There is a familiar narrative in the way Aboriginal heritage is discussed in Western Australia.
It's a decades-old plot concerning "heritage rorts", "price gouging"[1], and delay and inefficiency in securing Aboriginal heritage approvals (the real intent of heritage legislation). This is particularly clear in recent media and industry commentary concerning the Native Title and Aboriginal Cultural Heritage Processes Review, by the former CEO of South West Aboriginal Land and Sea Council and current member of the Native Title Tribunal, Glen Kelly. The Review itself is greatly welcome: careful, detailed and uncomfortably clear about the structural failures in Western Australia's native title and heritage regime. What is not welcome is the Industry spin that has followed, selectively recasting the Review as a story about expensive consultants, slow PBCs and unwieldy approvals.
The distinctive voice of the Association of Mining and Exploration Companies is as always, very distinct.[2] AMEC has long framed heritage and native title processes as barriers to exploration, Aboriginal bodies as "gatekeepers" (as they rightly should be!), and heritage professionals as costly, and unnecessary intermediaries.[3]
A long campaign to make land access 'cheaper, faster and more predictable'
But this is not a sudden, altruistic concern for professional standards or better practice, but instead is part of a much lengthier campaign to make land access cheaper, faster and more predictable. And that is not, in itself, surprising: AMEC is an industry lobby group. Its job is to lobby for its members.[4] But it becomes a more insidious problem when that advocacy is laundered through uninformed media commentary as though it's an objective diagnosis of the heritage system, rather than a sectional interest group masquerading as reformers. And the risk is that a genuine conversation about standards, ethics and regulatory failure become another vehicle for undermining the very people and processes that stand between proponents and unfettered access to Country.
Media reporting has dutifully reheated AMEC's old grievances: consultant costs, money supposedly "lost" to external professional advisers, slow processes, and the tired suggestion that archaeologists and anthropologists are somehow "capturing" both the system and the "ears" of PBCs. It asks us to believe that Aboriginal people are unable to weigh advice for themselves, while politely ignoring the far more obvious example of State capture through a system in Western Australia based around mining interests, data and tempo.
The cost argument should be faced directly, because it is doing most of the rhetorical heavy lifting. AMEC and media coverage have quoted a $23,000-per-day figure for Aboriginal Cultural Heritage surveys, which sounds dramatic, when stripped of context.[5] Heritage surveys aren't conducted 365 days a year. There are necessary breaks between fieldwork, seasonal constraints, complex logistics to manage, and periods when surveys simply cannot, or should not, be forced ahead, including extreme heat, wet conditions, Sorry Business and Law time. Costs also rise sharply in remote areas, where survey teams must be safely mobilised across large distances, often with flights, vehicles, fuel, accommodation, food, communications, first aid and remote-area safety requirements built into the work. Add onto this administration, client liaison, fieldwork preparation, reporting drafting and editing, mapping and data management, cultural information controls, and the time require to make decisions safely. Of course, this work costs money, but to reduce it to a consultant windfall is a gross misrepresentation.
There is a strange contradiction in the attack on expertise, especially from a sector forever demanding "certainty". Industry wants certainty. The State wants certainty. Aboriginal people want certainty most of all: certainty about what is proposed on Country, what information is being used, how that information has been gathered, whose knowledge is relied upon, how obligations to Country may be affected, how decisions are made, and whether Country will sustain life long after the last orebody is depleted. If AMEC's complaint is that the system lacks certainty, then attacking the people whose job is to produce reliable, defensible, culturally informed and verified advice is a strange place to start.
Does the industry want 'certainty' for all, or control?
Unless, of course, the certainty being sought is not certainty at all, but ownership and control over the heritage evidence and pathway to approval. Proponents already self-assess vast swathes of the approvals landscape: they commission the baseline studies, contract the environmental consultants, run the modelling, assess the risks, hold and control access to the data, and decide the levels of impact and mitigation measures regulators are asked to accept. Heritage assessment is one of the few remits, albeit imperfectly, that has been clawed back from proponent control. Archaeologists and anthropologists were historically contracted by the mining company or developer rather than the Traditional Owners whose Country and cultural authority were being assessed. In many parts of the State, that model persists, particularly where PBCs do not have capacity to act as the heritage service provider themselves. Industry's call for "certainty" should instead be read as the restoration of control over one of the remaining parts of the approvals machine that Aboriginal authority and independent scrutiny can interrogate and interrupt.
That is precisely why some Aboriginal organisations remain reliant on external advisers. They are not operating in a fair or balanced system. Aboriginal Corporations and PBCs are expected to act as native title and tenement managers, cultural governance bodies, project assessors, information custodians and, in the virtual absence of credible State regulation, regulatory enforcers in their own right.
The failure of the State regulator is not theoretical. It is etched into the recent history of Aboriginal heritage destruction: Juukan Gorge, Murujuga, and now the Fortescue Metals Group-Yindjibarndi compensation proceedings, which have put renewed scrutiny on a State approvals system still capable of authorising profound impacts to Aboriginal heritage. The Solomon Hub operations proceeded with State approval but without Yindjibarndi consent, and the State's own submissions accepted expert archaeological evidence that 249 sites within the project area had been subject to section 18 consents under the Aboriginal Heritage Act, with the majority destroyed.[6]
That State failure is precisely why so much of the protective and regulatory burden is pushed back onto Aboriginal organisations
In the absence of a regulator willing or able to reliably prevent harm before it occurs, Aboriginal Corporations and PBCs must manage native title rights and interests, track compliance, brief Boards and cultural committees, coordinate meetings and member communications, abide by cultural protocols, manage ICIP and sensitive information, maintain heritage records and spatial data, respond to future acts and activity referrals, and deal with the relentless stream of proponent requests, inside timeframes built solely around commercial urgency rather than Aboriginal decision-making, and without the baseline funding, staffing, or specialist expertise necessary to stay afloat.
This is where good technical advisers matter. Independent heritage and environmental experts support this work by giving Aboriginal organisations the tools to interrogate what is being put in front of them. They help review work programs, maps, GIS data, environmental reports, old survey methodologies, previous clearances, agreement terms, legislative loopholes and regulatory pathways. They test proponent assumptions, identify risks that may not be obvious from the referral material, advise on whether old surveys are fit for purpose, protect information from misuse, and ensure that cultural, environmental, economic and cumulative impacts are properly identified long before decisions are made. Good advisers provide Aboriginal organisations with the technical footing to respond on more equal terms.
These are the people who help PBCs interrogate proponent corporate-controlled data and deadlines and navigate a system that is legally onerous, chronically under-resourced and structurally tilted towards proponent and State interests, while Aboriginal organisations are expected to make careful cultural decisions with partial information and impossible timeframes. Restricting access to this advice, or narrowing its scope, would not make the system fairer; rather, it would make it easier to steamroll. It would leave Aboriginal people sitting across the table from obscenely well-resourced proponents without equivalent technical support to interrogate impacts to Country from the system stacked against them.
This is the real issue here. Of course, shoddy consultants exist and should be exposed. No one benefits from lazy methodologies, substandard reporting, or particularly, conflicts of interest. But the industry campaign to smear heritage professionals (and by extension, the native title parties they advise) as self-interested, unethical, or ruinously expensive is straight out of the AMEC playbook. Industry's objective isn't higher standards, but to sever Aboriginal Communities from one of the few independent sources of technical advice, institutional memory and leverage available in WA's grotesquely unbalanced system.
Heritage practice has 'evolved in a vacuum' in WA due to the mining industry's powerful influence
The hypocrisy is that the same purportedly weak standards now being used to attack the heritage profession have, for a long time, worked perfectly well for industry when they produced the desired outcomes. Heritage practice has evolved in a vacuum in WA due to the mining industry's long hold over how it is scoped, commissioned, reported and judged. This is a State beleaguered by Stockholm Syndrome.
While other jurisdictions aren't perfect, the contrast is important. Victoria gives Registered Aboriginal Parties a formal decision-making role in Cultural Heritage Management Plans for high-impact activities. The Northern Territory has an Aboriginal Areas Protection Authority certificate system, where certificates are legally binding and set conditions for works to avoid damage or interference with sacred sites. WA, by contrast, has persisted with its thread-bare model of heritage practice: siloing sites from cultural landscapes, ignoring intangible heritage, and taking a "free market" approach to consultation. Sadly, this has shaped the heritage profession in its own image so that many practitioners know only how to map places and capture data in the way, and to the extent, that industry rewards.
There is a further perversity in the State's response to the Review. Predictably, it has accepted the neat, low-risk reforms: retire the outdated Regional Standard Heritage Agreement, offer some PBC support, regulate archaeological and anthropological consultants and develop technical guidance on their survey work and reporting standards - likely with preparatory help from the very heritage professionals now being pilloried. All of that is useful. But the recommendations the State rejected are the ones that would have put pressure where power actually resides.
In its formal response to the Review Recommendations[7], the State did not support a Proponent Code of Conduct for proponents negotiating Heritage Protection Agreements, even though much of the dysfunction identified in the Review is born out of the very conduct such a code would be designed to address. The Review was careful to say the Code would not force agreement or import the legal tests of the right-to-negotiate regime. It would simply require a minimum standard of professional conduct in expedited procedure negotiations, with breach capable of affecting tenure grant. In other words, the State was willing to support codes and standards for heritage professionals advising PBCs, but not an enforceable conduct standard for proponents sitting across the negotiating table.
The State did not support the idea of compensation for exploration and prospecting, despite the Review affirming that native title remains a compensable property right. Nor did it support a functional review of DPLH and the Aboriginal Cultural Heritage Committee, even after the Review identified site assessment backlogs, inconsistent statutory practice and unclear internal thresholds as key pressure points affecting process and decision-making efficiency.
Even where the State supported reform to its own section 18 infrastructure, it did so only 'in principle'
Recommendation 14 went to the heart of DPLH and ACHC assessment processes: clearer internal frameworks, meaningful consultation requirements, officer training, procedural fairness and administrative law. The Review identified that the absence of this guidance drives low officer confidence, uncertainty, complexity and cost. While eager to regulate heritage professionals, the State is clearly loathe to mend its own regulatory machinery.
The industry response has been just as revealing. Adrian Morey of the Chamber of Minerals and Energy of Western Australia, has said it is "critical that industry and Traditional Owners have a genuine opportunity to inform the development of new guidelines and standards to ensure they are workable for all parties."[8] The purpose of heritage standards cannot be to make heritage practice and protection more tolerable to industry. These standards must be led by Aboriginal people, PBCs, and supported by qualified heritage professionals, with any industry input appropriately limited to implementation issues. It should not be co-designing the very standards that are supposed to keep it in check.
Kelly's serious, careful and genuinely useful Review risks becoming exactly what industry wants it to be: a story about 'greedy consultants', incompetent PBCs and an unworkable approvals process. The much harder truths which underlie the report are about defective legislation, under-resourcing of PBCs, proponent misconduct, State inertia, and a regulatory culture calibrated to the lowest common denominator.
Reform, standards, and accountability are desperately needed. But if this reform process is misdirected to weaken the role of independent advisers, curtail Aboriginal decision-making, bully PBCs, or make land access cheaper while leaving the structural imbalance intact, then it will simply reproduce the same old culture of 'clearance at all costs', repackaged as 'efficiency', or, even more insultingly, as 'self-determination'.
Dr Anna Fagan
Managing Director & Principal
Fagan Heritage Pty Ltd
[1] Colleen Egan, "Heritage rorts cost $100m a year", The West Australian, 27 November 2014; Peter Ker, "Heritage 'price gouging' strains miners and native title groups", Australian Financial Review, 5 June 2024.
[2] Paige Taylor, "WA Aboriginal heritage costs soar as new report demands reform", The Australian, 9 June 2026.
[3] Association of Mining and Exploration Companies, Submission: Review of the Aboriginal Heritage Act 1972, 31 May 2019, p.3; AMEC, Western Australia Update, June 2024; AMEC, "Review into Native Title and Aboriginal cultural heritage a necessary step towards progress", Media Release, 30 May 2025. Cf Australian Association of Consulting Archaeologists Inc, "AACAI Media Release - Response to accusations of 'price gouging' by archaeologists and anthropologists from AMEC", 9 June 2024.
[4] Ironically, these same industry voices - who opposed, resisted or helped repeal the newer 2021 Aboriginal Cultural Heritage Act - continue to complain about cost, uncertainty and process under the archaic 1972 framework for which they advocated return (Association of Mining and Exploration Companies, Annual Report 2023).
[5] Association of Mining and Exploration Companies, 2026-27 State Budget Submission, February 2026, p. 4; Duncan Evans, "$23,000 per day: WA mining companies fork out $10 million for Aboriginal cultural heritage surveys", news.com.au, 26 May 2026.
[6] State of Western Australia, First Respondent's Closing Submissions, Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia & Ors, Federal Court of Australia, filed 13 December 2024, [291].
[7] https://www.wa.gov.au/government/publications/native-title-and-aboriginal-cultural-heritage-processes-review-government-response-recommendations
[8] Chamber of Minerals and Energy WA, "Cultural heritage review offers path to clearer, more workable system", 9 June 2026.
