The United Nations Committee on the Elimination of Racial Discrimination has been urged to take a stance on Western Australia's bungled attempt to reform the Aboriginal Cultural Heritage Act.
A letter sent to UNCERD chair Varene Shepherd this week by Environmental Defenders Office members Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade raised the group's serious concerns about WA's cultural heritage law reform process and requested the organisation make a formal decision on the matter.
The WA government admitted it "took things too far" as it announced last week it would revert to the 1972 laws covering Aboriginal cultural heritage in WA, which were in force when Rio Tinto were permitted to destroy sacred rock shelters at Juukan Gorge in 2020.
Premier Roger Cook said tweaks to the 50-year-old Act would prevent another catastrophe like the mining titan's and apologised for the stress, confusion and division the new laws had created for stakeholders.
But Dr McGlade, a Curtin University school of law associate professor and expert member of the UN Permanent Forum on Indigenous Issues, said the group was extremely concerned at the lack of Aboriginal consultation before the 2021 Act was repealed.
"It's very disappointing the WA Government under Premier Cook's leadership has once again shown failure to respect Indigenous peoples' right to cultural heritage under the frantic legislative reforms passed recently," Ms McGlade said.
The Permanent Forum is an advisory body to the UN's Economic and Social Council and has the mandate to discuss Indigenous issues related to economic and social development, culture, the environment, education, health and human rights.
Dr McGlade, a Noongar human rights lawyer and academic who has published widely on many aspects of First Nations legal issues, said the latest change to legislation in WA did not constitute effective remedy.
"The Bill gives Aboriginal Affairs Minister Tony Buti further rights to intervene and 'call in' appeals from the State Administrative Tribunal, thereby allowing the Premier to determine the matter and removing the right to be heard by the tribunal," part of the letter to the UN said.
"We also note the SAT has no expertise in Aboriginal cultural heritage and fails to even include Aboriginal members in the tribunal composition, therefore this is also problematic and unacceptable."
The EDO is not the only organisation concerned at the lack of consultation with First Nations organisations, with prominent bodies such as the Kimberley Land Council and the Puutu Kunti Kurrama and Pinikura Aboriginal Corporation, whose sacred caves Rio Tinto destroyed in 2020, also claiming they were not part of discussions the Cook government had with industry and stakeholders, including miners and farmers, before repealing the doomed Act last week.
PKKP land and heritage manager Jordan Ralph said reverting to the culturally-inappropriate 1972 legislation was among the worst outcomes for Aboriginal cultural heritage protection in Australia and has demanded Dr Buti clarify a range of issues after its change of heart.
"This is nothing short of a cluster and again, First Nations people are being treated as second class citizens in their own Country," Dr Ralph said.
The letter to the UN outlined the Environmental Defenders Office position that Australia's approach to cultural heritage protection should be pursued at a national level by the Albanese government.
"Traditional owners should be able to effectively enforce Commonwealth protections through civil action," it said.
The group also said transformative change was needed regarding recognition of First Law, which it believed was an intricate part of the whole of Indigenous peoples' cultural heritage.
"While we recognise that co-design can be a lengthy process, this does not mean that national heritage standards cannot be enacted immediately as a stop gap until this process concludes," they wrote.
