Despite grave concerns raised by Aboriginal land councils, legal experts, investor groups and the United Nations, Western Australia's Aboriginal Cultural Heritage Act was passed unamended overnight.
The WA Government rejected amendments that would have substantially increased the rights and powers of Aboriginal people under the Act.
Labor Senator for Western Australia Pat Dodson today condemned the Western Australian Labor government for failing to protect Aboriginal heritage and stop the "tyranny of cultural genocide".
"It's a discredit to the legislators and particularly those who advise the legislators," Senator Dodson told Guardian Australia.
"If you look back at the history of Western Australia, it hasn't been so advanced in this space for a very long time and this was the one opportunity it had to be a bit advanced, and it has failed."
The National Native Title Council (NNTC) said early this morning that it "openly condemns" the Act, stating the bill was not co-designed with Traditional Owners, as required by national best practice standards and recommended by the Juukan George inquiry.
NNTC CEO, Gundjitmara Djabwurrung man Jamie Lowe, said the Council had "stated repeatedly" that the bill "does not make Traditional Owners the decision makers in the protection and management of their cultural heritage".
"If you want to change a history of heritage destruction to a future of heritage protection, Aboriginal people must have an independent right of review for ministerial decisions, with genuine power to make decisions about heritage sites," he said.
The NNTC noted that a permit system still remains in place for some activities "not dissimilar to the Section 18 system that enabled the legal destruction of Juukan Gorge".
The new bill also means Traditional Owners must negotiate a cultural heritage management plan "for which their consent is not required, whereas for other activities they are not required to be consulted at all".
The Council also stressed that the new Act is structured in a way that, in effect, allows developers and proponents to appeal ministerial decisions to the State Administrative Tribunal, while Traditional Owners do not have the same right to challenge Ministerial approval of a plan.
Greens MLC Dr Brad Pettitt moved amendments last night to increase the rights and powers of Aboriginal people under the act and to enhance protection for Aboriginal heritage, including providing the right to appeal Ministerial approval of a heritage management plan to the State Administrative Tribunal; to expand the definition of heritage to include of both tangible and intangible Aboriginal cultural heritage consistently throughout the legislation; to expand the definition of what is considered harming a site; and to give Aboriginal organisations the equal right to appeal Heritage Council decisions to the Minister. All of his amendments were voted down.
Legal academic and law Professor Greg McIntyre, the WA Law Society, and former WA Law Society president Nicholas van Hattem have described the new Act as containing elements of "substantive racial discrimination" or as "racist".
"On the face of it, they have removed not only the right of Aboriginal parties to seek review [of the approval of a heritage management plan] but also mining companies and developers, but when you look at the Bill as a whole… the Minister is subject to review on a whole range of other matters that only involve [appeals by] developers and miners," said Dr McIntyre.
The WA Law Society's current president, Jocelyne Boujos, wrote to the Minister for Aboriginal Affairs Stephen Dawson on December 8, acknowledging that the new legislation included improvements on the notoriously racist 1972 Act, but also urging a number of changes including providing the right to appeal Ministerial approval of a cultural heritage management plan to the State Administrative Tribunal.
In November, 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), warned that the bill will fail Aboriginal people and is insufficient in protecting cultural heritage.
Queensland LNP MP Warren Entsch, who chaired a committee that examined Rio Tinto's destruction of the cultural site at Juukan Gorge, told the ABC yesterday that he had asked several times to see a copy of the draft Bill before it was tabled in WA parliament, but it was not provided to the committee.
He said that when committee members did see the bill, they were "quite alarmed" at its "serious deficiencies", and took the unusual step of writing to WA premier, Mark McGowan, expressing their concerns.
"The four major points that we raised, there was first of all, the due diligence assessment process is still in the hands of the proponents. It means that the proponents, not the Aboriginal people, will have the capacity to make decisions on this," Mr Entsch said.
"The minister has the ultimate power to decide whether an activity can go ahead if the parties cannot agree on the cultural heritage management plan. The minister can override traditional owners' refusal to give consent – that's a serious problem."
On 3 December, Vice-Chair of the United Nations Committee on the Elimination of Racial Discrimination, Marc Bossuyt, wrote to the Australian Government raising a number of concerns about the then Cultural Heritage Bill and urging it to investigate the legislation.
The Committee had been contacted in by a group of senior First Nations people led by Dr Hannah McGlade who made the case that the legislation was incompatible with Australia's international obligations on racial discrimination and requested a review.
In their request, Mr Muir, Slim Parker, Dr Anne Poelina, Clayton Lewis and Dr McGlade noted the Bill does not adequately address the structural and historical issues and inequalities which have underwritten the past and contemporary destruction of cultural heritage in WA.
Minister Dawson has previously said the new Act will "align with Commonwealth Native Title laws and most importantly, give Aboriginal people the right to make decisions on matters impacting their cultural heritage".
"This Bill is the result of extensive consultation which will continue throughout implementation, starting with a co-design approach to the supporting documents that will help enact these new laws," he said in November.
During the debate yesterday afternoon, Minister Dawson "it could be up to 24 months before the Act comes into operation".
"I would love for the co-design process to commence and conclude by the end of next year, and then there is the writing of the regulations, but to be realistic it could take up to 24 months," he told the Legislative Council.
NNTC said this morning it will "now be calling on key beneficiaries to measure application of the new heritage management regime against the best practice principles from Dhawura Ngilan, to ensure their activities don't impact heritage sites unnecessarily".
"[We] will also continue to appeal to the Federal Government and United Nations. For Western Australian Traditional Owners', the demonstration of discriminatory intent of legislation is now real. Yet the likes of the National Native Title Council won't stop working until its voice is heard, as Australia continues to lose cultural heritage treasures, due to foreseeable failure of the new Western Australia government mandate."