In August 2021, as an expert member of the UN Permanent Forum for Indigenous Issues, and with First Nation's peoples from Western Australia, I wrote to the UN Committee on the Elimination of Race Discrimination (CERD) requesting they review the Western Australian government's proposed Aboriginal Cultural Heritage legislation.
This law was widely opposed by Aboriginal land councils and representative bodies. The 'authors' of the UN complainant are cultural leaders from throughout the state and include Banjima Elder Slim Parker, NNTC chair Kado Muir, Nyikina water rights expert Dr Anne Poelina and Clayton Lewis representing Aboriginal Heritage Action Alliance. We were assisted by the Environmental Defenders Office.
Recently we received a response from the UN Committee who support the complaint and make it clear that WA's Aboriginal heritage laws may breach the prohibition of racial discrimination and Indigenous people's rights under UN law.
The UN Committee, one of the oldest and most respected treaty bodies that works within the Office of the High Commission for Human Rights in Geneva said this law won't protect Aboriginal cultural heritage and cannot stand. This needs to be taken seriously by the Prime Minister and Premier Roger Cook's government who purport to respect Indigenous people's rights.
Aboriginal people's concerns to date have not been heard by the WA government who have consistently failed to protect our people's culture and heritage in a fair and non-discriminatory manner. One main issue is the right of the Minister for Aboriginal Affairs to authorise the damage and destruction of Aboriginal heritage sites, acting as the 'umpire' over and above the rights of Aboriginal people to protect cultural sites.
As set out in the original letter to CERD:
WA is a mining state where the interests of miners have clearly been privileged over the interests of Traditional Owners in protecting their cultural heritage. For example, from 1 July 2010 to 14 May 2020 on land covered by a mining lease there had been 463 applications for permission to destroy Aboriginal heritage (known as 'section 18' applications in the AH Act) and none of them were refused.
The UN complaint was lodged in August 2021, a little over a year after mining giant Rio Tinto destroyed the 46,000-year-old Juukan Gorge rock shelters in WA's Pilbara. Rio Tinto had in fact destroyed the ancient sites with permission under section 18 of the Aboriginal Heritage Act 1972 (WA).
After the UN complaint was lodged, Premier Roger Cook's government passed the law - but following protest by pastoralists and industry, quickly repealed it and reinstated the original Aboriginal Heritage Act 1972 that authorised the destruction of Juukan Gorge, as well as thousands of Aboriginal cultural heritage sites since 1972. A few additional changes were made including a 'right of appeal' for Aboriginal people of a section 18 authorisation decision before the State Administrative Tribunal which can be overruled by the Minister of the day, thereby ending the matter in favour of the State.
Although the federal government promised to reform national laws following the Senate Inquiry into Juukan Gorge we saw no follow up on those commitments. The only activity appears to be the promotion by Minister Tanya Plibersek of a guide for mining companies concerning Aboriginal heritage developed by lawyer Terri Janke, however, as I made clear at the UN Permanent Forum on Indigenous Issues in April this year, a guide is not law (and non-binding) and does not reflect the standard required by the UN Declaration on the Rights of Indigenous Peoples. The Declaration requires legislative and constitutional reform supported by appropriate policy.
In their letter to the Australian government dated 26 April 2024 the CERD said it is 'deeply concerned' the WA law contravenes the Convention and doesn't protect Aboriginal cultural heritage rendering it vulnerable to further destruction by mining and development. They noted that since the commencement of the amended 1972 Act on 15 November 2023,13 landowners have been given consent with conditions under section 18 to use the land for a purpose that is likely to damage or alter Aboriginal cultural heritage, one of those landowners being Rio Tinto, the company that destroyed 46,000-year-old heritage sites at Juukan Gorge.
Mining company Equinox Resources has also applied for a section 18 consent for the Hamersley Iron Ore Project without first consulting with Traditional Owners, who are concerned it will impact two significant heritage sites.
Accordingly, the WA government was advised by the UN that all consents to landowners given under the post 15 November 2023 legislative framework are 'duly reviewed or revoked' considering the State party's obligations under CERD and other international human rights obligations and standards. All private landholders granted section 18 permits were advised that they must 'cease and desist all operations that have negative implications for the cultural heritage rights of Indigenous people'.
The UN Committee also noted that Australia's periodic report to the Treaty body was due in 2020 and must be submitted as a matter of urgency. As the Human Rights Commission begins the work of the Anti-Racism strategy, it is imperative this work include Aboriginal cultural heritage and state and federal responsibilities to respect Indigenous people's cultural rights.
Australia's commitment to the UN must be evidenced through appropriate engagement and national domestic legislative standards. Anything less undermines Indigenous state relations and demonstrates a lack of commitment to human rights, to equality and non-discrimination. Recent global events highlight that disregard and violation of UN law is not in Australia's national interests; we will never address racism while failing to respect Aboriginal people's cultural rights. Assimilation and destruction of Indigenous cultures is a national shame that must be relegated to our past.
Dr Hannah McGlade is a Kurin Minang human rights expert, law academic and member of the United Nations Permanent Forum on Indigenous Issues.
