Terra Rosa usually refrains from publicly commenting on political issues, however in light of the State government’s reactive decision to repeal the Aboriginal Cultural Heritage (ACH) Act 2021, we feel that it is necessary to lend our voice to the situation.
The announcement by Premier Roger Cook this week overturning the ACH Act is a disappointing backwards step in how Western Australian laws and regulations protect and manage Aboriginal Culture and Heritage. After throwing away the product of over five years of proposed reform and extensive public and stakeholder consultation, after just five weeks of implementation, the state government has sent heritage management and protection regimes into chaos. Aboriginal people and groups are once again being left in the dark and no better off under a government that claims to look after the most vulnerable West Australians.
All people in Western Australia share in the ongoing legacy of over 60,000 years of the world’s oldest continuous culture. We see how this is celebrated throughout our community as awareness of this legacy grows within the broader population. As Australia progresses towards constitutional recognition of Aboriginal People, this decision is off the mark with the expectations of many members of the WA community and advocates for Aboriginal cultural heritage. It is at odds with larger movements at national and international scale to reform protection measures for indigenous cultural heritage, and, in our opinion, is unlikely to create anything but further complexity and ambiguity in the approvals processes for stakeholders.
The Aboriginal Heritage Act (AHA) 1972 was characterised by the controversial section 18 approvals process which led to the legally approved destruction of Juukan Gorge as well as countless other cultural heritage sites, with a very high proportion of section 18 applications being approved and no need for the notification of Aboriginal groups whose heritage was at stake. In the DPLH’s last Annual Report it is documented that in the 2021-2022 financial year, the ACMC processed 57 section 18 applications, with 196 sites considered (and mostly approved for destruction) during these monthly meetings. As part of this process, there is no legal requirement for either the proponent or government to inform Traditional Owners of the decisions made, and whether their heritage places will or will not be impacted. They are not invited to the table.
The new legislation, whilst not perfect, changed this process to focus on ensuring engagement, informed consent, and promoting agreement-making between Traditional Owner groups and Proponents. This was to include the collaborative design of Cultural Heritage Management Plans which provided a detailed roadmap to minimise damage to Aboriginal heritage during a program of works.
As we return to a 50-year-old system that is not fit for current purpose we are reverting to an adversarial system whereby any potential right of appeal will not alter the initial granting of Section 18 approvals to the detriment of Aboriginal Cultural Heritage.
The Minister’s response to the effect that he and the previous minister had not approved Section 18s without evidence of consultation is arbitrary: there are no guidelines on what may be considered as consultation, much less what constitutes informed consent. Further, the Minister may weigh into any potential appeals “for the benefit of all Western Australians” – so again there appears to be a large disconnect with any regime designed for protection. The arbitrary power of the ACMC, the Registrar, and the Minister under the Act have all in the past been used to the detriment, and rarely for the protection, of Aboriginal heritage. The Premier’s declaration that the DPLH intend to conduct their own heritage surveys in priority development areas over the next ten years is therefore incredibly problematic.
In the WA government’s press release they committed to three “critical” amendments to the Aboriginal Heritage Act 1972 (WA) which they believe will “prevent another Juukan Gorge”. To be clear, the only additional protection measures that is being offered by these amendments to the AHA are:
- a “right of review” of section 18 decisions by native title parties – not consultation or consent;
- the Premier being able to “call-in a decision of State significance” – for sites where the Minister believes one is necessary; and
- a requirement to notify the Minister about any new information about a cultural heritage site – though once a s18 has been approved and acted upon, this information may come too late to prevent another Juukan Gorge scenario.
This still leaves critical decisions on Aboriginal heritage destruction in the hands of the ACMC, Minister, and Premier, and out of the hands of the Aboriginal people – the owners of their cultural heritage. Any potential appeals process will be costly, timely, and resource consuming for under-resourced Aboriginal groups and will only cause further heartache. The proposed amendments to the AHA will not achieve better protection, will not lead to better or clearer approvals pathways, and will not prevent another Juukan Gorge. To be clear, the ACH Act was not developed in response to Juukan Gorge – it was fast tracked because of Juukan Gorge. The road to heritage reform was already in development because it was necessary.
The Aboriginal Heritage Act 1972 is completely out-of-date with modern land use pressures and with the desires of Aboriginal communities to actively manage their own Country. It is not aligned with Native Title, undermines traditional decision making through consultation for the sake of approvals, and has never been applied in a manner that benefits Aboriginal land managers.
It is highly disappointing that this backflip by the government has largely been at the instigation of a vocal minority who had largely been incorporated into activities deemed “exempt”, and/or Tier 1 / ‘like-for-like’ – neither of which required any approvals under the ACH Act. Undermining five years of consultation and reform is the misperception that general landowners would have to undertake costly heritage surveys on their properties to plant trees, install garden sheds, or repair existing fences. In preparing for this transition to the new legislation, Aboriginal groups (particularly those who wished to become Local Aboriginal Cultural Heritage Services) have spent the last few years planning, hiring new staff, applying for readiness grants, training, updating their resources, re-negotiating agreements, and investing in their plans to manage their cultural heritage assets. Now these new organisations, staff and plans are completely irrelevant. This represents a huge and unfair burden on already under-resourced local not-for-profit Aboriginal organisations who are the main victims of this decision – yet received no apology or afterthought from the Premier during either his press conference or on official government statements.
While not perfect, we believe the ACH Act was inherently designed to empower local Aboriginal people as active decision-makers on the disturbance, protection, and conservation of their cultural heritage, and established potential frameworks for their ongoing management of country. It also offered Aboriginal groups direct agreement-making with land users that would have worked towards enshrining the UNDRIP principle of Free Prior and Informed Consent into our heritage management frameworks, bringing us into line with national and global trends on working with First Nations peoples in decisions regarding their lands, water, and cultures. In the five weeks it was live, the ACH Act was not given the opportunity to be fairly tested during what should have been a year-long period where proponents and landowners would be exempt from prosecution while the legislative transition occurred.
Terra Rosa’s staff pass on our empathy and support to the communities that we work with as we all come to terms with wasted planning and aspirations, and grapple with how to keep those aspirations alive in the face of this turn around.
We are also thinking of the many individuals who we know have poured a lot of time and care into creating a fair and progressive approvals framework that primarily aimed to recognise the value of Aboriginal cultural heritage, and give Aboriginal people the right to engage with how those values should be cared for. It wasn’t perfect, but it was a hopeful step in the right direction.