17 November 2021
Dear Mr Cali-Tzay*
Re: Early Warning and Urgent Request for UNCERD Review – Aboriginal Cultural Heritage Bill (Western Australia), 2021 (Bill)
The Aboriginal Heritage Action Alliance is made up of senior Aboriginal people from across Western Australia. Our work has concerned the introduction of the Bill, and the urgent need to strengthen legal protections for heritage sites in Western Australia. There is a long history in Western Australia of mining companies and developers having government support to damage and destroy Aboriginal lands. We wanted to ensure that this new law would incorporate best practice in heritage protection, however, we have not been heard by the state.
On 10 September 2021 Aboriginal people with respected cultural authority from this group made the Early Warning and Urgent Request to the UNCERD, under instruction from Dr. Hannah McGlade, UNPFII member. Other signatories are respected cultural leaders Slim Parker, Kado Muir, Clayton Lewis, and Anne Poelina. The request is representative of the overwhelmingly unified position of Aboriginal Western Australians in their strong opposition to this Bill, including all West Australian Aboriginal Land Councils in the state and additionally the Prescribed Bodies Corporates (PBC’s).
Under the Bill, the Minister for Aboriginal Affairs maintains over-riding control of decisions in respect of protection, agreement-making and appointments. This effectively means the Minister and state may continue to allow for the lawful destruction of sacred sites like those blasted by Rio Tinto at Juukan Gorge in May 2020.
This Ministerial right of over-ride effectively removes the right of Aboriginal people to make decisions to protect their heritage.
We have 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. Aboriginal people – unlike the companies and developers seeking permission to damage or destroy heritage sites, also have no right to merits review.
The Bill entrenches systemic discrimination against Aboriginal Western Australians in the State’s land use and development approvals processes.
Overall, the Bill exposes Aboriginal cultural heritage to continued damage and destruction, in violation of international human rights.
The WA Government has refused to share the many drafts of Bill with any Indigenous group for comment since the May 2020 draft, despite repeated requests. They implied that the Bill would not proceed without significant Aboriginal support. Yesterday the government announced they would table the Bill today and it is set to pass under expedited procedures enabled by the COVID crisis. This is a shocking betrayal to Aboriginal people and exposes the states disrespect of Indigenous peoples.
We seek your urgent attention; the law will pass before the parliament breaks this month.
Dr. Hannah McGlade on behalf of the Aboriginal Heritage Alliance WA
*Francisco Cali-Tzay is United Nations Special Rapporteur on the Rights of Indigenous Peoples