The Western Australian Cultural Heritage Bill has become legislation.

Despite months of advocacy and opposition, the bill was passed in WA Government without amendment.

National Native Title Council (NNTC) has on Thursday, come forward openly condemning the new bill noting that it was not co-designed with Traditional Owners, which is required by national best practice standards and a key recommendation of the Juukan Gorge Parliamentary Inquiry.

“As we have stated repeatedly, the bill does not make Traditional Owners the decision makers in the protection and management of their cultural heritage,” said Gundjitmara Djabwurrung man and CEO of NNTC Jamie Lowe.

“If you want to change a history of heritage destruction to a future of heritage protection, Aboriginal people must have an independent right of review for ministerial decisions, with genuine power to make decisions about heritage sites.”

Those strongly opposing the bill included several Traditional Owners, Aboriginal leaders, land councils, and had recently found criticism from the United Nations Committee on the Elimination of Racial Discrimination.

The Committee was contacted in September by a group of senior First Nations leaders including Dr Hannah McGlade, Slim Parker, Kado Muir, Dr Anne Poelina and Clayton Lewis. The group had requested the committee to review the legislation, as they deemed it incompatible with the nation’s obligations on racial discrimination.

In response, Marc Bossuyt, Vice-Chair of the United Nations Committee on the Elimination of Racial Discrimination, wrote to Her Excellency Sally Mansfield, the Permanent Representative of Australia to the United Nations Office in Geneva.

He noted that the draft bill “allegedly fails to respect, protect and fulfill the right to culture of Aboriginal peoples”.

“The Committee is concerned about the allegations that the consultation process on the draft bill was not adequate, notably by not assigning enough time to evaluate particularly important topics for Aboriginal peoples, such as whether the draft incorporates the right to free, prior and informed consent of concerned communities.”

On Tuesday, the Aboriginal Heritage Action Alliance (AHAA) condemned the McGowan Government for rushing through the legislation.

Nyikina Warrwa Traditional Custodian and academic, Dr Anne Poelina said what laid at the hands of the government was an opportunity to “right the wrongs and discard racist laws”.

An opportunity they “squandered”.

“Our power to speak for our Country and self-determine how it is protected has been disregarded. We won’t stop until our voice is heard,” she said.

“Our determination to gain justice stays strong. We will redouble our pursuit of justice through the United Nations and look to the national stage to override the WA laws.”

Dr Anne Poelina alongside members of AHAA. Photo supplied Original Power.

The new bill requires Traditional Owners to negotiate a cultural heritage management plan – for which their consent is not mandatory.

It also enables developers the ability appeal to the state administrative tribunal on ministerial decisions. However, Traditional Owners have not been provided the same right of appeal.

“As we have continually communicated, one of the major issues with the current Bill is that it leaves ultimate decision-making power in the hands of the relevant Minister where a proponent or developer and an Aboriginal party cannot agree,” said Kado Muir, Ngalia Cultural and Community Leader, Chairman of National Native Title Council and Co-Chair of the First Nations Heritage Protection Alliance continues.

“This will be business as usual on our sacred sites, which leads to the continued destruction and desecration of Aboriginal cultural heritage.”

The bill has gained strong criticism for its disregard for the recommendations of the Juukan Gorge Inquiry.

MLC for South Metro, Dr Brad Pettitt noted this disregard in whilst addressing Parliament on Tuesday.

“Inquiry recommended, to quote ‘an ability for Traditional Owners to withhold consent to the destruction of cultural heritage’. Again, it’s not in this bill – even though it was something that the Juukan Inquiry recommended,” he said.

“The Inquiry recommended, to quote ‘mechanisms for Traditional Owners to seek, review or appeal decisions’. Again, certainly not in this bill. The list goes on.

“We have one of the most important inquiries in this space bringing down its recommendations just over a month ago – and the recommendations are not reflected in the bill before this Parliament.”

“That again is a lost opportunity, you have to ask why are we rushing this through when that report? [This inquiry] and its recommendations should have actually been at the very heart of rethinking, co-designing and modifying this bill before it came to this Parliament.”

Dr Pettitt noted that whilst reform was necessary, “unfortunately this bill doesn’t do what is necessary to prevent another Juukan Gorge disaster from happening”.

In October, the National Indigenous Times reported that the McGowan Government had been accused of holding private screenings of the draft legislation to select people, in attempt to rally support.

It was understood many senior Aboriginal leaders have been excluded from said presentations, and those who have been offered private presentations have refused due to invitations not being extended to relevant legal professionals, industry experts or all relevant Traditional Owners and Aboriginal community members.

In November, Kimberley Land Council (CEO) Tyronne Garstone accused the state government of being “arrogant in their approach” and “ignoring the calls of a minority to drive their own agenda”.

“By ignoring our concerns the McGowan Government has treated Aboriginal people beneath contempt,” he said.

Kimberley Land Council CEO Tyronne Garstone. Photo by Hannah Cross/NIT.

Garstone noted that the bill, “fundamentally”, would not “protect Aboriginal cultural heritage” and will continue a “pattern of systematic structural racial discrimination against Aboriginal people”.

“The Aboriginal Cultural Heritage Bill 2021 is whitewashing. Aboriginal concerns about Aboriginal heritage have been ignored,” added KLC Chair, Anthony Watson.

Banjima Native Title Aboriginal Corporation (BNTAC) have also strongly opposed the bill.

BNTAC Vice Chair and senior Banjima Elder, Slim Parker, in November, noted that once again Traditional Owners have been disrespected by the state government.

“It has been this way since colonisation, Aboriginal people have been controlled though legislation and the systems of government which have in-built systemic racism. This Bill is yet another example of this,” he said.

“It is the Minister, or people selected by the Minister, who have the final say as to whether our heritage will be destroyed. It is the Minister who decides who will sit on the Aboriginal Cultural Heritage Council. Nothing changes with this legislation – we continue to be controlled by government.”

Banjima Elder Slim Parker at the Aboriginal cultural heritage protest on August 19. Photo by Hannah Cross/NIT.

Whilst the bill has been enshrined into law, it seems opposition against it will not fade.

The NNTC is continuing to lobby key beneficiaries to compare the new heritage legislation against the best practice principles from Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia and the Best Practice Standards in Indigenous cultural heritage management and legislation.NNTC says comparison will ensure activities don’t impact heritage sites unnecessarily.

The Council will also continue to lobby the Federal Government and the United Nations.

They note that the “demonstration of discriminatory intent of legislation is now real” for WA Traditional Owners, however, the fight against the legislation will continue.

By Rachael Knowles