There are growing calls for the WA Government to address problems with its Aboriginal Cultural Heritage Bill, including from an international campaign.
The Bill passed the Legislative Assembly late last week but can still be amended, or even withdrawn, before becoming enshrined in law. Critics of the Bill have argued it fails to deliver Indigenous-led decision making, and have condemned the absence of merits review and meaningful rights of appeal.
Extensive consultation recommended the Bill provide for the right to appeal ministerial decisions to the State Administrative Tribunal.
While the Bill provides for certain categories of ministerial decisions to be challenged at the tribunal, it does not allow what is seen as the most important right of appeal — against the minister’s approval of a heritage management plan.
The Bill would establish an Aboriginal Cultural Heritage Council which would, “as far as practicable”, have a majority Aboriginal membership — but not a 100 per cent Aboriginal membership, as has been called for by some stakeholders. It also stipulates that the members of the council would be nominated by the minister for Aboriginal affairs.
WA barrister Dr Greg McIntyre SC told the National Indigenous Times the Northern Territory’s equivalent body — which he described as the better model — was 100 per cent Indigenous and its membership was elected by the Territory’s four Aboriginal land councils.
“They make the primary decisions and are assisted by the Aboriginal Areas Protection Authority, which is an independent statutory authority whose governing body is nominated by the land councils, rather than public servants within the Government,” he said.
The senior barrister said the right to challenge the minister’s approval of a heritage management plan in the State Administrative Tribunal being excluded from the Bill “has an element of substantive racial discrimination”.
“On the face of it, they have removed not only the right of Aboriginal parties to seek review (of the approval of a heritage management plan) but also mining companies and developers, but when you look at the Bill as a whole . . . the minister is subject to review on a whole range of other matters that only involve (appeals by) developers and miners,” he said.
During the third reading of the Bill in the Legislative Assembly, Nationals MP for North West Central Vince Catania quoted Slim Parker, vice-chair of the Banjima Native Title Aboriginal Corporation, at length.
“We have a minister who does not appear to be representing us in the Government, instead he is representing the State and industry. It has been this way since colonisation Aboriginal people have been controlled through legislation and the systems of government which have in-built systemic racism,” he said.
Mr Catania went on to slam what he called “the deceit of the Aboriginal people . . . based on draft legislation by . . . the then-treasurer and minister for Aboriginal affairs, which gave Aboriginal people confidence that he was going to make sure that there would at least be the right to appeal the minister’s decisions”.
“We have missed a great opportunity to co-design a piece of legislation that, when we look back over our careers, we could say we played a role in changing the landscape and rewriting old legislation that did not allow Aboriginal people to have a say and to say no,” he said.
“We missed an opportunity to right the wrongs of the past.”
During the debate, Liberal MLA David Honey noted the destruction of Juukan Gorge by Rio Tinto “was actually authorised by a minister”. He added that Premier Mark McGowan “used his authority, his power, to just rush through this Bill — gag it through”.
Minister for Lands Tony Buti, who had carriage of the Bill in the Assembly due to Minister for Aboriginal Affairs Stephen Dawson being a member of the Legislative Council, said the new laws “mean that . . . Aboriginal people get to determine how their culture is to be considered, valued and managed”. He said Aboriginal people “were heavily engaged throughout the consultation phase”.
In September, a group of prominent First Nations people, in collaboration with the Environmental Defenders Office, made a formal request for the United Nations Committee on the Elimination of Racial Discrimination to review the Bill, arguing it was incompatible with Australia’s international obligations on racial discrimination.
The request, lodged by Mr Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade, notes the Bill does not adequately address the structural and historical issues and inequalities which have underwritten the past and contemporary destruction of cultural heritage in WA.
Two key issues raised in the request are that Traditional Owners are unable to say no to activities which will destroy significant cultural heritage, and that there is insufficient protection of the human right to culture, which prohibits States from destroying significant Aboriginal cultural heritage.
In her letter to Francisco Cali-Tzay, United Nations Special Rapporteur on the Rights of Indigenous Peoples, Dr McGlade wrote they had “witnessed 50 years of Aboriginal heritage sites, including sacred sites, lawfully destroyed under the ministerial power, and this will be continued under the Bill”.
“It is clearly weighted against Aboriginal rights and in favour of the mining companies and developers,” she wrote.
A number of Australian investor and business groups have also raised concerns over the Bill. The Australian Council of Superannuation Investors, the Responsible Investment Association Australasia, the First Nations Heritage Protection Alliance, and the Global Compact Network Australia collaborated to create the Dhawura Ngilan Business and Investor Initiative in October, “focused on strengthening Australia’s First People’s heritage laws and standards for the private sector to uphold the human rights of First Peoples”.
Chair of the initiative Cath Brokenborough said the Bill “falls far short” of providing confidence that harm on the scale of “the tragic destruction of the Juukan Gorge . . . doesn’t occur again”.
The executive director of Global Compact Network Australia, Kylie Porter, said the Bill “does not instil confidence that First Nations Australians’ rights, under the UN Declaration on the Rights of Indigenous Peoples, will be protected with these proposed new laws, especially the principle of free, prior and informed consent”.
The International Indian Treaty Council, an organisation of Indigenous Peoples from the Americas, the Caribbean and the Pacific, wrote to Mr McGowan that “the Bill, as written, impedes Indigenous peoples’ rights to their cultural traditions and customs, including the right to protect archaeological and historical sites”.
“We appeal to you to reconsider the imminent passage of the Bill into law and to conduct a co-design process with Indigenous stakeholders and/or include in the Bill measures that are consistent with human and Indigenous rights and to consult with Indigenous peoples on these new measures,” wrote council president Ron Lameman and executive director Andrea Carmen.
Many Indigenous organisations have urged the State Government to reconsider the legislation, including the Kimberley Land Council, South West Aboriginal Land and Sea Council, Yamatji Marlpa Aboriginal Corporation, and Banjima Native Title Aboriginal Corporation.
Kimberley Land Council chairman Anthony Watson wrote to the UN “seeking an urgent intervention from the (Committee on the Elimination of Racial Discrimination) to investigate the Aboriginal Cultural Heritage Bill 2021 (WA) before more irreplaceable cultural heritage is destroyed under a law that continues the systematic structural racial discrimination against Aboriginal people”.
By Giovanni Torre