Australian investor and business groups have issued a warning to the Western Australian Government on the Aboriginal Cultural Heritage Bill.

The Dhawura Ngilan Business and Investor Initiative, led by the First Nations Heritage Protection Alliance in partnership with Global Compact Network Australia (GCNA), the Responsible Investment Association Australasia (RIAA) and the Australian Council of Superannuation Investors (ACSI), warn that the bill, tabled on Tuesday and passed through the lower house on Thursday, will fail Aboriginal people and is insufficient in protecting cultural heritage.

Executive Lead, First Nations engagement, Lendlease and Chair of the Dhawura Ngilan Business and Investor Initiative, Cath Brokenborough said any new heritage protection legislation must take “on board the lessons learned from the tragic destruction of the Juukan Gorge, so that such harm doesn’t occur again”.

“This Bill falls far short of providing that confidence,” she said.

Executive Director of GCNA, Kylie Porter, said the bill fails to “adequately take on board some key lessons learnt and responded to in the recommendations made by the A Way Forward report of the Federal Government Joint Standing Committee on Northern Australia”.

“[It] does not instill confidence that First Nations Australians’ rights, under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), will be protected with these proposed new laws, especially the principle of Free, Prior and Informed Consent,” she said.

The tragedy of Juukan Gorge opened the eyes of the investment community to their role in ensuring the protection of cultural heritage. RIAA CEO Simon O’Connor said the current legislation is insufficient and will “continue to see Western Australia as having elevated risks of the type seen in the tragic destruction of Juukan Gorge”.

“This Bill risks further damage to Australia’s great cultural assets, to the rights of First Nations peoples, as well as to the value of our investments in the companies and assets to which our members are directing capital,” he said.

“This risk has the potential to lead to a higher cost of capital for businesses operating in WA.”

Investors opposing the bill, join an already strong chorus of First Nations People who have been advocating against the bill since its drafting.

CEO of the Australian Council of Superannuation Investors, Louise Davidson said the poor engagement with First Nations People, the exclusion of First Nations voices in drafting, and the lack of protection for cultural heritage are the main sources of concern for investors.

“While long-term investors expect companies to go beyond mere compliance with minimum standards, the legislative framework provides a critical baseline. It is therefore crucial to make sure the law is robust and provides increased assurance that risks will be adequately managed and mitigated,” she said.

“The current Bill has been widely criticised by First Nations’ leaders, peak bodies and Native Title and cultural heritage specialists which deeply concerns us as long-term investors,” added HESTA Head of Impact Mary Delahunty.

Delahunty noted that many aspects of the Bill were “watered down” from the published draft in 2020.

“Of particular concern is the treatment of appeal rights that further entrench power imbalances between First Nations communities and mining companies,” she said.

“There is emerging consensus among representatives of First Nations peoples and the Responsible Investment industry that this version of the WA Bill sets the bar below international standards and will not prevent another Juukan Gorge.

“This confirms the importance of the findings of the Parliamentary Inquiry into the destruction of Juukan Gorge, that there is an urgent need to establish a consistent national legal framework for greater oversight.”

The Dhawura Ngilan Business and Investor Initiative have issued a call that the WA Government present legislation that is developed through a process of co-design with First Nations Peoples.

Victorian Aboriginal Heritage Council and Group CEO of the Dja Dja Wurrung Clans Aboriginal Corporation and Steering Committee member of the Initiative, Rodney Carter said First Nations peoples, along with business and investors, are expecting that any amendments to legislation addressing cultural heritage would only “strengthen First Nations peoples’ rights, consistent with our international obligations such as under the UNDRIP”.

“Greater protections and improved standards are ultimately to the benefit of all, especially our future generations that do not yet have a voice. Very disappointingly, this is not case,” he said.

The Dhawura Ngilan Business and Investor Initiative supports all recommendations of the Juukan Gorge inquiry, specific the need for new legislation to set out heritage protection consistent with UNDRIP and the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.

Currently, they note the Bill falls short of both these standards.

By Rachael Knowles