After more than two and half years of community and industry engagement, the new Aboriginal Cultural Heritage legislation is almost ready to be introduced into Western Australia's Parliament.
There are few areas of law and public policy that are more challenging to achieve broad consensus than protecting Aboriginal cultural heritage in a resource development state like Western Australia.
The current Aboriginal Heritage Act 1972 (AHA) is an outmoded relic from an era when Aboriginal people and culture were not respected. The almost 50-year-old AHA has been at the centre of major flashpoints of conflict between Aboriginal communities and development interests; Noonkanbah, Argyle Diamond Mine, Marandoo, James Price Point and more recently, Juukan Gorge.
Attempts by different governments to reform the Act have failed because past draft legislative amendments have either been opposed by Aboriginal people or opposed by the mining industry.
The draft Aboriginal Cultural Heritage Bill 2020 will be a completely new law that will establish a totally new heritage protection system in Western Australia. There is broad agreement between Traditional Owners and the mining industry about the fundamental architecture of the new system. That agreement follows extensive consultation with Aboriginal people and industry who have had extraordinary input into the shape of the proposed legislation.
But the most important reason for this historic consensus is because the proposed heritage law reflects contemporary reality. Traditional Owners and miners increasingly deal with each other through Native Title negotiated agreements.
The proposed law enmeshes WA's Aboriginal cultural heritage regime in the Native Title system. It puts Aboriginal people at the centre of the whole system. It embraces the cultural authority of Traditional Owners who will define what Aboriginal cultural heritage is; not anthropologists whose status is enshrined in the current Act.
The proposed law uses the Native Title system where it can to empower Aboriginal people to negotiate agreements with miners and other land users. Under the proposed system, Local Aboriginal Cultural Heritage Services (LACHS) will be established to represent the views of traditional knowledge holders and negotiate cultural management plans with land users. In most parts of Western Australia, the LACHS will be Native Title Prescribed Bodies Corporate or other entities established under Native Title agreements.
The appalling process of granting S18 approvals for developers to destroy or damage Aboriginal cultural places through an assessment of the Aboriginal Cultural Materials Committee will be completely scrapped. The thrust of the proposed system is on agreement making, which after almost 30 years of the Native Title Act's operation is very advanced in Western Australia.
A new Aboriginal Heritage Council, to be chaired by an Aboriginal person and made up of experts in the broad area of Aboriginal cultural management, will have oversight and approve cultural heritage plans. The Council will set the strategic framework of the new heritage protection and provide policy advice to the Minister of the day.
Under the new law areas of state significanceâ"places important to the whole worldâ"can be determined by the Minister to have the highest legal protection possible.
The current Act fails to adequately punish people who wantonly destroy or damage places of significance to Aboriginal people. $20,000 is a paltry penalty for causing serious harm to Aboriginal people's cultural places. The new law elevates the maximum penalty for a corporation to $10 million and an individual to $5 million. These are the strongest penalties of any heritage protection laws in Australia.
Given the significance of the reform that is being proposed, it is somewhat surprising that there has not been more public discussion about the Aboriginal Cultural Heritage Bill 2020 since its public release more than a month ago. That may say something about Western Australia's evolving maturity as an inclusive society.
I can only imagine that if I had proposed a similar legislative reform ten years ago there may well have been virulent opposition by some in the mining industry. That says much about the acceptance of Native Title in Western Australia and also the recognition by the mining industry that a strong Aboriginal heritage regime is important to their businesses as well.
Protecting Aboriginal heritage places is now fundamentally important to any mining company's social licence to operate. Rio Tinto's destruction of the Juukan Gorge rock shelters makes that clear.
But what has genuinely surprised me since releasing the draft Bill has been the response of many Aboriginal leaders. While some Aboriginal people have been vocally supportive, some have been harshly critical while most have been strangely silent. I was expecting a much more engaged dialogue from the Aboriginal leadership.
The Juukan Gorge explosions may have contributed to a political environment of animosity and distrust on the part of many Aboriginal people towards the government over heritage protection. Demands that Aboriginal people should have the final say about protecting a place of cultural significance when agreement cannot be reachedâ"and not the Ministerâ"and calls for the Commonwealth to have a critical role in the heritage protection system have impeded a constructive dialogue.
Let me deal with those two issues. On the question of the so-called veto, which has been a long held principal of some Aboriginal people; if I was to propose that, there goes any chance of an historic consensus for a new law to protect Aboriginal heritage in WA.
It would be opposed by the mining industry and the Upper House of the State Parliament and we would be stuck with the discredited 1972 Act. And I personally don't think an enshrined Aboriginal veto would necessarily be a good thing. It would be a disincentive for agreement making, which underpins the proposed heritage protection system, and could discourage the development of positive relationships between Traditional Owners and land users.
And let's face it, modern expectations by shareholders and the broader community means that, now, Traditional Owners already have the power of veto. Juukan Gorge shows that it is almost impossible for a mining company to get a resource development happening if it is opposed by Traditional Owners.
As for some Aboriginal people's calls for an elevated role for the Commonwealth to protect Aboriginal heritage, this only serves to distract positive dialogue about establishing the new system in WA. The Commonwealth simply muddies the waters. The 1984 Commonwealth Indigenous heritage law has rarely been used in WA. It certainly did not save the Juukan rock shelters. And the question must be asked; what is the evidence of Commonwealth support for Aboriginal people in WA over the past two decades?
The Commonwealth's commitment in this space should be to fund adequately, in partnership with the State, the Native Title entities which will be the backbone of the proposed heritage protection regime in WA.
Good cultural heritage protection is fundamental to resetting the relationship between First Nations peoples and the State of Western Australia. This is the time for Aboriginal people committed to self-determination to engage with the State creatively about how best to ensure that Aboriginal controlled entities can be best equipped to protect Aboriginal cultural landscapes.
It is not a time for the old politics of marginalised Aboriginal people stuck in their trenches, firing bullets of symbolic rhetoric of protest. I truly believe that the Aboriginal Cultural Heritage Bill 2020 is national best practice in law to protect Aboriginal cultural heritage, but it will require a committed partnership between Traditional Owners, the State Government and industry to make sure it works.
By Ben Wyatt
Ben Wyatt is the WA Treasurer; Minister of Aboriginal Affairs; Finance; and Lands.