidavit, ‘I would always choose country over money, but it’s too late now’.

The PKKP people, The Yindjibarndi, and many other Traditional Owner groups have suffered because of the 1972 legislation that prioritised industry over First Nations people and gave proponents the right to legally destroy heritage sites.

Before its implementation, the WA government claimed the 2021 Act would offer ‘a modern legislative framework’ for managing heritage and ‘provide for local Aboriginal organisations with authority to speak for Country’. But many of those Aboriginal organisations had been loud and clear in their criticisms of the Act and the government’s lack of consultation on it since it had been in draft form.

A group of First Nations leaders from across the state, alongside heritage professionals and other supporters, signed an open letter in November 2021 in opposition to the Bill, claiming it breached ‘Australia’s international human rights commitments’.

While the laws abolished the Section 18 process and established an Aboriginal Cultural Heritage Council to oversee a new process and provide advice to the Aboriginal Affairs Minister, the Minister still ultimately had final say to rule that heritage sites could be destroyed.

The open letter said:

The Bill does not allow for Aboriginal people to ensure heritage and site protection—without the agreement of the proponent and/or the Minister for Aboriginal Affairs. Aboriginal people have repeatedly requested improved legal protection of heritage sites, but the Bill is weighted against Indigenous custodians in all processes involving heritage applications to conduct activities that disturb or destroy areas of cultural heritage.

Many First Nations people were also concerned by the government’s lack of consultation on the Act. The Yamatji Marlpa Aboriginal Corporation recently stated that since the review of the 1972 legislation began in 2018, it had ‘provided close to 200 pages of considered feedback and consistent advice in the form of written submissions’, much of which went unanswered.

In June, before the Act came into effect, farmers began a frantic campaign against the laws, and were quickly backed by miners and local governments. Some of the freshly-raised concerns around the Act were valid, including that Aboriginal organisations were not sufficiently resourced to undertake negotiations with proponents, that some rules were arbitrary, and that a working approvals system was not in place. Yet many of the arguments against the Act were absurd and paranoid. For example, The West Australian reported on one farmer who feared Aboriginal people would falsely claim intangible heritage sites existed on farms and ‘make it up as they go’. ‘Basically, those Aboriginal corporations can ransom you in any way they feel and there is absolutely nothing you can do’, he falsely claimed.

Misinformation was rife on Facebook, with debunked posts claiming the laws would stop ordinary homeowners from pruning roses, planting carrots or burying pets. Liberal and National politicians joined in the frenzy, despite the fact the state Opposition had voted for the laws. Federal Liberal Senator Jonathon Duniam went so far as to tell Sky News the legislation was a ‘secret Labor takeover of the Aussie backyard’. These kind of fear tactics used against the Act were reminiscent of those used in Western Australia by miners, pastoralists and Brian Burke’s Labor government to successfully tank the national push for meaningful land rights in 1984.

Corporate media went hard in amplifying landowners’ criticisms of the Act. A journalist for Western Australia’s only newspaper, The West Australianbragged this week that Roger Cook would not ‘have wound back new heritage laws had it not been for the work of the media, in particular The West Australian, on this issue in recent weeks’. Now, After years of putting out press releases describing the 1972 heritage legislation as ‘outdated’, WA’s Labor government is planning to revive those very same laws, with minor amendments. The Section 18 approval process will return, though Traditional Owners will now have the same rights as proponents to appeal ministerial decisions.

In an interview for Ngaarda Media last week, National Native Title Council Chair Kado Muir told me the new right to appeal was not enough, and Traditional Owners, not politicians, should have final say on heritage. He said:

What we want is no Section 18s without our approval … Just getting a stool at the table to tinker with [Ministerial] consent to destroy our heritage sites—this is what we’re trying to get away from … We’re trying to get away from legal destruction of our heritage sites.

Aboriginal organisations have had varying responses to the Act being scrapped, though all I’m aware of seem to agree that the government has failed to ensure protection of heritage. The KLC ‘cautiously welcomed’ the decision, but made clear the restored 1972 legislation should only be an interim measure. PKKP, meanwhile, said in a statement it was ‘devastated and angered’. The organisation’s Land and Heritage Manager Jordan Ralph said the reversal was ‘among the worst decisions for Aboriginal cultural heritage protection this country has seen’.

Kado Muir said Native Title groups and Aboriginal organisations, many of whom had spent a great deal of time and resources in preparing for the new Act, have been left in ‘confusion and disarray’.

Ultimately, neither the 1972 nor the 2021 legislation is sufficient. Since 2018, when a review of WA’s Aboriginal heritage laws began, nothing has been achieved, even after promises that things would change following the international scandal that was the destruction of Juukan Gorge. Over the past six years, Traditional Owners have not stopped pushing for meaningful change.

The whole sorry debacle proves the point made in Arena Online by Jon Altman and Dan Tout three years ago: that destruction like that which occurred at Juukan Gorge ‘is structurally embedded in the settler-colonial extractive logic on which the Australian nation was founded and on which it continues to prosper’. It will take a fundamental shift in values for heritage protection to be properly enacted. As things stand, Aboriginal heritage will only be protected if doing so does not pose a threat to powerful economic interests. In Western Australia, the resources industry is king, and its continuous expansion is prioritised above all else. If we wish to see material change for the better, there are great struggles ahead of us.

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