The right of Traditional Owners to appeal to the State Administrative Tribunal under the proposed new Aboriginal Heritage Bill has now been removed from draft versions of the new law, despite strong recommendations for its inclusion.
On Thursday Western Australian Senator Dorinda Cox wrote to the state's Aboriginal Affairs minister Stephen Dawson outlining her grave concerns about the proposed legislation after receiving a briefing on the bill. She sent copies of the letter to Premier Mark McGowan, Attorney General John Quigley MLA; and Heritage Minister David Templeman.
Senator 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.
"The State Administrative Tribunal appeal rights were in draft versions and have been removed... They weren't in the 1972 Act, they were put in the earlier drafts on the recommendation of the consultation process and removed, to my understanding, on request of the minister, so the minister would have the final say. I directly queried this at the briefing.
"The removal of the SAT appeals power has wide legal ramifications. The SAT legislation was amended around 1994 to allow appeals by groups of people, coinciding with the introduction of Native Title. Without that right, it leaves the Supreme Court as the only option.
"It is removing human rights for us to have access to the legal and judicial process review. You leave people without the basic human right to appeal... How many PBCs (Prescribed Body Corporates) have the monetary component for legal costs outside the native title process?"
Senator Cox said not including the right to appeal to the State Administrative Tribunal "ducks and weaves the whole responsibility for good, sound harmonious legislation that allows people to exercise of Free, Prior and Informed Consent - as under the United Nations Declaration on the Rights of Indigenous Peoples".
"We are removing human rights by not providing that," she said.
Senator Cox noted that the Robodebt scandal was exposed and addressed through an independent appeals process.
"These processes need to be in place," she said.
In her letter, Senator Cox stated that the Bill "does not meet the principle of Free, Prior and Informed Consent under the United Nations Declaration on the Rights of Indigenous Peoples".
"As articulated in the Joint Standing Committee's Final report into the destruction of Indigenous heritage sites at Juukan Gorge A Way Forward, true Free, Prior and Informed Consent means that the outcome is not predetermined, occurring prior to any exploration - including an independent assessment of proposed works and their impacts on the proposed area and evidence that consent was obtained without coercion," she wrote, adding that "[t]he Minister's ability to approve the destruction of Cultural Heritage where parties cannot reach agreement does not meet the principle of Free, Prior and Informed Consent".
She wrote that it is her understand that "existing section 18 approvals will expire within 10 years unless work has been 'substantially commenced' and there will be a 12 to 18 month period in which section 18c can be approved".
Senator Cox noted that $120 million in funding was announced in the State Budget to fast-track major project approvals in the mining, oil and gas industries, and wrote that any continued approvals under section 18c, alongside the need to demonstrate work has been "substantially commenced", will result in "the further and more extensive destruction of First Nations Cultural Heritage" in a system the the Juukan Gorge inquiry described as 'damage by permit', facilitating "the legal destruction of First Nations heritage by mining companies".
She urged the state government to set a goal of 100% Indigenous membership of the Aboriginal Cultural Heritage Council, rather than the proposed "majority" requirement, to "ensure self-determination of decision making is being exercised by First Nations people and that the State Government actively source the technical skills required through your Aboriginal Procurement processes".
Senator Cox detailed a number of other concerns in the letter and urged the Minister not introduce the Aboriginal Cultural Heritage Bill 2021 into Parliament in its current form and "instead work with First Nations people to put in place best practice First Nations cultural heritage protections in WA".
The National Indigenous Times sent several questions to the office of Minister Dawson, including asking if the recommended right to appeal to the SAT would be enshrined in the new law and if not â" why not, and also asked what mechanisms for procedural fairness would be included in the bill.
A spokesperson for Minister Dawson said "please refer to previous responses we've made to the NIT on the ACHB [Aboriginal Cultural Heritage Bill]. We have nothing further to add".