Aboriginal people are yet to see a copy of the current draft of the Western Australian government’s Aboriginal Cultural Heritage Bill, according to the WA Alliance of Native Title Representative Bodies and Service Providers.

The Alliance members are the Yamatji Marlpa Aboriginal Corporation, South West Aboriginal Land and Sea Council, Native Title Services Goldfields, and National Native Title Council.

A spokesperson for the Alliance told the National Indigenous Times that while “the government invited submissions on the 2020 draft”, they “have not shared a summary of submissions and key findings”.

“Many Native Title Representative Bodies and Prescribed Body Corporates have asked to see the draft bill in full, but the minister has not yet made it available,” they said.

“This puts Aboriginal people at a significant disadvantage in being able to comment on and negotiate improvements to the bill.”

“It doesn’t meet the standard set by the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) principles, which require governments to obtain the free, prior and informed consent of Indigenous peoples before adopting and implementing policies which may affect them.”

Five Aboriginal leaders – Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade – have requested that the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) review the draft Aboriginal Cultural Heritage Bill.

The Alliance spokesperson also said Aboriginal people “are not feeling heard on areas of key concern, such as informed consent and the right to say no”.

“It is possible to balance heritage protection and economic outcomes, using a framework based on substantive, authentic and sustained engagement between Aboriginal people, government and industry,” they said.

“This is a once-in-a-generation opportunity to get heritage protection right, with co-designed laws that will protect cultural heritage.”

Barrister and former WA Law Society President Nicholas van Hattem told the National Indigenous Times that the Bill missed “an opportunity to bring about real structural change”.

“I recently attended an event [on this issue] with a number of speakers… It was the sort of audience that bemoans our inability to close the gap, yet here is a genuine opportunity to provide First Nations communities with not only greater economic power but, perhaps more importantly, genuine autonomy, sovereignty and independence,” he said.

“The stark thing was ‘oh, we can’t possibly grant a veto’ for First Nations people [over proposals impacting culturally significant sites]. Basically, it seems the reasons why there is no veto are pretty racist.

“The notion that ‘if we give First Nations groups a veto, they are not currently equipped to do the hard work to resolves some of these questions’ – that strikes me as pretty racist.”

He described Juukan Gorge as a “watershed moment”.

“This is an opportunity to bring about real structural change but I haven’t seen that in the provisions.”

“This Bill does not respond to Juukan Gorge the way the community has responded to it. It has been remarkable how strong the community response has been. In my perception there would be public support for a veto.”

Van Hattem said “significant capacity building will be needed as a result of this Bill”.

“The [new] heritage Act creates obligations for Aboriginal corporations and it’s not obvious that will be met with sufficient funding.”

The National Indigenous Times understands that much will depend on what falls in Tiers 1 and 2 categories defining the prospective impact of an action/proposal, and what involvement local Aboriginal cultural heritage services (LACHS) might have, outlined in regulations yet unseen.

For Tier 2, formerly “low impact”, activities, there will be a need to inform the LACHS and then an onus on the LACHS to communicate their comments and concerns to decision-makers on time.

For Tier 1 (the lowest impact category), it is understood that proponents may not have to contact the relevant LACHS and instead conduct a self-assessment – depending on what is ultimately included in the regulations and guidelines supporting the legislation.

Low impact permits would still apply to any Tier 1 activity carried out in an area that may contain Aboriginal Cultural Heritage.

Local Aboriginal cultural heritage services will need to be properly resourced to have full-time heritage staff, or the sheer volume of low impact permits will almost certainly result in a lot of unfunded work for Aboriginal organisations, with missed opportunities to provide meaningful comment within timeframes.

Adding to the concerns surrounding the Bill is the absence of the right to appeal to the State Administrative Tribunal.

WA Senator Dorinda Cox, a Yamatji-Noongar woman, told the National Indigenous Times that the right to appeal to the State Administrative Tribunal had been recommended to the government during public and stakeholder consultation and included in earlier versions of the bill, then removed from the latest draft.

Last Friday morning, the National Indigenous Times sent the following questions to the office of Minister Dawson:

“What is the estimated time frame for [the Bill] being tabled in Parliament?  Has it been delayed for further consultation or review? If it has been delayed, please advise for what purpose?

“Which groups and companies have been briefed on the latest iteration of the Bill? In particular, which Traditional Owner / Indigenous groups have been briefed on the latest iteration of the Bill?

“Our understanding is that with properties under 1,100sqm being exempt, some 53,879 lots in the Perth metropolitan area would be captured by the legislation. Please clarify which properties are exempt from the Bill. Does it apply to everything bigger than 1,100sqm?

“To reiterate an earlier question: what rights of appeal will Traditional Owners have under the new Act? What provision is there for independent arbitration (along the lines of the SAT [State Administrative Tribunal])?”

The Minister refused to comment.

The National Indigenous Times has published every response, either in full or in part, provided by the Minister on this subject to date, who has refused to answer our questions three times in the past ten days.

In the interest of fairness, below are comments Minister Dawson provided in August, which we are now publishing for the third time, in lieu of more recent answers.

Minister Dawson said that under the new Bill, “decisions about what qualifies as Aboriginal cultural heritage will be in the hands of Aboriginal people, this is not the case under the 1972 Act”.

“The Bill provides Aboriginal people with the opportunity to directly take part in the protection of their cultural heritage through establishment of the Aboriginal Cultural Heritage Council and Local Aboriginal Cultural Heritage Services. Neither of these bodies exist under the 1972 Act.”

He added that more stakeholder meetings and public submissions had driven “more than 100 changes to the draft Bill”, which “is stronger as a result”.

By Giovanni Torre